“In our judgement the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako . They involve no uncertainty. The hypothetical citizen, seeking to know his his position, would be 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 his negligence was gross. “
Per Judge LJ R. v. Misra and Srivastava  EWCA Crim 2375 para 64 (in the Court of Appeal Criminal Division) In light of the above comments, consider the elements of the offence of Gross Negligence Manslaughter and, referring to relevant authority, critically assess whether the current law in this area is certain and satisfactory. This paper is going to consider elements of the offence of Gross Negligence Manslaughter and will assess, whether the current law in this area is certain and satisfactory.
In order to discuss whether the law governing Gross Negligence Manslaughter is in a certain and satisfactory state, I need to first consider its elements and then look at the current law, outlining the problems, and lastly discuss the proposed changes. Gross negligence manslaughter is a form of involuntary manslaughter where the defendant is apparently acting lawfully. Involuntary manslaughter may arise where the defendant has caused death but neither intended to cause it nor intended to cause serious bodily harm and therefore lacks the mens rea of murder.
Whereas constructive manslaughter happens where the defendant commits an unlawful act which results in death, gross negligence manslaughter does not depend on representing an unlawful act has been committed. It can be said to apply where the defendant commits a lawful act in such a way as to render the actions criminal. Gross negligence manslaughter also differs from constructive manslaughter in that it can be committed by omission.
The leading authority for gross negligence manslaughter is decision of the House of Lords in Adomako (1994) , where doctor Adomako’s actions of negligence caused his patient’s death. It was decided by Lord Mackay, that liability for this type of manslaughter arises where the jury decides that “Having regard to the risk of death involved, the conduct of the defendant was as bad in all the circumstances as to amount in their judgement to a criminal act or omission” In Adomako, House of Lords decided that gross negligence test is correct to use in all cases where duty of care has been broken.
According to Adomako case, the following elements are considered to be a form of this involuntary manslaughter: the existence of a duty of care, breach of that duty resulting in death and gross negligence which the jury consider justifies criminal conviction. I will now study the first element of the gross negligence manslaughter offence which is duty of care. The criminal law recognise certain duty situations, Adomako itself involved a breach of duty owed by a hospital anaesthetic towards a patient (under a contract of employment).
The requirement of a duty of care is fundamentally a civil law concept found in the law of tort. (Wacker ). D owes a duty of care not to injure anyone whom he or she could reasonably foreseeably injure. Applying that to this context, there is a duty of care if there was a risk that an act or omission of the defendant might kill the victim. As it is a legal concept, it is for the judge to decide whether a set of facts gave rise to a duty of care. When bearing in mind the Adomako, the House of Lords approved the case of Stone v Dobinson (1977), in which D had undertaken a duty of care.
The Miller principle, in turn, was used as the basis of the duty in the recent gross negligence manslaughter of Evans (2009), which decided that a duty may be imposed on those who ‘create or contribute to “life threatening situation”.. Alan Lidbury, in his book Criminal Law, asks the following question ‘so is the ambit of the offence limited to those who, for whatever reason, have either undertaken or had a duty imposed upon them or should it be wider ’’?
Lord Mackay LC, when considering the case of Adomako, said that ‘’the ordinary principles of law of negligence apply to ascertain whether or not D has been in breach of a duty of care towards the victim’’. By looking at the above statement, it is clear that those same principles should apply in determining these people to whom a duty of care is owed. These principles can be found in the leading negligence case of Donoghue v Stevenson (1932).
In this case, Lord Atkin in the House of Lords said you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (…) persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question’’. It can be argued that this goes much further than the traditional duty situations. If this examination is correct, then this form of manslaughter has certainly a very wide scope. Nevertheless, the principles of criminal and civil law do not always go well together.
This is demonstrated by the case of Wacker (2003), which involved the bodies of 58 illegal immigrants and two survivors which were found in a lorry at Dover. The D was convicted of 58 counts of manslaughter by gross negligence and appealed. He argued that because the illegal immigrants had shared the same purpose as him (gain access to the UK), he did not owe them a duty of care. This argument was rejected by Court of Appeal on the grounds that the public policy issues relating to civil law were different to criminal law and even where there was an fundamental unlawful purpose, he did not prevent criminal responsibility arising.
The above case was followed by Willoughby (2004), where the court decided that D, as participant in a joint enterprise, owed the other participant a duty of care. The next element of gross negligence manslaughter which needs to be examined is a breach of duty of care. The ordinary law of negligence applies to these cases, in that those with an established duty of care, must act as a “reasonable person would do in their position”. If they fail to do so they breach that duty. This is called an objective test and will be grounded upon defendant’s situation at the time of the breach.
Thus, if the defendant’s actions were within the range of what was commonly accepted as being the standard practice, it will be problematic to describe such behaviour as falling far below the standard of a reasonable person in his position. An unqualified person is not to be judged at a lower standard than a qualified person. Hence the absence of skill will not be a defence if the conduct is considered negligent. If however, the defendant has precise skills and knowledge of a danger that the reasonable person would not have, his actions should be judged in the light of those skills or knowledge.
This test is an objective test. In the case of R v DPP ex parte Jones (2000) it was decided that no matter whether the defendant did not escalate the risk (the predictable risk of death) only that the risk would have been obvious to a reasonable person in the defendant’s position. The third and last element to consider is gross negligence. Just demonstrating that D has been in breach of a duty to another person and caused that person’s death will certainly not lead to liability for gross negligence manslaughter. There is something more necessary.
In Adomako, the House of Lords confirmed that the correct test for this additional component was ‘‘gross negligence’’. This established a line of case law dating back to Bateman (1925), which as well as Adomako, involved negligent treatment by a doctor which caused patient to die. In this cases, it was explained by Lord Hewart LCJ that in order to establish criminal liability for gross negligence ‘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’’.
This passage may be criticised for being somewhat imprecise, it tells the jury to convict if they think that D’s negligence was bad enough to amount to the misconduct. Nevertheless, the Bateman test received approval from the House of Lords in Andrews v DPP (1937), which involved death by extremely negligent driving. The Bateman case has also been approved in Adomako, where Lord Mackay LC stated that it was for the jury to ‘’consider whether the extent to which D’s conduct departed from the proper standard of care incumbent on him (…) was such that it should be judged criminal “.
Lord Mackay acknowledged that the test “involves an element of circularity” but was adamant that the matter had to be left to the jury. In Andrews, Lord Atkins at least offered some direction on exactly how ‘bad’ D’s negligence has to be. He said that ‘a very high degree of negligence is required to be proved’. Mere inattention by D would never suffice for criminal liability, D must have had a ‘criminal disregard’ for ‘others’ safety or the grossest unawareness or the most criminal inattention.
In Mistra v Srivastava (2004), Court of Appeal held that the components of gross negligence manslaughter involved no vagueness which offended against Article 7 of the European Convention of Human Rights, which provides that “no one shall be guilty of any criminal offence on the basis of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed (…)” It had been argued that the application of the ECHR into British law via Human Rights Act 1998 meant that the principles set in Adomako were no longer a good law.
The disagreement was put for the appellants that condition leaves it to the jury to decide a query of law, specifically whether the negligence initiating death amounted to gross negligence and so created a crime. To leave this assessment to be accomplished by different juries at each individual trial affords too little direction to those who owe duties of care. This absence of precision is compounded by indirectness: gross negligence manslaughter is any killing in breach of duty found to be grossly negligent.
The disagreement failed. The court did not reflect that the jury had a law-making role when determining, on the facts demonstrated, whether D was guilty of manslaughter on the basis of a negligent breach of burden owed to victim. Whether the negligence was effectively bad as to be “gross” negligence was a matter of fact. If the jury made a conclusion to this effect, a decision of guilty would follow inevitably on the basis of the conclusion; the verdict of guilt was not something complementary to the outcome.
The jury were merely finding facts within the boundaries of a legal standard, and the legal standard was reasonably clear to please the necessities of Article 7. On the face of it, the Article 7 dispute had particular strength. If someone remained to request, say, in what situations would D be said to have “murdered” V, we could tell our inquirer that, all other things comparable, D murders V if he causes V’s death with intent to kill or to cause really serious bodily harm. If there is time and patience, we could go on and tell him about the history of the courts and the sense of intent, the notions of the law of provocation, etc.
But if, sensibly, we restrain ourselves to a simple explanation of the offence, we have specified sufficient proof to allow any person of ordinary personality to stay clear of the rules of the law of homicide. So far if we were enquired by D, a young medic at the beginning of her profession, what she must do if she is not to be sentenced for manslaughter, the discussion would unavoidably be longer. For instance, she might ask what would be her situation if, throughout the path of a widespread of infection, she misdiagnosed V’s meningitis as a case of flu, a fault which leads to the decease of victim.
She might additionally ask whether her inexperience and any fatigue from overtask would be factors in her support, or whether it would be applicable if she was seeing many cases of flu at the period which presented signs comparable to those experienced by victim. Undoubtedly we could offer support implied in general terms, but to offer anything impending adequate direction we would need to talk to an experienced and qualified medical consultant to catch some logic of how bad a fault it is to cloud flu with meningitis.
Coming to conclusion, the fact of the matter is that if a legal system in the common law practise is to avoid unnecessary particularity in criminal guideline, for many offences it must use, as definitional features, evaluative principles of substantial generality. Regularly, the most the law will say are things like, “if you drive a car, drive with due care and attention, if you take and retain someone else’s property, and make sure you are acting honestly. Numerous of additional samples could be specified.
Wherever the jury is given the concluding say on whether D has failed to encounter such a standard, its task is observed, juridical, as concerning an outcome of fact rather than a judgment of law. Much would be vanished if violations reliant on on such outcomes were to be eliminated from the law. Regrettably, one price to be paid is that individuals matter to laws drafted in this way can only be assumed with comprehensive, “ball park” advice as to the conditions where they can misbehave against such laws. That seems to be satisfactory to please the necessities of Article 7.