Involuntary Manslaughter- Gross Negligence

This is the alternative involuntary manslaughter conviction which is completely different to unlawful and dangerous act manslaughter. Gross negligence manslaughter takes its lead from the civil law whereby individuals who fail to take the care a reasonable person would exercise in a given situation is described as negligent. In criminal law, gross negligence occurs when D owes V a duty of care but breaches that duty in a very negligent way causing Vs death. If the breach is deemed to be ‘gross’, then a jury may believe them to be deserving of criminal punishment. This type of manslaughter can be based upon an act or an omission, and can be based upon an entirely lawful event.

D was the anaesthetist for V who was having an operation on a detached retina in 1987. During the operation, a tube supplying oxygen to Vs mouth became disconnected. D failed to notice until approx. 9 minutes later when V suffered a heart attack caused by lack of oxygen (he had also started to turn blue.) V died. Doctors giving evidence said that a competent anaesthetist would have noticed the disconnection of the tube within 15 seconds and that D’s failure to react was “ABYSMAL”. The trial judge directed the jury on gross negligence manslaughter and the resulting conviction was unanimously upheld by the HL.

Lord Mackay LC gave the leading analysis: “...in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.

If such breach of duty is established the next question is whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.”

From Adomako [1994] the key elements are:

o The existence of a duty of care towards v.

o Breach of duty

o Breach causes death.

o Gross negligence over the risk of death which the jury considers to be criminal.

Where gross negligence manslaughter is raised, the judge must direct according to Lord Mackay’s speech in Adomako [1994].

This is a well known principle in civil law, however, criminal law does recognise established duty situations where D owes a duty and can be held responsible for harm following a breach:

• o Doctor/patient relationship as in Adomako [1994]
• o A voluntarily assumed duty in R v Stone and Dobinson [1977]

Lord Mackay LC stated that the ordinary principles of civil negligence apply to help ascertain whether a duty exists to cover the situation and whether it has been breached. Such principles were originally created in the famous case:                                        Donoghue v Stevenson [1932]                                                                             Lord Atkin: “You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” This was referred to as the ‘neighbour test’.

Taking inspiration from this test indicates that where a death occurs, the test for deciding whether a duty is owed in relation to gross negligence manslaughter is simply reasonable foresight that the V would be injured.(has a wide scope.)

Since Adomako [1994] the courts have decided that duties exist in very different situations. It has been up to the trial judges to decide whether a duty initially exists (and then up to the jury to decide if it has been breached). This therefore means that duties can be established incrementally, and deciding to not establish a duty of care if it would be against public policy to do so.

R v Singh [1999]                                                                                                     D was landlord of property in which a faulty gas-fire led to carbon monoxide poisoning and the deaths of tenants. D was under a duty of care to manage and maintain the property properly. His failure to do so breached his duty, and caused the death and the jury were satisfied it was deserving of criminal punishment. D was sentenced to 9 months in prison.

R v Litchfield [1998]     D was owner and master of a sailing ship, the 137 year old Maria Asumpta which foundered off the Cornish coast  killing 3 members of crew (the ship was reduced to ‘matchwood’.) D, Mark Litchfield, had sailed knowing the engines might fail because of contamination to the diesel. The engines did fail and the ship was blown onto rocks. In sailing on with knowledge that the engines might fail he had been in breach of a duty towards his crew in a serious enough manner to amount to criminal gross negligence. CA upheld conviction and Litchfied then began an 18 month prison sentence. 

Both Singh [1999] and Litchfield [1998] concerned a contractual duty of care, but this is not always necessary.

R v Khan and Khan [1998]

D’s supplied heroin to a new user who took it in their presence and then collapsed. They left her alone and by the time they returned to the flat she had died. Their conviction for unlawful and dangerous act manslaughter was quashed (on causation grounds, see Kennedy [2007]) but CA thought there could be a duty to summon medical help in certain circumstances.

R v Dias [2002]

D prepared a syringe of heroin, gave it to V who injected himself. D then injected himself. When D recovered from the effects, realised V was very ill and asked a passerby to call 999. D then left the scene. D’s unlawful and dangerous act manslaughter conviction was quashed but the court suggested that it might be possible to establish a duty to not supply and prepare drugs.

Both Singh [1999] and Litchfield [1998] concerned a contractual duty of care, but this is not always necessary.

D was the driver of a lorry found at Dover docks to contain 60 illegal Chinese immigrants. While the lorry was waiting to board the ferry, D had closed the only ventilation into the refrigerated lorry, making it airtight, to prevent detection (rather than done with intent to cause GBH or death) the journey took 5 hours, after which “the dreadful loss of life was discovered” (Kay LJ) as 58 had died. D was convicted of 58 counts of manslaughter. On appeal, he argued that no duty of care was owed by him to the victims. However, the CA said it was a simple matter; D knew the safety of the immigrants depended on his actions in relation to the vent and he clearly assumed that duty.

Failing this argument, D also argued that as he and the immigrants had been jointly engaged in an illegal operation, he did not owe them a duty on the basis that ex turpi causa offers him a defence. (an action cannot be based on a disreputable cause.) 

D argued that as gross negligence manslaughter is based on the civil principles, this civil defence should transfer also. The CA rejected this on public policy grounds and confirmed that when Lord Mackay referred to the ‘ordinary principles of civil law’ in Adomako [1994], he did not have this defence in mind.

R v Wacker 2003 reasoning confirmed in this case.

D was the owner of The Old Locomotive, a disused pub. He had hired V to help him burn down the pub (for financial reasons). They spread petrol around the pub and started the fire. However, there was an explosion and the building collapsed, killing V. The jury agreed that D had breached his duty towards V in a grossly negligent way and he was convicted of gross negligence manslaughter.

CA accepted that the facts could give rise to both unlawful and dangerous act, as well as gross negligence manslaughter and said that he was almost certainly guilty of UDA manslaughter. But, in terms of gross negligence, Rose LJ said:

“We accept that there could not be a duty in law to look after Vs health and welfare arising merely from the fact that D was the owner of the premises. But the fact that D was the owner, that his public house was to be destroyed for his financial benefit, that he enlisted V to take part in this enterprise, and that Vs role was to spread petrol inside were, in conjunction, factors which were capable, in law, of giving rise to a duty to the deceased on part of D.”

CA imposed a duty upon D for creating a dangerous situation and failing to rectify it.

This duty was imposed because D had obtained heroin for her 16 year old sister. V took the drugs but shortly after lapsed into unconsciousness and died. As V had taken the drugs herself, D could not be convicted of UDA manslaughter. However, she was in breach of her duty to her sister by failing to contact the emergency services and was thus convicted of gross negligence manslaughter.

Evans [2009] therefore provides a potential solution to the problem created by the HLs ruling in R v Kennedy [2007] that a drug dealer’s unlawful act in supplying drugs which V self administers does not cause death and thus D cannot be convicted of unlawful act manslaughter.

Instead, using Evans [2009], drug dealers COULD be prosecuted for gross negligence if they fail to take adequate steps to assist a ‘customer’ who has overdosed on drugs supplied by the dealer.

All of these cases indicate that gross negligence duties can, and will, be extended in the future. It is therefore difficult to predict what duties might be recognised in the future.

CA imposed a duty upon D for creating a dangerous situation and failing to rectify it.

This duty was imposed because D had obtained heroin for her 16 year old sister. V took the drugs but shortly after lapsed into unconsciousness and died. As V had taken the drugs herself, D could not be convicted of UDA manslaughter. However, she was in breach of her duty to her sister by failing to contact the emergency services and was thus convicted of gross negligence manslaughter.

Evans [2009] therefore provides a potential solution to the problem created by the HLs ruling in R v Kennedy [2007] that a drug dealer’s unlawful act in supplying drugs which V self administers does not cause death and thus D cannot be convicted of unlawful act manslaughter.

Instead, using Evans [2009], drug dealers COULD be prosecuted for gross negligence if they fail to take adequate steps to assist a ‘customer’ who has overdosed on drugs supplied by the dealer.

All of these cases indicate that gross negligence duties can, and will, be extended in the future. It is therefore difficult to predict what duties might be recognised in the future.

Once a duty has been established, it must be proved that D was in BREACH of that duty toward their V and that this breach CAUSED Vs DEATH. In civil law, D is judged against the standard of a reasonably competent person performing the activity involved:

o If D is driving a car, he must reach the standard of a reasonably competent driver. (Andrews v DPP [1937])

o If D is sailing a boat….reasonably competent sailor. (Litchfield [1998]).

o Doctor…reasonably competent doctor. (Bateman [1925]).

o Anaesthetist….reasonably competent anaesthetist. (Adomako [1994]).

Simply proving that D owes a duty and has breached it will not inevitably lead to criminal liability, even though D has been responsible for that person’s death. Something more is required to justify criminal sanctions. The negligence has to be GROSS.

R v Bateman [1925]

D was a doctor who attended a woman’s home for the birth of her child. During childbirth, it was necessary to remove part of the woman’s uterus. D did not send V to hospital for 5 days and she died. D’s conviction was quashed on the basis that he had carried out the normal procedures that any competent doctor would have done at that time. He had not been grossly negligent.

Lord Hewart: “In explaining to juries the test which they should apply to determine whether the negligence... amounted to...a crime, judges have used many words such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But whatever description be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, 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 punishment.”

R v Stone & Dobinson [1977]

Lord Lane offered the following guidance: “What the prosecution have to prove is a breach of duty in such circumstances that the jury feel convinced that Ds conduct can properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. D must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.”

Adomako [1994]

Lord Mackay stated that the test for the jury was: “...whether the extent to which Ds conduct departed from the proper standard of care incumbent on him, involving as it must have done a risk of death to the patient, was such that it should be judged as criminal.”

Following Adomako [1994] it was not totally clear whether there had to be a “risk of death” through D’s conduct or whether the risk just need to be to “health and welfare” of the victim. Lord Mackay approved of both explanations, and of “disregard for the life and safety of others”

V had an operation on his knee. Ds were senior doctors responsible for the post operative care of V. They failed to identify and treat V for a bacterial infection that occurred post op (staphylococcus aureus). V died 4 days later. D’s were convicted and appealed on the basis that the elements of gross negligence were so uncertain that they breached Article 7 of ECHR which requires law to be certain, predictable and clear.

CA said the law is clear and upheld their convictions. Judge LJ said: “The ingredients of the offence have been clearly defined, and the principles decided in the HL in Adomako. They involve no uncertainty...In our judgment, where the issue of risk is engaged, Adomako demonstrates that it relates to a risk of death, and is not satisfied by the risk of bodily injury to injury to health. In short, the offence requires gross negligence in circumstances where what is at risk is the life of an individual to whom the defendant owes a duty of care. As such it serves to protect his or her right to life.”

Lord Mackay has said:

“It is true that to a certain extent this involves an element of circularity, but in this branch of law I do not believe that it is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think to achieve only a spurious precision. The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the D was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.”