Gross Negligent Manslaughter
Adomako (1994) established that the elements required to prove gross negligence manslaughter are:
- A duty of care exists on the part of the defendant towards the victim; (AR)
- There is a breach of that duty of care, which causes death; (MR for breach and AR for cause death)
- The gross negligence is such as to be considered criminal by the jury. (MR)
Watch this video clip about a person tried for GNM:
- 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.
- 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-year-old, 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.
Unlawful Act Manslaughter (UAM)
In common law, a person who killed while committing what was then called a felony, (a serious criminal act), was guilty of murder through the doctrine of ‘constructive intent’. This meant that the intention of the defendant was ‘constructed’, or built up, from the facts of his unlawful and dangerous act. Felony murder was abolished by the Homicide Act 1957. However, it survives in part in ‘constructive manslaughter’, better known now as unlawful act manslaughter.
To prove that a defendant has committed unlawful act manslaughter, it is necessary to prove that he has committed an act, which is:
- Unlawful - AR and MR of the basic offence
- Dangerous - MR
- The one which causes death - AR
Test One: The unlawful act – AR & MR of criminal act
This must be a criminal offence. A civil wrong cannot amount to an unlawful act for this purpose. An act which is the result of ignorance or foolishness would not be enough, if no criminal offence is involved. An omission cannot be an unlawful act for this offence.
The prosecution often try and prove the least serious criminal offence where possible examples of which are:
Assault: R v Larkin
Battery: R v Mitchell
Arson: R v Goodfellow
Robbery: R v Dawson
Administering a noxious substance: R v Cato
As long as the prosecution can prove the actus reus and mens rea of a criminal offence has been committed by the D, regardless of how minor this is, this is enough to be classed as an unlawful act. So in the case of Larkin 1943 D threatened a man with a cutthroat razor. When his mistress tried to intervene, she fell on the razor and died. As the P proved the act of threatening the man was a technical assault this was enough to form the unlawful act.
In the case of Lamb (1967), the defendant and his friend had been playing with a loaded revolver. There were two bullets in the chamber of the gun, but both boys thought that neither bullet would fire unless it was opposite the barrel. Lamb pointed the gun at his friend and pulled the trigger. Because the cylinder revolved, a bullet from the next chamber was fired. His friend was killed. Although dangerous and fatal, the act of pointing the gun was held not to have been unlawful. His friend was not in fear of harm at the time, so there was no assault in the technical sense.
Test Two: Dangerous act - MR
The test for this is an objective one, and can best be expressed in the words of Edmund Davis LJ in Church (1966). He said that:
‘The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting there from, albeit not serious harm.’
The important points to note about this are that:
- It need not be the accused who necessarily foresaw the harm, but any ‘sober and reasonable’ person
- The risk may be only ‘some harm’, not necessarily serious harm.
This is an objective test so the jury decide what a sober (so ignore effects of intoxication) and reasonable person would foresee in the circumstances. If the jury believe there is a risk of even minor harm then the unlawful act is considered dangerous and D has been proven to satisfy this test.
The harm does not need to be aimed at the victim
The rules on transferred malice apply to unlawful acts that are dangerous, i.e. where the mens rea directed towards one person is transferred to the actual V. In other words if transferred malice can be shown for the intended minor offence then D can be guilty of unlawful act manslaughter on an unintended V.
For example, in the case of Mitchell (1983), in which the accused punched someone during an argument in a post office queue. The man who was attacked fell back and knocked over an old lady causing her injuries from which, shortly afterwards, she died. The P proved that D’s intention to commit a battery by punching the first V was a same type of offence committed on the old lady, her being knocked over. This proved the unlawful act on the old lady. It was also foreseeable by a reasonable person that some injury might be caused to someone where the D uses violence in a queue.
Meaning of harm
It is important to note that the harm intended must be actual physical harm. It is not enough merely to frighten someone. In Dawson (1985) there was an attempted robbery of a filling station by three masked men armed with pickaxe handles. The victim, the petrol station attendant, had a heart attack and died. It was held that the fear caused to the attendant was not an act dangerous enough in itself to warrant a conviction for manslaughter.
In Dawson the CA also had to decide if the reasonable man would have seen the risk of SOME PHYSICAL HARM from their unlawful act to the victim. The CA decided the reasonable man has the same knowledge of the D’s & as the D’s here did not know about the heart condition neither would the reasonable man.
However the CA distinguished Dawson in the case of R v Watson (1989) where the D smashed a window and broke into the house of an 87 year old man, Harold Moyler. Moyler went to investigate and the D shouted abuse at him and ran off. The police arrived and Moyler suffered a heart attack and died 90 minutes after the initial break in. The Court of Appeal held that a sober and reasonable person would regard the act of the D as dangerous as they would have known of the age and frail condition of the victim.
So the D is presumed to have the same knowledge of the V as a reasonable bystander.
In Dawson the reasonable bystander would have seen no signs of frailty to the V, so the reasonable man would not see the act of frightening the V sufficient to be dangerous.
Whereas in Watson, the reasonable bystander would see the V to be old and frail so shouting abuse at the V as a burglar would be regarded as dangerous.
Does the D have to be proved to have foreseen some harm?
In order for the unlawful act to be dangerous the courts have held that D doesn’t have to be proved to have foreseen any harm, as long as the reasonable man would have foreseen some harm.
In DPP v Newbury & Jones (1976) 2 teenage boys pushed a piece of paving stone from a bridge onto a railway line where there was an approaching train. The stone smashed through a window of the train (criminal damage), killing the guard. Committing criminal damage does not normally result in harm to a person so the question was whether or not the D’s had to foresee harm from this act. The HOL explicitly held that there was no requirement for D to foresee “some harm”, in this case two young boys. D doesn’t have to foresee that the unlawful act may cause death or even injury.
This point has further been developed in Carey (2006) where it was held that a threat to the V through one punch was not dangerous because the reasonable person would not have foreseen it would cause physical harm. But in Lynch (2007), where D punched the V several times, the battery was considered dangerous to the reasonable man because it was still likely to result in some physical harm, even if the V did not have a heart condition, as he unknowingly did in this case.
In Le Brun (1991), the defendant had, without intending any serious harm, hit his wife on the chin during an argument outside their house. She fell unconscious and he dragged her away in order to avoid detection. In doing so, he caused her head to hit the pavement hard enough to fracture her skull. She died as a result and the defendant was convicted of manslaughter. Upholding the verdict, the Court of Appeal held that although the original act was not the direct cause of death, that act and the cause of her death were both part of ‘the same sequence of events’. The original punch was intentional, and that was enough.
So regardless of the unlawful act and what the D foresaw as harm, it is what the reasonable man would foresee as harm in the circumstances.
Dangerous Act can be aimed at property
The dangerous act may not be intended to cause harm to a person. It is enough for harm to be aimed at property, if an individual dies as a result. Again this goes back to what a reasonable man would have foreseen rather than the D themselves. In Goodfellow (1986) D set fire to his council flat in order to be rehoused. His wife, son and another woman died. His conviction for manslaughter was upheld on the grounds that he had intentionally committed an unlawful act (arson), which any reasonable person might foresee would cause harm, and death had resulted.
Test Three: Substantial cause of death - AR
The unlawful act must be the substantial cause of death. In this respect the same general principles, such as the chain of causation and the thin skull rule, apply to manslaughter as to murder.
In Corion-Auguiste (2004), the defendant threw an ‘air bomb’ firework in a crowded enclosed bus station. In the general panic, passengers rushed for the exits and an elderly lady was knocked over in the rush. She struck her head and died later in hospital. The defendant was convicted of unlawful act manslaughter. His act was the direct and substantial cause of the victim’s death.
The unlawful and dangerous act need not be the sole cause of death, so long as it was not trivial.
In the case of Shohid (2003), the defendant was one of a group of men who attacked the victim and his friend on the platform of a railway station. The victim and his friend were forced onto the railway track, and the friend was able to climb back onto the platform. The victim, however, was prevented from doing so by some of the attackers, not including the defendant, and was killed by a train. Upholding the defendant’s conviction for manslaughter, the Court of Appeal held that the original attack was sufficiently serious as to be a cause of the subsequent death, and it was not necessary that it should be the only cause.
What if the death of a victim is the result of a series of unlawful acts by the defendant?
If it cannot be proved which particular act caused the death, it is sufficient to show that any one of them could have been.
This is illustrated by Attorney-General’s Reference (No. 4 of 1980) (1982). The defendant pushed the victim head-first over the rail on a landing so that she fell on her head to the floor below. He then dragged her upstairs by a rope tied round her neck. Finally, he cut her neck with a knife before cutting up and disposing of the body. The Court of Appeal held that the defendant could properly be convicted of manslaughter even though it could not be shown which unlawful, dangerous or grossly negligent act was the actual cause of death.
Cause of death where drug taking is a joint activity between the D and V
The courts have had to consider a number of cases where the D has somehow aided the V in taking an illegal drug, which then results in death. The unlawful acts are based on either the Misuse of Drugs Act 1971 or S23 of the Offences Against the Person Act 1861, administering a noxious substance.
The key issues have been that courts wish to deter and punish D’s, as a matter of public policy for playing a part in the unlawful death of the V. However, the courts have also had to ensure that precedents aren’t so wide as to making those who legally administer drugs also liable for manslaughter, if a V dies, e.g. doctors, nurses and all those associated with the medical profession.
The law on D being jointly involved in V taking an illegal drug is as follows:
R v Cato 1976: Where D prepares a syringe for V and D injects V D is the substantial cause of death.
R v Rogers 2007: Where the D uses a tourniquet to help the V find a vein to self inject and V then injects D is not the substantial cause of death.
R v Kennedy 2007: The leading case on this issue. D prepared a syringe of heroin for V. V self injected and fell unconscious. An ambulance was called but V died. The House of Lords held that where the D does inject the V with an unlawful drug this would be classed as a significant cause of death. However if the V injected himself with the illegal drug freely and voluntarily this breaks the chain of causation and D is not a substantial cause of death.
Overlap between GNM and UAM in drugs cases
In some cases on assisting illegal drug taking the courts have stated that the D may be prosecuted for GNM instead of UAM, where a duty of care can be established.
The CA in Dias 2002 has suggested obiter that where there is established a duty of care situation between drug suppliers and users then alternatively prosecutors may argue involuntary manslaughter on the grounds of gross negligence, getting around the issues of the P having to prove that an unlawful act caused death. Rather the duty of care was breached so badly it caused death.
This has been further developed in the case of Evans 2009 where a step sister was held liable for GNM through a breach of her duty to call for medical assistance after supplying drugs (creating a dangerous situation) to her sister and failing to call for help.
Answering an exam question on Unlawful Act Manslaughter
I have attached a flow chart that should help you to tackle a problem question and as with all offences/defences you must work your way through all the different parts of the offence.
Ask yourself the following questions:
- Did the defendant commit an unlawful criminal act? (See R v Lamb and R v Larkin, above.)
- Was the unlawful act dangerous? - The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting there from, albeit not serious harm. (R v Church). If the answer to these questions is ‘yes’, then the defendant’s act was dangerous regardless of what the D may or may not have foreseen. (R v Newbury & Jones)
- Did the Defendant’s unlawful and dangerous act a significant cause of death (Corion-Auguiste)? If the answer is yes then D will be guilty of unlawful act manslaughter.
When you write your answer follow them same approach as GNM.