oct ewj 24 online - Flipbook - Page 72
circumstances”.33 With this in mind the context of the
offence is taken into account and it can be argued that
whilst Adomako would be held liable, Prentice,
Sullman and Bawa-Garba may have not been
convicted.34.35
where UAM is not applicable. But it is plausible that
there are instances where there are cases of advertent
risk-taking causing death that could not be accommodated by UAM and GNM, and RM may apply. Despite
this the lines between GNM and recklessness continue
to remain blurry. In Adomako “reckless” was used in
the ordinary sense of the word,44 and in Misra the defendant’s state of mind was “not irrelevant” to the issue
of gross negligence.45 The Law Commission in 1996
proposed to replace subjective RM with “reckless
killing”,46 but this was overturned with its recent decision to abandon RM entirely, on the basis that it may
not be possible to prove the defendant’s subjective
awareness at the time of the offence.47 Despite these concerns recklessness based upon the Cunningham recklessness formulation can still be applied in the medical
sphere; the two elements that are needed to be
demonstrated are:
1. The defendant was aware that there was a risk and their
conduct would cause a particular result.
The final hurdle along this sliding scale is whether the
conduct of the defendant should attract criminal liability – the test of illogicality and Wednesbury unreasonableness removes the element of circularity. Once
these thresholds have been reached then culpability is
considered.
A Return to Recklessness
Recklessness cannot be entirely removed from this
test, not simply because negligence and recklessness
have sometimes been used interchangeably in judgments. In the early manifestations offence of
manslaughter awareness of risk or its absence was not
required. Gross negligence however was viewed as the
minimum state of recklessness to cover the situations
where there was a lack of foresight of risk. In both
Cunningham and Caldwell recklessness the defendant is
aware of a risk.,36, 37 An appreciation of risk, an indifference to it and the decision to run with it (the Cunningham formulation) implies a level of culpability that
gross negligence does not address: one can fall found
of a standard and yet be indifferent or inadvertent to
its outcome (as in Honey Rose).38 Hence we must put
reckless at a higher level of culpability than just gross
negligence and must include it in our test. This is evidenced by Lord Atkin’s comment set out in Andrews v
DPP:
“ Simple lack of care …is not enough. A very high degree of
negligence is required …’reckless’ most nearly covers the case
….but is probably not all- embracing, for ‘reckless’ suggest an
indifference too risk.” 39
2. The risk was an unreasonable one for the defendant to
take.48
Glanville Williams suggest that Recklessness is “socially
superior to gross negligence”.49 With this in mind RM
can be demonstrated in the following three cases. In
the first case Dr Walker ignored warnings not to continue to remove a large liver tumour and continued to
do so, resulting in massive catastrophic bleeding and
the patient’s death.50 In the second Dr Sinha refused
to read the medical chart in a patient with arthritis and
kidney failure and he proceeded to give a large morphine overdose to the patient.51 In the final case Dr
Ramnath gave a fatal dose of adrenalin to a patient
against the advice of three colleagues, again resulting
in the patient’s death.52
Stark alluded to the failures of the current legal stance,
even if UAM and GNM could be applied. These included fair labelling, sentencing and the reach of
manslaughter. Fair labelling links culpability with advertence and highlights the inadequacy of English
Law. Stark highlighted that defendant’s choices are
limited by their awareness 53: they cannot choose to
take a risk of “x” if they were unaware that “x” was a
possible consequence of their actions. If a defendant is
aware of a relevant risk, he can choose to take it; and
by similar argument inadvertent risk-taking is not
choice-based. Without clarifying culpability in the offence of GNM, and thus causing further confusion for
juries, prosecutors rely on sentencing to reflect the defendant’s culpability. Similarly the second concern that
culpability should be linked to sentencing was investigated in 2017 by the Sentencing Council and proposed for GNM four bands of culpability. Stark
criticised these, as the Council did not identify RM as
a separate species of involuntary manslaughter, and
thus considered only awareness of risk under UAM
and GNM only. Awareness of a “clear risk of death”
would indicate a high level of culpability and this is
perhaps where RM could sit, above GNM. In ignoring the contribution of RM some have proposed a radical overhaul of involuntary manslaughter. If in those
convicted of GNM who were aware of the deadly
This was cited with approval in Stone and Dobinson
by Lane LJ:
“..it 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 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.” 40
Some have argued a move away from GNM and the
Adomako formulation to an objective capacity-based approach to reckless manslaughter. 41 This is postulated
to distinguish more successfully between those who
are morally blameworthy and deserving of punishment and those who should be exculpated. But as
Lord Diplock stated in Caldwell “questions of criminal
liability are seldom solved by simply asking whether the test is
subjective or objective”. The jury will address the questions of fact laid down by guidance on points of law, be
they formulations on subjective recklessness or GNM.
It has been suggested that due to the breadth of unlawful act manslaughter (UAM) and GNM that Reckless Manslaughter (RM) is of “academic interest only”
42
. The reach of UAM (especially when based on the
section 20 offence43) is wide; GNM covers many cases
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