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Gross negligence manslaughter
 
 
Gross negligence manslaughter is a form of involuntary manslaughter where the defendant is ostensibly acting lawfully. Involuntary manslaughter may arise where the defendant has caused death but neither intended to cause death nor intended to cause serious bodily harm and thus lacks the mens rea of murder. Whereas constructive manslaughter exists where the defendant commits an unlawful act which results in death, gross negligence manslaughter is not dependant on demonstrating an unlawful act has been committed. Gross negligence manslaughter can be said to apply where the defendant commits a lawful act in such a way as to render the actions criminal.  Gross negligence manslaughter also differs from constructive manslaughter in that it can be committed by omission.
 
 
 
 
 
 
Gross negligence manslaughter was originally set out in:
 
 
R v Bateman 19 Cr App R 8     Case summary
 
 
This was followed in:
 
 
 
 
 
 
This was considered unsatisfactory as the test was circular in that the jury were being told in effect to convict of a crime if they thought a crime had been committed. Subsequently gross negligence manslaughter was largely replaced with reckless manslaughter:
 
 
 
 
R v Lawrence [1982] AC 510     Case summary
 
 
 
 
R v Seymour [1983] 2 AC 493    Case summary
 
 
 
 
Kong Cheuk Kwan v The Queen (1985) 82 Cr App R 18       Case summary
 
 
 
 
However, the House of Lords in Adomako held that the law as stated in R v Seymour [1983] 2 A.C. 493 should no longer apply since the underlying statutory provisions on which it rested have now been repealed by the Road Traffic Act 1991.  
 
 
 
R v Adomako [1994] 3 WLR 288    Case summary
 
Following Adomako it was necessary for the prosecution to establish that the defendant:
 
  1. Owed a duty of care to the victim
  2. Was in breach of duty
  3. The breach of duty caused death
  4. The defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion to a crime. 
 
 
 
The following case confirmed that R v Adomako required no proof of mens rea on behalf of the defendant:
 


A-G ref no 2 of 1999
 [2000] 2 Cr App R 207                                  Case summary
 
 
 
This was affirmed in the following case where it was ruled that the CPS were wrong to base a decision not to prosecute on the lack of subjective recklessness of the employer: 


R v DPP ex parte Jones [2000] IRLR 373                                   Case summary
 
 
 
The following case suggests a fifth ingredient to Adomako of criminality or badness: 
 
 
Rowley v DPP [2003] EWHC 693   Case summary 
 
 
 
Lord Mackay, in R v Adomako, made it clear that civil law concepts of duty of care should apply in deciding the criminal liability of a person for gross negligence manslaughter. This has proved problematic outside the realm of medical negligence and driving cases. In particular, the question of whether a drug dealer owes a duty of care to one whom he has supplied seems to be illogical although the courts have not ruled out the possibility:
 
 
 
 
R v Khan & Khan [1998] Crim LR 830   Case summary
 
 
 
A woman who supplied drugs to her sister was held to owe a duty of care to summon help for her when she displayed symptoms of an overdose. The duty arose not from her familial relationship, nor from her acceptance of duty but through her supplying the drugs and thus creating a dangerous situation:
 
 
 
 
R v Evans [2009] 2 Cr App R 10  Case summary 
 
 
 
In addition it has been held that the defence of ex turpi causa, which operates in civil law to negate a duty of care where the victim is acting is acting in the course of a joint criminal enterprise when injury is inflicted, has no application in criminal law:    
 
  
 R v Wacker  [2002] EWCA Crim 1944  Case summary
 
 
 
R v Willoughby [2004] EWCA Crim 3365   Case summary
 
 
 
The problem relating to the circularity of the test  for gross negligence manslaughter remained ie the jury were to find the defendant liable of a crime if they thought his actions amounted to a crime. This was challenged as being in breach of Art 6 & 7 of the European Convention of Human Rights. However, the Court of Appeal held that the test was sufficiently certain to comply with Convention rights: 
 
 
 
 
R v Misra & Srivastava [2005] 1 Cr App R 328  Case summary
 
 
Further reading:
 
 
 
Gross negligence manslaughter