LAW03: Criminal Law (Offences against the Person) Involuntary Manslaughter

Gross Negligence Manslaughter

Gross Negligence Manslaughter

This crime is committed where the D owes the V a duty of care, breaches the duty in a very negligent

way and causes the death of the V.

It can be committed by an act or an omission which doesn't have to be unlawful.

Adomako (1994)

The D was the anaesthetist for a man who was having an operation on a detached retina. During the operation one of the oxygen tubes became disconnected. D failed to notice this for several minutes ... and only did notice when the patient suffered a heart attack due to a lack of oxygen.

The patient suffered brain damage and died 6 months later as a result.

contd ...

Medical evidence at the trial stated a competent anaesthetist would have noticed the disconnection within 15 seconds and that the D's failure to react was "abysmal".

The D was convicted of GNM and the HL upheld the conviction.

From Adomako the 3 elements needed for a successful conviction of GNM were identified as:

1. The D must owe the V a duty of care;

2. D breaches this duty and this breach causes the death;

3. the negligence is gross which the jury considers to be "criminal".

Duty of care

A duty of care has been held to exist (for criminal purposes) in a number of situations ... for example,

doctor/patient relationships (Adomako).

In Adomako Lord Mackay said, in his opinion, the ordinary principles of negligence in civil law should be used to ascertain whether there was a duty of care and whether the D had breached it.

These principles can be traced back to the statement in Donoghue v Stevenson (1932) ...

... "You must take reasonable care to avoid acts or omissions which you can reasonably

foresee would be likely to injure your neighbour. Who then is my neighbour? ... persons who are so closely and directly

affected by my act that I ought reasonably to have them in contemplation ..."

If ... Examples of when a duty has arisen

Singh (1999)

The courts recognised the duty to manage and maintain property by a landlord when a faulty gas fire caused the

deaths of tenants.

Litchfield (1998)

The owner and master of a sailing ship owed a duty to the crew when he sailed knowing that the engines would fail due to fuel contamination. The ship was blown onto

rocks and 3 crew members died.

Stone and Dobinson (1977)

The Ds had voluntarily taken on a duty of care to look after Stone's elderly sister.

Khan and Khan (1998)

The CA thought that there could even be a duty to summon medical assistance in certain

circumstances.

If ... Wacker (2002)

The D agreed to bring 60 illegal immigrants into England. They were put into the back of D's lorry for a cross-channel ferry crossing. The only air into the lorry was through a small vent. It was agreed that the vent would be closed at certain times to help stop the immigrants from being discovered.

contd ...

The D closed the vent before boarding the ferry. The crossing then took 1 hour longer than usual and Customs officials at Dover found that 58 out of the 60 immigrants were dead.

The CA confirmed that as long as a duty of care is established it is irrelevant that the Vs were party to an illegal act.

If ... Willoughby (2005)

The CA confirmed the fact that if the D and V were engaged in a criminal activity together then this did not prevent the D owing the V a duty of care.

The CA have also held that a duty of care exists where the D has created a state of affairs which he

knows has become life threatening.

Evans (2009)

D's sister V was a heroin addict and D bought some heroin which V self-injected. It became obvious that V had overdosed but D did not medical help. V died.

D appealed conviction claiming she owed no duty of care to her sister.

CA stated there was a duty of care on the basis D had created a state of affairs she knew or ought reasonably to have known were life threatening.

Gross negligence

This is defined in Bateman (1925) which stated ...

... negligence is "gross" when it goes "beyond a matter of mere compensation between

subjects and showed such disregard for the life and safety of others to amount to a crime

against the State and conduct deserving of punishment".

The HL confirmed this definition in Adomako (1994).

Risk of death

There must be a "risk of death" as a result of the D's conduct in order for the D to be liable.

This was confirmed in the cases of Misra (2004) and Srivastava (2004).