Gross Negligence Manslaughter on the Cusp
| Author | Anne Lodge |
| Published date | 01 April 2017 |
| Date | 01 April 2017 |
| DOI | http://doi.org/10.1177/0022018317694719 |
| Subject Matter | Articles |
Article
Gross Negligence Manslaughter
on the Cusp: The Unprincipled
Privileging of Harm over Culpability
Anne Lodge
Teesside University, Middlesbrough, UK
Abstract
Despite playing a significant role in defining the boundaries of manslaughter, the ‘gross negligence’
concept is notoriously indeterminate. There is no comprehensible and consistent means of measuring
whether conduct is sufficiently gross to warrant criminal conviction. The gross negligence condition
also sets the culpability bar too low by permitting the criminal censure of undeserving defendants who
did not advert to any risk of death associated with their conduct. Whilst acknowledging the difficulties
of distinguishing advertence from inadvertence in cases that straddle the margins of legitimate criminal
punishment and accidental death, it is argued that punishment should only be meted out to those who
are consciously aware, or at least had a conscious inkling, of the risk of encroaching on the victim’s
legally protected interests. A reformulated offence that regards the defendant’s conscious choices as
the true determinant of culpability is theoretically plausible and would inject the clarity, certainty and
consistency that is required of a law that dictates the parameters of a serious homicide offence.
Keywords
gross negligence, manslaughter, culpability
Introduction
The recent conviction for gross negligence manslaughter of optometrist Honey Rose
1
raises questions
about the proper scope of the offence and brings the lower limits of manslaughter back into the academic
spotlight. The optometrist failed to notice obvious abnormalities in her eight-year-old patient’s eyes
which should have triggered an urgent referral that would likely have averted his death. Her conduct was
described by the sentencing judge as an ‘isolated lapse’ against a background of ‘considerable experi-
ence without complaint or criticism’.
2
It was also acknowledged that she was ‘in every sense a good
Corresponding author:
Anne Lodge, Teesside University, Borough Rd, Tees Valley, Middlesbrough TS1 3BX, UK.
Email: a.lodge@tees.ac.uk
1. RvHoney Rose (unreported), Ipswich Crown Court, 26 August 2016, Sentencing Remarks of Stuart-Smith J.
2. Ibid. at para 15.
The Journal of Criminal Law
2017, Vol. 81(2) 125–142
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DOI: 10.1177/0022018317694719
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person and citizen,’ a diligent and devoted optometrist, wife and mother, who had shown deep remorse
over the tragic incident.
3
Yet it was established that the performance of a proper internal examination, or
at least an examination of available retinal images, is a ‘core competency’ for any optometrist, and thus
Rose’s conviction for gross negligence manslaughter was defended on the basis that her conduct ‘fell a
very long way short’
4
of expected professional standards.
The case reignites debate about the theoretical and practical challenges presented by gross negligence
manslaughter, an offence which has been invariably criticised by academics as ‘something of a dog’s
breakfast’
5
and an exhibition of the ‘common law at its worst’.
6
The facts provide a poignant reminder of
the difficulties of achieving true justice in manslaughter cases that test the boundaries of criminality. But
whilst the death resulting from the accused’s conduct in such cases is indisputably regrettable, the
current offence formulation prioritises the resulting harm (death) over the apposite apportioning of
blame on the basis of a defensible theoretical rationale. The consequence of harm alone does not compel
a criminal conviction, and the unprincipled privileging of harm over culpability
7
has resulted in a poorly
defined serious homicide offence which leaves much to the discretion of the jury, is ‘incapable of any
objective and fair measurement’
8
and needs further judicial or legislative attention.
9
Among the reasons for academic condemnation of the offence are the significant difficulties gener-
ated by the requirement that the defendant owes the victim a duty
10
and the causation criterion.
11
Whilst
acknowledging the highly controversial nature of both of these requirements, which h ave, in turn,
provoked a wealth of academic debate in recent years, this discussion will focus on the equally con-
tentious but pivotal fault requirement of ‘gross negligence’. An unsustainable lack of clarity and cer-
tainty permeates this central concept: it will be argued that the nebulous notion of gross negligence is
simply too broad to be a defensible standard of criminal culpability, capturing as it does such divergent
degrees of fault. It is proposed that the offence boundaries must be redrawn in order to ensure the lower
limits of manslaughter are defined with greater precision to withstand damaging claims of uncertainty
and to ensure that only those whose conduct is deserving of state censure are punished. In order to
achieve this aim, it is advocated that an actor can only have their right to liberty legitimately curtailed by
penal sanction when they have consciously chosen to harm or risk causing harm to others. It is acknowl-
edged that more extensive academic debate is required to thrash out the complex theoretical and
practical issues entailed by a shift in the lower boundaries of manslaughter. The more modest aim of
this discussion is to outline some intractable problems with the existing law in order to strengthen the
case for the abolition of gross negligence manslaughter and to engender support for the restatement of
subjective recklessness as the benchmark of criminal liability for manslaughter.
3. Ibid. at para 17.
4. Ibid. at para 14.
5. M. Moore and H. Hurd, ‘Punishing the Awkward, the Stupid, the Weak and the Selfish: The Culpability of Negligence’ (2011)
5Criminal Law & Philosophy 147 at 192.
6. D. Baker, Glanville Williams: Textbook of Criminal Law, 4th edn (Sweet & Maxwell: London, 2015) 512.
7. Husak remarks that ‘the penal law seems to be concerned about negligence only when harm actually occurs,’ see D. Husak
‘Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting’ (2011) 5 Criminal Law & Philosophy 199
at 202.
8. O. Quick, ‘Prosecuting “Gross” Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service’ (2006)
33(3) Journal of Law and Society 421 at 421.
9. The Law Commission are generally supportive of the retention ofgross negligence manslaughter, either in its current form, see
Law Commission, Murder, Manslaughter and Infanticide, Law Com. No, 304 (2006), or in the guise of ‘killing by gross
carelessness’—see Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, Law Com. No. 237 (1996).
10. A. Ashworth, ‘Manslaughter by Omission and the Rule of Law’ (2015) 8 Criminal Law Review 563; C. Elliott, ‘Liability for
Manslaughter by Omission: Don’t Let the Baby Drown’ (2010) 74(2) Journal of Criminal Law 163; G. Williams, ‘Gross
Negligence Manslaughter and Duty of Care in “Drugs” Cases: R v Evans’ (2009) 9 Criminal Law Review 631; J. Herring and
E. Palser, ‘The Duty of Care in Gross Negligence Manslaughter’ (2007) Criminal Law Review 24.
11. R. Williams, ‘Policy and Principle in Drugs Manslaughter Cases’ (2005) 64(1) Cambridge Law Journal 66; J. Horder and
L. McGowan, ‘Manslaughter by Causing Another’s Suicide’ (2006) 12 Criminal Law Review 1035.
126 The Journal of Criminal Law 81(2)
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