The Elements of Gross Negligence Manslaughter - Essay Example

Case Law1 By Key words: Case Law The Elements of Gross Negligence Manslaughter Gross negligence manslaughter (GNM) is where an individual leads to death of another person due to the depiction of extreme/gross incompetence or lack of attention. Though the extent of negligence in different cases differs, the issue is broadly delineated as the inability of a person to depict the required level of precision, accuracy, attention, or brilliance in performance. This inability causes the death of another person who depends on the services or skill of the defendant. In addition, it may involve omissions. Like the acts, when omission leads to death, the English law defines such death as a gross negligence manslaughter. GNM is mainly committed by people in different lines of work where other individuals depend on them for services and special skills. For instance, when doctors, police persons, and engineers among others depict negligence in the performance of their duties leading to death then they can be charged under the English law for GNM. One is termed negligent if they depict a conduct lower than the expected level of any reasonable person. According to the English Law, negligence is a civil wrong (tort) that can receive a maximum of life imprisonment. Mainly, it is judged from the point of reference of a reasonable person and depending on the judgement, defines if a death occurrence should be termed as gross negligence manslaughter or not. According to Monaghan (2014 p. 139), the law holds it as an objective concept, where prove of whether the defendant was aware of the risk that her/his behaviour or conduct might fall below the standards of a reasonable individual is unnecessary. One key element of the gross negligence manslaughter is that the defendant must have owed the victim/deceased a duty of care (Monaghan, 2014, p. 139). Where the defendant leads to the death of the victim due to the inability to perform her/his duty with the required proficiency then he/she (defendant) should be convicted and charged with gross negligence manslaughter. Lack of accuracy in the performance of a duty or acts that reveal unsatisfactorily application of a skill in offering a duty of care is a breach of the duty. As such, the English law states that a case of death is a GNM if an individual (the defendant) owed the victim a duty of care and failed to honour it. However, the prosecution must evidently show that the act or omission by the defendant was grossly negligent for the satisfaction of the elements of the offence (Griffin & Moran, 2010, p. 358). The Adomako (1995) 1 AC 171 clearly states that a concrete evidence of gross negligence by an individual towards another he/she owed a duty of care is critical before charging one with GNM. Another element of the GNM is prove of a breach of duty. Before charging an individual for gross negligence manslaughter, the prosecution must prove that indeed the defendant breached his/her duty of care towards the deceased. According to R v Bateman 19 Cr App R 8W, the prosecution must prove that a duty of care was not discharged according to the required standards. An individual with special skills/expertise on a field is expected to meet the set standards for offering services of care. If an individual fails to meet the standards (which he/she can) then he/she is said have breached the duty of care. However, whether the defendant is in breach of duty or not is determined by the consideration of what is expected of a reasonable person. A breach of duty includes the performance of a direct act or by an omission to act. The prosecution must undoubtedly prove this for GNM to be imposed (Griffin & Moran, 2010, p. 360). Apart from the aforementioned, causation and gross negligence are other critical elements of gross negligence manslaughter. On the element of causation, the prosecution must prove without doubt that the breach of duty of care by the defendant caused the death of the victim. This demands for sufficient evidence on the breach and its effects on the deceased. According to R v Bateman 19 Cr App R 8, if A owed a duty of care to B, and breaches the duty leading to the death of B, then the prosecution must show that the breach of duty caused the death for conviction of GNM. The element of gross negligence is focal to GNM. The prosecution must prove that the breach of duty of care which caused the death, was grossly negligent. The House of Lords held that the offence of manslaughter involves a very high degree of negligence in Andrews v DPP (1937) AC 576 (Monaghan, 2014, p. 140). Corporations and Gross Negligence Manslaughter In the English Law, manslaughter is where a person kills another person unlawfully, directly or indirectly. According to the law, if the act is proved through substantial evidence to have originated from the acts of an individual then the person is guilty of manslaughter. Moreover, organizations or corporations may be guilty of manslaughter if the individual causing the death is a part of the organization/corporation. However, for a corporation to be held responsible for the killing, the individual must have been involved in the incident for the propulsion of the organization’s interests (Bibbings, 2014, p. 38). For instance, if person A kills person B while in line of duty, due to incompetence, lack of diligence, or omission, while acting for the interests of the corporation, then s/he and the corporation may be found guilty, and convicted for manslaughter. The English Law ensures the imposition of liability for GNM on corporations. However, different difficulties arise, depending on the size of corporations (R. v P & European Ferries (Dover) Ltd., 1990, p. 1). For a corporation to be held liable for manslaughter, then a natural person, who is an embodiment of the corporation must be the cause of the death. However, for long, there has been obscurity in the identification of the embodiment of an individual to a corporation. Such obscurity translates to a great influence on the judgement of different occurrences. The English law, however, counters this by stating that, according to R. v P & European Ferries (Dover) Ltd., indictment must not lie against a corporation but a specific direct authority within it (R. v P & European Ferries (Dover) Ltd., 1990, p. 2). The authority, whether an individual employee or the senior management must hold a specific position, where the breach of their duty of care towards other persons leads to death (Mandaraka-Sheppard, 2001, p. 342). The establishment of the identification doctrine as the major route to the imposition of corporate GNM liability is a major challenge process. The process involves insurmountable problems as it does not clearly depict the modern corporate practice. That practices in different organizations/corporations over the past years have changed demands for a change in the doctrine. For instance, the identification doctrine is ineffective in large companies and thus ineffectual in the imposition of corporate liability on the issue of gross negligence manslaughter (Mandaraka-Sheppard, 2001, p. 343). For instance, in (R. v P & European Ferries (Dover) Ltd., 1990), the application of the identification doctrine could not offer a substantial prove of the risk of open door sailing. This was despite the fact that the issue was obvious to all the crew members, senior managers, or other sailors who testified in the case (Tariq, 2014, p. 17). Cases of manslaughter require an element of mental gross negligence. As such, direct liability on a corporation can only occur if a senior manager of director of the corporation has sufficient and appropriate knowledge satisfactory for the mental element of manslaughter. The identification doctrine is incapable of proving the required mental element of gross negligence manslaughter mainly when it is involuntary (Jones, 2013, p. 445). The incapability results from the fact it demands of the prosecution to offer prove that a controlling officer was from the personal level grossly negligent on his/her duty. In such a case then the corporation could be held liable for GNM (Mandaraka-Sheppard, 2001, p. 342). As seen in the R. v P & European Ferries (Dover) Ltd., the major difficulty in imposing liability for gross negligence manslaughter on corporations is the non-existence of a clear definition of manslaughter in connection to corporations. The arguments laid in the final ruling of the case depict the weight of the issue and the challenge it poses on the administration of justice. The ruling asserts clearly that there was no record of a corporation or a non-natural individual charged for manslaughter under the English law. This was mainly due to the non-existence of a broad definition of the term regarding non-natural persons or corporations which would equally cause death due to negligence (R. v P & European Ferries (Dover) Ltd., 1990, p. 1). The Key Provisions of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 and its Difference from the GNM The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) came into force on April 6th 2008. The acts stands to ensure an effective application of the English law in dealing with manslaughter irrespective of its cause. According to the act, if an organization of corporation is organized or managed in a way that causes the death of a person or leads to a breach of a duty of care then it is guilty of the offence (Jones & Field, 2011, p. 81). The act is built on different elements. To start with, the defendant must be a qualifying organization. This depicts its difference from the gross negligence manslaughter where the defendant is a person. In the CMCHA 2007, the defendant must be an existing organization, which can be a corporation, a police force/body, a department, or a union, business partnership, or an association. Any body lying within the mentioned can be guilty of the offence (Card, 2014, p. 293). Another element of the act is that the prosecution must reveal concrete evidence that the organization caused the death of an individual. A revelation of evidence that the organization caused the death whether directly or indirectly makes it chargeable for manslaughter. This is a similar case with gross negligence manslaughter only that the former convicts an organization while the latter deals with an individual (Card, 2014, p. 293). The prosecution must offer clear evidence on all accounts if the organization is to be held liable for the death of the victim. These elements match those of the GNM though the latter does not apply since an individual manslaughter involves a single person. Bibliography Almond, P., 2013. Corporate manslaughter and regulatory reform. New York : Palgrave Macmillan. Bibbings, R., 2014. Directing directors. Rospa Occupational Safety & Health Journal, 44(2), pp. 38-39. Card, R., 2014. Card, Cross & Jones criminal law. 21st Edition ed. Oxford : Oxford University Press . Griffin, S. & Moran, J., 2010. Accountability for Deaths Attributable to the Gross Negligent Act or Omission of a Police Force: The Impact of the Corporate Manslaughter and Corporate Homicide Act 2007. Journal Of Criminal Law, 74 (4), pp. 358-381. Jones, F., 2013. Corporation Charged with Manslaughter 1989,. Labor Law Journal, 40(7), p. 445. Jones, L. & Field, S., 2011. Corporate Criminal Liability for Manslaughter: The Evolving Approach of the Prosecuting Authorities and Courts in England and Wales. Business Law Review, 32(4), pp. 80-86. Mandaraka-Sheppard, A., 2001. Modern Admiralty Law: With Risk Management Aspects. 1st edition ed. London: Cavendish. Monaghan, N., 2014. Criminal Law. Oxford : Oxford University Press. R. v P & European Ferries (Dover) Ltd. (1990) Mr. Justice Turner . Tariq, M., 2014. A 2013 look at the Corporate Killer. The Company Lawyer, 35(1), p. 17. Read More