GNM

Question 1

What is GNM

Answer 1

D’s conduct Is seriously negligent and where the negligence causes death.

Question 2

Why is GNM confusing?

Answer 2

developed inconsistently at common law. In the 1970s and 1980s, GNM and reckless manslaughter became confused by the use of Caldwell recklessness.

Question 3

What degree of negligence is needed for GNM

Answer 3

a very high degree of negligence is required to be proved: Andrews v DPP

Question 4

Who decides upon the standard of the negligence

Answer 4

Bateman: The jury decides whether in their opinion 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 of punishment

Question 5

Why is the jury setting a standard problematic

Answer 5

Does this breach certainty principle, if jury define. How can be ensure that both juries will apply the same standard, two problems going on. One is the broad one, should we use negligence at all? Even if we can, should be use the jury to decide the point of which negligence becomes bad enough?

Question 6

How have the courts responded to the issue of juries setting the standard

Answer 6

Courts taken jury issue on. In the courts tightened up on the issues of fact in which a jury must decide, before proceed to evaluation and the answer is to withdraw the case from the jury as doesn’t satisfy the conditions for basic negligence. One of the ways done this, is to tighten the Bateman (?) formula, talks about disregard for basic life and safety- is proper formula just life? Hence tried to restrict jury.

Question 7

Which case has clarified the law on GNM

Answer 7

Adomako: convicted of GNM, when acting as antitheists during an eye operation in which the patient died. The prosecution held that D failed to notice or respond appropriately to the disconnection of a tube which was enabling the patient to breath. He failed to notice basic matters such as patienst chest not going up and down, pulse had rapidly dropped and the alarm on the ventilator had been switched off. This state of affairs lasted for 9 mins before cardiac arrest. According to expert evidence any competent anthetists would have seen the disconnection about 15 S. the standard of care was ‘abysmal’.

Question 8

What are the requirements for a finding of GNM?

Answer 8

A duty of care between D and V; a breach of that duty; that D’s conduct caused death; and that D’s conduct was gross in its negligence.

Question 9

Duty of care: at one time is the duty owed

Answer 9

At the time of acting to cause the death, D owed V a duty of care.

Question 10

DoC: When does Adomako provide a duty can be found?

Answer 10

provides that a duty of care may be found whenever a positive act is undertaken, just as in the tort of negligence.

Question 11

DoC: which case holds that it is for the judge to decide if there is a DoC?

Answer 11

R v Evans: it is for the judge to decide whether a duty of care exists, and such a duty may not be inferred exclusively from the principles of tort law.

Question 12

DoC: case for duty between doctors and patients

Answer 12

Adomako

Question 13

Doc: case for duty between transport carriers and passengers

Answer 13

Baker

Question 14

DoC: duty between employers to employees

Answer 14

bean

Question 15

DoC: where has the definition for duty of care been taken from?

Answer 15

Definition of a duty to care taken largely from civil law, it has been interpretd broadly to apply whenever D’s conduct carries a foreseeable risk to those around.
The criminal law is not, however, bound to follow the civil definition of a duty of care.

Question 16

DoC: which case illustrates that the criminal law has taken a wider approach in recognising duties

Answer 16

R v Wacker: case where civil and criminal law might have given different answers to question of legal duty. a duty was imposed on the grounds of public policy where the defendant failed to reopen a vent, causing the death of 58 illegal immigrants. In civil possible argument, there was no duty- ex turpi causa- where engaged in unlawful consequence, but criminal law does not recognise this restriction. Because whereas the civil law concerned with rights and wrongs of compensation, criminal law concerned with protecting life of V and fact illegal immigrants did not deprive of criminal law duty or protection.
Where although the joint criminal venture between D and the Vs would undermine any duty of care in civil law, this was not the case in criminal law.

Question 17

DoC: Why is there a difference between the civil and the criminal law?

Answer 17

This wider duty is important to avoid complex civil rules/exclusions which do not serve the interest of criminal law. The aims of the bodies of law are different. Civil law is structured around private compensation and the consent of both parties to a criminal activity may undermine such a claim; whereas criminal law is concerned with prevention and punishment for wrongs.

Question 18

DoC: What happened in R v Willoughby

Answer 18

engaged to start fire as part of insurance fraud. Explosion where V was killed. The unlawful nature did not prevent duty arsing to v. But CMS might have been a better charge. D may also fall under constructive manslaughter – see also Goodfellow (above)

Question 19

DoC: Litchfield

Answer 19

existence of lesser offence. shows where lesser offence that deals with activity in which D is engage does not prevent there being a duty for purposes of MS. D was master of a ship and ran aground with loss of life. He pointed to less offence under Merchant Shipping Act. CoA held that nothing in that to stop being prosecuted for MS anymore for existence of careless of dangerous driving causing death on the roads.

Question 20

can GNM be committed by omission

Answer 20

yes- where D’s omission causes death, then the standard rules of omissions liability will also apply, so the court must identify a duty from the narrower duties.

Question 21

DoC: Evans

Answer 21

conviction for GNM upheld where after her sister self-injected, she did not alert the authorities for fear of personal liability. GNM on the basis of her omission ot aid, with a duty arising from her creation of a dangerous situation. Evans is an important case. It demonstrates a novel way in which GNM can be used to find liability in a drug supply and overdose case. CM cannot operate as self-injection will break the chain of causation, however by focusing on negligent omission after the self-injection, there is the potential for a causal link between the conduct and V’s death. It also shows the courts willingness to expand the definition of a duty to act in certain cases. In Evans, to find laibilty it was held that D need not have created the danger as long as she contributed to its creation. Both represent significant expansions of the offence.

Question 22

Breach: when is the duty breached?

Answer 22

conduct fallen below that expected of a reasonable person in her potion

Question 23

Breach: when action based GNM what is the question?

Answer 23

we ask whether a reasonable person would have refrained from the acts carried out by D, and or whether a reasonable person would have acted differently

Question 24

Breach: when omission based GNM what is the question to be asked?

Answer 24

whether a reasonable person in D’s position would have acted

Question 25

Breach: where purports to have a special skill?

Answer 25

Where D purports to exercise a certain skill, the standard against which D’s conduct is measured is the reasonable person with that skill.

Question 26

Breach: In Adomako it was said that what do a jury need to find

Answer 26

requires a jury to find a breach gross enough to be labelled as a crime for a gross negligence manslaughter conviction to be secured.

Question 27

causing death: what rules apply

Answer 27

the normal rules of causation

Question 28

GN: What did Lord Mackay say in Adomako

Answer 28

having regard to the risk of death involved, was the conduct of the D so bad in all the circumstances as to amount to a criminal act or omission.

Question 29

GN: what must the jury consider

Answer 29

The jury must consider that a reasonable person in D’s position must have been able to foresee a risk that D’s conduct might cause death. Objective foresight of anything less than death is insufficient. Requirement implied in Adomako and confirmed in Misra.

Question 30

GN; problems with the discretion given to juries

Answer 30

The discretion given to the jury can be useful to ensure only those deserving, all things considered, of GNM laibilty are brought within the offence. However, the absence of clear criteria makes it difficult to predict the outcome of cases.

Question 31

GNM: what happened in R v Misra

Answer 31

V was a patient who had had routine surgery to his knee, and then began to show obvious signs of severe infection. Senior health officers in charge of Vs care, failed to treat this obvious infection. V died as a result. Any competent medical profession would have seen and responded to the signs... even a medical student. But didn’t even when prompted failed to give basic care. Conviction upheld and accepted and applied Adomoako in terms of risk of death.

Question 32

GN: what was held in R v Misra

Answer 32

The offence requires gross negligence in circumstances where what is at risk is the life of an individual to whom the D owed a duty of care.

Question 33

GN: issues with Misra

Answer 33

there must have been a risk of death, and the apparently circular test for the jury to decide upon defines ‘crime’ as a moral standard only, and not a legal one, meaning that the standard does not breach defendants’ rights to a fair trial. It is not enough to say that the reasonable man would make the same mistake.

Question 34

GN: which case held the risk must be serious an obvious at the time of the breach

Answer 34

Rudling: A teenage boy who died of an autoimmune disease. The symptoms are not specific to the disease, so difficult to spot until a patient becomes seriously ill, but the condition can still be stabilised at this point. D was the V’s GP, she had examined him and ordered the correct tests. She thought it was a virus, but he became acutely ill, and mother rang doctors, and GP advised he should be seen after the weekend if he did not improve. One possible symptom of condition had emerged. If the GP had been to see the boy, then it would have been obvious that he needed to go to hospital. The boy died. GP tried for GNM in failing to spot what was emerging. CoA upheld ruling, as law required that risk should be serious and obvious at the time of the telephone call which it wasn’t. Court held an obvious risk is a present risk, which is clear and unambiguous, not one that might become apparent on further investigation.

Question 35

GN: what happened in Rose

Answer 35

eye test on seven-year-old boy. She failed to spot an inflammation of the optic nerve. If she done so could have had surgery for a blockage in his brain, but instead he died. D had statutory duty of care to examine the back of the eye for signs of abnormality including the life-threatening condition which this boy had. The images she took clearly revealed this problem, but for reasons disputed, she did not detect the disease. The trial judge distinguished on basis no further examination was necessary for the risk to be regarded as obvious. Only reason she did not spot the problem was her own breach of duty. So, should look at obvious risk in light of what would have been obvious if she had done the duty.

Question 36

GN: why was the conviction in Rose quashed

Answer 36

The jury convicted her, but her conviction quashed by CoA, who held the case was not distinguishable from Rudling, as must be judged from risk at the moment of the breach, not by how they might have been or appeared but for the breach. So, judge was wrong to pose the question what the outcome would have been if she had performed the operation. In Rudlings, the disease risk was so low, would be unfair to label as GNM. But in Rose, she had specific statutory duty to do this test and she did not do it properly. Concerned that when court held that it is not enough that a reasonable practitioner would see only a possibility that they might miss a life-threatening condition if they don’t carry out their duty properly. This formula broad enough to cover someone who never does this test.

Question 37

GN: what happened in the case of S

Answer 37

D aged 15 shot his girlfriend while showing her a gun. His evidence was that he had taken precautions to ensure it was unloaded. The CA held that the judge had left the correct question to the jury, ie “whether a reasonable and prudent person of the applicant’s age and experience would have foreseen a serious risk of death and, if so, whether the applicant’s conduct fell so far below the standard of care required that it was grossly negligent such that it constituted a crime.” upheld sentence of 9 years. But right that for a test of negligence should take into account lack of maturity.

Question 38

GN: what is the problem with allowing age?

Answer 38

Is it right to allow the jury to differentiate based on D’s age? What other circumstances might be taken into account?

Question 39

GN: Holloway

Answer 39

Liability clearly extends to those who (negligently) conclude their actions are safe: “The appellant by his inefficiency and incompetence in carrying out the work of installation and checking it created a serious risk of injury to persons who might be in the house. The risk was one which would have been obvious to any reasonable, competent and careful electrician.

Question 40

GN: does the person need to harm

Answer 40

No, can be convicted where the risk is serious an obvious to a reasonable person