Law 03 Short notes
Gross Negligent Manslaughter
Definition
Adomako (1994) established that the elements required to prove gross negligence manslaughter are:
1.A duty of care exists on the part of the defendant towards the victim; (AR)
2.There is a breach of that duty of care, which causes death; (MR for breach and AR for cause death)
3.The gross negligence is such as to be considered criminal by the jury. (MR)
- Duty of care
A duty situation is normally a legal matter for the judge to direct the jury on with recognised duties falling into two categories:
Where the D does an act which creates a duty
R v Litchfield: Ships captain to crew
R v Adomako: doctor to patient
R v Singh: Landlord to tenant
R v Andrews: Driver to road user
R v Holloway 1994: Electrician to householder
R v Wacker: established that a duty of care is owed to one with whom the defendant is complicit in a crime.
R v Ruffell: The Court of Appeal upheld the conviction for manslaughter on the basis that it was open to a jury to find that D had assumed a duty of care where D had sold illegal drugs to the V and the V had taken them and become ill in front of the D.
Airedale Trust v Bland: The House of Lords decided that doctors were allowed to stop feeding a patient because it was in the patient’s best interest and this would not create a criminal duty through this omission.
R v Evans 2009: D created a dangerous situation by supplying her sister with drugs so creating a criminal duty of care.
The 6 exceptional omission situations where D should have acted but doesn’t.
Statutory: Road traffic Act 1988 – Failure to wear a seat belt
Contractual duty: R v Pittwood – Failure to keep railway user safe
Family relationship: R v Gibbons & Proctor – Parents failure to feed child
Voluntary assumed responsibility: R v Stone & Dobinson – Failure to call for medical assistance after assuming care of sister
Official duty: R v Dytham – Failure to call for help when a member of public being attacked.
Creating a dangerous situation: R v Miller – Failure to take reasonable steps to avert danger after causing a dangerous situation.
Where no previous precedent exists as to whether a duty exists or not the jury decide if a duty at criminal law exists based on the facts of the case.
- Breach of a duty of care
Objective Test: What would a reasonable man with the same skills have done in the same situation?
If the jury believe they would have done better than the D in the same circumstances and with the same skills then the D will have breached their duty of care.
Holloway: the reasonable electrician would have honestly told the householder that the electric shower was not safe to use.
Adomako: Would a reasonable anaesthetist have missed seeing a breathing tube had fallen out of their patient during an operation for 9 minutes.
- The Breach is so bad it should be regarded as a criminal offence
This is a matter of fact for the jury to decide on an objective basis.
R v Bateman: ‘does the conduct of the accused show such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment?’
The breach must be more than could be compensated for with money (a civil wrong).
R v Andrews: A simple lack of civil care (being negligent) is not enough for criminal liability. There needs to be a very high degree of negligence (failure of the D’s duty) to be regarded as this criminal offence.
Finlay 2001: a scout leader was in charge of a party of scouts when one of them, a 10-year-old, fell to his death on Snowdon. There was evidence that several of the proper safety procedures had not been followed, but the jury felt that the defendant’s conduct did not show such disregard for life and safety as to amount to gross negligence. He was acquitted of manslaughter.
Misra and Srivastava (2004): For the objective test the jury must believe the breach of the duty of care was so bad that it risked death, not just the health and safety of the V.
R Adomako 1994
Facts
The defendant was an anaesthetist during an eye operation. During the operation, the tube supplying oxygen to the patient became disconnected. After suffering a heart attack, the patient later died as a result of brain damage. It was testified at the trial that a competent anaesthetist should have noticed the disconnected tube within seconds. The defendant’s failure to do so was described as ‘abysmal’. The House of Lords subsequently upheld his conviction for gross negligence manslaughter.
- What legal duty of care does Adomako have to his patient?
- Evidence in the case said a competent anaesthetist would have replaced the breathing tube back in the patient’s mouth in 15 seconds. Adomako took 9 minutes.
Why is this a breach of a duty of care?
Is the breach bad enough to be a criminal offence? Explain your answer.
- If Adomako had been a trainee would it have made any difference to any of your answers? Explain.
R v Wacker 2002
Facts
On 18 June 2000, following the interception by Customs and Excise officers in Dover of a lorry entering the United Kingdom. Upon opening the lorry’s container, the officers discovered 60 Chinese illegal immigrants. 58 of them were dead.
The cause of death was suffocation. Just prior to boarding the ferry at Zeebrugge, the driver had closed the one vent through which air was supplied into the container, apparently in order to reduce the likelihood of detection. That this would occur had been explained to the would-be immigrants. Unfortunately, the vent was not reopened during the crossing and, by the time the container was opened by officials in Dover, it was too late. The air had run out.
The Dutch driver, Perry Wacker, was convicted of conspiracy to facilitate the entry of illegal immigrants, and of 58 counts of manslaughter. He appealed against the manslaughter convictions, which were predicated on gross negligence, on the ground that no duty of care was owed by him to the victims. The was said by D’s counsel to be for two reasons: first, because D’s conduct occurred as part of a shared illegal enterprise, in civil law there can be no negligence claim from this; secondly, because the relevant causative conduct was an omission (failure to reopen the vent) rather than an act, so that the relevant time at which any duty might arise could not be specified.
- Do you believe Wacker had a criminal duty of care? Explain
- Thinking about the rules of causation explain why Wacker caused the death of the V’s?
- Why is Wacker charged with negligent Manslaughter and not murder?
R V Evans 2009
Facts:
The appellant was convicted of gross negligence manslaughter along with her mother in relation to the death of her 17 year old sister, Carly Townsend who died of a heroin overdose. The appellant was 8 years older than her sister. The appellant, her mother and Carly all had a history of heroin addiction. Carly had just been released on licence from a detention and treatment order and a condition of the licence was that she resided at her mother's house. The appellant moved in with her mother after her boyfriend was sent to prison. The appellant bought some heroin and gave it to Carly. Carly self injected the heroin and then developed symptoms which the appellant, from her own experience, recognised as being consistent with an overdose. The appellant and her mother decided not to seek medical assistance for fear of getting into trouble. Carly died. The appellant appealed against her conviction for gross negligence manslaughter on the grounds that the judge had left it to the jury to decide whether the appellant owed a duty of care and that it was wrong to leave this to the jury where this would involve an extension of principles relating to duty of care.
The Lord Chief Justice said, “when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise."
- Why was there a duty of care in this case?
- Which duty of care situation does this expand?
- Did Evans breach her duty of care? Explain.
The Reasonable man would not have broken is duty of care in the same situation
For the following scenarios write a sentence in context saying whether or not the RM would have broken their duty of care.
Case / Broken Duty of Care?Litchfield – Ships captain went too close to rocks after knowingly allowing the ship to drift, killing all on board.
Singh – A landlord failed to get a gas fire serviced resulting in fumes killing the tenant
Andrews – D killed a pedestrian whilst attempting to pass another car by driving well over on the offside of the road. D had been sent by his employer to assist a disabled vehicle.
Same facts as Andrews except D was a learner driver.
Evans – D bought drugs for her sister who then took them and became ill. D was frightened of calling for help as they had both been in trouble before and as a result the help came too late and the sister died.
R v Bateman 1925
Facts
D a doctor attended the confinement of a woman who died while giving birth. In 1925 the vast majority of birth’s took place in the home and the infant mortality rate was 75 per 1000 compared to 5 per 1000 now. All medical treatment had to be paid for. Bateman only decided to send the V to hospital after 3 days of labour and due to this delay the mother died. Medical opinion of the time would not have sent the mother straight way though would have sent the mother to hospital quicker than Bateman.
The court held that only if the breach of duty was so bad as to more that than could be compensated for by damages would Bateman be guilty of Manslaughter.
- Did Bateman breach his duty of care? Phrase a sentence in context to answer this question.
- What evidence is there that the breach of Bateman’s duty of care was bad enough to be a criminal offence?
- Why did the court decide Bateman did not breach his duty of care badly enough to be guilty of manslaughter?
Andrews v DPP 1937
Facts
The appellant drove a van above the speed limit and overtook another car. As he did so he struck a pedestrian and killed him.
Lord Atkins said in finding the D guilty of Manslaughter:
"Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established."
- What is meant by the first sentence in Lord Atkins judgment?
- What do you think Lord Atkins means by saying there has to be a very high degree of negligence before it is a criminal law matter?
- In a case like Andrews who decides whether the degree of negligence is high enough to be a criminal matter?
- Give two reasons why number (3) is an objective rather than a subjective test?
R v Misra and Srivastava (2004)
Facts
The two appellant doctors were convicted of gross negligence manslaughter following the death of a post-operative patient under their care. The patient developed an infection in the wound, which was undiagnosed and therefore untreated despite obvious symptoms. The patient died of toxic shock as a result of the untreated infection. The appellants sought to challenge the test of gross negligence manslaughter laid down in Adomako (ie. 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 the jury's opinion to a criminal act or omission.)The appellants argued that this test was circular and required the jury to set their own level of criminality which essentially should be a question of law. The appellants raised Articles 6 & 7 of the European Convention of Human Rights in that the uncertainty created by the Adomako test meant they had been deprived of the right to a fair trial and the uncertainty also meant that at the time the action was committed it was not possible to determine whether the actions were criminal.
Held:
Conviction upheld. The Adomako test did not infringe Convention Rights.
- Explain why the D’s believed they were deprived a right to a fair trial in this case?
Do you think the final test for so bad it is criminal is a fair one? Explain.
R v Misra and Srivastava (2004)contd
Lord Justice Judge:
"On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. 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.
In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako. They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter.
Although, to a limited extent, Lord Mackay accepted that there was an element of circularity in the process by which the jury would arrive at its verdict, the element of circularity which he identified did not then and does not now result in uncertainty which offends against Article 7, nor if we may say so, any principle of common law. Gross negligence manslaughter is not incompatible with the ECHR. Accordingly the appeal arising from the question certified by the trial judge must be dismissed. "
- Explain in your own words why Lord Justice Judge believes the final test for gross negligent manslaughter is fair?
1