An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross negligence ‘in failing to notice or respond appropriately to obvious signs that a disconnection had occurred and that the patient had ceased to breathe.’
Held: ‘In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following Rex v Bateman, 19 Cr.App.R. 8 and Andrews v Director of Public Prosecutions [1937] AC 576 and that it is not necessary to refer to the definition of recklessness in Reg. v Lawrence [1982] AC 510, although it is perfectly open to the trial judge to use the word ‘reckless’ in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.’ Following Andrews, the ordinary principles of negligence apply to ascertain whether the defendant breached a duty of care towards the deceased. 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 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.
Lord Mackay of Clashfern LC, approving Andrews: ‘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.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.
My Lords, the view which I have stated of the correct basis in law for the crime of involuntary manslaughter accords I consider with the criteria stated by counsel although I have not reached the degree of precision in definition which he required, but in my opinion it has been reached so far as practicable and with a result which leaves the matter properly stated for a jury’s determination.
My Lords, in my view the law as stated in Reg. v Seymour [1983] 2 AC 493 should no longer apply since the underlying statutory provisions on which it rested have now been repealed by the Road Traffic Act 1991. It may be that cases of involuntary motor manslaughter will as a result become rare but I consider it unsatisfactory that there should be any exception to the generality of the statement which I have made, since such exception, in my view, gives rise to unnecessary complexity.’
As to Lawrence: ‘In my opinion it is quite unnecessary in the context of gross negligence to give the detailed directions with regard to the meaning of the word ‘reckless’ associated with Reg. v Lawrence [1982] AC 510. The decision of the Court of Appeal (Criminal Division) in the other cases with which they were concerned at the same time as they heard the appeal in this case indicates that the circumstances in which involuntary manslaughter has to be considered may make the somewhat elaborate and rather rigid directions inappropriate. I entirely agree with the view that the circumstances to which a charge of involuntary manslaughter may apply are so various that it is unwise to attempt to categorise or detail specimen directions. For my part I would not wish to go beyond the description of the basis in law which I have already given.’
Lord Mackay of Clashfern LC
Times 04-Jul-1994, Independent 01-Jul-1994, Gazette 21-Jul-1994, [1995] 1 AC 171, [1994] UKHL 6, [1994] 3 WLR 288, [1994] 3 All ER 79
Bailii
England and Wales
Citing:
Approved – Andrews v Director of Public Prosecutions HL 22-Apr-1937
The defendant was accused of manslaughter in a road traffic case.
Held: The House sought a simple definition of manslaughter which would be applicable for road traffic cases. Lord Atkin said: ‘My Lords, of all crimes manslaughter appears to . .
Appeal from – Regina v Shulman, Regina v Prentice, Regina v Adomako and Regina v Holloway CACD 21-May-1993
A patient had been injected with the wrong medicine, and died as a result.
Held: The ingredients of the offence of involuntary manslaughter by breach of duty are the existence and breach of a duty, which had caused death and gross negligence . .
Approved – Rex v Bateman CCA 1925
A doctor was convicted of manslaughter arising out of his treatment of a woman in childbirth. Lord Hewart CJ discussed the law governing manslaughter by negligence, which required, as the element distinguishing criminal from civil liability, proof . .
Cited by:
Cited – Regina v Wacker CACD 31-Jul-2002
The defendant had been convicted of manslaughter. He had been driving a lorry into the UK. 58 illegal immigrants died in the rear. He appealed against his conviction for gross negligence manslaughter, saying that because the victims were engaged in . .
Cited – Regina on the Application of Rowley v Director of Public Prosecutions QBD 4-Apr-2003
The applicant sought to challenge a decision not to prosecute a third party following the death of her son. He had been in care, having multiple disabilities, including epilepsy. He drowned whilst in a bath. It had been recognised that he needed . .
Applied – Regina v Misra; Regina v Srivastava CACD 8-Oct-2004
Each doctor appealed convictions for manslaughter by gross negligence, saying that the offence was insufficiently clearly established to comply with human rights law, in that the jury had to decide in addition and as a separate ingredient whether . .
Cited – Brown v The Queen (Jamaica) PC 13-Apr-2005
A police officer appealed against his conviction for manslaughter after being involved in a road traffic accident. Two were killed. The policemen complained as to the direction given on gross negligence manslaughter.
Held: Adomako could not . .
Cited – L, Regina (on the Application of) v Commissioner of Police of the Metropolis Admn 19-Mar-2006
The court considered the duties on the respondent in providing an enhanced criminal record certificate. In one case, the claimant had brought up her son who was made subject to child protection procedures for neglect. Her job involved supervising . .
Cited – Evans (Gemma), Regina v CACD 2-Apr-2009
The applicant appealed against her conviction for gross negligence manslaughter. Her half sister had died of a heroin overdose. Instead of calling for assistance when she had complained, the defendant and her mother had put the deceased to bed . .
Cited – Winter and Another v Regina CACD 6-Jul-2010
The defendants, father and son, operated a firework storage facility. Two fire service employees died when a fire was fought. They were thought to have been storing Type 1 fireworks for which they had no licence. They were each convicted of . .
Cited – ABC and Others, Regina v CACD 26-Mar-2015
Several defendants sought to appeal against convictions. They were public officials accused of having committed misconduct in public office in the sale of information relating to their work to journalists. The journalists were convicted of . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .
Lists of cited by and citing cases may be incomplete.
Crime, Health Professions
Leading Case
Updated: 01 November 2021; Ref: scu.86037