Law 03 Short notes
Gross Negligent Manslaughter
Definition
Adomako (1994) established that the elements required to prove gross negligence
manslaughter are:
1. A duty of care exists on the part of the defendant towards the victim; (AR)
2. There is a breach of that duty of care, which causes death; (MR for breach and AR
for cause death)
3. The gross negligence is such as to be considered criminal by the jury. (MR)
1. Duty of care
A duty situation is normally a legal matter for the judge to direct the jury on with
recognised duties falling into two categories:
Where the D does an act which creates a duty
R v Litchfield: Ships captain to crew
R v Adomako: doctor to patient
R v Singh: Landlord to tenant
R v Andrews: Driver to road user
R v Holloway 1994: Electrician to householder
R v Wacker: established that a duty of care is owed to one with whom the defendant is
complicit in a crime.
R v Ruffell: The Court of Appeal upheld the conviction for manslaughter on the basis
that it was open to a jury to find that D had assumed a duty of care where D had sold
illegal drugs to the V and the V had taken them and become ill in front of the D.
Airedale Trust v Bland: The House of Lords decided that doctors were allowed to stop
feeding a patient because it was in the patient’s best interest and this would not create a
criminal duty through this omission.
R v Evans 2009: D created a dangerous situation by supplying her sister with drugs so
creating a criminal duty of care.
The 6 exceptional omission situations where D should have acted but doesn’t.
Statutory: Road traffic Act 1988 – Failure to wear a seat belt
Contractual duty: R v Pittwood – Failure to keep railway user safe
Family relationship: R v Gibbons & Proctor – Parents failure to feed child
Voluntary assumed responsibility: R v Stone & Dobinson – Failure to call for medical
assistance after assuming care of sister
Official duty: R v Dytham – Failure to call for help when a member of public being
attacked.
Creating a dangerous situation: R v Miller – Failure to take reasonable steps to avert
danger after causing a dangerous situation.
Where no previous precedent exists as to whether a duty exists or not the jury decide if a
duty at criminal law exists based on the facts of the case.
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Law 03 Short notes
2. Breach of a duty of care
Objective Test: What would a reasonable man with the same skills have done in the
same situation?
If the jury believe they would have done better than the D in the same circumstances and
with the same skills then the D will have breached their duty of care.
Holloway: the reasonable electrician would have honestly told the householder that the
electric shower was not safe to use.
Adomako: Would a reasonable anaesthetist have missed seeing a breathing tube had
fallen out of their patient during an operation for 9 minutes.
3. The Breach is so bad it should be regarded as a criminal offence
This is a matter of fact for the jury to decide on an objective basis.
R v Bateman: ‘does the conduct of the accused show such disregard for the life and safety
of others as to amount to a crime against the state and conduct deserving of punishment?’
The breach must be more than could be compensated for with money (a civil wrong).
R v Andrews: A simple lack of civil care (being negligent) is not enough for criminal liability.
There needs to be a very high degree of negligence (failure of the D’s duty) to be regarded
as this criminal offence.
Finlay 2001: a scout leader was in charge of a party of scouts when one of them, a 10-yearold, fell to his death on Snowdon. There was evidence that several of the proper safety
procedures had not been followed, but the jury felt that the defendant’s conduct did not show
such disregard for life and safety as to amount to gross negligence. He was acquitted of
manslaughter.
Misra and Srivastava (2004): For the objective test the jury must believe the breach of the
duty of care was so bad that it risked death, not just the health and safety of the V.
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Law 03 Short notes
R Adomako 1994
Facts
The defendant was an anaesthetist during an eye operation. During the
operation, the tube supplying oxygen to the patient became disconnected. After
suffering a heart attack, the patient later died as a result of brain damage. It
was testified at the trial that a competent anaesthetist should have noticed the
disconnected tube within seconds. The defendant’s failure to do so was
described as ‘abysmal’. The House of Lords subsequently upheld his conviction
for gross negligence manslaughter.
1. What legal duty of care does Adomako have to his patient?
2. Evidence in the case said a competent anaesthetist would have replaced the
breathing tube back in the patient’s mouth in 15 seconds. Adomako took 9
minutes.
Why is this a breach of a duty of care?
Is the breach bad enough to be a criminal offence? Explain your answer.
3. If Adomako had been a trainee would it have made any difference to any of
your answers? Explain.
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Law 03 Short notes
R v Wacker 2002
Facts
On 18 June 2000, following the interception by Customs and Excise officers in
Dover of a lorry entering the United Kingdom. Upon opening the lorry’s
container, the officers discovered 60 Chinese illegal immigrants. 58 of them
were dead.
The cause of death was suffocation. Just prior to boarding the ferry at
Zeebrugge, the driver had closed the one vent through which air was supplied
into the container, apparently in order to reduce the likelihood of detection.
That this would occur had been explained to the would-be immigrants.
Unfortunately, the vent was not reopened during the crossing and, by the time
the container was opened by officials in Dover, it was too late. The air had run
out.
The Dutch driver, Perry Wacker, was convicted of conspiracy to facilitate the
entry of illegal immigrants, and of 58 counts of manslaughter. He appealed
against the manslaughter convictions, which were predicated on gross
negligence, on the ground that no duty of care was owed by him to the victims.
The was said by D’s counsel to be for two reasons: first, because D’s conduct
occurred as part of a shared illegal enterprise, in civil law there can be no
negligence claim from this; secondly, because the relevant causative conduct
was an omission (failure to reopen the vent) rather than an act, so that the
relevant time at which any duty might arise could not be specified.
1. Do you believe Wacker had a criminal duty of care? Explain
2. Thinking about the rules of causation explain why Wacker caused the death
of the V’s?
3. Why is Wacker charged with negligent Manslaughter and not murder?
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Law 03 Short notes
R V Evans 2009
Facts:
The appellant was convicted of gross negligence manslaughter along with her
mother in relation to the death of her 17 year old sister, Carly Townsend who
died of a heroin overdose. The appellant was 8 years older than her sister. The
appellant, her mother and Carly all had a history of heroin addiction. Carly had
just been released on licence from a detention and treatment order and a
condition of the licence was that she resided at her mother's house. The
appellant moved in with her mother after her boyfriend was sent to prison. The
appellant bought some heroin and gave it to Carly. Carly self injected the heroin
and then developed symptoms which the appellant, from her own experience,
recognised as being consistent with an overdose. The appellant and her mother
decided not to seek medical assistance for fear of getting into trouble. Carly
died. The appellant appealed against her conviction for gross negligence
manslaughter on the grounds that the judge had left it to the jury to decide
whether the appellant owed a duty of care and that it was wrong to leave this to
the jury where this would involve an extension of principles relating to duty of
care.
The Lord Chief Justice said, “when a person has created or contributed to the
creation of a state of affairs which he knows, or ought reasonably to know, has
become life threatening, a consequent duty on him to act by taking reasonable
steps to save the other's life will normally arise."
1. Why was there a duty of care in this case?
2. Which duty of care situation does this expand?
3. Did Evans breach her duty of care? Explain.
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Law 03 Short notes
The Reasonable man would not have broken is duty of care in the same
situation
For the following scenarios write a sentence in context saying whether or not
the RM would have broken their duty of care.
Case
Litchfield – Ships captain
went too close to rocks
after knowingly allowing
the ship to drift, killing all
on board.
Singh – A landlord failed
to get a gas fire serviced
resulting in fumes killing
the tenant
Andrews – D killed a
pedestrian whilst
attempting to pass
another car by driving well
over on the offside of the
road. D had been sent by
his employer to assist a
disabled vehicle.
Same facts as Andrews
except D was a learner
driver.
Evans – D bought drugs
for her sister who then
took them and became ill.
D was frightened of calling
for help as they had both
been in trouble before and
as a result the help came
too late and the sister
died.
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Broken Duty of Care?
Law 03 Short notes
R v Bateman 1925
Facts
D a doctor attended the confinement of a woman who died while giving birth. In
1925 the vast majority of birth’s took place in the home and the infant
mortality rate was 75 per 1000 compared to 5 per 1000 now. All medical
treatment had to be paid for. Bateman only decided to send the V to hospital
after 3 days of labour and due to this delay the mother died. Medical opinion of
the time would not have sent the mother straight way though would have sent
the mother to hospital quicker than Bateman.
The court held that only if the breach of duty was so bad as to more that than
could be compensated for by damages would Bateman be guilty of Manslaughter.
1. Did Bateman breach his duty of care? Phrase a sentence in context to
answer this question.
2. What evidence is there that the breach of Bateman’s duty of care was bad
enough to be a criminal offence?
3. Why did the court decide Bateman did not breach his duty of care badly
enough to be guilty of manslaughter?
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Law 03 Short notes
Andrews v DPP 1937
Facts
The appellant drove a van above the speed limit and overtook another car. As he
did so he struck a pedestrian and killed him.
Lord Atkins said in finding the D guilty of Manslaughter:
"Simple lack of care such as will constitute civil liability is not enough: for
purposes of the criminal law there are degrees of negligence: and a very high
degree of negligence is required to be proved before the felony is established."
1. What is meant by the first sentence in Lord Atkins judgment?
2. What do you think Lord Atkins means by saying there has to be a very high
degree of negligence before it is a criminal law matter?
3. In a case like Andrews who decides whether the degree of negligence is high
enough to be a criminal matter?
4. Give two reasons why number (3) is an objective rather than a subjective
test?
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Law 03 Short notes
R v Misra and Srivastava (2004)
Facts
The two appellant doctors were convicted of gross negligence manslaughter
following the death of a post-operative patient under their care. The patient
developed an infection in the wound, which was undiagnosed and therefore
untreated despite obvious symptoms. The patient died of toxic shock as a result
of the untreated infection. The appellants sought to challenge the test of gross
negligence manslaughter laid down in Adomako (ie. whether having regard to the
risk of death involved, the conduct of the defendant was so bad in all the
circumstances as to amount in the jury's opinion to a criminal act or
omission.)The appellants argued that this test was circular and required the
jury to set their own level of criminality which essentially should be a question
of law. The appellants raised Articles 6 & 7 of the European Convention of
Human Rights in that the uncertainty created by the Adomako test meant they
had been deprived of the right to a fair trial and the uncertainty also meant
that at the time the action was committed it was not possible to determine
whether the actions were criminal.
Held:
Conviction upheld. The Adomako test did not infringe Convention Rights.
1. Explain why the D’s believed they were deprived a right to a fair trial in
this case?
Do you think the final test for so bad it is criminal is a fair one? Explain.
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Law 03 Short notes
R v Misra and Srivastava (2004)contd
Lord Justice Judge:
"On proper analysis, therefore, the jury is not deciding whether the particular
defendant ought to be convicted on some unprincipled basis. The question for
the jury is not whether the defendant's negligence was gross, and whether,
additionally, it was a crime, but whether his behaviour was grossly negligent and
consequently criminal. This is not a question of law, but one of fact, for decision
in the individual case.
In our judgment the law is clear. The ingredients of the offence have been
clearly defined, and the principles decided in the House of Lords in Adomako.
They involve no uncertainty. The hypothetical citizen, seeking to know his
position, would be advised that, assuming he owed a duty of care to the
deceased which he had negligently broken, and that death resulted, he would be
liable to conviction for manslaughter if, on the available evidence, the jury was
satisfied that his negligence was gross. A doctor would be told that grossly
negligent treatment of a patient which exposed him or her to the risk of death,
and caused it, would constitute manslaughter.
Although, to a limited extent, Lord Mackay accepted that there was an element
of circularity in the process by which the jury would arrive at its verdict, the
element of circularity which he identified did not then and does not now result
in uncertainty which offends against Article 7, nor if we may say so, any
principle of common law. Gross negligence manslaughter is not incompatible with
the ECHR. Accordingly the appeal arising from the question certified by the
trial judge must be dismissed. "
1. Explain in your own words why Lord Justice Judge believes the final test for
gross negligent manslaughter is fair?
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