Criminal Law- Gross Negligence Manslaughter
what is the test for establishing liability?
- The test is set out in Rose v R [2017] EWCA Crim 1168:
1. D owed a duty of care to the victim;
2. D negligently breached that duty
3. It was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;
4. The breach of that duty caused death
5. The circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction
when is a duty of care owed?
R v Adomako- the ordinary principles of the law of negligence apply to ascertaining whether the D owed a duty of care. however the civil position is not conclusive- R v Wacker
what are some examples of where duty has been found?
- Doctor/Patient – Adomako [1995] 1 AC 171, Misra (2005) 1 Cr App R 21
- Captain/Crew – Litchfield [1998] Criminal Law Review 507
- Electrician/person whose house he is rewiring – Prentice [1993] 4 All ER 935
- Police officers/person arrested – R v West London Coroner, ex p Gray [1988] QB 467
what are the rules around the existance of a duty?
it is a question of law- R v Gemma Evans
what are the rules around a breach of duty?
The breach can be by positive act or omission
ask whether the D’s action fell below the standard expected of the reasonable person.
Where D is purporting to exercise special skill, the test is whether D was exercising the skill expected of a reasonable person possessing that skill – Adomako
R v S orbiter- ‘reasonable and prudent person of the applicant’s age and experience’.
what are the rules around if it was reasonably foreseeable that the breach of duty gave rise to a serious and oobvious rick of death
- Adomako [1995] 1 AC 171
- D’s conduct must give rise to a serious and obvious risk of death as opposed to a risk of serious harm
what is a serious and obvious risk of death?
Rudling- ‘the risk [of death] must be serious; and the risk must be obvious, An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation’
Rose v R- ‘...the question of whether there had been a serious and obvious risk of death had to be assessed with respect to the knowledge at the time of the breach of duty
- Kuddus [2019] EWCA Crim 837
- jury should consider whether there is an obvious and serious risk of death for ‘the class of persons to whom D owed a duty’.
what are the rules around the breach of duty cause Vs death?
Normal rules of causation apply
- In Bawa-Garba [2016] EWCA Crim 1841 where it was clear that death occurred significantly sooner because V was not given necessary treatment causation was established
- In R v Broughton [2020] EWCA Crim 1093 – it was said that the jury had to be sure beyond any reasonable doubt that V would have survived if D had secured medical assistance for V once under a duty to do so. Court of Appeal held a 90% chance she would have survived had he summoned help was insufficient to establish causation
what is the meaning of gross negligence?
- Bateman (1925) 19 Cr App R 8
- 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
adomako- the conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission.
what is the relevance of Ds state of mind?
- DPP, ex p Jones [2000] Crim LR 858 – Buxton LJ
- If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal
A-Gs ref (no2 of 1999)- evidence of his state of mind is not a prerequisite to a conviction for manslaughter by gross negligence. The Adomako test is objective.
R (Rowley)- D’s state of mind was relevant as forming part of the overall circumstances of the case.
guiding the jury?
R v Sellu- On Expert Opinion: an expert was permitted to give his opinion on the “ultimate issue” (whether D’s negligence amounted to gross negligence) but the judge was required to make it clear to the jury that they were not bound by the expert’s opinion.
On direction to the jury: no particular formulation was mandatory but what was mandatory was that the jury were sufficiently assisted to understand how to approach their task
R v Adomako
D, an anaesthesiest, did not notice that a tube had been disconnected from the ventilator during an operation, v suffered a cardiac arrest and died. D was convicted of gross negligence manslaughter. D appealed in relation to the basis of gross negligence manslaughter.
R v Rose
D an optometrist performed a routine eye examination, determinign that V did not need glasses. 5 months later V fell extremely ill from hydrocephalus and passed away. Vs cause of death was recognisable by a competent optometrist at the time of Ds eye test thhrough a specific examination. had D had performed the statutory duty exmination but accidently viewed the imaged from the previous year. D was aquitted of gross negligence manslaughter.
R v Gemma evans
gave her half sister heroin who later self injected, she realised she was having an overdose but did not call for medical assistance and awoke the following morning and she was dead.
held if an individual caused or contributed to creating a life threatening situation, a consequent duty would normally arise to take reaosnable steps to save the persons life
R v S
D was a 15 year old boy who had been messing around with a gun with his girlfriend. he checked out the gun and thought it was all safe even though there was a bullet in there. the gun went off and killed his girlfriend.
held- it was stated that it had to be shown that D departed from the standard of care expected of a 'reasonable and prudent person of the applicants age and experience'
Rudling
mother whos son is unwell and is talking to her GP over the phone, he is suffering from a couple different symptoms, the GP tried to suggest waiting till monday, GP did not come out to see the son, the son died.
held- while the lack of examination of the patient was serious, thee information available to the doctor at the time was not enough for her to consider that the situation was life threatening, she was acquitted.
Kuddus
the person on the phone takes the order, they stated they had a peanut allergy, the restaraunt still handed him food with penuts in it and he died.
Zaman
the owner of the restaurant decided to make a korma with peanut instead of almond and they were told they needed to make notifications on their menu, they didnt and someone died. the owner was convicted as they had sufficient knowledge of the risk of death to others
bawa-garba
a junior doctor treated a young child brought into hospital complaining she had stomach issues. he was treating on that kind of assessment but it turned out that she had sepsis and died since the doctor failed to notice this.
held- causation can be established where it was clear that death occurred significantly sooner because V was not given necessary treatment
R v Broughton
it was said that the jury had to be sure beyond any reasonable doubt that V would have survived if D had secured medical assistance for V once under a duty to do so. Court of Appeal held a 90% chance she would have survived had he summoned help was insufficient to establish causation
Bateman
during the delivery of a child the doctor eventually resorted to an operation which required 'considerable force'. the delivered child was dead. during the operation the doctor had removed a part of the uterous
DPP, ex parte Jones
If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal, but negligence will still be criminal in the absence of recklessness if on an objective basis D demonstrates [gross negligence]
A-Gs ref (no 2 of 1999)
Although there may be cases where the D’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a prerequisite to a conviction for manslaughter by gross negligence. The Adomako test is objective.
Rowley
D’s state of mind was relevant as forming part of the overall circumstances of the case. The issue of subjective recklessness is a relevant but not determinative factor.
R v Sellu
a surgeon who should have spotted the signs of complications earlier, after surgery the patient died.
the expert was permitted to give his opinion on the "ultimate issue" but the judge was required to make it clear to the jruy that they were not bound by the experts opinion