Chapter 16: Gross Negligence Manslaughter

Question 1

What is the authority that gave the definition of GNMS?

Answer 1

R v Bateman [1925] - Lord Heward CJ

• “It must be shown that…. The negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment”.

Question 2

What are the 3 elements to prove successful GNMS

Answer 2

1. Duty of care owed by the accused to the victim; (AR)
2. Duty of care breached and caused the victim’s death; and (AR)
3. D state of mind was grossly negligent at the point (MR)

Question 3

What is most important first step to indentify in GNMS?

Answer 3

Always examine the facts to establish ‘duty’ (most important)

Question 4

What case laid down negligence and duty of care in criminal cases

Answer 4

Adomako (1994) 3 ALL ER 79

facts

• Anaesthetist failed to notice patient’s ventilation tube was disconnected

Held

• Ordinary principles of negligence (under civil law) apply to determine whether a duty of care exists
• Existence of a duty of care – matter for judge – consider degree of foreseeability of injury, the relationship of the parties and the justice of the case

Question 5

What is the definition for duty of care?

2 interpretations

Answer 5

Courts have not determined the ambit/degree of what amounts to duty (so use cases), following a wide or narrow interpretation

Narrow interpretation

• Special relationship

Wide interpretation

• Ordinary duty of care (general)

Question 6

What authority laid down the rules of special relationship?

Answer 6

R v Bateman - Lord Mackay approved Lord Hewarts CJ’s view

• “If a person holds himself out as possessing special skills and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to that patient to use due care in undertaking treatment.”

Question 7

What is the standard applied for general duty of care (“The Neighbourhood Principle”)

Answer 7

All that is needed to establish would be whether there is sufficient foreseeability and sufficient proximity. Every time someone causes harm to someone else, he is under a duty not to

“If a person holds himself out as possessing such skill and knowledge, he owes a duty to use due caution. If he accepts that responsibility and undertakes the treatment, he owes a duty to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary that the service be rendered for reward.”

Question 8

What are the 8 categories of duty of care. What are the cases for each one?

Answer 8

1) Motor and vehicular manslaughter cases

• Kong Cheuk Kwan v R (1985)

2) Operation or medical treatment cases by a doctor or a surgeon

• Adomako (1994)
• R v Yogasakaran [1990]

3) Building cases dealing with faulty building

• R v Winter and Winter (2010)

4) Neglect due to carer

• Stone and Dobinson [1977]

5) Failure to supervise children

• R v Reeves (2013)

6) Failure to ensure food was safe for consumption

• R v Kuddus [2019]

7) Careless treatment of a firearm

• Lamb (1967)

8) Dangerous situations

• R v Wacker (2003)

Question 9

What are the 4 cases for duty of care?

Answer 9

R v Wacker [2003]
R v Winter and Winter (2010)
R v Willoughby [2004]
R v Evans (Gemma) [2009]

Question 10

R v Wacker [2003]

complicity

Answer 10

Facts

1. Driver of a lorry drove illegal immigrants
2. Victims suffocated in the lorry

Held

1. Driver owed duty of care even though he was part of the crime
2. It did not matter if there was acceptance of a degree of risk by the victim
3. Kay LJ - “We see no justification for concluding that the criminal law should decline to hold a person criminally responsible for the death of another simply because the two were engaged in a joint criminal enterprise at the time, or, indeed, because there may have been an element of acceptance of a degree of risk by the victim in order to further the joint unlawful enterprise. Public policy in our judgement, manifestly points in totally the opposite direction…”

Takeaway

• Complicity of the immigrants was irrelevant in determining whether a duty of care was owed

Question 11

R v Winter and Winter (2010)

accepted risk

Answer 11

Facts

1. Explosion occurred at a fireworks company and the cameraman member of the fire service was killed
2. Firemen cautioned cameraman that building would blow
3. But V went inside nevertheless (accepted to a degree the risk)
4. Employees of a fireworks company appealed against conviction for gross negligence manslaughter

Held

1. Appeal was quashed
2. It was reasonably foreseeable that a civilian employee of the fire service might come onto the side of a fire to film or photograph for training purposes
3. The fact that he had failed to comply with the safety instructions did not mean he was not owed a duty of care

Takeaway

• Similar with Wacker, this does not justify that the V, being somewhat accepted the degree of risk

Question 12

R v Willoughby [2004]

complitict and accepted risk

Answer 12

Facts

1. D & V started fire together to conduct an insurance scam

Held

1. D liable for GNMS when V was killed
2. Duty of care arose despite the unlawful context (complicit) and Victim’s own voluntary running of the risk

Question 13

R v Evans (Gemma) [2009]

self-induced and acceped risk

Answer 13

Facts

1. D obtained heroin and gave some to her sister who self-administered the drug
2. Supplier concerned that V was overdosed so decided to spend the night with her
3. Failed to seek medical attention when deceased overdosed

Held - COA stated

1. COA stated liable
2. For the purpose of GNMS, a person that created or contributed to the creation of a state of affairs that he knew, or ought reasonably to have known, had become life threatening then, normally, a duty to act by taking reasonable steps to save the others life would arise
   COA confirmed that the question whether a duty of care was owed was a question of law - for the judge to decide

Question 14

What are the 3 things to prove for the 2nd element of GNMS?

Answer 14

1. That the breach of DOC was “grossly negligent”
2. The elements of breach and causing death
3. Where there is risk of death/GBH, but it was grossly neglected

Question 15

What is the case that explains what is grossly negligent

Answer 15

Adomako (1994) 3 All ER 79

Lord Mackay
* “The essence of the matter, which is supremely a jury question – is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission.”

Question 16

What is the burden of proof for GNMS?

Answer 16

Prosecution must prove causation beyond reasonable doubt

Question 17

The 2nd element of GNMS is breach of DOC, and causing death. What are the 4 additional causation elements of GNMS?

Answer 17

4 additional causation elements for GNMS

1. At the time of breach, there must be a serious and obvious risk of death;
2. at time of breach, it must be reasonably foreseeable that the breach gives rise to a serious and obvious risk of death;
3. The breach must cause or make a significant contribution to the death of victim; and
4. In the view of the jury, the circumstances of the breach must justify criminal sanction

Question 18

what are the cases where there is a risk of death/GBH, but it was grossly neglected (to which no reasonable person in that position would do)

Answer 18

1. R v Rose [2017]
2. R v Kuddus [2019]
3. R v Broughton [2020] EWCA Crim 1093

Question 19

R v Rose [2017]

Answer 19

Facts

1. D was an optometrist who failed to conduct a full examination of the deceased’s eyes during a sight test
2. If she had done so, she would have discovered a life threatening condition demanding immediate specialist attention

Held

1. Not negligent
2. COA held that the serious and obvious risk of death could only be assessed on what she knew at the time of the breach instead of what she would have known during the test stage

Takeaway

She had no knowledge & did not reasonably foresee death as an outcome at that time

Question 20

R v Kuddus [2019]

Answer 20

Facts

1. V died due to a peanut allergy that had been disclosed to the former owner (who had already been found guilty)

Held

1. New owner did not committed GNMS
2. A serious risk of death would only be objectively apparent if he had cause to believe that a customer had such an allergy (which he had not been noticed)

Takeaway

• Can’t be negligent if you had no reasonable degree of knowledge to know of something at the time of breach

Question 21

R v Broughton [2020]

significant cause

Answer 21

Facts

1. V died after taking drugs that was supplied by Mr Broughton (D), her boyfriend
2. Louella had a bad reaction to the drugs
3. D remained with her, but failed to obtain timely medical assistance
4. Convicted of GNMS

Held

1. Not liable/negligent
   There was insufficient evidence to prove beyond reasonable doubt that his failure to obtain medical helps caused Louella to die

Takeaway

• The prosecution must prove beyond reasonable doubt that the death by excluding realistic or plausible possibilities that the deceased would anyway have died
• Whether the breach had contributed significantly to the death

Question 22

What is the third element of GNMS? What are the 2 things to prove

Answer 22

3rd element - That the state of mind of the D was grossly negligent.

1) Negligence must be ‘gross’ (really bad)

• Lord Hewart state - “…the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment”

2) Decided objectively (objective test)

• That a reasonable man must foresee death or GBH
• Not sufficient if reasonable man foresaw only ‘some risk’

Question 23

What are 2 matters of the Objective Test for GNMS?

Answer 23

Judge directions

• HOL said the trial judge should give directions to the jury, which are comprehensible to an ordinary/reasonable/prudent member of the public
• Rather than giving overly detailed and elaborate directions to the jury

Gross negligence - depends on the seriousness of the breach of DOC

1. Taking into account all the circumstances which was placed at the time the breach occurred
2. Whether having regard/knowledge to the risk of death involved
3. Conduct of D was so bad as to amount in the jury’s judgement to a criminal act or omission

Question 24

What case talks to the Objective Test of GNMS?

Answer 24

R v Singh (Gurphal) [1999] Crim LR 582

Question 25

R v Singh (Gurphal) [1999] Crim LR 582

Answer 25

Held

1. Duty of care is for the question of law - for the judge to determine and approve the trial judge’s direction
2. Circumstances must be that a reasonably prudent person would have foreseen a serious and obvious risk (injury/GBH)

Level of negligence is determined by -

1. D’s conduct falls below the standard of care for the death
2. D’s conduct involves deliberate exposure of the victim to an obvious and serious risk , and the taking of the risk is unreasonable in the circumstances;
3. D’s indifference to the from his conduct; risk arising
4. High degree of negligence by D in the means he decided to avoid the recognised risk