Homicide - involuntary manslaughter - gross negligence manslaughter Flashcards
1
Q
Test for establishing liability for gross negligence manslaughter
A
- Rose v R
1. D owed a duty of care to the victim
2. D negligently breached that duty
3. It was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death
4. The breach of that duty caused death
5. The circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and requires criminal sanction
2
Q
Gross negligence manslaughter - a duty of care (6)
A
- Adomako
o D was anaesthetist and involved in eye surgery operation. Tube became disconnected during surgery. Took D minutes to realise there was a problem and find out what the problem was. Patient went into cardiac arrest and died
o The ordinary principles of the law of negligence apply to ascertaining whether D owed a duty of care
o Doctor/patient duty of care - Wacker
o D truck driver involved in trying to smuggle 58 people into country. Closed vent in back of truck container and all 58 people died. Tried to argue that he had no duty of care.
o Court rejects this – ex turpi causa did not come into this – he had voluntarily undertaken a duty by assuming responsibility for the 58 illegal migrants and was only person in position of power to be able to help them. He then caused their death so was guilty of manslaughter - Litchfield
o Captain/Crew duty of care - Prentice
o Electrician/person whose house rewiring duty of care - West London Coroner, ex p Gray
o Police officers/person arrested duty of care - R v Gemma Evans
o Whether a duty of care is possible is ultimately a question of law for the judge however, the jury must then establish from the facts if there was a duty
3
Q
Gross negliegnce manslaughter - breach of the duty (1)
A
- Breach can be by positive act or omission
- Jury must ask whether D’s action fell below the standard expected of a reasonable person
- R v S
o 15 year old boy messing with gun with girlfriend. Gun went off and girlfriend was killed.
o It was stated that it had to be shown that D departed from the standard of care expected of a ‘reasonable and prudent person of the applicant’s age and experience’.
4
Q
Gross negligence manslaughter - it was reasonably foreseeable that the breach of duty gave rise to a serious and obvious risk of death (5)
A
- Adomako
o D’s conduct must give rise to a serious and obvious risk of death as opposed to a risk of serious harm - Rudling
o Mother whose son appears to be unwell and is talking to GP over phone. Tells GP that son is suffering from a few symptoms - the GP asks if can wait until Monday to come in, the GP did not come out to home to see son. Son declined rapidly, went to hospital and died. He had rare disease. Can charge gross negligence manslaughter? – Prosecution argue that any competent GP on hearing the symptoms would have visited son or would have sent son to hospital immediately. CofA disagrees – on hearing the symptoms it was not obvious to GP that there was an obvious and serious risk of death to the son
o The risk must be serious and must be obvious - Rose v R
o D is an optometrist. Performs routine eye test on young boy who did not have any symptoms. There is a statutory duty on optometrist to do scan of eye to see optic nerve as this can highlight obvious risk. She does not do the scan as the young boy was restless and did not have any symptoms. 5 moths later the young boy dies. It is shown that he had a swelling on optic nerve at time he went for eye test but the scan never occurred. If the scan had taken place, treatment could have occurred and his life could have been saved. At time examining child was there an obvious and serious risk of death?
o Trial judge answered this by assessing what the D would have known had she carried out the test – she would have seen the swelling and seen obvious and serious risk of death – convicted manslaughter. She appeals and is successful. It comes down to how we assess how obvious and serious risk of death is assessed.
o The question of available knowledge and risk was always to be judged objectively and prospectively at the moment of breach
o Cannot use hindsight – must assess the risk of death from time of breach
o Not appropriate to take into account what the defendant would have known but for his/her breach of duty - Evaluating decision in Rose
o Encourages people to do less – the less you know, the less obvious and serious risk of death
o Professionals not charged with gross negligent MS by negligent omission
o By endowing reasonably competent professional with D’s shortcomings we diminish objective nature of test in Adomako
o If reasonably competent professional would have carried out exam, why should D benefit from failing to do so?
o In Rose there was a statutory duty to carry out the test which a reasonably competent optometrist would have done but in Rudling, doctor not breaching duty - Kuddus
o Jury should consider whether there is an obvious and serious risk of death for ‘the class of persons to whom D owed a duty’.
o The duty to take care food did not contain nuts was owed to customers with a nut allergy and there was a serious and obvious risk of death to that group - Zaman
o Owner had made choice to make Korma with peanut mixture rather than almonds and had been told to change this but did not. Someone with peanut allergy orders this and dies. The owner himself was convicted of manslaughter from gross negligence as he himself had knowledge of the peanuts in the curry
5
Q
Gross negligence manslaughter - breach of duty caused V’s death (2)
A
- Normal rules of causation apply
- Bawa-Garba
o Where it was clear that death occurred significantly sooner because V was not given necessary treatment causation was established
o Junior doctor treating young child with stomach complaint. Turned out the child actually had sepsis and doctor failed to realise this. Child died. - Broughton
o It was said that the jury had to be sure beyond any reasonable doubt that V would have survived if D had secured medical assistance for V once under a duty to do so. Court of Appeal held a 90% chance she would have survived had he summoned help was insufficient to establish causation
o Boyfriend and girlfriend at festival. Bf brought supplied drugs for gf to take. Gf took drugs and became unwell. Bf making video recordings of her and did not bring her to medical tent. Eventually gf dies from overdose. Trial judge adopted approach that was D’s conduct a cause of the death? – Jury found that he had caused death so guilty of gross negligence manslaughter. He appeals – in appeal medical expert reviewed all videos made of the victim. In one video she was unconscious and the obvious and serious risk of death was known at that time. However cannot be certain that if she had gotten help at that point she would have been saved – there was 90% chance that she would have been saved. Because of 10% chance she would have died anyway, we could not prove causation beyond reasonable doubt.
6
Q
gross negligence manslaughter - gross negligence (7)
A
- Bateman
o 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 - Adomako
o 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. - Bawa-Garba
o ‘truly exceptionally bad’ - Shift to raising the threshold in gross negligence – problem is that it lacks clear guidance/threshold for jury
- RELEVANCE OF D’S STATE OF MIND
- DPP, ex p Jones
o If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal, but negligence will still be criminal in the absence of recklessness if on an objective basis D demonstrates [gross negligence] - AG’s Ref (No.2 of 1999)
o Can look at subjective recklessness to help (look at D’s state of mind) but the test should be objective - Rowley
o D’s state of mind was relevant as forming part of the overall circumstances of the case. The issue of subjective recklessness is a relevant but not determinative factor.
o Still objectively assessed - GUIDANCE TO JURY
- R v Sellu
o Expert evidence can guide the jury but ultimately the jury makes the decision on gross negligence
7
Q
Critical commentary of gross negligence manslaughter (7)
A
- Laird (critical of Rose)
o In favour of retaining objective approach
o Critical of Rose as took into account subjective elements
o D’s conduct should be evaluated against standards of a reasonably competent professional to ensure test remains objective and is not diluted by reference to D’s shortcomings
o There should be no distinction between optometrist who conducts investigation negligently and optometrist who is so negligent that they do not attempt to do an investigation - Stark (in favour of Rose)
o In favour of more subjective approach
o Should welcome a narrow approach to gross negligence manslaughter as ensured D held adequately liable – takes into account what D knew at the time not what they should have known - Oliver (critical of current GNMS law)
o Gross negligence is too vague – lumps together cases of slips and lapses with those of clear recklessness – problem with fair-labelling
o Gross negligence should be abolished – criminal law should be a last resort for medical cases and only where there is clear recklessness - CRITICISM THAT TEST IS CIRCULAR
- Jury should find 1. D’s actions to be criminal 2. If they think his conduct falls so far below proper standards 3. That it should be judged criminal
- Lord Mackay in Adomako
o Accepts circularity and does not find it problematic
o Phrased it differently – jury have to determine whether having regard to risk of death, conduct of D was so bad to amount to a criminal act or omission - Misra
o Circularity argument rejected in Misra
o The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case.
o Rejected argument that GNMS is unclear so contradicts Art 7 - Does not contradict Article 7 (no punishment without law) circularity does not result in uncertainty - Quick
o Argues that gross negligence MS should be replaced by subjective reckless MS – he argues the breath given to gross negligence leads to unfairness and mislabelling – with cases of momentary slips being lumped together with cases of clear recklessness - Possible reform of GNMS – Law Commission Report 306
o Manslaughter would encompass where there was gross negligence as to causing death
1. A risk that D’s conduct will cause death would be obvious to a reasonable person in D’s position
2. D is capable of appreciating the risk and
3. D’s conduct falls far below what can reasonably be expected of him in the circumstance
o Recommend that there should no longer be a category of ‘reckless manslaughter’ and instead worst forms of reckless manslaughter should fall within second degree murder and other forms would fall into gross negligence manslaughter
