Gross negligence and reckless manslaughter PDF

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Gross negligence and reckless manslaughterGross negligence manslaughter  Adomako (1994) o 1 ‘ whether or not the defendant has been in breach of a duty of care towards the victim ’ – duty of care and its breach o 2 ‘ whether that breach of duty caused the death of the victim ’ o 3 ‘ whether that br...

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Gross negligence and reckless manslaughter Gross negligence manslaughter  Adomako (1994) o 1 ‘whether or not the defendant has been in breach of a duty of care towards the victim’ – duty of care and its breach o 2 ‘whether that breach of duty caused the death of the victim’ o 3 ‘whether that breach of duty should be characterized as gross negligence and therefore a crime’ – negligence as mens rea and as standard of culpability 5 elements  A duty of care  Breach of the duty of care  Causation  A mens rea element: negligence as reasonable foresight  Standard of fault: negligence as gross Duty of care  Adomako (1994): ‘ordinary principles of negligence apply – so related to the civil law of torts  Examples: duty of care in doctor/ patient relationship  Wacker (2002) – people smuggling operation, number of people died in lorry – duty of care in illegal enterprise contra tort law – public policy ground  Evans (2009) – d supplied illegal drugs to half-sister V who died – voluntary agency breaks causal chain  Miller (1983) – duty to avert danger from one’s own dangerous acts gives rise to omissions liability  GNM? Held that an omission to act involved a duty to act which could be the basis for a duty of care  Omission’s liability where D undertakes a duty of assistance by their words or acts – Stone and Doblinson (1977) – duty of care stems from her undertaking the duty to help V once she realizes he is unwell and not following it through  Problems: liability is then a matter of a failure to care and delinked from drug supply. Evan’s mother could also be liable  The problem of drug supply and subsequent death – fitting the culpability to the law of manslaughter, where it doesn’t quite fit Breach of duty of care  Did D’s conduct fall below how the reasonable person would have acted? If it did, D breached her duty of care  How would a reasonable person have acted in the situation? Causation must be proved  This is in line with standard requirements:

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An act or omission must have caused the death

Negligence as mens rea element: reasonable foresight  Reasonable foresight of what? Would a reasonable person have foreseen a serious and obvious risk of death?  An objective test, but what is it reasonable to foresee?  How does a jury decide what was foreseeable? Applies reasonable person test at point D acted or omitted The negligence must be gross  Aims to capture the seriousness of the conduct or omission  Bateman (1925) ‘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’  Adomako ‘whether having regard to the risk of death involved, the conduct was so bad in all the circs to amount to a criminal act or omission’  Problem of circularity? What makes negligence criminal is that its gross, what makes it gross is that its criminal  Reliance on jury discretion, without real legal guidance Reckless manslaughter  The most culpable form of manslaughter – subjective foresight of a risk of death or serious injury  If GNM, awareness of death or serious injury would be evidence of gross negligence, but is foresight of risk more?  If UDAM, easier often to prove a base offence and then further mens rea is objective and for only ‘some harm’, so easier for prosecutors  Hyam (1975) as example...