Gross negligence PDF

Preview

Summary

notes on gross negligence ...

Description

Homicide 5 Gross negligence manslaughter Gross negligence - Common law offence - Case| Adomako 1995 D was an antitheist | failed to notice V’s oxygen tubes had been out for over 6 mins | held to not be at the standard of someone of his profession - D owes V duty of care| there was a breach {omission} | there was a risk of death| caused death {causal link between act and death| has to be grave enough to be criminal {grossly negligence} - Ratio – a person’s negligence is grossly negligent if it falls below the standard of a reasonable person that criminal liability shall be imposed This is a common law offence 1. Duty of care - Criminal law is borrowing a duty of care concept from civil law – tort law - How well does it transfer - Case R v Wacker 2003 Lorry driver who was part of a human smuggling ring| to avoid detection he closed the vents| when stopped at customs 58 people had suffocated - CA accepted principles of negligence apply with one exception – you owe everyone a duty of care even those in joint criminal enterprise A pre-existing duty must be shown before GN can be identified Cases Khan v khan – drug dealers who left a user to die {no pre-existing duty/ there ought to have been one} R v Evans – D supplied heroin to half sister / V overdosed but didn’t alert medical professions – { pre-existing duty – creation of danger } R v Bowler – D wrapped V in cellophane and pvc for sexual gratification / he left the V and came back to find them lifeless / he didn’t call for help { pre-existing duty and creation of duty} 2. The duty was breached, and that breach involved a risk of death Case| Mark 2004 - Manager of property - There was an explosion as cleaning products that hadn’t been stored properly - V died - D argued he wasn’t aware - COA – breach of duty has to be held objectively to the standard of the reasonable man

Homicide 5 Gross negligence manslaughter -

Also – for those with special skills will be held to the standard of a reasonably competent person with the same skills There has to be a risk of death Case| Misra & Srivastava 2004 - The breach of duty must involve a risk of death a risk of injury is insufficient 3. -

Breach causes V’s death Result crime so has to be a causal link Has to be causation principles Factual – but for Legal – thin skull No break in chain

4. The breach is regarded as gross negligence and therefore criminal Case| AG ref. no2 1999 - To find D liable, it is not necessary to demonstrate that he had any foresight of any harm - Also; the jury may take into account his mental state {i.e. reviewing all circumstances/ facts} when assessing whether his conduct was grossly negligent Is the wide discretion afforded to juries in assessing this test fair? Positive – of the discretionary test | jury represents community, and this enables them to make a judgement as to whether D deserves a criminal conviction against standards of that community  Negative – you get different results on the same facts Bateman 1926 Judge direction for jury - Negligence of accused when 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 of punishment 

Misra -

and Srivastava Art 7 – no punishment without law COA held test compatible with art 7 Jury is asked to consider a question of fact not law The jury looks at facts

Holding someone responsible for something they haven’t foreseen isn’t fair? Law commission - Proposed adding it to statute - Removing it from common

Homicide 5 Gross negligence manslaughter -

Adding intention...