The Blip Blop Blog (Team Entity)

R v Adomako (1994) is a significant case as far as gross negligence manslaughter is concerned. According to the facts the defendant an anesthetist failed to monitor the oxygen pipes during a surgery and as a result the pipes got disconnected and the patient died. It was obvious that if the anesthetist was keeping an eye on the pipes he would have been able to prevent the death. The defendant was convicted on first instance. The defense successfully appealed and the court of appeal quashed the conviction but the House of Lords on further appeal by the prosecution upheld the conviction. The House of Lords applied the duty of care principle enunciated by Lord Atkins in the landmark civil case (tort) of Donoghue v Stevenson (1932). The rule that you are to love thy neighbor (Matthew 22:39) becomes in law you must not injure your neighbor. In order to obtain a conviction, the prosecution must establish duty, breach, causation and a fourth element. The elements that are to

In addition to involuntary manslaughter and reckless manslaughter there is a third category of manslaughter called gross negligence manslaughter. The test that is to be applied in order to determine if the defendant is guilty of gross negligence manslaughter or otherwise is the test in R v Cunningham (1957) and what is required is as follows:- (1) An actual intention to do the particular kind of harm that in fact was done; or (2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured. However subjective recklessness is not a prerequisite to obtaining a conviction for gross negligence manslaughter if it can be proven that the conduct of the defendant was reckless see  A-G’s ref no 2 of 1999 (2000). Between R v Cunningham (1957) and A-G’s ref no 2 of 1999 (2000) there were a series of cases that broadened the scope of liability and the restrictive approach in R v Cunningham

In R v Mishra (2005) two doctors were charged with gross negligence manslaughter for failing to take proper care of a patient who was recovering from an operation (post-op). The patient died from a wound that resulted from the operation – there was an infection and the patient died from the complications that followed. The test in R v Adomako (1994) was applied and the doctors were convicted. The doctors appealed on the grounds that the fourth limb in the test in R v Adomako (1994), i.e. that the defendant’s conduct must be so bad that a crime could be inferred was circular and required the jury to set its own level of criminality when what was criminal or otherwise was something that should be decided by the law and not the jury and was in breach of articles 6 & 7 of the European Convention on Human Rights which reads as follows:- ARTICLE 6 Right to a fair trial 1.      In the determination of his civil rights and obligations or of any criminal charge against hi

Similarly in R v Willoughby (2004) the fact that the defendant had committed a crime did not prevent the application of the duty of care principle. R v Willoughby (2004) the defendant, a pub owner was in debt and unable to make enough money to cover his debts, he employed the deceased to set fire to his pub so that he could claim the insurance payout. As agreed the deceased went around to set fire to the pub but while he was doing so there was an explosion and he died as a result. The defendant was charged and convicted for manslaughter. The defense appealed on the grounds that the defendant did not owe the victim a duty of care. The appeal was dismissed. It was held that once the judge has decided that there was enough evidence to establish a duty of care, whether a duty or care exists or otherwise is for a jury to decide and the jury having so decided and all the other elements satisfied, the conviction must stand. Copyright © 2019 by Dyarne Ward

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. Let’s look at a civil case (tort) and a criminal case to make a comparison. In Ashton and Turner (1981) (Tort (Civil)); the plaintiff was a passenger in a car that the defendant was driving. The pair had jointly committed a burglary and the defendant was drunk at the time. The car they were driving in subsequently crashed and the plaintiff sued. The court held that the principle of ex turpi causa prevented him from claiming. The defendant clearly owed a duty of care to his passenger, the same duty that any driver owes to his or her passenger and breached the duty by not driving in the appropriate manner or the manner prescribed by law and as a result of the breach his passenger was injured. Applying the duty of care principle strictly, the defendant should be found guilty. However, because the

In R v Khan (1993) the defendants were drug dealers who supplied a girl with a class A drug (heroin). It soon became apparent that the girl needed medical attention but the defendants left her by herself and her body was found the next day dumped in a waste disposal ground. As per the decision in R v Dias (2002) the defendants could not be found guilty of constructive manslaughter or unlawful act manslaughter and this includes situations where the dealer has prepared the solution and handed in to the victim in a syringe if the victim is “a fully informed and responsible adult”. Here the victim was a minor (15 years old) and did not fall into the category of or cannot be classed as a fully informed and responsible adult. The defendants were not convicted for constructive manslaughter or unlawful act manslaughter but were found guilty instead, of involuntary manslaughter or reckless manslaughter by way of omission i.e. for failing to comply with a duty imposed by either c

DPP v Rowley (2003) further clarifies the law on convicting for gross negligence manslaughter in the absence of subjective recklessness. In DPP v Rowley (2003) the victim was suffering from quadriplegia, microcephaly and epilepsy and was in residential care. He was left unattended in a bath and drowned as a result. The CPS decided not to prosecute and his mother brought an action challenging the decision of the Crown Prosecution Services. In the absence of subjective recklessness, it was held that once the three elements of negligence were satisfied i.e. duty, breach and causation and it could be established that the defendant’s conduct was so bad that a crime could be inferred, there is a fifth element that also needs to be satisfied. In order to convict the jury must be able to ascertain or discern an element of badness or criminality for example as in R v Adomako (1994) where the defendant had failed to avert an obvious and serious risk. If the defendant in the c

Because gross negligence manslaughter is a strict liability offence the defendant can be convicted without the prosecution establishing subjective recklessness (or the mental element (mens rea)). It would strengthen the prosecution’s case if the defendant was subjectively reckless however that does not mean that the defendant cannot be convicted in the absence of subjective recklessness. In the absence of subjective recklessness, in order to determine if the defendant was reckless or otherwise, the test that is to be used is the objective test or the reasonable man’s test. In R v DPP ex parte Jones (2000) the victim was caught between the steel jaws of a crane grab bucket that was used in the docks. The buckets were used to grab bags of cobblestones and the victim was employed to unload buckets of cobblestone from a ship and during the unloading the workers were instructed to stand close to the grab buckets. The victim was caught between the jaws of a grab bucket and wa

The duty of care principle that was applied in R v Adomako (1994) is similar to the duty of care principle that is applied in Tort or negligence (civil negligence) and the prosecution must establish duty, breach and causation. The elements that are required for a conviction are as follows: - 1.      The defendant must owe the victim a duty of care 2.      The defendant must have breached that duty of care 3.      The breach of the duty must have caused the death of the victim and 4.      The conduct of the defendant was so bad (gross) that a crime could easily be inferred. Gross negligence is a strict liability offence and therefore there is no need to establish the mens rea or satisfy the mental element. It can be inferred from the defendant’s conduct. In A-G’s ref no 2 of 1999 (2000) the defendant, a rail operator, was charged with manslaughter, following a train accident in which 7 passengers lost their lives. During the trial it became evident that despite t

The test in R v Lawrence (1982) was followed in a series of cases. In R v Seymour (1983) the accused had a heated argument with his girlfriend and subsequently, according to him, tried to push or force her car out of the way with his eleven-ton lorry. The victim got out of the car but was crushed between the car and the lorry. The accused was charged and convicted of manslaughter. It was held that, with regards to death that is caused by reckless driving, the test that is to be applied is the test in R v Lawrence (1981) i.e. the question that was to be asked was whether the defendant was driving in a manner that gave rise to an obvious and serious risk and whether the defendant gave any thought to the risk or having given it some thought dismissed it. However, the risk that is caused by the manner in which the defendant was driving must be very high. In Kong Cheuk Kwan v The Queen (1985) (Privy Council) the appellants were drivers of two hydrofoils that collided in perf

The subjective recklessness test was later overshadowed by the test in R v Lawrence (1981). In R v Lawrence (1981) the accused was riding his motorbike and while doing so he ran into a pedestrian who was subsequently killed as a result of the accident that followed and the accused was charged. The court held that in order for the rider or the driver to be guilty of manslaughter the following criteria or requirements must be satisfied: - 1) The accused was riding or driving in a manner that created an obvious and serious risk to other road users and property. 2) The rider or the driver by riding or driving in the manner he or she did, did not give thought to the risk or having given it some thought dismissed it. The test in Lawrence is used to establish reckless manslaughter and it has an objective element in it for example when deciding 1) that the accused was riding or driving in a manner that created an obvious and serious risk to other road users, the benchmark tha

In addition to involuntary manslaughter (reckless manslaughter) and constructive manslaughter (unlawful act manslaughter) there is another category of manslaughter known as gross negligence manslaughter. A defendant can be convicted of gross negligence manslaughter when the negligent act deprives someone of his or her life. In order to establish or obtain a conviction “for gross negligence manslaughter 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”. In R v Bateman (1925) a doctor was charged with manslaughter for causing the death of a woman in his care who died during childbirth. It was held that in order for the doctor to be convicted of manslaughter the scope of negligence or the negligent act must not be something that may be defined as tri

In order to successfully obtain a conviction for gross negligence manslaughter the prosecution does not need to prove that the defendant foresaw the risk i.e. foresight of risk is not a prerequisite to obtaining a conviction for gross negligence manslaughter. In R v Mark and Another (2004) the defendants were managers in a company employed to clean a resin (a sticky flammable substance exuded by trees) storage tank. Two apprentices were cleaning the tank when one of them knocked over a halogen lamp, resulting in an explosion in which one of the apprentices was killed. The defendants were tried and convicted for gross negligence manslaughter. The defense appealed to bring the matter before the House of Lords. It was decided that the test that was to be applied was the subjective recklessness test or the test in R v Cunningham (1957) i.e. the defendant was "reckless as to whether such harm should occur or not". The defendants were refused leave to appeal the convict

A defendant can be charged with gross negligence manslaughter if he or she omits to do something that ought to be done especially if there is a common law duty or a statutory duty that compels him or her to do so. Hence gross negligence manslaughter is an offence that can be committed by doing something that the defendant ought not to do or failing to do something that the defendant ought to do i.e. commission or omission. In R v Hood (2003) the defendant failed to take his sick wife to a doctor and failed to bring her illness to the attention of trained medical professionals. He allowed his wife to languish for three weeks before he called for an ambulance. His wife died in the hospital. The husband was charged with murder and acquitted. He was convicted instead of gross negligence manslaughter. Whether the action of the defendant(s) amounts to an omission or otherwise is for a jury to decide. In R v Woods and Hodgson, the defendants carelessly left some ecstasy ta

The need to establish that the defendant owes the victim(s) a duty of care was further affirmed in R v Wacker (2002). In the case the defendant was transporting 60 illegal immigrants on board a refrigerated truck from Rotterdam to the United Kingdom.  There was only one air vent available and prior to the truck boarding a ferry, the air vent was shut and the passengers were told not to make any noise to prevent detection. The air vent remained shut for 10 hours, the defendant forgot to reopen it and 58 of the passengers died as a result. The defendant was charged and convicted of manslaughter. The defendant argued that the duty of care principle which is commonly used in tort does not extend to criminal law. The argument from the duty of care perspective was that the driver owes his passengers a duty of care like any other ordinary driver to ensure that he takes reasonable care to ensure that his passengers arrive at their destination safely. The only exception here was tha

It is also easier to establish gross negligence manslaughter in instances where the defendant owes the victim a duty of care and death resulted from a failure of the defendant to comply with that duty of care. For example, a train driver or even a bus driver for the matter, owes his or her passengers a duty of care to ensure that the train or the bus is driven in the manner that is prescribed by the law and that all the safety requirements are complied with. In R v Singh (1999) the landlord left his son in charge of his property in Ipswich while he was away and during that time one of the tenants died of carbon monoxide poisoning. The defendant was convicted and the defense appealed. The conviction was upheld. The defendant owed the victim a duty of care to ensure that the amenities on his property were in good working order and a failure to do so had led to the death of the victim. In R v Bowles and Bowles (2000) (Corporate Manslaughter) the defendants were owners

With regards to manslaughter charges brought against a corporation for the conduct of its employees for example when the driver of a train drives too fast and as a result a number of passengers that were on board the train lose their lives in an ensuing accident, in order to convict the driver or the members of the corporation responsible for ensuring the safety of the passengers, the prosecution needs to establish 1) gross negligence and 2) that the gross negligence can be attributed to someone in the corporation as opposed to the corporation itself. In A-G's ref no 2 of 1999 (2000) the defendant, a rail operator, was charged with manslaughter, following a train accident in which 7 passengers lost their lives. During the trial it became evident that despite the driver being an experienced driver, relevant safety procedures were not observed and it was the lack of compliance or the inability to comply with the stipulated safety procedures at that time, that had caused the