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Manslaughter - gross negligence manslaughter - mens rea

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Mens rea of Gross Negligence Manslaughter

Is gross negligence manslaughter an offence of strict liability.

The decision in Attorney-General’s Reference (No 2 of 1999) (2000) CA suggested that mens rea is not always required for Gross Negligence Manslaughter, in which case whether a form of recklessness is relevant is put in doubt. 


If AG's Ref No 2 was correctly decided the state of mind of D is irrelevant and so therefore is the question of recklessness. Ergo, the civil law of negligence is the only test, and that requires no mens rea, one is either negligent or not.

Nature of the offence

There is no definition of Gross Negligence Manslaughter, and the courts have not been consistent in applying the law.

Reckless Manslaughter

Until Adomako conduct that is now described as Gross Negligence Manslaughter was dealt with as a form of recklessness.


Since Adomako all traces of reckless manslaughter have been subsumed by Gross Negligence Manslaughter.



Unlike Voluntary manslaughter which is charged as murder until the defence is raised, Involuntary manslaughter can be charged as an offence. 


The mens rea required is negligence, rather than recklessness as it used to be

Nevertheless, the courts have held the test to be applied is one of objective liability rather than subjective culpability,

R v DPP, ex p Jones [2000] DC.


In R v Hennigan [1971] CA a case of causing death by reckless driving ‘substantial’ was held to imply ‘more than minimal’)

and in R v Cato [1976] CA causing death by injecting heroin.


R v Pocock (1851) those responsible to repair a road were held not chargeable with manslaughter when a person was killed because of their neglect to make a contract for the repair of it.


In Adomako Lord Mackay LC indicated the requirements of the offence

  • First, the general principles of the law of negligence apply to determine whether or not the defendant has been in breach of a duty of care towards the victim who has died.

  • If such a breach is established, the second question is whether that breach of duty caused the death of the victim.

  • If so, should that breach of duty be categorised as gross negligence and therefore as a crime?

  • This will depend upon the seriousness of the breach committed by the defendant in all the circumstances in which the defendant was placed when the breach occurred.

Gross Negligence manslaughter replaced the difficult concept of Reckless manslaughter

Until Adomako conduct that is now described as Gross Negligence Manslaughter was dealt with as a form of recklessness.


Since Adomako all traces of reckless manslaughter have been subsumed by Gross Negligence Manslaughter.


In Gross Negligence Manslaughter there must be a disregard of the duty of care, that disregard must amount to recklessness.  This has been held to be Caldwell/Lawrence type recklessness.


The dictum of Hewart LCJ in R v Bateman (1925) was criticised in R v Kong Cheuk Kwan (1985) PC as no longer necessary or helpful in directing juries in cases of reckless manslaughter.


And in R v Goodfellow (1986) CA Lord Lane CJ said ‘the question for the jury was whether or not the accused had been guilty of recklessness (or gross negligence).


In R v Stone & Dobinson [1977] CA, however, a submission that foresight of the possibility of death or serious injury had to be proved to establish involuntary manslaughter based on gross negligence was rejected; proof of recklessness, although not mere inadvertence, was held to be sufficient


In R v West London Coroner, ex p Gray [1988] QBD it was held that for unlawful killing because of neglect on the part of the police, it must be show, that there was a failure amounting to recklessness to do what should have been done for the health and welfare of the deceased.

Gross negligence could include:


actual foresight, or


In Adomako (1994) the following were held to constitute gross negligence

  • indifference to an obvious risk of injury to health

  • actual foresight of the risk coupled with the determination nevertheless to run it;

  • actual foresight of the risk together with an intention to avoid it but involving such a high degree of negligence in the attempted avoidance as the jury considered justified conviction;

  • inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an important matter which the defendants duty demanded he should address.

Mere carelessness is not enough

A higher degree of negligence is necessary to render a person guilty of manslaughter than to establish civil liability against him.


Whether negligence is sufficient to warrant criminal sanctions it is a question for the jury and depends on the facts of the particular case.

The standard of negligence necessary to constitute manslaughter was defined in  Andrews v DPP [1937]


R v Seymour [1983] HL which adopted R v Lawrence [1982] HL)

Other examples of the nature of negligence were:

R v Timmins (1836) buses racing

R v Mastin (1834) accused and deceased said to be racing

R v Swindall and Osborne (1846) inciting to furious driving

R v Dalloway (1847) driving a cart without holding reins

R v Jones (1870) contributory negligence

R v Baldessare (1930) CCA ‘joy ride’; common purpose of reckless driving; driver and companion both guilty of manslaughter

R v Kong Cheuk Kwan (1985) PC liability of captain of hydrofoil for collision causing death, jury should have been directed in accordance with R v Lawrence conviction quashed.

Negligence must go beyond that required for civil liability, which is a question of degree for the jury

This requirement was laid down by Lord Mackay in Bateman (1925) where there was delay in sending patient to hospital.

"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, the judges have used many epithets, such as "culpable," "criminal," "gross," "wicked," "clear," "complete." But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury..."

"... the negligence of the accused went 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 punishment.'" 

How ‘negligent’?

the negligence has to be 'gross'.

How 'gross'?

The standard applied is defined in R v Bateman (1925)

What amounts to ‘gross’ is for the jury

In Andrews v DPP [1937] Lord Atkin said that whilst the test in Bateman was:

not . . . a precise definition of the crime . . . the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence.


Lord Atkin said there was a very high degree of negligence required:

“Probably of all the epithets that can be applied "reckless" most nearly covers the case . . . but it is probably not all-embracing, for "reckless" suggests an indifference to risk, whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid as would justify a conviction.”

In Adomako [1995] the House of Lords has restored gross negligence rather than recklessness as the essential basis of liability.

Foreseeable risk of "health and welfare"

Khan [1998] & Singh [1999] one is faced with the issue of  foreseeability of what type of risk?


Lord Mackay spoke of the jury "having regard to the risk of death involved" but he later approved of the formulation in Stone [1977] & West London Coroner, ex parte Gray [1988] in terms of a risk of injury to the "health and welfare" of an infirm person.


Drug dealers have no parallel duty towards their 'clients'

In Khan (1998) CA the duty to summon medical assistance was held not to extend to a drug dealer who supplied heroin to a person who subsequently died.


The totality of the situation and not the various individual roles a person performs is to be considered to establish whether the facts of the case are sufficient to give rise to a duty of care: R v Singh (Gurphal) [1999] CA.

Public policy requires no duty of care in some situations

However in R v Wacker [2003] (illegal immigrants die in the back of a lorry) it was held that, as a matter of public policy, the principle of the law of negligence that no duty of care arises between the participants of a joint illegal purpose had no application in criminal law.


Test is Caldwell Recklessness

R v G [2003] HL delivered Caldwell a fatal blow so far as the Criminal Damage Act was concerned. It was not clear what survived R v G, but we now know that the test of recklessness for all but Criminal Damage may have survived.


The authority for this is an unreported case in the Court of Appeal, R v Mark and another [2004] CA.

R v G and R [2003] HL


Whole case here

This case firmly rejected the 'objective' recklessness concept in R v Caldwell (1982) in Criminal Damage and doubted R v Lawrence [1982]  and R v Reid [1992]


In Gross Negligence Manslaughter there must be a disregard of the duty of care, that disregard must amount to recklessness.  This has been held to be Caldwell/Lawrence type recklessness.


R v G and R [2003] did not change the law in respect of Gross Negligence Manslaughter, it was concerned only with Criminal Damage.


Therefore the "reckless disregard for the health and welfare of the deceased" must still be approached with regard to Caldwell/Lawrence recklessness. 


Examples of conduct which if recklessness or grossly negligent creates a liability

  • A person who deals with dangerous medicines or undertakes a dangerous operation may be guilty of manslaughter if death occurs.

  • Criminal negligence in driving a motor vehicle or other vehicle or in riding or navigating a vessel.

  • A driver, fireman or other railway employee may be guilty of the manslaughter of persons killed as a result of the criminally negligent performance of his duties.

  • Negligent use of a dangerous weapon or other dangerous thing likely to cause death in an improper place or without taking proper precautions to avoid injury.

  • A person who is in charge of a mine or of machinery if a accident occurs.

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