Gross Negligence Manslaughter – Summary 3

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).

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Gross Negligence Manslaughter – Summary 2

R v Adomako (1994) is a significant case as far as gross negligence manslaughter is concerned. According to the facts the defendant an anesthetist failed to monitor the oxygen pipes during a surgery and as a result the pipes got disconnected and the patient died. It was obvious that if the anesthetist was keeping an eye on the pipes he would have been able to prevent the death.

The defendant was convicted on first instance. The defense successfully appealed and the court of appeal quashed the conviction but the House of Lords on further appeal by the prosecution upheld the conviction.

The House of Lords applied the duty of care principle enunciated by Lord Atkins in the landmark civil case (tort) of Donoghue v Stevenson (1932).

The rule that you are to love thy neighbor (Matthew 22:39) becomes in law you must not injure your neighbor. In order to obtain a conviction, the prosecution must establish duty, breach, causation and a fourth element.

The elements that are to be established are as follows: –

  1. The defendant must owe the victim a duty of care
  2. The defendant must have breached that duty of care
  3. The breach of the duty must have caused the death of the victim and
  4. The conduct of the defendant was so bad (gross) that a crime could easily be inferred.

Gross negligence is a strict liability offence and the defendant can be convicted without establishing the mental element or mens rea. In A-G’s ref no 2 of 1999 (2000) it was decided that 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.

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 see R v DPP ex parte Jones (2000).

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Gross Negligence Manslaughter – Summary 1

In addition to involuntary manslaughter and reckless manslaughter there is a third category of manslaughter called gross negligence manslaughter. The test that is to be applied in order to determine if the defendant is guilty of gross negligence manslaughter or otherwise is the test in R v Cunningham (1957) and what is required is as follows:-

(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.

However subjective recklessness is not a prerequisite to obtaining a conviction for gross negligence manslaughter if it can be proven that the conduct of the defendant was reckless see  A-G’s ref no 2 of 1999 (2000).

Between R v Cunningham (1957) and A-G’s ref no 2 of 1999 (2000) there were a series of cases that broadened the scope of liability and the restrictive approach in R v Cunningham (1957) was widened in R v Lawrence (1981). The cases dealt with deaths caused by reckless driving.

The court in R v Lawrence (1981) held that in order for a rider or a driver to be guilty of manslaughter the following criteria or requirements had to 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 R v Lawrence (1981) has an objective element in it. For example when deciding if 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

The decision in R v Lawrence (1981) was reaffirmed in two other cases. In both cases the deaths were caused by either reckless driving or reckless piloting of a craft . The cases are:-

  1. R v Seymour (1983)
  2. Kong Cheuk Kwan v The Queen (1985)

At that stage the courts had yet to introduce the duty of care principle which was largely applied and limited to civil cases into criminal law and they first did so in the case of R v Adomako (1994).

The facts of the case were different from the facts of R v Lawrence (1981), R v Seymour (1983) and Kong Cheuk Kwan v The Queen (1985) and it is fair to say that the test in R v Lawrence (1981) should be limited to cases involving reckless driving.

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Crime XXXXXXVIII – Gross Negligence Manslaughter X

In R v Mishra (2005) two doctors were charged with gross negligence manslaughter for failing to take proper care of a patient who was recovering from an operation (post-op). The patient died from a wound that resulted from the operation – there was an infection and the patient died from the complications that followed. The test in R v Adomako (1994) was applied and the doctors were convicted.

The doctors appealed on the grounds that the fourth limb in the test in R v Adomako (1994), i.e. that the defendant’s conduct must be so bad that a crime could be inferred was circular and required the jury to set its own level of criminality when what was criminal or otherwise was something that should be decided by the law and not the jury and was in breach of articles 6 & 7 of the European Convention on Human Rights which reads as follows:-

ARTICLE 6

Right to a fair trial

  1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
  3. Everyone charged with a criminal offence has the following minimum rights:

(a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) To have adequate time and facilities for the preparation of his defense;

(c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court.

ARTICLE 7

No punishment without law

  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
  2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.

The conviction was upheld. It was decided that the question for the jury was not whether the defendants conduct was so bad that that it amounted to a crime but rather if it was so negligent or grossly negligent that in amounted to a crime which was essentially a question of fact (something that is to be decided by the jury) and not a question of law.

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Crime XXXXXXVII – Gross Negligence Manslaughter IX

Similarly in R v Willoughby (2004) the fact that the defendant had committed a crime did not prevent the application of the duty of care principle.

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 for 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 was 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 and all the other elements satisfied, the conviction must stand.

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Crime XXXXXXVI – Gross Negligence Manslaughter VIII

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. Let’s look at a civil case (tort) and a criminal case to make a comparison.

In Ashton and Turner (1981) (Tort (Civil)); the plaintiff was a passenger in a car that the defendant was driving. The pair had jointly committed a burglary and the defendant was drunk at the time. The car they were driving in subsequently crashed and the plaintiff sued. The court held that the principle of ex turpi causa prevented him from claiming.

The defendant clearly owed a duty of care to his passenger, the same duty that any driver owes to his or her passenger and breached the duty by not driving in the appropriate manner or the manner prescribed by law and as a result of the breach his passenger was injured.

Applying the duty of care principle strictly, the defendant should be found guilty. However, because the plaintiff and the defendant had jointly committed a criminal act, the doctrine of ex turpi causa non oritur actio was applied and the application of the doctrine negated the duty of care that was owed.

In R v Wacker (2002) (Criminal) 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 actio) does not negate the application of the duty of care principle. The defendant was accordingly convicted and sentenced.

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Crime XXXXXXV – Gross Negligence Manslaughter VII

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.

The decision in R v Khan (1993) was followed in R v Evans (2009) and once again reaffirms the fact that a defendant can be convicted of gross negligence manslaughter if he or she fails to act in the manner that is required of him or her.

In R v Evans (2009) the defendant supplied drugs to her sister (heroin (a class A drug) and failed to called for assistance when her sister started to display symptoms of overdose and the sister died as a result.

Despite the fact that the victim injected herself with the solution the court applied the duty of care principle i.e. duty, breach and causation and decided that the defendant owed the victim a duty of care and breached the duty of care when she did not call for assistance when her sister went into overdose and that breach of duty had caused the death.

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.

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Crime XXXXXXIV – Gross Negligence Manslaughter VI

DPP v Rowley (2003) further clarifies the law on convicting for gross negligence manslaughter in the absence of subjective recklessness.

In DPP v Rowley (2003) the victim was suffering from quadriplegia, microcephaly and epilepsy and was in residential care. He was left unattended in a bath and drowned as a result. The CPS decided not to prosecute and his mother brought an action challenging the decision of the Crown Prosecution Services.

In the absence of subjective recklessness it was held that once the three elements of negligence were satisfied i.e. duty, breach and causation and it could be established that the defendant’s conduct was so bad that a crime could be inferred, there is a fifth element that also needs to be satisfied.

In order to convict the jury must be able to ascertain or discern an element of badness or criminality for example as in R v Adomako (1994) where the defendant had failed to avert an obvious and serious risk.

If the defendant in the case had been paying attention the defendant would have noticed that the pipes had become disconnected and would have been able to prevent the death.

The conduct of the defendant or the omission must be so bad that it is obvious to the reasonable man that the conduct was criminal and if the CPS fails to find that element of badness or criminality than it can refuse to prosecute.

The conduct 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.

The mother’s appeal against the decision of the CPS not to prosecute was unsuccessful.

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Crime XXXXXXIII – Gross Negligence Manslaughter V

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.

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Crime XXXXXXXII – Gross Negligence Manslaughter IV

The duty of care principle that was applied in R v Adomako (1994) is similar to the duty of care principle that is applied in Tort or negligence (civil negligence) and the prosecution must establish duty, breach and causation.

The elements that are required for a conviction are as follows: –

  1. The defendant must owe the victim a duty of care
  2. The defendant must have breached that duty of care
  3. The breach of the duty must have caused the death of the victim and
  4. The conduct of the defendant was so bad (gross) that a crime could easily be inferred.

Gross negligence is a strict liability offence and therefore there is no need to establish the mens rea or satisfy the mental element. It can be inferred from the defendant’s conduct.

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 the time, that had caused the accident.

One of the questions that was asked was 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. It (gross negligence) is a strict liability offence and therefore there is no need to establish the mens rea (or the mental element).

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