Gross Negligence Manslaughter

Adomako was an anesthetist who failed to observe during an operation that a tube had become detached and this caused V’s death. At the trial it was said a regular anesthetist would have took 6 times less than the time D took to spot the failure. D had been grossly negligent, had owed a duty of care and there was a breach of this duty. D was guilty of manslaughter by gross negligence.

Gross negligence manslaughter requires a duty of care

There must be a breach of this duty

The gross negligence must be considered criminal by the jury

The civil principle of duty of care comes from Donoghue v Stevenson

Singh managed a block of flats where one of the tenants died of carbon monoxide poisoning. The gas fires in many of the flats were found to be unsafe. It was recognised that D had a duty of care and was found guilty of V’s manslaughter

Litchfield was a ship’s captain who followed an unsafe course and knew the fuel was contaminated so the engines may fail. 3 crew members drowned. D owed a duty to the crew and was guilty

Does not need to be a contractual duty 

Wacker caused the deaths of 58 out of 60 illegal immigrants traveling in the back of his lorry through the border because he failed to ensure they had air. Court of Appeal held he knew that their safety depended on his actions so he had assumed a duty. D was found guilty

Just negligence is not sufficient enough

Bateman was a doctor who went to visit a woman while she gave birth. Part of her uterus came away during it but D did not send V to the hospital for 5 days and she later died. D’s conviction was quashed on the basis that he carried out the normal procedures any doctor would have done and he had not been grossly negligent enough to be convicted.

Adomako approved this test and stressed it was a matter for the jury to decide if the conduct of D was so bad that it was a criminal act or omission

Finlay was a scout leader who did not fully stick to safety procedures and a 10 year old fell and died. It was decided this was not negligent enough to amount to manslaughter

Edwards allowed their 7 year old daughter and friend to play near a railway line. Vs were killed by a train that they did not see coming and were found guilty of manslaughter

This is developed from Lord Mackay in Adomako

It lacks clarity but seems logical

Stone and Dobinson - have they risked "health and welfare"

Bateman - have they "disregarded the life and safety of others"

Misra and Others shows a victim who had an operation on his knee. 2 D's were senior house doctors who were responsible for the post-op care of him and failed to see and treat infection. V died. The law around GNMS was uncertain so when they were convicted they claimed it breached their human rights (Art 7). Convictions upheld as Adomako had clearly shown there should be a risk of death and not bodily injury

This offence is based upon the fact that the defendant does not have the intention to kill or cause serious harm

The jury must decide if there was a criminal offence by decided whether the conduct was criminal. This is a circular test. There is no sequence of reasoning instead the argument goes round in a circle which is illogical

The jury have to decide a question of law and as no two juries are the same there is inconsistency in every decision even if the facts are similar. It could make the law fairer and more predictable if the judge decided on whether the conduct was grossly negligent

In Adomako Lord Mackay said that the civil principles of negligence were applicable to criminal law but in Stone and Dobinson the Ds were guilty of GNMS after giving limited care to V but this would not result in negligence in a civil situation. Law Commission said in 1996 that this area in law is uncertain

Used to be uncertain on whether risk of death was only sufficient or would serious injury be enough to prove GNMS. This was clarified in Misra and Others in 2004 as the Court of Appeal held that serious injury is not sufficient for manslaughter

In 1996 the Law Commission suggested that there should be 2 categgories involving negligence and killing: Reckless killing and gross carelessness killing

Reckless killing would be the more serious offence needing more proof as the D would have to be aware of the risk of death or serious injury

Killing by gross negligence would be the lower offence as D's conduct only needs to fall below that expected and unreasonably takes a risk

In the 2006 report, Murder, Manslaughter and Infanticide, the Law Commission did not recommend their 1996 proposal but instead recommended GNMS can only be committed when:

Death is caused as the conduct was lower than expected

The risk is obvious to a reasonable person in that position

They are capable of appreciating that risk

This is the law that stands now, just clearer on that death must be risked