Crime XXXXXXX- Gross Negligence Manslaughter II

The subjective recklessness test was later overshadowed by the test in R v Lawrence (1981). In R v Lawrence (1981) the accused was riding his motorbike and while doing so he ran into a pedestrian who was subsequently killed as a result of the accident that followed and the accused was charged.

The court held that in order for the rider or the driver to be guilty of manslaughter the following criteria or requirements must be satisfied:-

1) The accused was riding or driving in a manner that created an obvious and serious risk to other road users and property.

2) The rider or the driver by riding or driving in the manner he or she did, did not give thought to the risk or having given it some thought dismissed it.

The test in Lawrence is used to establish reckless manslaughter and it has an objective element in it for example when deciding 1) that the accused was riding or driving in a manner that created an obvious and serious risk to other road users, the benchmark that is to be used to determine whether there was an obvious and serious risk to other road users is that of the reasonable man as opposed to the second limb of the Cunningham test which says that the defendant can be convicted if he or she was reckless as to whether such risk should occur or not and it does imply that the defendant can be convicted if he really didn’t give the matter that much thought and death results.

Gross negligence is a step above carelessness and a step above recklessness and hence the defendant’s actions can be described as being grossly negligent.

There isn’t a stark or striking difference between reckless manslaughter or gross negligence manslaughter and a lot depends on the facts of each case.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXIX- Gross Negligence Manslaughter I

In addition to involuntary manslaughter (reckless manslaughter) and constructive manslaughter (unlawful act manslaughter) there is another category of manslaughter known as gross negligence manslaughter. A defendant can be convicted of gross negligence manslaughter when the negligent act deprives someone of his or her life.

In order to establish or obtain a conviction “for gross negligence manslaughter the facts must be such that, in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment”.

In R v Bateman (1925) a doctor was charged with manslaughter for causing the death of a woman in his care who died during childbirth. It was held that in order for the doctor to be convicted of manslaughter the scope of negligence or the negligent act must not be something that may be defined as trivial or shortsightedness but must be an act that goes well beyond that or negligence that could be described as serious. The doctor was found to be not guilty.

The test that is to be applied in order to determine if the defendant is grossly negligent or otherwise is the subjective recklessness test or the test R v Cunningham (1957).

In R v Cunningham (1957), the appellant ripped a gas meter from a wall in an attempt to steal money that was deposited in a coin box attached to the meter and as a result gas seeped through fissures in the wall and escaped to the neighboring property where Mrs. Wade (Sarah) was sleeping.

“The appellant was convicted upon an indictment framed under s 23 of the Offences against the person Act (1861) which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade”

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either

(1) An actual intention to do the particular kind of harm that in fact was

done; or

(2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXVIII – Involuntary Manslaughter IX

In order to successfully obtain a conviction for gross negligence manslaughter the prosecution does not need to prove that the defendant foresaw the risk i.e. foresight of risk is not a prerequisite to obtaining a conviction for gross negligence manslaughter.

In R v Mark and Another (2004) the defendants were managers in a company employed to clean a resin (a sticky flammable substance exuded by trees) storage tank. Two apprentices were cleaning the tank when one of them knocked over a halogen lamp, resulting in an explosion in which one of the apprentices was killed. The defendants were tried and convicted for gross negligence manslaughter. The defense appealed to bring the matter before the House of Lords.

It was decided that the test that was to be applied was the subjective recklessness test or the test in R v Cunningham (1957) i.e. the defendant was “reckless as to whether such harm should occur or not”. The defendants were refused leave to appeal the conviction.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXVII – Involuntary Manslaughter XIII

A defendant can be charged with gross negligence manslaughter if he or she omits to do something that ought to be done especially if there is a common law duty or a statutory duty that compels him or her to do so.

Hence gross negligence manslaughter is an offence that can be committed by doing something that the defendant ought not to do or failing to do something that the defendant ought to do i.e. commission or omission.

In R v Hood (2003) the defendant failed to take his sick wife to a doctor and failed to bring her illness to the attention of trained medical professionals. He allowed his wife to languish for three weeks before he called for an ambulance. His wife died in the hospital. The husband was charged with murder and acquitted. He was convicted instead of gross negligence manslaughter.

Whether the action of the defendant(s) amounts to an omission or otherwise is for a jury to decide.

In R v Woods and Hodgson, the defendants carelessly left some ecstasy tablets in a cigarette packet. One of the neighbor’s children, a ten-year-old child, was in the habit of going around and playing with the defendants’ baby. The child somehow got a hold of the cigarette packet and swallowed some of the tablets. The defendants’ failed to call an ambulance for about an hour and a half and as a result the child died.

The defendants were charged with gross negligence manslaughter by way omission but were found to be not guilty by a jury.

In R v Willoughby (2004) the defendant, a pub owner was in debt and unable to make enough money to cover his debts, he employed the deceased to set fire to his pub so that he could claim the insurance payout. As agreed the deceased went around to set fire to the pub but while he was doing so there was an explosion and he died as a result. The defendant was charged and convicted of manslaughter. The defense appealed on the grounds that the defendant did not owe the victim a duty of care.

The appeal was dismissed. It was held that once the judge has decided that there is enough evidence to establish a duty of care, whether a duty or care exists or otherwise is for a jury to decide and the jury having so decided, the conviction must stand.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXVI – Involuntary Manslaughter XII

The need to establish that the defendant owes the victim(s) a duty of care was further affirmed in R v Wacker (2002). In the case the defendant was transporting 60 illegal immigrants on board a refrigerated truck from Rotterdam to the United Kingdom. There was only one air vent available and prior to the truck boarding a ferry, the air vent was shut and the passengers were told not to make any noise to prevent detection.

The air vent remained shut for 10 hours, the defendant forgot to reopen it and 58 of the passengers died as a result. The defendant was charged and convicted of manslaughter.

The defendant argued that the duty of care principle which is commonly used in tort does not extend to criminal law. The argument from the duty of care perspective was that the driver owes his passengers a duty of care like any other ordinary driver to ensure that he takes reasonable care to ensure that his passengers arrive at their destination safely. The only exception here was that the act of taking the passengers i.e. the illegal immigrants, was illegal.

It was held that for public policy reasons the duty of care principle can be extended to criminal law and the fact that the act was in itself illegal (ex turpi causa non oritur action) does not negate the application of the duty of care principle. The defendant was accordingly convicted and sentenced.

In R v Graves and Coates (2003) (Corporate Manslaughter) the defendant was the owner of a haulage company. He was charged together with one of his lorry drivers for gross negligence manslaughter (gross negligence by a company).

The driver crashed into the back of a car killing the other driver. He’d been working continuously for 20 hours without proper sleep and rest and as a result he suffered from a lack of sleep or sleep deprivation. Both the owner and the driver were convicted and sentenced for gross negligence manslaughter.

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Crime XXXXXXV – Involuntary Manslaughter XI

It is also easier to establish gross negligence manslaughter in instances where the defendant owes the victim a duty of care and death resulted from a failure of the defendant to comply with that duty of care.

For example, a train driver or even a bus driver for the matter, owes his or her passengers a duty of care to ensure that the train or the bus is driven in the manner that is prescribed by the law and that all the safety requirements are complied with.

In R v Singh (1999) the landlord left his son in charge of his property in Ipswich while he was away and during that time one of the tenants died of carbon monoxide poisoning. The defendant was convicted and the defense appealed.

The conviction was upheld. The defendant owed the victim a duty of care to ensure that the amenities on his property were in good working order and a failure to do so had led to the death of the victim.

In R v Bowles and Bowles (2000) (Corporate Manslaughter) the defendants were owners of a haulage company. The driver of one of their lorries had been working excessively long hours, above what was advisable or allowed, and as a result fell asleep while driving and caused an accident on the motorway which killed two motorists. At the time he was in a dangerously exhausted state and had been driving in excess of 60 straight hours without proper breaks or rests.

The owners of the company were charged and convicted of corporate manslaughter. It was their failure to adhere to proper guidelines and safety measures that had caused the accident.

In R v Great Western Trains (2000) (Corporate Manslaughter) the automatic warning system on a train was not working and was the cause of a train crash between a passenger train moving from Swansea to London and a freight train. 125 people were killed in the ensuing accident.

The driver had ignored two warning signals and was not paying attention at the time but despite that the prosecution was unable to prove that any senior executive of the company was responsible for the accident and the requirement that an individual of the company be guilty of manslaughter (doctrine of identification) before the company can be held to be liable or responsible was not satisfied. As it stands it is a prerequisite to establishing corporate manslaughter.

Nonetheless, the company pleaded guilty and accepted responsibility for the accident.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXIV – Involuntary Manslaughter X

With regards to manslaughter charges brought against a corporation for the conduct of its employees for example when the driver of a train drives too fast and as a result a number of passengers that were on board the train lose their lives in an ensuing accident, in order to convict the driver or the members of the corporation responsible for ensuring the safety of the passengers, the prosecution needs to establish 1) gross negligence and 2) that the gross negligence can be attributed to someone in the corporation as opposed to the corporation itself.

In A-G’s ref no 2 of 1999 (2000) the defendant, a rail operator, was charged with manslaughter, following a train accident in which 7 passengers lost their lives. During the trial it became evident that despite the driver being an experienced driver, relevant safety procedures were not observed and it was the lack of compliance or the inability to comply with the stipulated safety procedures at that time, that had caused the accident.

The attorney general referred the matter to the House of Lords on two points of law: –

  1. Can the defendant be convicted of gross negligence without taking into account the defendant’s state of mind? The answer is yes. The test that is to be applied is the objective test and the defendant can be convicted for gross negligence manslaughter without taking into account his state of mind, though it is easier to do so if it can be established that he was reckless. Gross negligence is a strict liability offence and therefore there is no need to establish mens rea (or the mental element). It can be inferred by the defendant’s conduct.
  2. However, a corporation by itself cannot be convicted of gross negligence manslaughter i.e. the gross negligence needs to be attributed to someone within the corporation who fulfills the elements needed to establish the crime, in the absence of which, the defendant cannot be convicted.

The test to establish gross negligence is the objective test or the reasonable man’s test see R v Adomako (1994) where the defendant was convicted for manslaughter when the oxygen pipes supplying oxygen during a surgery got disconnected. It is however easier to prove gross negligence when it can be established that the defendant was reckless.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXIII – Involuntary Manslaughter IX

When a person is in charge of a group of people or appointed to be in charge, he or she had to take reasonable steps to ensure that those that are under his or her care are not exposed to an unnecessary  or an unwarranted risk and a failure to do so may result in a conviction for manslaughter.

In R v Litchfield (1998) the captain of a ship who took an unsafe route and relied too heavily on his engines despite knowing that the fuel that was used to operate the engines was contaminated was convicted of manslaughter when the ship capsized off the Cornish coast and three crew members died as a result.

It is an offence to negligently endanger a ship under s. 58 of the Merchant Shipping Act 1995 which regulates conduct with regards to endangering ships, structures or individuals. The section reads as follows:-

58 (1) This section applies—

(a) To the master of, or any seaman employed in, a United Kingdom ship; and

(b) To the master of, or any seaman employed in, a ship which—

(i) Is registered under the law of any country outside the United Kingdom; and

(ii) Is in a port in the United Kingdom or within United Kingdom waters while proceeding to or from any such port.

(2) If a person to whom this section applies, while on board his ship or in its immediate vicinity—

(a) Does any act which causes or is likely to cause—

(i) The loss or destruction of or serious damage to his ship or its machinery, navigational equipment or safety equipment, or

(ii) The loss or destruction of or serious damage to any other ship or any structure, or

(iii) The death of or serious injury to any person, or

(b) Omits to do anything required—

(i) To preserve his ship or its machinery, navigational equipment or safety equipment from being lost, destroyed or seriously damaged, or

(ii) To preserve any person on board his ship from death or serious injury, or

(iii) To prevent his ship from causing the loss or destruction of or serious damage to any other ship or any structure, or the death of or serious injury to any person not on board his ship, and either of the conditions specified in subsection (3) below is satisfied with respect to that act or omission, he shall (subject to subsections (6) and (7) below) be guilty of an offence.

As per the act, a captain of a ship can be found guilty if he or she willfully puts his or her passengers or crew at risk or omits to take reasonable care to ensure the safety of his crew and passengers. The captain can be found guilty either by way of commission or omission.

However, whether the conduct of the captain amounts to negligence or otherwise is for a jury to decide. In this instance the captain was found guilty of gross negligence and convicted accordingly for manslaughter arising out of gross negligence or gross negligence manslaughter.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXII – Involuntary Manslaughter VIII

Medical staff for example aestheticians can be convicted of manslaughter if they are found to be grossly negligent in their work and if their negligence has led to the death of a patient.

In R v Adomako (1994) the accused was an aesthetician who was in charge of administering anesthetics during an operation. While in surgery an oxygen pipe got disconnected and the patient died from the resulting complications. The accused was charged and convicted for manslaughter. The accused appealed.

The Court of Appeal dismissed the conviction but the House of Lords, on further appeal, upheld the conviction on the grounds that the cause of death was not recklessness but gross negligence in breach of a duty.

R v OLL Ltd (1994) (also known as the Lime Bay canoe disaster) (Corporate Manslaughter) the company sent a group of students into the sea, during rough weather, when conditions were harsher than normal, and as a result the canoe capsized and four of the students drowned. The defendant, the managing director of the company was charged and convicted of corporate manslaughter.

In this instance it was possible to narrow down the “controlling mind” and the mishap would not have taken place had it not been for the actions or the inactions of the controlling mind and it implies that the person in charge or the controlling mind could have prevented the mishap if he or she so desired.

It is easier to narrow down the controlling mind in smaller companies where the decision is made by a single person as opposed to large corporations where more than one person is involved in the decision making process.

In R v Henderson (1995) (Corporate Manslaughter), two boats, the Marchioness and the Bowbelle collided on the River Thames and the collision resulted in substantial loss of life.

An inquiry was held after the accident and the cause of the accident was determined to be a failure by the boat crews to keep an adequate lookout. Upon further examination the prosecution decided that there was sufficient evidence to bring a charge of manslaughter.

The case went to trial and two juries failed to reach a verdict or find sufficient grounds to convict the defendant.

  • It might be worth, for the sake of argument, in order to narrow down the controlling mind, to ask the question who among all those that were implicated could have stopped or prevented the accident and then ask:-
  1. If that person had sufficient authority to prevent the accident and
  2. If the accident would have occurred regardless of whether that person took the necessary steps to prevent the accident or otherwise.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXI – Involuntary Manslaughter VII

Earlier on under constructive manslaughter or unlawful act manslaughter we had established that a defendant cannot be convicted for constructive manslaughter or unlawful act manslaughter if the death that occurred was the result of an omission i.e. a failure to comply with a duty imposed by either common law or statute. That however does not mean that the defendant would not be guilty of reckless manslaughter or involuntary manslaughter.

In Harris & Harris, R v (1993) the defendants, the parents, refused to allow doctors to treat their daughter with insulin. The child suffered from diabetes and the child died as a result. The parents were found guilty of manslaughter.

Parents have a duty to act responsibly when it comes to making decisions with regards to their children and a failure to do so or to act in accordance with the duties imposed by either common law or statute may compel the courts to impose some form of sanctions on the parents.

A failure to act in the manner that most people would under the circumstances or the manner in which a reasonable man would in the given circumstances may also compel a court or a jury to find the defendant(s) guilty.

In R v Khan (1993) the defendants were drug dealers who supplied a girl with a class A drug (heroin). It soon became apparent that the girl needed medical attention but the defendants left her by herself and her body was found the next day dumped in a waste disposal ground.

As per the decision in R v Dias (2002) the defendants could not be found guilty of constructive manslaughter or unlawful act manslaughter and this includes situations where the dealer has prepared the solution and handed in to the victim in a syringe if the victim is “a fully informed and responsible adult”.

Here the victim was a minor (15 years old) and did not fall into the category of or cannot be classed as a fully informed and responsible adult.

The defendants were not convicted for constructive manslaughter or unlawful act manslaughter but were found guilty instead, of involuntary manslaughter or reckless manslaughter by way of omission i.e. for failing to comply with a duty imposed by either common law or statute or for failing to act in the manner a reasonable man would have in the given circumstances.

Under manslaughter the prosecution has some discretion to go for the types of manslaughter that are available to obtain a conviction but it is important that the prosecution gets it right the first time because the courts might not allow or might be reluctant to allow a retrial.

Copyright © 2018 by Dyarne Ward