Gross Negligence Manslaughter

|Legal Guidance

Introduction

The offence of gross negligence manslaughter (GNM) is committed where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant - R v Adomako [1994] UKHL 6.

Gross negligence manslaughter is a common law offence. The offence is indictable only.

The circumstances in which this offence may fall to be considered are almost infinitely variable but the most frequently encountered occur in the following contexts:

  • Death following medical treatment or care; the offence can be committed by any healthcare professional, including but not exclusively doctors, nurses, pharmacists, and ambulance personnel;
  • Deaths in the workplace the offence can be committed by anyone who is connected in some way to a workplace of any nature. The context is wide ranging but can include offices, factories, ships, airports, aeroplanes, construction sites, oil rigs, farms, schools and sporting grounds. The deceased victims may be employees, contractors, sub-contractors, and members of the public visiting or passing by the workplace when a fatal incident happens.
  • Death in custody - a death in custody is a generic term referring to deaths of those in the custody of the State. In this context the offence can be committed by police or prison officers, dedicated detention and other custody assistants, and by healthcare professionals who are responsible for the care of those detained in a custodial setting.

Handling

For guidance on which department cases of GNM should be referred to see, Referral of Cases to CPS Headquarters elsewhere in the legal guidance.

Corporate manslaughter (including offences under Health and Safety legislation) and death in custody cases are not covered in this document. See the CPS Corporate Manslaughter Guidance.

When corporate manslaughter offences and/or Health and Safety at Work Act offences are being considered with GNM offences, please refer to the CPS Corporate Manslaughter Guidance.

The Law

The ingredients of the offence were authoritatively set out in the leading case of R v Adomako [1995] 1 AC 171in which Lord Mackay of Clashfern LC at page 187 said the following:

"In my opinion, the law as stated in these two authorities 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 has not been departed from. On this basis, in my opinion the ordinary principles 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."

In order to prove the offence, the prosecution must therefore establish the following elements:

a) The defendant owed a duty of care to the deceased;

b) By a negligent act or omission the defendant was in breach of the duty which he owed to the deceased;

c) The negligent act or omission was a cause of the death; and

d) The negligence, which was a cause of the death, amounts to gross negligence and is therefore a crime;

More recently, the elements of manslaughter by gross negligence were stated concisely by the President of the Queen's Bench Division in R v Rudling [2016] EWCA Crim 741at paragraph 18 as follows:

We can summarise the law shortly. The critical ingredients of gross negligence manslaughter can be taken from R v Prentice, Adomako and Holloway [1994] QB 302 in this court and Adomako [1995] 1 AC 171, [1994] 99 Crim App R 362 in the House of Lords as well as R v Misra [2005] 1 Cr App R 21. They can be summarised as being the breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission (see Adomako [2005] 1 Cr App Rep at 369). The elements of GNM were set out by the House of Lords in R v Adomako [1995] 1 AC 171.

Elements of the Offence

Duty of Care

There is no general duty of care owed by one citizen to another and there is a "sharp distinction between acts and omissions" - Lord Mustill in Airedale NHS Trust v Bland  [1993] AC 789. Unless there is a pre-existing duty of care, a failure to act, even if it results in death, cannot amount to GNM.

A duty of care will arise from an act of a person where the requirements of foreseeability, proximity, fairness, justice and reasonableness establish such a duty Donohue v Stevenson  [1932] AC 582. An alleged breach of duty occasioned by an omission will only arise where a legal duty of care already exists. In Caparo Industries PLC v Dickman [1990] 2 AC 605 it was said that, in novel situations, there was a three-fold test to decide if a duty of care should be held to exist.

  • Whether the damage was foreseeable;
  • Whether the claimant was in an appropriate position of proximity to the defendant; and
  • Whether it was fair and just to impose liability on the defendant.

Those with a duty of care must act as the reasonable person would do in their position. If they fail to do so, they will have breached their duty. The standard of care to be applied should be a reflection of the extent of the duty of care.

In many situations the law already recognises that a duty of care will exist (for example by employers to their employees and by health care professionals to their patients) and the need to apply the Caparo test will in most cases not arise.

It is in general for the judge to decide whether there is evidence capable of giving rise to a duty of care, and, if there was, it is for the judge to give the jury appropriate directions, whether the defendant in fact owed the deceased a duty of care.

When a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a duty on him to act by taking reasonable steps to save the other's life will normally arise - R v Evans [2009] EWCA Crim 650, para.31.

The duty can exist even where the deceased and the defendant were engaged in an unlawful activity together - R v Wacker (2003) 1 Cr App R 329; R. v Willoughby [2004] EWCA Crim 3365.

Breach of duty

The ordinary principles of the law of negligence apply to determine whether the defendant was in breach of a duty of care towards the victim.

Whether or not sufficient care has been taken by the individual to discharge the particular duty of care placed upon him is tested by the objective standard of reasonableness.

In considering a breach, the jury must consider objectively what a competent person fulfilling the same role as the defendant would have done; and so for example, the conduct of a doctor, electrician or builder who is accused of the offence is assessed by comparison with what the competent doctor, electrician or builder would have done in the same position and circumstances as the defendant. If what the defendant did is not contrary to the actions considered appropriate by a responsible medical, electrical or building opinion (as relevant), then their conduct will not be considered negligent.

In Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, the trial judge, McNair, put it in this way: "a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view."

This means that in order to prove that a doctor has breached their duty of care it must be proved that there is no responsible body of doctors who would regard the treatment as acceptable.

However, the standard of care is objective and, as such, does not take into account the weaknesses or inexperience of the particular defendant. For example, in Wilsher v Essex AHA [1987] QB 730, the Court of Appeal rejected the proposition that a trainee doctor working in a special care baby unit was to be judged by what could be expected of him, given his limited qualifications and experience; the duty is tailored to the act and not to the actor, so that the applicable standard was that which could reasonably be expected of a person filling the particular, specialised role. Thus the fact that the defendant has not been sufficiently or adequately trained is not a relevant factor in establishing whether they breached their duty of care but it can be relevant to the question of whether gross negligence can be established. On the other hand, if the defendant has particular skills or knowledge that ordinary reasonable person would not have, his acts should be judged in the light of those skills or knowledge.

Causation

The breach of duty must cause the death. It does not have to be the only cause nor even the principal cause of death but it must have more than minimally, negligibly or trivially caused the death. The burden rests with the prosecution to establish causation.

The test for causation in criminal cases was succinctly put by Lord Woolf MR in R v HM Coroner for Inner London, ex parte Douglas-Williams[1998] 1 All ER 344:

"In relation to both types of manslaughter (i.e. unlawful act and gross negligence) it is an essential ingredient that the unlawful or negligent act must have caused the death at least in the manner described. If there is a situation where, on examination of the evidence, it cannot be said that the death in question was caused by an act which was unlawful or negligent as I have described, then a critical link in the chain of causation is not established. That being so, a verdict of unlawful killing would not be appropriate and should not be left to the jury."

It is unnecessary for the breach of duty to have been the sole or even the main cause of death, provided it contributed significantly to the victim's death. It is not the function of the jury to evaluate competing causes or to choose which was dominant, provided they are satisfied that the defendant's actions could fairly be said to have been a significant contribution to the victim's death: R v Cheshire[1991] 1 WLR 844 at 848B-C 851H-852B.

In cases where there has been an omission to act, the prosecution must prove that the negligent failure to act was a substantial cause of death. Where there is evidence that after a certain time the deceased, regardless of any intervention, was more likely than not to die anyway, then failures to act beyond that point (i.e. the point when his condition became irreversible) cannot establish causation. InR v Misra [2004] EWCA Crim 2375 the Court of Appeal cited the summing up of Langley J with approval. Langley J said:

"If you are not sure that [X] would have survived at all, either however well he had been treated or - because he might not have received appropriate treatment, then the prosecution has failed to prove its case on this aspect and that is the end of the matter. You must find both defendants not guilty. Equally, if at some point in the events of the Saturday or the Sunday you reach the conclusion that you are not sure that [X] would have survived beyond that time, then from that time onwards the prosecution will fail to prove that anything [Dr M] or [Dr S] did or failed to do was a cause of [Xs] death, and, whatever you think of the subsequent events, they cannot lead you to a verdict of guilty. If you have any reasonable doubt about when [Xs] condition became irreversible, I repeat that you must give the defendants the benefit of those doubts."

The phrase 'de minimis' sometimes known as the de minimis rule, means that causation is not established if the prosecution can only show that, had the defendant not been negligent, the deceased would only have survived hours or days longer, in circumstances where the intervening life would have been of no real quality - R v Sinclair and others [1998] EWCA Crim 2590.

A useful initial question, therefore, to ask in this context is; irrespective of the negligence, (act or omission) would or may the deceased have died when they did/or within the de minimis rule. If the answer on the evidence is that, irrespective of the negligence, the deceased would or may have died when they did, or would only have survived hours or days longer in circumstances where the intervening life would have been of no real quality, then causation is not made out.

Grossness

In determining whether sufficient evidence exists for a realistic prospect of conviction, prosecutors need to also consider how the courts have determined the degree of negligence required for the offence.

The breach of duty must be so bad as to be gross, i.e. criminal. This was defined in Adomako [1994] 3 All ER 79 as follows: having regard to the risk of death involved, was the conduct of the defendant so bad in all the circumstances as to amount to a criminal act or omission? The prosecution must prove the following two elements:

a) that the circumstances were such that a reasonably prudent person in the defendant's position would have foreseen a serious and obvious risk of death arising from the defendant's act or omission;

b) that the breach of duty was, in all the circumstances, so reprehensible and fell so far below the standards to be expected of a person in the defendant's position with his qualifications, experience and responsibilities that it amounted to a crime.

The serious and obvious risk of death

At the time of the breach, the jury must conclude that a reasonably prudent person, undertaking the role that the accused undertook, would have foreseen a serious and obvious risk of death, and not merely a risk of injury, even serious injury.

The meaning of serious was considered by the Court of Appeal in R v Rudling [2016] EWCA 741:

"a serious risk of death is not to be equated with an inability to eliminate a possibility. There may be numerous remote possibilities of very rare conditions which cannot be eliminated but which do not present a serious risk of death."

The meaning of obvious was considered by the Court of Appeal in R v Rose (Honey Maria) [2017] EWCA Crim 1168 citing with approval the wording used in Rudling:

"[A] 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 R v Rose, Leveson LJ confirmed the ruling in Rudling and concluded that the question of whether there was a serious and obvious risk of death must exist and be assessed with respect to knowledge at the time of the breach of duty. It was therefore not appropriate to take into account what the defendant would have known but for his or her breach of duty. The court usefully summarised the main principles applicable to GNM as follows:

  1. In the circumstances, the relevant principles in relation to cases of gross negligence manslaughter can be summarised as follows:

1. The offence of gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission.

2. There are, therefore, five elements which the prosecution must prove in order for a person to be guilty of an offence of manslaughter by gross negligence:

a) the defendant owed an existing duty of care to the victim;

b) the defendant negligently breached that duty of care;

c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;

d) the breach of that duty caused the death of the victim;

e) 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.

3. The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty.

4. A recognisable risk of something serious is not the same as a recognisable risk of death.

5. A 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.

78. A further point emerges from the above analysis of the authorities which is particularly germane to the present case: none of the authorities suggests that, in assessing either the foreseeability of risk or the grossness of the conduct in question, the court is entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.

The court stated further:

  1. Reverting to the question posed at the commencement of this judgment, we conclude that, in assessing reasonable foreseeability of serious and obvious risk of death 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. Were the answer otherwise, this would fundamentally undermine the established legal test of foreseeability in gross negligence manslaughter which requires proof of a serious and obvious risk of death at the time of breach. The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death. For these reasons, this appeal is allowed and the conviction is quashed.

Further, the risk must be one of death: A recognisable risk of something serious is not the same as a recognisable risk of death. (R v Rose).

The test is objective, although the subjective awareness of the defendant will be a relevant factor for the jury to consider when they determine the objective risk of death. R (Rowley) v DPP (2003) EWHC Admin 693.

It is important to note that R v Rose does not determine that omitting to act can never be a foundation for gross negligence manslaughter. The Court stated (at paragraphs 85; 87) that the factual matrix in any case was crucial and highlighted examples where omitting to act, against a background of other cogent and unambiguous warnings, could fulfil the element of an obvious and serious risk of death at the time of the breach. See also the CA judgment in Winterton [2018] EWCA 2435 (Crim)

Criminality

The foundation of this offence is that the degree of negligence needs to be very high before the conduct can be considered to be a crime.

It is also important that the defendants conduct, the gravity of the breach, involving a serious and obvious risk of death, must be considered in all the circumstances in which the defendant was placed, per Lord Mackay in Adomako.

Various terms have been used to describe the type of conduct that may amount to gross negligence. The case of Misra [2004] EWCA Crim 2375 provides some guidance on the degree of negligence required for it to be regarded as gross. The Court of Appeal cited, with approval, the following passages from the trial judges summing up:

"Mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment are nowhere near enough for a crime as serious as manslaughter to be committed."

The defendants conduct must fall so far below the standard to be expected of a reasonably competent and careful [person in the defendants position] that it was something truly, exceptionally bad.

In R v Sellu [2016] EWCA Crim 1716 the court quashed a conviction on two grounds. Cited with approval by Leveson LJ in Honey Maria Rose(Leveson LJ also being in judgement in Sellu), he said:

"the judge failed to direct the jury sufficiently as to the line that separates serious or very serious mistakes or lapses 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 Sellu the Court of Appeal, in quashing a conviction, further underlined the importance of explaining to the jury the seriousness of the departure from ordinary standards required by the concept of gross negligence. The question of whether the negligence is a matter ultimately for the jury rather than the experts, although expert evidence is, of course, important for identifying in what respects the conduct of the accused fell below that to be expected. It is not sufficient, however, simply to leave to the jury the question of whether the departure was gross or severe.

What is required is:

that the jury are assisted sufficiently to understand how to approach their task of identifying the line that separates even serious or very serious mistakes or lapses, 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.

The judge is required to make it clear to the jury that they are not bound by the expert's opinion.

The Crown Court Compendium states:

The jury need to be sure that the breach is sufficiently grave to be one deserving to be criminal and to constitute manslaughter. A clear warning as to the high threshold is required. The courts have recently emphasised that to repeat the word is insufficient. The jury need to understand that they must be sure of a failure that was not just serious or very serious but truly exceptionally bad. This was emphasised in Sellu [2016] EWCA Crim 1716 at [152].

The relevance of the defendant's state of mind when assessing criminality/badness

Lord Mackay in Adomako referred in the course of his speech to the concept of recklessness in the sense of a subjective understanding or appreciation of the risk, but there is no doubt that the test of liability is objective.

In Attorney General Reference (No. 2 of 1999) (unreported), transcript 15th February 2000, Rose LJ stated:

"Although there may be cases where the defendants state of mind is relevant to the jury;s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a prerequisite to a conviction for manslaughter by gross negligence. The Adomako test is objective, but a defendant is who is reckless may well be the more readily found to be grossly negligent to a criminal degree."

In Rowley v DPP (4th April 2003), the High Court (QBD), considered a defence submission that subjective recklessness may help to establish a prosecution case, but that otherwise the state of mind of the proposed defendant is irrelevant. Lord Justice Kennedy stated:

"That seems to us to be an unrealistic approach which the authorities do not require, which no judge would enforce, and which no jury would adopt. Once it can be shown that there was ordinary common law negligence causative of death, and a serious risk of death, what remains to be established is criminality or badness. In considering whether there is criminality or badness, Lord Mackay [in Adomako] makes it clear that all the circumstances are to be taken into account."

In reference to the decision of the Court of Appeal in R v Prentice, Lord Justice Kennedy said;

"The fact that Dr Prentice was inexperienced, reluctant to give treatment and wholly unaware of the likely fatal consequences were all factors which the jury were entitled to take into account in the defendant's favour. Likewise, in Dr Sullman's favour, his belief and understanding could be taken into account." (Paragraph 38).

Thus it is clear that whilst the absence of subjective recklessness cannot exempt liability, an assessment of a defendant's recklessness could be made by the jury to assist them in evaluating the criminality or badness of the breach.

Relevance of the Deceased's Conduct

If the elements of gross negligence manslaughter are made out, then it is no defence that the deceaseds death was caused in part by his own conduct. However, evidence to that effect may be relevant to the degree of the defendant's culpability and, as such; relevant to the question of whether he was grossly negligent: R v Winter & Winter [2010] EWCA Crim 1474.

Medical Manslaughter

All the factors outlined above apply to cases where the defendant is a medical or healthcare professional and many of the appellate cases cited above refer to recent decisions by the court in relation to the prosecutions of medical manslaughter cases.

In many cases the investigating police officers are unfamiliar with this area of the criminal law and therefore seek early advice from CPS concerning the elements of GNM and whether the evidential test could be met in any individual case. This early advice enables the police in some cases to be able to make the decision to close their investigation at an early stage where the evidential test could not be met.

Experts and Process

In all cases of medical manslaughter, the evidence of medical expert/s will be required. There will most usually be a pathologist report and expert evidence will be required concerning whether the actions or omissions of the medical professional caused the victim's death.

If causation can be proved, medical evidence will be needed to provide an opinion on how far below the standard of the reasonable medical professional the conduct fell. Sometimes the advice of several experts is required on different aspects of the case.

While considerable weight will be attached to the expert evidence, which will inform and assist the making of the decision in any case, the decision as to prosecution and whether the evidential test is met is ultimately one for the independent prosecutor.

Experts are required to have suitable and relevant expertise in their area of practice and will make a declaration as to their independence and expertise when they provide their reports.

The prosecutor will provide terms of reference for the expert outlining the elements of the offence of GNM and will address any aspects of the individual case that require particular expert advice.

In a case where the prosecutor considers that the evidence indicates that the threshold for a prosecution of GNM may be reached, senior counsel will be instructed to advise.

In cases where a charging decision of GNM is under consideration, the prosecutor and counsel will meet with the expert/s to discuss the report/s and the evidential test for GNM. Notes will be taken of any such meeting and any information which meets the disclosure test will be provided to the defence if a prosecution is commenced.

All review decisions in cases of gross negligence manslaughter are made by specialist prosecutors or senior specialist prosecutors in Special Crime Division and require the approval of the Head of the relevant Unit and final authorisation by the Deputy Head of Division.

Relevant factors in establishing grossness

The factors that are relevant to take into account for the review of an allegation of medical manslaughter or any GNM case are many and varied and it is not possible to be exhaustive about the factors that may be considered in any given case.

However, some factors which often have a bearing on culpability in these cases are possible to identify.

The Misra test is important in any decision on grossness and mistakes, even very serious mistakes, will not be sufficient to pass the evidential test for grossness.

Where there is a course of conduct by an individual and a series of serious breaches the test of grossness may be more likely to be met.

The deliberate overriding or ignoring of systems which are designed to be safe and have proven to be safe may be evidence of a serious breach of duty. Similarly, ignoring of warnings from other members of staff or when an individual acts against the advice of other members of the team alerting them to serious dangers or risk.

In some cases the fatal incident may be the result of actions or inactions by several medical professionals and it is not possible to identify any one individual who has committed a gross breach of duty. GNM is an individual offence and it is not possible to aggregate the conduct of several medical professionals.

In evaluating the evidential test for grossness, the conduct of the medical professional will always be considered against the background of all the relevant circumstances in which that individual was working. The relevant working conditions and factors of which the investigation has evidence will be provided to the appropriate expert for information and will be considered in the review of the evidential test by the prosecutor.

Sentencing

Gross negligence manslaughter is a common law offence and carries a maximum of life imprisonment. The sentencing guidelines can be found here