Gross Negligence Manslaughter:
Conditions [1]:
Death was caused by the negligence.
There was a duty of care.
Reasonable foreseeability that the defendants breach of duty gave rise to an obvious and serious risk of death.
The negligence causing death was ‘gross’, in comparison to an ordinary prudent person in the circumstances.
‘Judges have often referred to the distinction between civil and criminal liability for death by negligence. The law of criminal liability for negligence is conveniently explained in that way. If A has caused the death of B by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, that that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A's negligence amounted to a crime. In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea.' [2]
‘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.' [3]
Judge decides whether there was a duty of care. Jury decides the rest.
In Adomako, D was negligent in observing that a ventilator tube had disconnected. V died of cardiac arrest during an operation. Evidence was given that a competent anaesthetist would have noticed the problem. The court held that the question to be asked was whether: ‘Having regard to the risk of death involved, [was] the conduct of D so bad in all the circumstances as to amount in their judgement to a criminal act or omission.’
In Wacker, W was driving a lorry carrying 60 illegal immigrants from Rotterdam to England. 58 of the immigrants suffocated. W convicted of GNM for each death.
In Willoughby, W, with the help of D, set fire to W’s pub to claim from the insurance. D was killed in an explosion and W convicted of GNM.
In Misra, M&S were convicted of GNM after doctors failed to diagnose infection. V died of untreated infection. Judge LJ: Doctor would have been advised that ‘assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that the negligence was gross.’ Cyclical – if someone wanted to find out if they were liable, they would have to know if the jury thought they were liable.
In Rose, R was statutorily obliged to examine the eye of a child patient. R negligently omitted to perform. V died of a condition that would have been detected by the eye exam. On appeal, R’s conviction was quashed as the risk of death was not serious and obvious – very rare eye condition. This changes the requirement in Adomako for the risk of death to be obvious and serious.
In Evans, an older sister was deemed to have assumed a duty of care to her sibling when she didn’t call the emergency services for the younger sister’s overdose. It is up to the judge to determine whether there was a duty of care, not a jury.
Reckless Manslaughter:
Reckless manslaughter is often the default charge for manslaughter when a murder charge fails.
Conditions:
D had foresight of risk.
D had foresight of possible serious harm or death.
In Lidar, L started driving when V had his head through the car window. V fell and his head was crushed with the rear wheel. D must be ‘aware of the necessary degree of risk of serious injury to the victim and nevertheless chose to disregard it, or was indifferent to it’ to be convicted. L was found guilty.
Unlawful and Dangerous Act / Constructive Manslaughter:
Conditions:
D must commit an act.
The act must be unlawful.
The act must be dangerous.
The act must cause death.
Unlawful and dangerous act manslaughter can be quite controversial as someone who unforeseeably causes death is held liable to the same extent as a person who did foresee death. Arguably, the conviction may be too serious for the offence. Though the Law Commission proposed changes, the government stated that ‘anyone who embarks on a course of illegal violence must accept the consequences, even if the consequences are unforeseeable.’
In Mitchell, M assaulted (pushed) V1. V1 fell into V2. V2 fell and died. M successfully convicted under U&DA Manslaughter.
In Church, V mocked C’s sexual ability and slapped him. C knocked V unconscious and threw her body into a river, believing she was dead. C convicted of U&DA Manslaughter.
‘the unlawful act must be such as all sober and reasonable people recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.’ The defendant does not need to have foresight of a risk of death.
In Lamb, 2 boys were playing with a revolver. They believed it would not fire. L pointed the gun at the other boy and fired. V died. The court held this to not be U&DA manslaughter as L had not committed an assault against V as V did not believe the gun would go off, so could not apprehend immediate violence.
In Watson, W threw a brick into the house of elderly and seriously ill V. W was unaware of V’s condition when they entered house. V died within 90 mins. The court ruled that the criminal act was the continuing act of burglary. During this act, W became aware of V’s condition and that there was some risk of his act to V.
In Kennedy, K prepared a dose of heroin to help V sleep. K passed the needle to V, who self-injected. V died. K’s conviction was overturned at appeal as V was a fully informed and consenting adult, who had freely and voluntarily self-administered the drug. This autonomy broke the chain of causation.
In Meeking, M activates handbrake while traveling at 60mph. V died in the crash. There is concern about the fact that the prosecution relied on M’s reckless and/or negligent behaviour – the case likely should have been charged with gross negligence or reckless manslaughter.
In Dawson, D attempted a robbery with an imitation gun and a pick-axe handle at a petrol station. D demanded money but did not touch V. V pressed the alarm and D ran away empty handed. V had a pre-existing heart condition and died of a heart attack. D’s conviction overturned as a reasonable person would not judge D’s actions as dangerous in their own right.
In Bristow, V killed by vehicle when attempting to prevent burglary. Held to be dangerous because there was the foreseeable possibility that V might intervene.
‘Whilst burglary of itself is not a dangerous crime, a particular burglary may be dangerous because of the circumstances surrounding its commission. We consider that the features identified by the Crown, as set out earlier in this judgment, were capable of making this burglary dangerous when coupled with foresight of the risk of intervention to prevent escape.’
Foresight of risk arises when it becomes apparent that there will be some form of intervention.
Resources:
References:
[1] R v Kuddus [2019] EWCA Crim 837; R v Bateman 19 Cr.App.R. 8 [2] R v Bateman 19 Cr.App.R. 8 [10]-[11] (Lord Hewart CJ) [3] R v Bateman 19 Cr.App.R. 8 [11]-[12] (Lord Hewart CJ)
Cases Mentioned:
R v Adomako [1994] 3 WLR 288
R v Wacker [2003] QB 1207
R v Willoughby [2005] 1 Cr App R 29
R v Misra and Srivastava [2005] 1 Cr App R 21
R v Rose [2017] EWCA Crim 1168
R v Evans [2009] EWCA Crim 650
R v Lidar (1999)
R v Mitchell [1983] QB 741 (CA)
R v Church [1966] 1 QB 59
R v Lamb [1967] 2 QB 981
R v Watson [1989] 2 All ER 865 (CA)
R v Kennedy [2007] UKHL 38
R v Meeking [2012] 1 WLR 3349
R v Dawson [1985] 81 CAR 150
R v Bristow [2013] EWCA Crim 1540
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