Gross Negligence Manslaughter
4.The ingredients of the offence were set out in R v. Adomako [1995] 1 AC 171. At 187 Lord Mackay of Clashfern LC explained: “In my opinion, the law as stated in [Bateman (1925) 19 Cr. App. R. 8 and Andrews v DPP [1937] AC 576] is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships' House, it remains the most authoritative statement of the present law which I have been able to find and it is a decision which has not been departed from. On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.” 5.Gross negligence manslaughter has since been considered in this court on many occasions, particularly within the last four years. The context has frequently been the alleged gross negligence of medical professionals. The appeals include R v. Rudling [2016] EWCA Crim 741, R v. Sellu [2016] EWCA Crim 1716, [2017] 4 WLR 64, R v. Bawa-Garba [2016] EWCA Crim 1841, R v. Rose [2017] EWCA Crim 1168, [2018] QB 328, R v. Zaman [2017] EWCA Crim 1783, R v. Winterton [2018] EWCA Crim 2435, R v. Pearson [2019] EWCA Crim 455, R v. Kuddus [2019] EWCA Crim 837 and R v. Broadhurst [2019] EWCA Crim 2026. The result of this consideration is that six elements have been identified that the prosecution must prove before a defendant can be convicted of gross negligence manslaughter: i)The defendant owed an existing duty of care to the victim. ii)The defendant negligently breached that duty of care. iii)At the time of the breach there was a serious and obvious risk of death. Serious, in this context, qualifies the nature of the risk of death as something much more than minimal or remote. Risk of injury or illness, even serious injury or illness, is not enough. An obvious risk is one that is present, clear, and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation. iv)It was reasonably foreseeable at the time of the breach of the duty that the breach gave rise to a serious and obvious risk of death. v)The breach of the duty caused or made a significant (i.e. more than minimal) contribution to the death of the victim. vi)In the view of the jury, the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. The elements found in (iii) and (iv) will not need separate consideration or articulation in many cases. 6.The formulation of a “serious and obvious risk of death” can be found in the judgment of this court in R v. Gurphal Singh 1999 Crim LR 582 approving the direction of the trial judge. It has been affirmed on many occasions (e.g. in Rudling at paragraph 18; Rose at paragraph 77(2)). In R v. Evans [2009] 1 WLR at paragraph 31, Lord Judge CJ used the term “life threatening” in this context but it does not suggest a different test. In R v. Misra [2004] EWCA Crim 2375 (a medical case) Judge LJ (as he then was) had considered the nature of the risk needed to engage the duty and, in particular, whether the risk should be of death rather than serious injury. At paragraphs 49 to 52 he cited the test in Gurpal Singh, the practice of the Director of Public Prosecutions to apply that test and the concurring views of the editor of Blackstone’s Criminal Practice, all without adverse comment, before concluding that the risk must be to life.