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Gross Negligence Manslaughter - Coggle Diagram
Gross Negligence Manslaughter
In civil law, an individual who fails to take the care a reasonable person would exercise in any given situation is described as negligent.
The common law has accepted that a defendant whose gross negligence results in a death can also be deemed criminally liable.
The test of gross negligence manslaughter was clarified in
R v Adomako (1995),
where
Lord Mackay
reaffirmed the earlier decisions of
Bateman (1925)
and
Andrews v DPP (1937).
The ratio in
Adomako
and some of the recent cases have identified six elements that the prosecution is required to establish in order for the defendant to be convicted of gross negligence manslaughter.
In
R v Broughton (2020), Lord Burnett
in the Court of Appeal synthesised the requirements of the crime:
1) Breach of the duty of care
2) The serious and obvious risk of death was reasonably foreseeable
3) Causation- the breach caused or made a significant contribution to the death of the victim
4) Gross negligence
Duty of care
The duty of care is established from the relationship between the defendant and the deceased using “the ordinary principles of civil law of negligence” as stated in
Adomako
.
In deciding whether there is, or is not, a duty of care, the Court of Appeal clarified in
R v Willoughby (2005)
that this was a matter for a jury to decide once the trial judge believed there was enough evidence to establish a duty of care.
In R v Wacker (2003) the court felt that a duty of care in manslaughter even are between participants in a criminal activity.
1) Breach of the duty of care
If, by an act or omission, the defendant has fallen below the standard of care owed under the duty of care that a jury would expect a person carrying out the job would stick to, then the jury can decide that the duty was breached.
In
Evans (2009)
the Court of Appeal upheld the conviction on the basis the defendant had created a state of affairs which she knew were life threatening.
2) The serious and obvious risk of death was reasonably foreseeable
When looking a reasonably foreseeability, it is the class of people that is taken into account, as opposed to the specific victim in question.
In
R v Kuddis (2019)
the Court of Appeal held that there was no requirement for the appellant to know that there was an “obvious and serious risk” to the specific person, who died, as opposed to the class of people to whom he owed a duty.
In
R v Rose (2017)
, the Court considered that in order to be found guilty of gross negligence manslaughter it must be reasonably foreseeable that not adequately reviewing the retinal photographs would give rise to a serious and obvious risk of death
3) Causation- the breach caused or made a significant contribution to the death of the victim
In
R v Broughton (2020)
the defendant was convicted on the basis that he was under a duty of care to secure medical assistance and he failed to do so.
On appeal, there was a question on whether his omission deprived the victim of significant and substantial chance of survival.
4) Gross negligence
Whether the defendant’s conduct carried a risk of death that a jury believed could be so bad as to become criminal and described as grossly negligent is an objective test for the jury to decide.
The test thus requires the jury to place themselves in the position of what the reasonably prudent doctor, road user, or even parent would see as an obvious risk.
Following the case of
R v Evans (2009)
liability might sometimes be imposed on a drug dealer for the death of a drug user on the basis of gross negligence manslaughter.
In
R v Misra and R v Srivastava (2004
) the Court of Appeal stated that the question for the court was simply whether the jury believed, based on the facts, that the defendant’s behaviour was grossly negligent, and in consequence felt it was criminal.
Criticisms of gross negligence manslaughter
The burden of proof in a criminal case is different from that required in a civil case, which could cause confusion to a jury.
The jury is asked to determine the boundaries of manslaughter. This means that verdicts may be inconsistent, depending on the opinions of individual juries.