The decision in R v DPP ex parte Jones (2000) was followed in DPP v Rowley (2003) and in addition to the four elements that have been mentioned earlier, in the absence of subjective recklessness there may be a fifth element that needs to be satisfied i.e. the element of badness or criminality. In short the conduct of the defendant or his or her omission must be so bad that it is not sufficient that a mere fine is imposed or the victim is compensated but calls for criminal punishment i.e. it amounts to a crime against the state.
If there is no subjective recklessness and the prosecution cannot establish badness or criminality than the chances are that the prosecution will not be able to convict for gross negligence manslaughter.
Even if the victim has made a conscious decision to inflict some harm to his or her person, for example when the victim injects himself or herself with a class A drug, the defendant (the person who supplied the drug) can still be convicted of gross negligence manslaughter for failing to call for assistance or for failing to act in the manner a reasonable man would have especially when it is obvious that the victim is going into an overdose see R v Evans (2009).
The fourth and fifth limbs i.e. that the defendant’s conduct must be so bad that a crime could be inferred and the element of badness or criminality i.e. the conduct of the defendant is so bad that it is not sufficient that a mere fine is imposed or the victim is compensated and amounts to a crime against the state, can sometimes be consolidated into a single element especially in instances where criminal behavior is blatant or obvious.
The doctrine of ex turpi causa non oritur actio or where the act is illegal, a legal remedy is not available, does not necessarily negate the duty of care principle in criminal law see R v Wacker (2002) and R v Willoughby (2004).
Whether the defendant’s conduct amounts to gross negligence or otherwise is a question of fact (it is for a jury to decide) and it is not a question of law see R v Mishra (2005).
Copyright © 2018 by Dyarne Ward