Gross Negligence Manslaughter - Summary 3
The
decision in R v DPP ex parte Jones (2000) was followed in DPP v Rowley
(2003) and in addition to the four elements that have been mentioned earlier,
in the absence of subjective recklessness there may be a fifth element that
needs to be satisfied i.e. the element of badness or criminality. In short the
conduct of the defendant or his or her omission must be so bad that it is not
sufficient that a mere fine is imposed or the victim is compensated but calls
for criminal punishment i.e. it amounts to a crime against the state.
If
there is no subjective recklessness and the prosecution cannot establish
badness or criminality than the chances are that the prosecution will not be
able to convict for gross negligence manslaughter.
Even
if the victim has made a conscious decision to inflict some harm to his or her
person, for example when the victim injects himself or herself with a class A
drug, the defendant (the person who supplied the drug) can still be convicted
of gross negligence manslaughter for failing to call for assistance or for
failing to act in the manner a reasonable man would have especially when it is
obvious that the victim is going into an overdose see R v Evans (2009).
The
fourth and fifth limbs i.e. that the defendant’s conduct must be so bad that a
crime could be inferred and the element of badness or criminality i.e. the
conduct of the defendant is so bad that it is not sufficient that a mere fine
is imposed or the victim is compensated and amounts to a crime against the
state, can sometimes be consolidated into a single element especially in
instances where criminal behavior is blatant or obvious.
The
doctrine of ex turpi causa non oritur actio or where the act is illegal, a
legal remedy is not available, does not necessarily negate the duty of care
principle in criminal law see R v Wacker (2002) and R v Willoughby (2004).
Whether
the defendant’s conduct amounts to gross negligence or otherwise is a question
of fact (it is for a jury to decide) and it is not a question of law see R v
Mishra (2005).
Copyright
© 2019 by Dyarne Ward
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