R v Adomako
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE BLOFELD,MR JUSTICE HENRY |
| Judgment Date | 08 November 1994 |
| Judgment citation (vLex) | [1993] EWCA Crim J0520-7 |
| Docket Number | No. 90/1050/X3 91/6139/Z2 91/6140/Z2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 November 1994 |
[1993] EWCA Crim J0520-7
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Henry and Mr Justice Blofeld
No. 90/1050/X3
90/1030/Z2
91/6139/Z2
91/6140/Z2
MR R TITHERIDGE QC and MR J TURNER appeared on behalf of HOLLOWAY
MR ANTHONY WEBB appeared on behalf of THE CROWN
MR R DU CANN QC and MR WATSON appeared on behalf of ADOMAKO
MISS A CURNOW QC and MR A LEONARD appeared on behalf of THE CROWN
MR A ARLIDGE QC and MR A JENKINS appeared on behalf of PRENTICE
MR WHITFIELD QC and MR M REYNOLDS appeared on behalf of SULLMAN
MR S COWARD appeared on behalf of THE CROWN
( As approved)
These three appeals against convictions for manslaughter were listed together and argued in succession before us since they all raise similar legal problems. Two of the cases involved doctors administering treatment; the third involved an electrician wiring up a central heating system. The issues raised concern the true legal basis of involuntary manslaughter by breach of duty. Essentially, the question is that posed in the current edition of Archbold at paragraph 19–97: "has gross negligence manslaughter survived Caldwell and Lawrence?"
We have been referred to a plethora of legal authority going back as far as Bracton and Coke and, at our invitation, as far abroad as the Commonwealth jurisdictions. In our view, however, it is necessary for the purposes of this judgment to cite only two authorities prior to the leading case of Andrews v DPP 1937, AC 576. In Doherty 1887, 16 Cox's Criminal Cases 306, at page 309 Stephen J described the degree of negligence by a doctor which would support a manslaughter charge. He said:
"Supposing a man performed a surgical operation, whether from losing his head, or from forgetfulness, or from some other reason, omitted to do something he ought to have done, or did something he ought not to have done, in such a case there would be negligence. But if there was only the kind of forgetfulness which is common to everybody, or if there was a slight want of skill, any injury which resulted might furnish a ground for claiming civil damages, but it would be wrong to proceed against a man criminally in respect of such injury. But if a surgeon was engaged in attending a woman during her confinement, and went to the engagement drunk, and through his drunkenness neglected his duty, and the woman's life was in consequence sacrificed, there would be culpable negligence of a grave kind. It is not given to everyone to be a skilful surgeon, but it is given to every one to keep sober when such a duty has to be performed."
In Bateman 1925 19 CAR 8 a case charging manslaughter against a doctor, Lord Hewart CJ said at page 11:
"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."
In Andrews v DPP a case of motor manslaughter, Lord Atkin quoted the above passage from Bateman and went on as follows at page 583:
"Here again I think with respect the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotation of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case, the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise …..
Simple lack of care such as well constitute civil liability is not enough: for the purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualise a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; 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."
It is thus to be noted that the word 'reckless' was introduced by Lord Atkin to denote the degree of negligence required. Further, while he thought 'reckless' most nearly covered the case, he recognised it was not exhaustive; there was still scope for manslaughter by a high degree of negligence, even in the absence of indifference.
Lord Atkin excluded 'mere inadvertence' (see page 582). But he was not saying that all inadvertence falls short of creating criminal liability. On the contrary, he indicated that to establish guilt of manslaughter, the accused must be proved to have had 'criminal disregard' for the safety of others (page 582) and he gave as examples 'the grossest ignorance or the most criminal inattention'. Where a duty of care is owed, the inattentive will often be negligent so as to be civilly liable even though, as a result of their inattention, they may not have adverted to the risk. But negligent inattention characterised as 'mere inadvertence' does not create criminal liability. To do so, the inattention or inadvertence must be, in the jury's view, grossly negligent.
In Stone and Dobinson 1977 1 QB 354, this court had to consider a case concerning an inadequate couple who had undertaken the care of Stone's sister. Her death occurred through their neglect. It was accepted that the prosecution had to prove gross negligence (361A). However, contrary to the appellant's contention, Lane LJ made clear (at page 362) that proof of foresight of the consequences was not necessary. What was necessary was proof of a high degree of negligence reflecting the Andrews' approach. He said specifically:
"It is to Andrews v DPP that one must turn to discover the definition of the requisite degree of negligence."
He then quoted the passage from Andrews set out above and went on:
"It is clear from that passage that indifference to an obvious risk and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness …………… Mere inadvertence is not enough. The defendant 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."
That was in 1977, and the language used again shows that the quest was for the appropriate definition of the requisite degree of negligence.
In 1981, the House of Lords decided both Caldwell 1982 AC 341 and Lawrence 1982 AC 510. Lord Diplock gave his well-known definition of recklessness in regard to the Criminal Damage Act 1971 in Caldwell and in regard to section 1 of the Road Traffic Act 1972 (as amended) in Lawrence. Each definition involved two stages. The actus reus consisted of the defendant creating an obvious and serious risk. The mens rea was defined in the alternative as "without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nevertheless gone on to take it". (See Lawrence at page 527A).
To jump forward in time, the wide Diplock meaning of recklessness in those statutory contexts has survived all attacks upon it, most recently in ( Reid 1992 1 WLR 793)—see per Lord Keith (795E —796D), per Lord Ackner (801C —805H), per Lord Goff (807D —812D) and per Lord Browne-Wilkinson (818F —820A). But those very passages supporting it as epitomising the law show clearly the difficulty the wide definition has caused —perhaps because the first impression of the ordinary lawyer and the ordinary juror would incline to a more restricted meaning of the word. It is beyond doubt that, at least since 1982, the word 'reckless' has caused the Courts problems in regard to involuntary manslaughter which would not have occurred had the focus been on gross negligence rather than on recklessness.
To return to the chronology of case-law, although neither Caldwell nor Lawrence directly affected the common law offence of manslaughter, that extension followed from the House of Lords' decision in Seymour 1983 2 AC 493. There it was decided that the ingredients of the two offences of causing death by reckless driving and motor manslaughter were the same. True, Lord Fraser of Tullybelton at page 500 said:
"Although the ingredients of the two offences are the same, the degree of recklessness required for conviction of the statutory offence is less than that required for conviction of the common law crime."
True also, Lord Roskill, with whose speech the other three Lords of Appeal agreed, answered the certified question as follows at page 508:
...
To continue reading
Request your trial
-
Brown (Uriah) v The Queen
...it is a sufficient direction to the Jury to adopt the test of the ordinary principles of negligence set out by the House of Lords in R vs Adomako [1995] 1 AC 171 (which was not a case involving motor vehicle driving) or that stated by the Judicial Committee of the Privy Council in Kong Che......
-
R v Misra (Amit)
...by Prentice and Sullman, who were also doctors whose negligence was said to have caused the death of a patient ( R v Prentice and Others [1994] QB 302). The convictions of Prentice and Sullman were quashed on the basis that the judge's direction meant that the jury did not consider any "exc......
-
R v Misra (Amit)
...based on R v G & Another, they were also and most cogently advanced by Lord Williams of Mostyn QC, and rejected by the House of Lords in R v Adomako [1995] 1 AC 171. Mr Gledhill, in effect, redeploys the same argument on the basis that, if the ECHR had been incorporated into domestic law wh......
-
David Swain Appellant v The Queen Respondent
...conduct was so bad in all the circumstances as to amount in the jury's opinion to a crime. R v Bateman (1925) 19 Cr. App. R. 8 cited; R v Adomako [1994] 3 W.L.R. 288 applied. 3. In the present case, neither gross negligence manslaughter nor unlawful act manslaughter was a viable alternati......
-
Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another
...the Model Direction frommanslaughter with a test of gross negligence being reasserted in its place: RvPrentice, Adomako and Holloway [1993] 4 All ER 935; Rv Adomako [1994] 3 All ER79. Whilst in certain respects wider than the Model Direction, the attraction ofgross negligence manslaughter a......
-
Doctors Are Aggrieved—Should They Be? Gross Negligence Manslaughter and the Culpable Doctor
...and serious risk of death;15. Ibid.16. Adomako (n 10) at 187 per Lord Mackay.17. R v Prentice and another; R v Adomako; R v Holloway [1993] 4 All ER 935 (CA) 952.18. Ibid. The references to ‘reckless’ made during the other two cases heard alongside Adomako were successfully appealedbecause ......
-
Criminal Law
...expect a person to reach a standard that he or she has in fact not attained? Reference may be made to the English case of R v Prentice[1993] 4 All ER 935 at 949 where the court was prepared to recognise the appellant”s inexperience when applying the objective standard of a reasonable medica......
-
A Betrayal of Trust? Back to the Drawing Board for Medical Manslaughter
...the ‘normative expectations’ of their role,making a jury likely to convict.149. Ibid 584–585.150. Ibid 587.151. R v Prentice; R v Sullman [1994] QB 302 at 325–26, 328.152. G Slapper, ‘Manslaughter, Mens Rea and Medicine’ (1994) 144 NLJ 941.153. V Tadros, ‘The Characters of Excuse’ (2001) 21......