Gross Negligence

Question 1

Introduction

Answer 1

Before a conviction can be obtained for manslaughter where one of the
sections referred to in s150A(1) the prosecution must prove a “very high
degree” of negligence or “gross negligence”. The expressions “very high
degree of negligence” and “gross negligence” are not defined by statute.

Question 2

Legislation

Answer 2

150A Standard of care applicable to persons under legal duties or performing
unlawful acts

(1) This section applies in respect of—
(a) the legal duties specified in any of sections 151, 152, 153, 155, 156, and 157; and
(b) an unlawful act referred to in section 160 where the unlawful act relied on
requires proof of negligence or is a strict or absolute liability offence.

(2) For the purposes of this Part, a person is criminally responsible for omitting to
discharge or perform a legal duty, or performing an unlawful act, to which this
section applies only if, in the circumstances, the omission or unlawful act is a major
departure from the standard of care expected of a reasonable person to whom that
legal duty applies or who performs that unlawful act.

Question 3

The ‘Major Departure’ test

Answer 3

The ‘major departure’ test in s 150A(2) requires a high degree of negligence,
corresponding to the common law standard of gross negligence, if a person
is to be criminally responsible under s 160(2)(b) for manslaughter by
negligent omission to perform or observe any of the legal duties specified in
s 150A(1)(a) or under s 160(2)(a) for manslaughter by an unlawful act
requiring proof of negligence or imposing strict or absolute liability.

The ‘major departure’ test also applies where a negligent omission results in
endangerment or injury contrary to s 153(2). See also ss 195(1) and
195A(1)(a)(ii) which, as from 19 March 2012, extend the ‘major departure’
test to the offences of ill-treatment or neglect of a child or a vulnerable adult
and failure to protect a child or vulnerable adult.

Gross negligence must be shown whether the case relates to an unlawful act
or an omission.

Question 4

Objective test

Answer 4

The test to be applied in determining whether an defendant has been
negligent, and whether the negligence has been a major departure, is an
objective test:

The test of gross negligence is objective and that the defendant’s state of
mind is not a prerequisite to conviction for manslaughter by gross
negligence. All the circumstances of the case must be considered and a
defendant’s state of mind may be relevant to whether there was gross
negligence. This may be more readily found if, for example, the defendant
knowingly ran a risk or was indifferent to an obvious risk of death.

The essence of gross neglect as discussed in R v Adomako12 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 to a criminal act or omission.

Question 5

Punishment of manslaughter

Answer 5

Section 177 provides the punishment for manslaughter:

177 Punishment of manslaughter
(1) Every one who commits manslaughter is liable to imprisonment for life.

However, the judge, taking all matters into consideration, may impose any
penalty from a fine to life imprisonment, depending on the circumstances.

Question 6

Summary

Answer 6

• The distinguishing element in a charge of murder is the offender’s
  awareness or recklessness of the knowledge that their actions are likely
  to result in the death of the other person. The jury decides whether the
  defendant had such knowledge at the time by drawing inferences from all
  the circumstances, and from what the offender said and did at the time.
• Where two or more people are to be convicted of culpable homicide
  under section 168, you do not need to prove that the secondary party
  knew that death was a probable consequence of their unlawful activity,
  just that the secondary party knew it was probable the principal might do
  an act that would, if death resulted, bring their conduct within the terms
  of section 168.
• Associated murder charges include:

− attempt to murder
− counselling or attempting to procure murder
− conspiracy to murder
− accessory after the fact to murder.

• Common law defines two distinct types of manslaughter:

− voluntary manslaughter
− involuntary manslaughter.

• If a homicide arose out of self-defence, the defendant should be
  acquitted; if it arose out of a suicide pact the charge should be
  manslaughter.