An Examination of the Flaws in the Law on Gross Negligence Manslaughter
Introduction
Gross negligence manslaughter is a common-law offence that arises where a party owing a duty to another causes their death by acting negligently. Cases of negligently causing death have been on the rise recently, and this has necessitated more prosecutions. Prosecutors are keen on bringing parties to book to hold individuals accountable for their offences and to deter further crimes.[1] However, the offence creates so much uncertainty that it makes it difficult for prosecutors to decide which cases to pursue.[2] It also presents a problem for juries and judges because there is no clear guideline for them to apply in either convicting or acquitting an accused person. Further, it creates a problem for accused persons since they cannot decide whether to plead guilty. Accused persons face a disadvantage when the court applies the law to their cases. This disadvantage arises from the fact that the law is uncertain, and in most cases, it apportions blame. The law also gives the jury too much discretion in deciding whether or not the party is guilty. This paper will examine three main flaws in the law on gross negligence manslaughter: its poor definition, unfair apportionment of blame, and jury discretion.
Uncertainty and Poor Definition
The offence of gross negligence manslaughter has such a poor definition that it breeds uncertainty. Law, especially criminal law, prides itself on certainty. Every individual should know what a crime entails such that they will not claim an injustice if they are held guilty of the offence. The Law Commission has previously expressed the issue of uncertainty in the law on gross negligence manslaughter. In its consultation paper, it revealed the problem of ambiguity in the definition of gross negligence.[3] A subsequent report explained that the crime ahs possibly failed to meet the threshold of certainty required by the European Convention on Human Rights.[4] The case of R v Misra & Srivastava challenged the certainty and clarity of the offence. The appellants appealed against a conviction stating that the test for gross negligence manslaughter was circular and uncertain.[5] The Court of Appeal upheld their conviction, stating that the test in R v Adomako was sufficient and coherent.
It is important to analyze the test in R v Adomako to determine whether or not it provides a form of certainty. Lord Mackay gave four elements that constitute the offence.[6] Firstly, there must be a duty of care owed to the victim. Secondly, the accused must have breached the duty. The third element is that the breach of duty must have amounted to gross negligence that can constitute a crime. Fourthly, the negligence caused the death of the victim.[7] Similarly, in the case of R v Bateman, the court gave a test that required proof of the elements of the civil liability of negligence and added two aspects. The last two were causation and that the negligence was so gross as to constitute a crime.[8] The concept of what amounts to gross negligence is largely uncertain since the law does not explicitly define it.[9] Gross negligence is also too broad that it creates a lack of clarity and should not be a measure of whether or not an individual is criminally culpable.[10] Although the tests in Adomako and Bateman is a reasonably clear guideline, the definition of gross negligence is not clear, and this leaves both prosecutors and the public unsure of what exactly constitutes the offence.
Unfair Apportionment of Blame
The law on gross negligence manslaughter often leads to an unfair apportionment of blame. It does not consider the system that may have caused the death of the victim. The case of Hadiwa Bawa-Garba presents such a scenario.[11] Dr. Bawa-Garba got a conviction for causing the death of a six-year-old child. The court gave her a two-year suspended sentence. A medical practitioners’ tribunal gave her a one-year suspension form practice, which prompted the General Medical Council (GMC) to file an appeal at the High Court, stating that it was imprudent for the tribunal to allow her to keep practicing. GMC pushed for the removal of her name from the register of medical practitioners, which the High Court ordered. Upon appeal, the Court of Appeal overturned the High Court ruling, citing that the tribunal was right to consider the system failures that contributed to the death of the victim.[12] This ruling was a partial win for the doctor, but the gross negligence conviction still stands. There were several issues at the hospital; for example, the doctor ordered blood tests to be done, which delayed for over 9 hours. There was also a lot of confusion, and the doctor had worked long hours. Therefore, holding that the doctor was solely responsible for the child’s death was unfair and unjust. It leaves the medical fraternity concerned about potential convictions for fatalities that do not directly result from their actions or omissions.[13] They find themselves in a vulnerable position considering the risky nature of their work.[14] The unfairness that accompanies gross negligence manslaughter cases would not exist if the purview of the offence provided for a moral assessment of the accused’s actions to determine whether or not they deliberately exposed the victim to harm.
Jury Discretion
Ordinarily, a crime is provided under law and precisely defined. However, the offence of gross negligence manslaughter leaves it to the jury to decide what constitutes a crime. In the case of Adomako, the court stated that the central question for a jury is whether the conduct of the accused was so bad that it amounted to criminal behavior.[15] The court usually establishes that the actions of the accused are negligent, and proceeds to examine whether they constitute a crime.[16] This position means that, instead of weighing the actions against a legally defined crime, a jury determines what precisely a criminal act is. Judicial discretion is not wrong in itself. However, a jury should not have so much discretion that allows them to act on their whims and wishes. If allowed too much discretion, there will be a lot of ambiguity, uncertainty, and lack of uniformity concerning how the court applies the law.
Conclusion
The law on gross negligent manslaughter is fundamentally flawed. It has an element of circularity and breeds uncertainty.[17] The offence is not precisely defined under the law and presents ambiguity, which gives a hard time to individuals who may fail to understand their criminal culpability. Further, it leads to an unfair apportionment of fault by the court since it does not consider the contributory factors that may have led to a negligent act. The law also gives juries excessive discretion by allowing them to define what constitutes gross negligence and criminal activity. Therefore, reform is necessary to cure these defects and provide a clear understanding of gross negligence manslaughter.
Bibliography
Primary Sources:
Table of Cases
R v Adomako [1994] 3 WLR 288
R v Bateman (1925) 19 Cr App R 8
R v Bawa-Garba (Hadiza) [2016] EWCA Crim. 1841
R v Misra & Srivastava [2005] 1 Cr App R 328
Secondary Sources:
Dyer C, ‘Law on Gross Negligence Manslaughter Is Flawed, Says Leading Medical Lawyer’ (2018) 363 BMJ <https://www.bmj.com/content/363/bmj.k4412> accessed 17 May 2020
Furey JR, ‘A Consistent Approach to Assessing Mens Rea in the Criminal Law of England and Wales’ (University of Exeter 2010) <https://ore.exeter.ac.uk/repository/handle/10036/117790> accessed 17 May 2020
Griffiths D and Sanders A, Bioethics, Medicine and the Criminal Law: Volume 2, Medicine, Crime and Society (Cambridge University Press 2013)
Lodge A, ‘Gross Negligence Manslaughter on the Cusp: The Unprincipled Privileging of Harm over Culpability’ (2017) 81 The Journal of Criminal Law 125
Loveless J, Allen M, and Derry C, Complete Criminal Law: Text, Cases, and Materials (Oxford University Press 2018)
Martin J and Storey T, Unlocking Criminal Law, Third Edition (Routledge 2013)
Mullock A, ‘Gross Negligence (Medical) Manslaughter and the Puzzling Implications of Negligent Ignorance: Rose v R [2017] EWCA Crim 1168’ (2018) 26 Medical Law Review 346
Quick O, ‘Prosecuting “Gross” Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service’ (2006) 33 Journal of Law and Society 421
Reed A, ‘Ex Turpi Causa and Gross Negligence Manslaughter’ (2005) 69 The Journal of Criminal Law 132
Smith A, ‘Criminal or Merely Human?: The Prosecution of Negligent Doctors’ (1995) 12 Journal of Contemporary Health Law & Policy (1985-2015) 131
The Law Commission, ‘Law Commission Consultation Paper No . 135 : Criminal Law : Involuntary Manslaughter’ (1994) <http://www.lawcom.gov.uk/app/uploads/2016/08/No.135-Criminal-Law-Involuntary-Manslaughter-A-Consultation-Paper.pdf> accessed 17 May 2020
The Law Commission, ‘Law Commission Report No. 237: Legislating the Criminal Code: Involuntary Manslaughter’ (1996) <http://www.lawcom.gov.uk/wp-content/uploads/2015/03/lc237_Legislating_the_Criminal_Code_Involuntary_Manslaughter.pdf> accessed 17 May 2020
[1] Oliver Quick, ‘Prosecuting “Gross” Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service’ (2006) 33 Journal of Law and Society 421, 421.
[2] Danielle Griffiths and Andrew Sanders, Bioethics, Medicine and the Criminal Law: Volume 2, Medicine, Crime and Society (Cambridge University Press 2013) 117.
[3] The Law Commission, ‘Law Commission Consultation Paper No. 135: Criminal Law: Involuntary Manslaughter’ (1994) 35 <http://www.lawcom.gov.uk/app/uploads/2016/08/No.135-Criminal-Law-Involuntary-Manslaughter-A-Consultation-Paper.pdf> accessed 17 May 2020.
[4] The Law Commission, ‘Law Commission Report No. 237: Legislating the Criminal Code: Involuntary Manslaughter’ (1996) 27 <http://www.lawcom.gov.uk/wp-content/uploads/2015/03/lc237_Legislating_the_Criminal_Code_Involuntary_Manslaughter.pdf> accessed 17 May 2020.
[5] R v Misra & Srivastava [2005] 1 Cr App R 328.
[6] R v Adomako [1994] 3 WLR 288.
[7] Jacqueline Martin and Tony Storey, Unlocking Criminal Law, Third Edition (Routledge 2013) 24.
[8] R v Bateman (1925) 19 Cr App R 8
[9] Janet Loveless, Mischa Allen, and Caroline Derry, Complete Criminal Law: Text, Cases, and Materials (Oxford University Press 2018) 146.
[10] Anne Lodge, ‘Gross Negligence Manslaughter on the Cusp: The Unprincipled Privileging of Harm over Culpability’ (2017) 81 The Journal of Criminal Law 125, 126.
[11] R v Bawa-Garba (Hadiza) [2016] EWCA Crim. 1841
[12] Clare Dyer, ‘Law on Gross Negligence Manslaughter Is Flawed, Says Leading Medical Lawyer’ (2018) 363 BMJ <https://www.bmj.com/content/363/bmj.k4412> accessed 17 May 2020.
[13] Alexander Smith, ‘Criminal or Merely Human?: The Prosecution of Negligent Doctors’ (1995) 12 Journal of Contemporary Health Law & Policy (1985-2015) 131, 131.
[14] Alexandra Mullock, ‘Gross Negligence (Medical) Manslaughter and the Puzzling Implications of Negligent Ignorance: Rose v R [2017] EWCA Crim 1168’ (2018) 26 Medical Law Review 346, 348.
[15] Ibid 5.
[16] Alan Reed, ‘Ex Turpi Causa and Gross Negligence Manslaughter’ (2005) 69 The Journal of Criminal Law 132, 136.
[17] Jason Richard Furey, ‘A Consistent Approach to Assessing Mens Rea in the Criminal Law of England and Wales’ (University of Exeter 2010) 214 <https://ore.exeter.ac.uk/repository/handle/10036/117790> accessed 17 May 2020.