Because gross negligence manslaughter is a strict liability offence the defendant can be convicted without the prosecution establishing subjective recklessness (or the mental element (mens rea)).
It would strengthen the prosecution’s case if the defendant was subjectively reckless however that does not mean that the defendant cannot be convicted in the absence of subjective recklessness.
In the absence of subjective recklessness, in order to determine if the defendant was reckless or otherwise, the test that is to be used is the objective test or the reasonable man’s test.
In R v DPP ex parte Jones (2000) the victim was caught between the steel jaws of a crane grab bucket that was used in the docks. The buckets were used to grab bags of cobblestones and the victim was employed to unload buckets of cobblestone from a ship and during the unloading the workers were instructed to stand close to the grab buckets. The victim was caught between the jaws of a grab bucket and was instantly decapitated.
Despite the fact that the victim was killed because of a work-system that was dangerous, the CPS (Crown Prosecution Services) could not establish subjective recklessness, in the absence of which the CPS decided that it could not prosecute
An action was brought in court to challenge the decision of the CPS not to prosecute and it was held that the CPS was wrong in its decision not to prosecute.
If there was subjective recklessness or if the defendant was subjectively reckless then that would be taken into account. If it cannot be established that the defendant was subjectively reckless than the decision in R v Adomako (1994) would be applied i.e. a failure to avert an obvious and serious risk.
We can use the three limbs of negligence i.e. duty, breach and causation to determine if a reasonable man would find the defendant reckless or otherwise:-
- Did the defendant owe the victim a duty of care?
- Did the defendant breach the duty of care?
- Did the actions or the inactions of the defendant cause the death of the victim (gross negligence manslaughter is a crime that can be committed either by commission or omission)?
In addition to the three elements mentioned above, in order to obtain a conviction the prosecution must also prove:-
- The conduct of the defendant was so bad (gross) that a crime could easily be inferred.
Copyright © 2018 by Dyarne Ward