GNM Flashcards
What is GNM
D’s conduct Is seriously negligent and where the negligence causes death.
Why is GNM confusing?
developed inconsistently at common law. In the 1970s and 1980s, GNM and reckless manslaughter became confused by the use of Caldwell recklessness.
What degree of negligence is needed for GNM
a very high degree of negligence is required to be proved: Andrews v DPP
Who decides upon the standard of the negligence
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
Why is the jury setting a standard problematic
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?
How have the courts responded to the issue of juries setting the standard
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.
Which case has clarified the law on GNM
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’.
What are the requirements for a finding of GNM?
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.
Duty of care: at one time is the duty owed
At the time of acting to cause the death, D owed V a duty of care.
DoC: When does Adomako provide a duty can be found?
provides that a duty of care may be found whenever a positive act is undertaken, just as in the tort of negligence.
DoC: which case holds that it is for the judge to decide if there is a DoC?
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.
DoC: case for duty between doctors and patients
Adomako
Doc: case for duty between transport carriers and passengers
Baker
DoC: duty between employers to employees
bean
DoC: where has the definition for duty of care been taken from?
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.
DoC: which case illustrates that the criminal law has taken a wider approach in recognising duties
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.
DoC: Why is there a difference between the civil and the criminal law?
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.
DoC: What happened in R v Willoughby
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)
DoC: Litchfield
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.
can GNM be committed by omission
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.
DoC: Evans
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.
Breach: when is the duty breached?
conduct fallen below that expected of a reasonable person in her potion
Breach: when action based GNM what is the question?
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
Breach: when omission based GNM what is the question to be asked?
whether a reasonable person in D’s position would have acted
Breach: where purports to have a special skill?
Where D purports to exercise a certain skill, the standard against which D’s conduct is measured is the reasonable person with that skill.
Breach: In Adomako it was said that what do a jury need to find
requires a jury to find a breach gross enough to be labelled as a crime for a gross negligence manslaughter conviction to be secured.
causing death: what rules apply
the normal rules of causation
GN: What did Lord Mackay say in Adomako
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.
GN: what must the jury consider
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.
GN; problems with the discretion given to juries
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.
GNM: what happened in R v Misra
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.
GN: what was held in R v Misra
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.
GN: issues with Misra
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.
GN: which case held the risk must be serious an obvious at the time of the breach
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.
GN: what happened in Rose
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.
GN: why was the conviction in Rose quashed
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.
GN: what happened in the case of S
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.
GN: what is the problem with allowing age?
Is it right to allow the jury to differentiate based on D’s age? What other circumstances might be taken into account?
GN: Holloway
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.
GN: does the person need to harm
No, can be convicted where the risk is serious an obvious to a reasonable person
