Manslaughter - gross negligence

It is necessary for the jury to find that the breach of duty by the person can be ‘characterised as gross negligence’. What does that mean?

One of the key questions that the courts have had to consider since the case of Adomako is whether the test set out in the House of Lords decision is a ‘subjective’ or an ‘objective’ one. The distinction between these two tests concern the relevance of the state of mind of the defendant; whether or not it is necessary for the jury to consider whether the defendant was aware of the risk of death arising from the particular set of circumstances. If it was a subjective test – what is often called ‘recklessness’ - it would be necessary for there to be evidence that the defendant was aware of the risk. If it was an objective test, it would not be required - the focus simply being on the conduct of the person in question.

One reading of Adomako seems to show that ‘gross negligence’ test incorporates both an ‘objective’ gross negligence test as well as a ‘subjective’ one.

So, Lord Mackay said that 'gross negligence' includes 'recklessness' in the 'ordinary connotation of the word’, and he supported the different ways that the term was defined in the cases of R v Stone and Dobinson and in R v West London Coroner ex parte Gray (1):

However, at the same time Lord Mackay also made clear that manslaughter could be provided through an objective test. He said at different points in his judgment:

‘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 … was such that it should be judged criminal.’

‘Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances of the case as to amount in their judgment to a criminal act or omission.’

‘failure to advert a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant’s duty demanded he or she should address.’

There have been a number of cases since Adomako dealing with this question.

Attorney General's Reference (No 2/1999) (2) resulted from the unsuccessful prosecution of Great Western Railways over the Southall Rail Crash in September 1997. One of the questions that the Attorney General asked the Court of Appeal to clarify was: ‘can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant's state of mind?’. The court ruled

‘Although there may be cases where the defendant's state of mind is relevant to the jury's consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence. The Adomako test is objective, but a defendant who is reckless … may well be the more readily found to be grossly negligent to a criminal degree.’

This was then subsequently followed in case of R v DPP ex parte Tim Jones (3), decided one month later in March 2000, which involved a successful judicial review of a decision by the Crown Prosecution Service not to prosecute the managing director of Euromin Ltd over the death or 24 year old Simon Jones. The court stated:

‘If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal, but negligence will still be criminal in the absence of any recklessness if on an objective basis the defendant demonstrated what, for instance, Lord Mackay quoted the Court of Appeal in Adomako as describing as: ‘failing to advert to a serious risk going mere inadvertence in respect of an obvious and important manner in which the defendant's duty demanded he should address …’

That actual awareness of risk is not required to found a conviction was confirmed again in a more recent 2004 Court of Appeal decision of R v Alan James Mark Nationwide Heating Services Ltd (4), where the court has held that the trial judge was correct in directing the jury that

'actual foresight or perception of the risk is not a prerequisite of the crime of gross negligence’.

Whilst these decisions seem to be clear enough, there is another line of cases that indicates that when evidence of the state of mind is available, the jury must at least be allowed to take this into account. These cases rely on the sentence in the Adomako case which states that the jury must consider the ‘seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred’ (emphasis added).

In the case of R v Misra (5), the Court of Appeal stated:

‘such evidence [of the state of mind of the defendant] is not irrelevant to the issue of gross negligence. It will often be a critical factor in the decision’.

And referring to Adomako, went onto say,

‘It is therefore clear that the defendant is not to be convicted without fair consideration of all the relevant circumstances in which is breach of duty occurred.’

In saying this, the Court of Appeal approved the High Court ruling in the case of. R (Rowley) v DPP (6) which concerned an unsuccessful judicial review of a decision by the Crown Prosecution Service not to prosecute following the death of a member of the public in a care home. Lord Justice Kennedy stated that there were five 'ingredients' to the offence of manslaughter and although the first four were 'objective' -‘each of these four ingredients requires the application of an objective test, that is a test which excludes consideration of the defendant’s state of mind’ - the final one was not.

He said that the four 'objective' tests were:

He said however there was also a fifth ingredient that he called ‘criminality’ or '‘badness’. He said that by:

‘using the word ‘badness’, the jury must be sure that the defendant’s conduct was so bad asin all the circumstances to amount 'to a criminal act or omission'‘.

In relation to this fifth ingredient, the court said that the jury could take into account all the circumstances - including the state of the mind of the defendant. The Judge therefore concluded (7):

‘The issue raised in the present case by Mr Hunt [family barrister] is whether the state of mind of the defendant is a factor which the jury may take into account in the defendant’s favour when considering whether his conduct is so bad as to amount to a criminal offence. Mr Hunt submitted that subjective recklessness may help to establish a prosecution case, but that otherwise the state of mind of the proposed defendant is irrelevant.

That seems to us to be an unrealistic approach which the authorities do not require, which no judge would enforce, and which no jury would adopt. Once it can be shown that there was ordinary common law negligence causative of death and a serious risk of death, what remains to be established is criminality of badness. In considering whether there is criminality or badness, Lord Mackay [in the case of Adomako] makes it clear that all the circumstances, are to be taken into account.’

Risk of Death:
It is important to note that the relevant risk to be considered by the jury is ‘risk of death’. In a number of cases (8), reference has been made to a risk in broader terms i.e to injury or indeed to health and welfare of the person.

However, in R v Singh (Gurphal) (9), the court of appeal upheld the trial judge’s direction that:

‘the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death.’

This direction was then applied by the Divisional court in Lewin v CPS. It should also be noted that in R v Misra (5) the Court of Appeal stated that:

‘Mr David Perry, on behalf of the Attorney General, informed us that, as a matter of policy, when making a decision whether to prosecute for this offence in cases like the present, the Director of Public Prosecutions looks for evidence of an obvious risk of death and that if the extent of the risk were limited to the obvious risk of serious injury, and no more prosecution would not follow’.

Footnotes

1. [1987] 2 ALL ER 129

2. [2000] QB 796

3. [2000] IRLR 373

4. [2004] EWCA Crim 2490

5. [2004] EWCA 2375

6. [2003] EWHC 693

7. para 33 and 34

8. Stone v Dobinson [1977] QB 554 and West London Coroner, ex parte Grey [1998] QB 467

9. [1999] CLR 582