Gross Negligence Manslaughter Revisited: Time for a Change of Direction?
| Author | Cath Crosby |
| DOI | 10.1177/0022018320926468 |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| Subject Matter | Articles |
The Journal of Criminal Law
2020, Vol. 84(3) 228–245
Gross Negligence Manslaughter
ª The Author(s) 2020
Revisited: Time for a Change of
Article reuse guidelines:
sagepub.com/journals-permissions
Direction?
DOI: 10.1177/0022018320926468
journals.sagepub.com/home/clj
Cath Crosby
Teesside University, UK
Abstract
This article postulates that the House of Lords took a wrong turn in Adomako, missing the
opportunity to revise the Caldwell/Lawrence guidance on recklessness, to produce a more
appropriate determinant of criminal liability for inadvertent conduct causing death. It will be
advocated that gross negligence manslaughter is replaced with reckless manslaughter utilising
an objective capacity–based test. A proposal that encompasses both acts and omissions will be
advanced which is theoretically underpinned by a hybrid theory of culpability. It will be con-
tended that this hybrid theory best represents current approaches to criminally reckless
conduct in practice and produces a morally apposite method of ascertaining criminal
responsibility where the risk of death was not foreseen.
Keywords
Gross negligence manslaughter, reckless manslaughter, culpability, reform
Introduction
Criminal liability for inadvertent conduct has come under increased scrutiny in the last few decades,
particularly with regard to the offence of gross negligence manslaughter. From Stone and Dobinson,1 to
more recently Evans (Gemma),2 Rose (Honey Maria)3 and Bawa-Garba (Hadiza),4 the common law has
had difficulty in determining an appropriate line between culpability and exculpation. This article will
begin by examining the historical development of inadvertent involuntary manslaughter to illustrate the
recurring overlap between reckless and negligent conduct. Given the nature of these terms, some
1. [1977] 2 All ER 341.
2. [2009] EWCA Crim 650.
3. [2017] EWCA Crim 1168.
4. [2016 EWCA Crim 1841.
Corresponding author:
Cath Crosby, Senior Lecturer, Teesside University, Southfield Road, Middlesbrough, Tees Valley TS1 3BX, UK.
Email C.Crosby@tees.ac.uk
Crosby
229
blurring of the boundaries is inevitable in the courts’ pursuit of justice; this lack of clear demarcation is
because recklessness and negligence are context/reason dependent. It is only when the full context in
which the defendant’s behaviour arose and his reasons for so behaving are analysed, that we can
determine whether the imposition of criminal responsibility in any given instance is appropriate. It is
submitted that the current law fails to successfully separate the culpable from those who should not be
held criminally responsible. Consequently, a proposal for reform will be postulated to address this issue,
underpinned by an appropriate theoretical rationale that is derived from current theories of culpability.
The Development of Inadvertent Manslaughter and a Proposal
for Reform
Historically, one of the issues that arises with regard to inadvertent fault in the context of involuntary
manslaughter is that the adjectives ‘reckless’ and ‘negligent’ have sometimes been used interchangeably
in judgments. There was no requirement of awareness or its absence in the origins of this manslaughter
offence and, following problems with defining recklessness, it seemed that two erstwhile distinct forms
of mens rea had merged. By way of synopsis, from the standpoint of gross negligence manslaughter as
enunciated by Brett J. in Nicholls,5 ‘wicked negligence’ was required, demonstrating a ‘wicked mind’ in
the sense of being reckless and careless. Moral turpitude was essential but adverting to recklessness and
carelessness is obfuscating matters, combining two (or three) mental states.6 In Bateman,7 Lord Hewart
stated that gross negligence required ‘such disregard for the life and safety of others as to amount to a
crime’.
Advertence to risk was not apparently a factor, gross negligence could encompass both mental states.
In some cases, there is little distinction, if any, between disregard and indifference to the welfare of
others. Indifference is a term that has often been used in the context of recklessness suggesting a
conflation of the mentes reae. This could be because gross negligence was traditionally viewed as the
minimum state of recklessness to cover circumstances where there was a lack of foresight of risk. In this
way, the lacuna left by a subjective definition of recklessness, where the defendant (D) had to foresee the
risk of the particular kind of harm, could be addressed where, in the eyes of the court, policy and justice
demanded that the accused was ‘deserving’ of punishment and must or should have foreseen the risk or
deliberately closed his mind to it.
In Andrews v DPP,8 Lord Atkin developed the guidance from Bateman further opining:
[A] simple lack of care . . . is not enough . . . a very high degree of negligence is required . . . ‘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 the risk as would justify a conviction.9
In Stone and Dobinson,10 Lord Atkin’s statement of the law in Andrews was cited with approval by
Lane LJ:
[I]t is clear from that passage that indifference to an obvious risk and appreciation of such risk, coupled with a
determination to run it, are both examples of recklessness . . . Mere inadvertence is not enough. The defendant
5. R v Nicholls [1874] 13 Cox CC 75 D.
6. Recklessness is above negligence in the traditional hierarchy of mentes reae terms and negligence can be divided into ‘gross’
and ‘simple’ negligence.
7. (1925) Cr App R 11.
8. [1937] AC 576.
9. Ibid. at 583.
10. Stone and Dobinson (n 1), Stone and his mistress, D, were deemed to have assumed responsibility for caring for S’s sister who
died from a combination of anorexia nervosa and their incompetent neglect.
230
The Journal of Criminal Law 84(3)
must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the
risk but to have determined nevertheless to run it.11
Indifference is not a precondition to establishing recklessness and those who incompetently try to
avoid a perceived risk may not necessarily be deemed reckless, depending on the reasons for continuing
to act and for any incompetence. There could be indifference or callousness evidenced by their failure to
take sufficient care to eliminate risk.
Chronologically, the judgments in Andrews and Stone and Dobinson are separated by Cunningham,12
which utilised a subjective definition of recklessness, requiring D to have foreseen the risk or ‘closed his
mind’13 to it. It would seem possible that using the phrase ‘indifference to an obvious risk and apprecia-
tion of such risk’ was opening the door to the Caldwell/Lawrence Direction, discussed below. It is clear
that inadvertence alone is insufficient but this mirrors Lord Hailsham’s position in Lawrence,14 who
stated that the word ‘reckless’ applied ‘to a person or conduct evincing a state of mind stopping short of
deliberate intention, and going beyond mere inadvertence, or, . . . mere carelessness’.15
In Stone and Dobinson,16 the conviction for gross negligence manslaughter was based upon ‘gross
neglect amounting to reckless disregard’ for the sister’s welfare. The court held that culpability could
arise either by indifference to an obvious risk or subjective recklessness. This case, again failing to
distinguish between recklessness and negligence, is hard to justify, given that both defendants were of
low intelligence. They were not indifferent to the sister’s well-being, doing their best to try to help her,
and it is unlikely that either defendant was subjectively aware of the serious risk to her health.17 It
appears that foresight of consequences was unnecessary, but it is difficult to see how the defendants fell
within the guidance from Lord Atkin in Andrews upon which the appeal court relied.18
The next relevant milestone was the House of Lords decisions in Caldwell19 and Lawrence,20 where
Lord Diplock extended the interpretation of recklessness to include inadvertence. He contended that a
person would be reckless under the Criminal Damage Act 1971 if:
(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2)
when he does that act he either has not given any thought to the possibility of there being any such risk or he
has recognised that there was some risk involved and has none the less gone on to do it.21
In Lawrence,22 decided on the same day, Lord Diplock applied his ‘Model Direction’ but the ‘obvious
risk’ under (1) was amended to an ‘obvious and serious risk’ for offences of reckless driving. Further-
more, an additional element was included as Lord Diplock stated:
If satisfied that an obvious and serious risk was created by the manner of the defendant’s driving, the jury are
entitled to infer that he was in one or other of the states of mind required to constitute the offence and will
probably do so; but regard must be given to any explanation he gives as to his state of mind which may
displace the inference.23
11. Ibid. at 364.
12. [1957] 2 All ER 412.
13. R v Parker [1977] 1 WLR 600.
14. [1982] AC 510.
15. [1982] AC 510 at 520.
16. Stone and Dobinson (n 1).
17. Under the test for recklessness advanced in this work a conviction could not stand.
18. Andrews v DPP (n 9).
19. [1982] AC 341.
20. Lawrence (n 14).
21....
To continue reading
Request your trial