Gross negligence manslaughter – an offence in flux
31 January 2018
After a period of relative stability following the seminal judgment of the House of Lords in Adomako  AC 171, gross negligence manslaughter has been considered by the Court of Appeal on a number of occasions during the past 18 months. In each of these judgments, the court has taken the opportunity to refine the elements of the offence. This post will consider the four most significant judgments, with the aim of evaluating their impact upon the offence.
How should the jury be directed when assessing whether the defendant’s breach of duty was “grossly negligent”?
There are two relatively recent cases in which the Court of Appeal has considered how the jury should be directed when assessing whether the defendant’s breach of duty was grossly negligent. In Sellu  EWCA Crim 1716 the defendant was an experienced colorectal surgeon whose gross negligence was alleged to be the cause of the victim’s death. The trial judge directed the jury that their task was not just “to decide whether [the defendant] fell below the standard of a reasonably competent consultant colorectal surgeon, but whether he did so in a way that was gross or severe”. The defendant was convicted and appealed on the basis that the judge misdirected the jury on the elements of the offence. In allowing his appeal, the Court of Appeal held that it was incumbent upon the trial judge to assist the jury to identify the line that separates serious or even very serious errors, from conduct which was “truly exceptionally bad and was such a departure from that standard [of a reasonably competent doctor] that it consequently amounted to being criminal”. In the subsequent case of Bawa-Garba  EWCA Crim 1841 the defendant’s conviction was upheld, as the Court of Appeal concluded that the trial judge had accurately brought to the jury’s attention the fact that the prosecution had to make them sure that the defendant’s conduct was “truly, exceptionally bad” before they could find her guilty of gross negligence manslaughter.
The Court of Appeal took the opportunity in Sellu to emphasise two additional points. First, the trial judge must take steps to ensure that the medical experts do not usurp the function of the jury in determining whether the defendant is guilty. Secondly, the court considered the issue of causation. The defendant’s gross negligence must cause the death of the victim and it was held that the jury must be directed to consider whether the defendant’s gross negligence occurred after the time that they could be sure that the victim would have survived. If the victim would have died even without the defendant’s gross negligence, then the defendant will not be guilty.
How should the jury assess whether the defendant’s breach of duty posed a serious and obvious risk of death?
One of the elements of gross negligence manslaughter, as the Court of Appeal confirmed in Misra  EWCA Crim 2375, is that the defendant cannot be convicted unless, at the time of his or her breach of duty, there was a serious and obvious risk of death. This is an objective assessment and does not depend upon the defendant’s assessment of the risk. The Court of Appeal has recently considered the question of whether the jury, in considering this element of the offence, are entitled to take into account what the defendant would have known but for his or her breach of duty. This issue has been considered in two recent cases. In Rudling  EWCA Crim 741, it was accepted that the defendant GP could not have been aware of the grave nature of the victim’s condition unless she visited him in person. In upholding the trial judge’s conclusion that there was no case for the defendant to answer, the Court of Appeal stated that “mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation”. In the subsequent case of Rose  EWCA Crim 1168, this issue was considered by the Court of Appeal more extensively. The defendant was an optometrist who, during the course of a routine sight test, failed to conduct an internal examination of the victim’s eye, as she was required to do by statute. Had she done so, she would have appreciated that the victim was suffering from a potentially fatal condition, which did, in fact, lead to his death a number of months later. Had she conducted the examination in accordance with her statutory duty, the defendant would have appreciated the victim’s condition and referred him for urgent medical treatment. The trial judge directed the jury that in considering whether the defendant’s breach of duty posed a serious and obvious risk of death, an optometrist who is so negligent that she does not even attempt an internal investigation cannot rely on that breach to escape liability for gross negligence manslaughter. They could therefore take into consideration what the defendant would have known but for her breach of duty. The Court of Appeal quashed the defendant’s conviction. In a judgment delivered by Sir Brian Leveson P, it was held that the failure to examine the back of the victim’s eyes meant that there was the possibility that signs of a potentially life-threatening condition or abnormality might be missed, but his lordship concluded that this was insufficient to found a case of gross negligence manslaughter since there must be a “serious and obvious risk of death” at the time of the breach of duty. The court concluded that in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty. The Court of Appeal declined to certify a point of law of general public importance.
Given the fact that gross negligence manslaughter appears to be in a state of flux, it is submitted that an authoritative judgment of the Supreme Court that evaluates the developments that have taken place since the judgment in Adomako would be welcome. This would ensure there is clarity not just for those who are at risk of committing the offence, but also for the prosecutors who must decide whether to charge individuals with the offence.
Karl Laird is a Fixed-term Fellow and Tutor in Law at St Hilda’s College, Oxford and a future 6KBW pupil.