A Dangerous Situation: The Duty of Care in Gross Negligence Manslaughter
| Date | 01 February 2016 |
| Author | Tony Storey |
| DOI | 10.1177/0022018315625513 |
| Published date | 01 February 2016 |
| Subject Matter | Court of Appeal |
substantive offence, the question arises how a jury can then be sure that the money converted was the
proceeds of crime at all.
Secondly, how are the jury to approach the task of deciding whether property is criminal property
without proper directions as to the elements of the offence(s) that make the property criminal? If the
prosecution alleges, for instance, that the particular defendant has evaded tax and that cheating the rev-
enue is the crime giving rise to the criminal property, the jury should surely be given a clear direction as
to the elements of cheat so that they can be sure that this offence was indeed committed by the defendant.
The prosecution may say, ‘We do not know what crime the defendant has committed, but there is an
irresistible inference that he must have committed some crime or other.’ How are the jury to determine
whether this is true without being directed as to the elements of particular potential offences so as to
satisfy themselves that the defendant has committed it or them?
Additionally, the judgment seems contradictory in relation to the issue of whether the jury must all be
sure of the type of crime involved. Within the same paragraph of the judgment, Macur LJ rejects the
submission that the jury should be directed that they must agree about the nature of the criminal conduct
that entitles them to convict, and also concludes that the prosecution must prove ‘ ...at least one [of the
different criminal conducts alleged] to the criminal standard to the satisfaction of the jury’ (at [21]). Her
Ladyship could have said that it does not matter if the jury are divided, provided they are all sure the
defendant has committed one offence or another and that this has given rise to the criminal property.
However, the words chosen seem to rule out this broad-brush approach.
If jurors must all be satisfied to the criminal standard about at least one form of crime, should they not
be directed that this is a requirement? Otherwise, depending on the evidence led by the prosecution, four
members of the jury might be sure the defendant is a drug dealer and nothing else, four a bank robber and
nothing else, and the rest a dealer in stolen cars and nothing else. It would follow in such a situation that
the majority of the jury would not be sure about any form of potential criminal conduct. The prosecution
would then not have proved ‘at least one’ of the possible offences to the criminal standard and the defen-
dant would arguably be entitled to an acquittal.
Without a direction informing a jury of the requirement for unanimity about at least one offence, they
may wrongly convict, on the basis that ‘all 12 of us think he’s been up to something and, even though we
can’t agree what, we have not been directed that unanimity is a requirement.’ Nobody would be aware
that the jury had been unable to agree and the defendant would be wrongly convicted.
Gavin A. Doig
A Dangerous Situation: The Duty of Care
in Gross Negligence Manslaughter
RvBowler [2015] EWCA Crim 849
RvS[2015] EWCA Crim 558
Keywords
Gross negligence manslaughter, duty of care, creation of a dangerous situation
RvBowler
Richard Bowler (B) suffered from cerebral palsy and had a live-in carer, David Connor (C). The
deceased, Alun Williams (W), was ‘interested in extreme masochistic sexual experiences’. B met W
12 The Journal of Criminal Law 80(1)
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