The Elements of Gross Negligence Manslaughter - Case Study Example

Case Study, Law Case Study, Law Clearly outline the elements of gross negligence manslaughter Gross negligence manslaughter occurs when the defendant commits a lawful act in such a way that it renders the action a criminal offence (Geldart & Yardley, 1966). The defendant may have caused death or harm but there was no intention it will result to death or body injury. Gross negligence manslaughter has four elements. A duty of care arising from an omission The law requires that the relevant duty of care is under the law of negligence. However, its application is not affected by common law rules excluding liability in the law of negligence where people are connected in a criminal enterprise or where they agree to take a risk (Monaghan, 2014). In this context, the employer can be prosecuted if the worker died or he or she is an illegal immigrant. An example of a case of Donoghue v Stevenson (1932) HL, Mrs. Donoghue accompanied by a friend went to Minchella’s Wellmeadow. The friend ordered ice cream and a bottle of ginger beer, when all the beer was poured, and it was found to contain a snail. Mrs. Donoghue became unwell after consuming the contaminated beer. The owner of the café was held negligible of duty of care, because the neighbor was injured. The café owner act affected another person that she ought to have them under observation not to be affected. Breach of duty resulting in risk or death Where a person is held in an institution then the organization owes the convict a relevant duty of care. It applies where the offence committed has features relating to offence in section occurred before 1 September 2011, and then the common law applies. The court will decide whether the organization owed the dead a duty of care (section 2(5) (Ormerod, Smith & Hogan, 2011). However, in order to conclude there was a breach, it must be very serious and the extent of risk to death it posed section 8(2). This shows the complexity of the legal nature to the presence of a duty of care in the law of negligence. A case of Khan, R v [1993] CA, the defendant, a drug dealer gave heroin to a 15-year-old girl. Afterward, the girl was in apparent need for medical attention but the defendant left her until the following day when she was found dead. The drug dealer was convicted for the offence of omission to ask for medical assistance and not giving heroin. The jury concluded that he owed the girl duty of care, which he breached, and constituted gross negligence and thus a criminal act. Causation link between the breach of death Even though the Act does not define causation, the intention follows the features of the law on gross negligence manslaughter. Therefore, the hearing will need to demonstrate that the breach was more than the negligible contribution to the death. In addition, the special rules on causation formed for the purposes of the civil law do not apply to the criminal law. Example of case Benge, R v (1865) pre-SCJA 1873, the defendant was a foreman platelayer. He misread the timetable as to when the train would arrive, thereby placing a flagman at the wrong distance and the driver had no enough time to control the vehicle. The defendant argued that if the other servant had done their duty the accident could have been avoided. However, it was his duty to give the right signal. The foreman was found guilty of negligence because he was the substantial cause of the accident even though the driver did not keep sufficient look-out. A case of R vs HM Coroner for Inner London, (1999) 1 All ER 344. It is crucial that the trial proves that the risk was a more than the minimal contribution to the death. In this case, the deceased, Mr Norton, was abused by a group of youths, who threw stones at him. Afterward, he collapsed and died of heart attack but had a history of heart problem. However, the judge was not able to discount the possibility whether the fatal arrhythmia began before the stone was struck Mr Norton. Gross negligence The breach ,which causes death, must be attributable to the senior management failure. It should be possible to demonstrate the breach was so bad to deserve criminal liability (Reed, 2005). There was a serious risk of death from a particular act being undertaken. In addition, the organization through the top management approached the risk in a careless manner that an accident was likely to occur. A case of Bateman, R v (1925) CCA, doctor attended to woman who was confined in hospital, and died while giving birth (Sutcliffe, 2006). The doctor was held for the act of gross negligence because, when a doctor was consulted on behalf of a patient, owes the duty to take precaution undertaking treatment. The doctor accepted the responsibility; therefore, owe the patient the duty to use reasonable care in administering treatment. A case of Andrews vs. DPP (1937) HL, the defendant killed a pedestrian while attempting to pass another car by driving offside. The defendant had been sent by the employer. The driver was convicted for gross negligence because it showed disregard of life and safety of others. Identify and discuss the difficulties of imposing liability for gross negligence manslaughter on corporations. Explain how this varies according to the size of the corporation using the R v P & O European Ferries case. Treason and felony cannot be imposed on a corporation. The corporation has no social duties, therefore, could not suffer from a corrupt mind, which is a requirement for the commission of criminal offence (Matthews, 2008). It is hard to impose gross negligence to manslaughter because it does not enjoy state of mind, therefore, could not commit any crime. In addition, there was a problem on how to identify the means by which the mind of a corporation could be determined. The House of Lords ruled against the Pharmaceutical Society in the case of The Pharmaceutical Society vs. London and Provincial Supply Association Ltd. (1880). This is because the corporation cannot commit a crime, therefore, it cannot be imprisoned (Molan, 2007). Moreover, there may be a substantive question on whether the corporation may be indicated, for example, the case of Cory Brothers & Co. (1927). The crimes s against the defendant corporation were setting engine with intent to endanger life and manslaughter. The offences alleged contrary to section 31 of the Offences Against the Person Act, 1861. The ruling was there was no accusation against a corporation either for felony or misdemeanour involving personal violence (Molan, 2012). It was argued that the ratio decidendi of the Cory Brothers case was that the actus reus of manslaughter thus the corporation was not guilty. The argument in the Cory Brothers case that the then defendant, made the submission that: mens rea cannot be present in the case of an artificial entity like a corporation. In addition, the case of Director of Public of Prosecutions v. Kent and Sussex Contractors, Ltd. (1944), the offence was committed under the Motor Fuel Rationing (No. 3) Order 1941. It involved the use of a document which had false material particular. The decision was based on the suggestion that state of mind was not attributable to the company (Martin, 2009). The company can only be said to be liable in respect of its agents or officers, therefore, the respondent company cannot be held to form an intention necessary to constitute a criminal offence charged. Under CMCHA, the death of an individual must have been caused by duty of the manager (Wheelwright, 2004). The chain of causation cannot be broken thus there is no standard of its objective. It must be proven that the manager failure constituted a gross breach of a relevant duty of care. Some circumstances could render corporate convictions suspended and in any event becoming inconsistent with individual case. Research indicates it has only resulted in convictions of small companies (Law Commission, 1996). When the size of a corporation is bigger, it becomes very difficult to decide who among its officers or servants is to be identified so that his guilt will be the guilt of the company. A case of Lennards Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd. (1915), the fault was found with manager who managed the ship. It was said that the company could not separate itself from him; therefore, the fault was part of the company. However, if the company is not liable for the individual his action is not the action of the company itself. Outline the key provisions of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 and highlight the features of the offence that differentiate it from gross negligence manslaughter. The CMCHA 2007 is based on corporate liability; thereby an individual does not need to be identified. The organization has to take reasonable steps to protect a person’s safety, relevant duty of care (Davies, 2008). The new offence applies when a corporation owned a duty of care to a accuser under the law of negligence under common law. The new Act creates circumstances in which existing breach of duty of care constitutes a criminal offence. In the earlier days, there was a problem of deciding how duty of care was owed resulting in conflicting Court of Appeal. In most cases, justice was not accomplished for the victim and family. The key feature of the CMCHA 2007 according to section 2 (5), the law decides whether duty of care is owed by organization to an individual. The judge should make the necessary findings to decide the question. To determine a gross breach, the court must consider failure to comply with legislation, whether the breach was serious and the risk of death it posed. The offence must have the root element of breach of duty of care constituted under the law of negligence. Corporate manslaughter includes both a gross breach of duty of care and senior management failures as a significant element in that breach (Welham, 2000). Contrary, gross negligence manslaughter offences are committed when the offender cannot show that it was not reasonably possible to avoid a risk of injury. In other words, failure was at operational rather than systematic. Moreover, in corporate manslaughter the liability of proof remains on the jury. The judge will identify the acts or omissions, which will be used determining there was a breach and proving them (Ministry of Justice, 2007). On the other hand, the jury for gross negligence manslaughter need to prove there was a failure to ensure the absence of risk. This can be done by indicating the injury, therefore, liability of proof shift to the defendant. The jury points outs the precautions that should have been taken. In addition, in corporate manslaughter the judge must ascertain that the breach was a substantial cause of death. In gross negligence manslaughter, offences can be proved without proving the injury was caused by failure to ensure absence of risk (Fitzpatrick, 2005). It should be only proved the crime was a substantial cause of death, and not just death occurred. References list Davies, A. (2008). Corporate manslaughter and corporate homicide act: Special report , : Workplace Law Group. Fitzpatrick, B. (2005). Gross Negligence Manslaughter: Compatibility with European Convention on Human Rights, Article 7. Journal of Criminal Law, 4(12), 123. doi:10.1350/jcla.69.2.126.63514 Geldart, W., & Yardley, D. C. (1966). Elements of English law. London: Oxford University Press. Law Commission (1996), Law Commission 237: Legislating the Criminal Code - Involuntary Manslaughter. United Kingdom: Law Commission. Martin, J. (2009). Key Cases: Criminal Law. Hodder Education. Matthews, R.A. (2008), Blackstones guide to the Corporate Manslaugther and Corporate Homicide Act 2007, Oxford: Oxford University Press. Ministry of Justice (2007), A guide to the Corporate Manslaughter and Corporate Homicide Act 2007, Explanatory Notes. United Kingdom: Ministry of Justice. Molan, M. (2012). Cases & amp; Materials on Criminal Law: Fourth Edition. Hoboken: Taylor & amp; Francis. Molan, M. T. (2007). Cases & materials on criminal law. London: Routledge-Cavendish. Monaghan, N. (2014). Criminal law directions. London, United Kingdom: Oxford University Press. Ormerod, D., Smith, J. C., & Hogan, B. (2011). Smith and Hogans criminal law. Oxford University Press, : Oxford University Press. Reed, A. (2005). Ex Turpi Causa and Gross Negligence Manslaughter. Journal of Criminal Law, 34(25), 47. doi:10.1350/jcla.69.2.132.63522 Sutcliffe, G., MP. (2006), Corporate Manslaughter and Corporate Homicide Bill in Standing Committee B, 4th Siting, 24 October 2006, Col. 105, Mr Gerry Sutcliffe MP. Welham, M.G. (2000), Corporate Killing: the proposed criminal law for manslaughter at work. Unpublished Masters Thesis, Loughborough University, Loughborough. Wheelwright, K. (2004). Prosecuting corporations and officers for industrial manslaughter-recent developments. Lawbook Co. Read More