CPS – Homicide: by Negligence (Gross)


Posted by: Greg Lance-Watkins

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Involuntary Manslaughter

Involuntary manslaughter is in contrast to voluntary manslaughter and occurs where a person kills, but does so without the intent to kill or cause GBH. Apart from the absence of the requisite intent, all other elements of the offence are the same as for murder.

There are two types of involuntary manslaughter, namely:

that caused by the defendant’s gross negligence; and
that caused by his unlawful or dangerous act.

Gross Negligence Manslaughter

This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. The law in respect of this has been clarified in the case of R v Adomako (1994) 3 All ER 79 where a four stage test for gross negligence manslaughter known as the Adomako Test was outlined by the House of Lords:

The test involves the following stages:

a) the existence of a duty of care to the deceased;
b) a breach of that duty of care which;
c) causes (or significantly contributes) to the death of the victim; and
d) the breach should be characterised as gross negligence, and therefore a crime.

There is no manslaughter by “Lawrence Recklessness”, overruling R v Seymour (1983) 2 AC 493.

The Duty of Care

There is no “general” duty of care owed by one citizen to another (No “good Samaritan rule”).

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).

Prosecutors should see Caparo Industries PLC v Dickman (1990) 2 AC 605 for the test if a duty of care existed.

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) ECWA Crim 3365.

The duty can arise from a contract of employment (R v Pittwood (1902) 19 TLR 37).

In addition there is the case of R (Rowley) v DPP (2003) EWHC Admin 693 where the Administrative Court referred to a fifth test, that ‘criminal’ involved an element of ‘badness’ – but note that the Adomako test is objective and the Crown need not prove the defendant’s state of mind. The risk must be a serious and obvious risk of death, not merely serious injury: R v Misra and Srivastava [2005] 1 Cr App R 328.

The Breach of the Duty of Care

The ordinary law of negligence applies to these cases, in that those with an established duty of care, must act as a “reasonable person would do in their position”. If they fail to do so they will have breached that duty. This is an objective test and will be based upon the defendant’s position at the time of the breach.

Therefore, if the defendant has acted within the range of what was generally accepted as being the standard practice (even if it is at the lower end) it will be difficult to describe such behaviour as falling far below the standard of a reasonable person in his position.

An unqualified person is not to be judged at a lower standard than a qualified person. Therefore the lack of skill will not be a defence if the conduct is deemed negligent. If however, the defendant has particular skills and knowledge of a danger that the reasonable person would not have, his actions should be judged in the light of those skills or knowledge. This test is an objective test.

It does not matter that the defendant did not appreciate the risk (the foreseeable risk of death) only that the risk would have been obvious to a reasonable person in the defendant’s position. (R v DPP ex parte Jones 2000 CLR 858 and AG ref No: 2 of 1999 3 All ER 182.)

The Grossness of the Breach

It is for a jury to decide whether the defendant’s conduct was so bad, in all the circumstances, as to amount to a criminal act or omission. In R v Misra and Srivastava [2005] 1 Cr App R 328, the court agreed with the direction by the judge that the term ‘reprehensible’ would be apt to describe the nature of the conduct.



See R v HM Coroner for Inner London, ex parte Douglas-Williams [1999] 1 All ER 344 for a causation test in relation to gross negligence manslaughter

Medical Manslaughter

Medical manslaughter is legally no different from Gross Negligence manslaughter. The term refers to medically qualified individuals who are performing acts within the terms of their duty of care, when the act or omission occurs.

Where a medical individual is appointed to take charge of a person they then take on a duty of care towards them. Simply being a doctor or nurse in a hospital will not necessarily mean there is a duty of care to a specific patient (see section 7 HSWA [ADD LINK] in the legal guidance Corporate Manslaughter).

Please refer to HSE work related deaths protocol http://www.hse.gov.uk/foi/internalops/fod/oc/100-199/165_9.pdf

Unlawful Act Manslaughter

This is where the killing is the result of:

the defendant’s unlawful act (not omission);
where the unlawful act is one which all sober and reasonable people would realise would subject the victim to the risk of some physical harm resulting there from, albeit not serious harm R v Williams and Davis (1992) 2 All ER 183;
whether or not the defendant realised this.
The act need not be directed against a person (e.g. arson) – see R v Willoughby (2005) 1 WLR 1880.

The knowledge attributed to the sober and reasonable person is that which such a person would acquire as an observer of the whole course of the defendant’s conduct throughout the unlawful act: R v Watson (1989) 2 All ER 865, R v Dawson (1985) 81 Cr App R 150, R v Carey and others (2006) EWCA Crim 17.

In manslaughter arising from an unlawful and dangerous act, the accused’s state of mind is relevant only to establish that the act was committed intentionally and that it was an unlawful act.

Once these points are established the question whether the act was dangerous is to be judged not by the appellant’s appreciation but that of the sober and reasonable man and it is impossible to impute the mistaken belief of the defendant that what he was doing was not dangerous: R v Ball 1989 CLR 730.


Cases where Death Results from the Unlawful Supply of Drugs

No “unlawful act” for the purpose of unlawful act manslaughter occurs, where a person only supplies drugs or materials to another, who then in turn administers the drug to himself and dies. This is the case even where a person assists another to take the drug by performing preparatory acts, such as applying a tourniquet or preparing a syringe for injection.

The House of Lords considering the point, stated that the criminal law generally assumed the existence of free will and, subject to certain exceptions, informed adults of sound mind were treated as autonomous beings able to make their own decisions on how to act: R v Kennedy (Simon) (2007) 3 W.L.R. 612 where K supplied the drug to B, who then had a choice, knowing the facts, whether to inject himself or not.


Encouraging or Assisting Suicide

CPS Areas must refer cases of Assisting Suicide to the Special Crime Division: see Referral of Cases to CPS Headquarters (Central Casework Divisions, The Principal Legal Advisor, Private Office, Strategy and Policy Directorate, and Press Office), The Chief Crown Prosecutors or Complex Casework Units, elsewhere in the Legal Guidance.


Section 1 Infanticide Act 1938, as amended by section 57 of the Coroners and Justice Act 2009, provides that infanticide can apply: “Where a woman:

by any wilful act or omission;
causes death of her child being a child under the age of 12 months;
but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child;
or by reason of the effect of lactation consequent upon the birth of the child then;
notwithstanding that the circumstances were such that, but for this Act, the offence would have amounted to murder (See R v Gore [2007] EWCA Crim 2789);
she shall be guilty of an offence of infanticide; and
may for such an offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.”
Infanticide can be an alternative verdict or charged in its own right. The child that is killed must be the child to whom the birth etc. refers, and the child must be under 12 months old. The death can be by either act or omission.

The case of R v Gore [2007] EWCA Crim 2789 has established that there is no requirement that all the ingredients of murder have to be proved before a defendant could be convicted of infanticide. The case has confirmed that the intention of parliament was to create a new offence of infanticide which covered situations much wider than offences that would otherwise be murder. Consequently, the mens rea for infanticide does not require any intention to kill or cause serious bodily harm. Therefore cases of manslaughter (see above) would fall within the elements of the offence.

In every case where the mother is alleged to have killed her own child who is less than 12 months old, early efforts should be made to obtain medical evidence establishing whether or not infanticide is appropriate and, if so, a charge of infanticide can be preferred pre-committal.

There is a close link between this offence with both voluntary manslaughter and diminished responsibility. However, unlike diminished responsibility, the burden of disproving is on prosecution. Although for an Infanticide offence, the child killed must be the one from whose birth/lactation the defendant is suffering; diminished responsibility might still be argued if another child of the family has been killed.

Note: also the offence of Child Destruction: section 1 Infant Life (Preservation) Act 1929, which prohibits the killing of any child capable of being born alive.


Familial Deaths and Serious Physical Harm

Section 5 of the Domestic Violence, Crime and Victims Act 2004 (‘DVCV Act’) creates an offence of causing or allowing the death of, or causing or allowing serious physical harm to be suffered by, a child under the age of 16 or of a vulnerable adult. This stand-alone offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household from the foreseeable risk of serious physical harm from other household members. It is an offence triable only on indictment and where death occurs, carries a maximum sentence of 14 years imprisonment or a fine, or both. Where a child or vulnerable adult suffers serious physical harm the offence is triable only on indictment and carries a maximum sentence of 10 years’ imprisonment or a fine, or both.

An offence under section 5 DVCV Act is an offence of homicide for the purposes of venue in the Youth Court.

The offence is made out where evidence exists to establish the following elements:

a child or vulnerable adult (“V”) has died or suffered serious physical harm;
the death or serious physical harm was the result of an unlawful act, course of conduct or omission of a person (“D”) who was member of the same household as V and who had frequent contact with V;
there existed at the time of death a significant risk of serious physical harm being caused to V by the unlawful act of any member of that household and either:
a) D was the person whose unlawful act caused V’s death or serious physical harm; or
b) D was, or ought to have been, aware of that risk and failed to take such steps as he or she could reasonably have been expected to take to protect V from that risk of serious physical harm; and
c) the death or serious physical harm occurred in circumstances of the kind that D foresaw or ought to have foreseen.

Note: ‘significant’ does not mean ‘more than minimal’ as it would for manslaughter but carries its ordinary meaning: R v Mujuru (2007) EWCA Crim 1249.

The prosecution does not have to prove which of the two possible alternatives, (a) or (b) above, applies. In other words, D is equally liable to conviction whether he or she was the perpetrator of the act that actually caused V’s death or serious physical harm or simply failed to protect V from a foreseeable risk of serious physical harm from another member of the household who had frequent contact with V. It will quickly be appreciated how this dual basis for criminal liability remedies one of the main perceived difficulties with the law relating to other possible charges such as murder or manslaughter.

In every case the prosecution must prove that V’s death or serious physical harm occurred in circumstances of the kind that D foresaw or ought to have foreseen. This requirement protects, from criminal liability, those whose dependants die from unlawful acts that had nothing to do with the foreseeable risk of harm within the household, e.g. where V is at risk of serious harm from an abusive parent but is subsequently killed by a friend of the family who had had until then little contact with the household.

Further, section 5(6) DVCV Act confirms that in this context ‘serious’ harm is to be equated with the level of physical harm that amounts to grievous bodily harm under the Offences against the Person Act 1861. The risk that must be foreseen relates to that level of harm and the risk itself must be significant rather than minimal or fanciful. The section also contains definitions of the terms child and vulnerable adult amongst others. The definition applied to vulnerable witnesses is wider than that applied to the same phrase in the Youth Justice and Criminal Evidence Act 1999.

However, it is clear from the wording of section 5 that the test of what could be foreseen is not purely
subjective but contains a ‘reasonableness’ dimension as well. In determining potential liability the proper test to be applied is ‘what would have been reasonable for this defendant to have foreseen?’ Therefore, a defendant may be fixed with knowledge if the nature of the risk was such that he or she should reasonably have been aware of it even if they claim not to have been.

Frequent contact

Frequent contact could include family members or carers, but is not confined to that group.


Household is defined in sectino 5(4)(a) DVCV and will be given its ordinary meaning. It is not likely to include care homes or nurseries where a child is looked after with a number of others. A paid or voluntary domiciliary carer or housekeeper or an au-pair or similar may fall under the definition, if it would be reasonable in the circumstances. Under the Act, a person may be regarded as a member of the household for the purpose of this offence if they visit so often and for such periods of time that it is reasonable to regard that person as a member of the household. Membership of a household will be for the courts to determine on a case by case basis.

The offence only applies to those over 16 years of age, unless the suspect is the mother or father of the victim.

If the person who caused the death lacks or may lack criminal responsibility the other persons in the household can still be charged with ‘allowing’ the death or serious injury.

Unlawful act

Subsection (5) defines an unlawful act as one that constitutes an offence or would be were it not for the fact that the person lacks criminal responsibility.


Age of Responsibility

If D was under the age of 16 at the time of the act which caused V’s death he or she cannot be guilty of an offence under this section. Further, where it is sought to prosecute D on the basis of a failure to take reasonable steps to prevent the risk of serious harm, D is assumed not to have been capable of taking any such step before attaining the age of sixteen (s.5(3)(b)). However, neither of these exceptions applies to the mother or father of the deceased child who may be prosecuted for a section 5 offence whatever their age. This distinction is justified on the basis that parents bear a special responsibility for the safety of their children.

Application of Dangerous Offender Provisions

An offence under section 5 is a “serious specified offence” for the purposes of the Dangerous Offenders provisions set out in Chapter 5 of the Criminal Justice Act 2003 (DV Act, Schedule 10, paragraph 65).

Procedural Changes

Section 5 creates a substantive offence that can be charged alone and which is clearly designed to remedy situations where it has been impossible in the past to bring charges of murder or manslaughter because of a lack of evidence to prove which of a limited number of suspects caused V’s death. Such situations will doubtless continue to occur and the principle in R v Lane and Lane (1986) 82 Cr App R 5 (referred to above) will continue to have effect.

However, the Act also has in contemplation circumstances where the evidence, reviewed according to the normal standards of the Code for Crown Prosecutors, justifies charging one of more of the defendants with either murder or manslaughter in respect of the same death. Where this is done, it is important to ensure that the defendant is also charged with a section 5 offence. Not only does this afford the jury an opportunity of convicting of an alternative count but several significant advantages flow from the fact that a defendant is charged with both offences.


Ruling Out Dismissal of the Case before Arraignment

Following a sending by the magistrates’ court the charge of murder or manslaughter cannot be dismissed under the Indictable Only procedure unless the section 5 DVCV Act offence is also dismissed – section 6(3) DVCV Act .This means that as long as there is a case to answer on the familial homicide offence, the defence will not be able to apply to have the more serious charge dismissed before arraignment under paragraph 2 of Schedule 3 of the Crime and Disorder Act 1998 on the ground that there is not a prima facie case in relation to murder or manslaughter.

Postponing the Decision on whether there is a case to answer

A similar restriction also applies during the course of the trial itself. As long as the defendant continues to face a charge under section 5 of the DVCV Act the question of whether there is also a case to answer on the charge of murder or manslaughter cannot be determined until the close of all the evidence including the defence evidence (if any defendant elects to give evidence) .

The purpose of the provision is to afford the jury the greatest possible opportunity of hearing the oral evidence of at least one of the defendants during the trial and to weigh that testimony as evidence against the other accused. So, where a defendant is charged in respect of the same death with both familial homicide and either murder or manslaughter, and the prosecution evidence establishes a case to answer on the section 5 DVCV Act offence, the defence cannot make a submission of no case to answer on the murder/manslaughter charge until the close of the defence case.

At that stage the court will have heard the evidence of any of the defendants who decide to go into the witness box and the decision whether there is a case to go to the jury will then be taken in the light of that evidence, not simply the evidence of prosecution witnesses. The potential use of so-called ‘cut-throat’ defences here is obvious. (See R v Ikram (Abid) [2008] EWCA Crim 586).

To view the source from which this is an abstract CLICK HERE



Posted by: Greg Lance-Watkins

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