We left off with a discussion on the methodology of UDAM, and how for an act to be considered UDAM it must have led to the death of a human being. While this can appear straightforward, we discussed the case of a drug dealer giving drugs to a victim who ends up overdosing, and how this can be somewhat of a grey area.
Another grey area is when a victim commits suicide. Typically, this would break the chain of causation and would not be considered UDAM. However, if the defendant’s act played a significant role in causing the victim to commit suicide, it could potentially be considered UDAM. This would depend on the case’s specific circumstances and whether the defendant’s actions were a substantial factor in the victim’s decision to take their own life.
For instance, in the case, R vs Dhaliwal , the defendant (D) was accused of causing the death of his wife through a combination of physical and psychological abuse over a prolonged period. There was evidence to support these allegations, including statements from the victim and witnesses and medical and police records. The prosecution argued that D should be charged with manslaughter, but the judge ruled that there was insufficient evidence to proceed with the trial. The judge also suggested that, in cases where the victim’s decision to commit suicide was triggered by a physical assault that was the culmination of a course of abusive conduct, it may be possible to argue that the final assault played a significant role in causing the victim’s death. However, the prosecution did not pursue this argument and instead focused on the charge of causing grievous bodily harm.
The defendant was not found guilty in this case because it was not determined that his actions caused the death of his wife. In order to be convicted of a crime, it must be shown that the defendant’s actions were a substantial factor in causing the harm or death in question. While mental harm resulting from a recognized mental condition may be considered “harm” in the legal sense, mere emotions or psychological distress are not typically sufficient to meet this requirement. In this case, it appears that the prosecution argued that the victim’s suicide resulted from physical and psychological abuse by the defendant. However, the judge ruled that there was not sufficient evidence to support this claim and that the victim’s decision to take her own life was not an immediate and reasonable response to the alleged abuse but instead was a voluntary act.
There is also the rather brutal case of R v Wallace . This is where the defendant, Wallace, threw highly concentrated sulphuric acid (98% concentration) on the victim.
The victim, in this case, suffered significant physical injuries as a result of an incident, including amputation of a leg, kidney damage, internal bleeding, gut problems, recurring chest infections, blood poisoning from infections, altered heartbeat and liver function, paralysis from the neck down, and the need for further surgeries and extensive care. They also experienced damage to their vision and developed critical illness neuropathy. These injuries caused significant pain and required Opiates — pain relief medication with significant side effects.
In some ways, this may be considered worse than murder, as living with this level of pain and disability for the rest of your life is worse than sudden death.
The victim decided to legally end their life via euthanasia in Belgium after fifteen months of severe physical and psychological suffering.
The question here, of course, is whether this decision by the victim was “free” or not. If it was free, then the decedent is not guilty of murder, only GBH (Grievous Bodily Harm), which carries a minimum of 12 years imprisonment up to life, compared to murder with a mandatory life sentence.
In this case, the count of murder was acquitted due to the victim taking their own life, thus breaking the chain of causation, but it does make one think. How much pain and suffering would need to be caused for suicide not to be a free choice?
In the end, the actual punishment to the defendant is similar with regard to the prison sentence. I hope this gets the point across that for someone to be convicted of homicide, there must be significant causation.
There was Mens Rea for the Act.
To ensure that we can charge someone with UDAM, there needs to be a Mens Rea for the base act, not for killing a human being — as this would obviously be murder or voluntary manslaughter.
So this is a relatively low threshold, and there is no need for the defendant to have intended, foreseen, or thought about — we don’t have to show that it ever crossed their mind that someone could have been killed.
However, this cannot come from civil wrongs such as tort, negligence, nuisance, occupiers liability, or defamation. It has to be from a crime such as arson, battery, robbery or the supply of drugs.
So the equation for UDAM is:
AR + Mens Rea (of the base crime) = Liability
However, this entire concept is not without criticism.
The Correspondents Principle states that a crime’s Mens Rea (MR) should be proven in relation to all the Actus Reus (AR) elements, not just being used to construct more severe offences on top. This principle aims to ensure that a conviction fairly reflects the offender’s wrongdoing and that the defendant is convicted of a crime that accurately represents their actions.
The Fair Labelling Principle also seeks to ensure that a conviction accurately reflects the offender’s wrongdoing. This principle holds that the crime for which a defendant is convicted should fairly reflect the nature and gravity of their actions.
Constructive crimes have been criticized for being too vague or subjective. These crimes rely on the interpretation of the defendant’s actions and intentions rather than on direct evidence of wrongdoing, which can lead to inconsistency in the application of the law and make it difficult for defendants to understand what actions might be considered illegal.
Another criticism of UDAM crimes is that they can be too broad and cover too many types of conduct, potentially criminalizing innocent or mundane actions. This can result in criminalising behaviour that the law may not have been intended to cover.
UDAM crimes have also been criticized for potentially leading to harsher sentences than more straightforward criminal offences. For example, a person charged with constructive manslaughter might receive a longer prison sentence than someone charged with a more straightforward form of manslaughter.
Critics argue that using UDAM crimes can be unfair to defendants, as it can be more difficult for them to defend themselves against these charges and understand the legal implications of their actions. There are also concerns that UDAM crimes can be misused by prosecutors to secure convictions in cases with insufficient evidence to charge the defendant with a more serious crime.
To close out on UDAM, it is worth noting that if the case in question fails the methodology of UDAM because there was no at, or the act was not unlawful, or there was no Mens Rea, we can still consider GNM. So, let’s review GNM and how that works.
GNM (Gross Negligence Manslaughter)
Let’s start by reviewing the definition again: This type of involuntary manslaughter occurs when the defendant’s actions show a high degree of negligence or recklessness, and this negligence or recklessness causes the death of another person. For example, if a driver is texting while driving and runs over a pedestrian, causing their death, they may be charged with GNM.
So this is a type of homicide in which the person responsible for the death of another person is accused of gross negligence, or a high level of carelessness, rather than intent to kill.
This contrasts with unlawful act manslaughter (UDAM) which we just reviewed. UDAM involves a crime resulting in another person’s death, but the accused did not intend to kill the victim. For example, if someone robs a store and the victim has a heart attack during the robbery, the accused could be charged with UDAM.
One key difference between GNM and UDAM is that, in GNM, there is no requirement for Mens Rea (a guilty mind or criminal intent) in relation to the killing of the individual. In other words, the accused may not have intended to kill the victim, but their gross negligence in some other aspect of their conduct ultimately led to the victim’s death. In UDAM, on the other hand, there must be Mens Rea for the base crime (e.g. robbery) that leads to the victim’s death.
Another difference is that GNM can involve both acts and omissions, whereas UDAM only involves acts. This means that GNM can be charged if the accused’s actions or failure to act caused the victim’s death due to gross negligence. UDAM, on the other hand, requires that the accused’s actions directly caused the victim’s death.
In GNM, the risk involved in the act or omission must be obvious and serious. In other words, the accused must have been aware of the potential consequences of their actions or failure to act and should have taken steps to prevent them.
It is generally considered preferable to charge someone with UDAM instead of GNM, as the bar is typically higher to prove GNM. However, there is no limitation on which charge the prosecution can bring in a case involving the death of another person.
Some examples of GNM are:
- A medical professional providing poor treatment that leads to a patient’s death.
- Doing electrical work in a dangerous way that leads to someone’s death.
- Selling products that are known to be dangerous and cause someone’s death.
- Using an unsafe system of work that leads to someone’s death.
- Failing to get medical help for a seriously ill relative, leading to their death.
- Leaving a child unsupervised, resulting in their death.
However, just because you make a mistake (i.e. are negligent) and it leads to someone’s death, does not mean that you are automatically guilty of GNM, because the negligence needs to be Gross.
But what does this mean, precisely?
Well, this is where we run into some problems with circular definitions.
The idea behind Gross Negligence is that it is negligence that is so bad that we consider it criminal.
And why do we consider it criminal? Because it was Gross!
So the judge can only direct the jury to find D guilty of a crime if D has committed a crime!
It occupies this strange space between ordinary negligence and intentional wrongdoing.
One problem with the concept of “gross negligence” is that it is often difficult to determine precisely what constitutes gross negligence in a given situation. The courts have generally held that gross negligence involves a higher degree of carelessness or recklessness than ordinary negligence. Still, it is not always explicit exactly how much more careless or reckless behaviour is required to rise to the level of gross negligence.
Another problem with the concept of “gross negligence” is that it can be subjective, and different people may have different opinions about what constitutes gross negligence in a given situation. This can lead to uncertainty and inconsistency in the application of the law and can make it difficult for individuals and organizations to know how to behave to avoid being found guilty of gross negligence.
In “Medical Manslaughter: Resolving Circularity”, Wheeler and Wheeler sum this up very well:
The ‘ultimate question’ for a jury trying a case of medical manslaughter is whether the doctor’s breach of duty was so serious as to constitute manslaughter. If the judge cannot find adequate words to describe the egregious behaviour that must be proved to convict a doctor of manslaughter, then the jury cannot be adequately directed by that judge as to what behaviour constitutes the crime. Equally, when faced with the decision of whether to lay the charge of manslaughter in the first place (which will initiate a trial), the Crown Prosecution Service (CPS) must calculate whether, on the balance of probabilities, it will achieve a conviction. If the CPS, sharing the judges’ dilemma, cannot describe what behaviour constitutes the crime (and cannot guess the likely jury verdict for the same reason), then its decision to charge equates to random selection.
The last point about whether the CPS (Crown Prosecution Service) can judge the balance of probabilities on any specific case of GNM is interesting because this may cause a tremendous amount of wastage in the system of taking on cases that cannot possibly end in a successful prosecution.
So, let’s discuss the methodology for understanding if GNM applies to a specific case.
There are three key points:
- Was there a duty of care?
- Was there a Gross breach of the duty of care?
- Was the breach the cause of death?
Was there a duty of care?
In English Criminal Law, the duty in relation to omissions (i.e. failure to act) is much more limited than any positive acts an individual may take.
As a general rule, members of the public do not owe each other a duty to act. Requiring people to help each other under threat of imprisonment is seen as an unjustifiable burden or restriction of our freedom.
This means that, in most cases, a person is not legally obligated to take action to prevent harm to another person, even if they are aware that the harm is occurring or is likely to occur.
While this may appear somewhat barbaric, some strong arguments exist on why this should be the case. Many countries and jurisdictions have “Good Samaritan” laws to protect people who try to help others in need. These laws grant legal immunity to individuals who voluntarily offer aid in emergencies. This encourages people to take action and provide assistance without fear of being sued or prosecuted for unintentional harm or wrongdoing.
So what are the strong arguments for and against this type of approach to each other in society? My gut feeling here tells me that it would be good to live in a society where strangers cannot just walk by while you die without help. As usual, things are not quite that simple!
Let’s review the arguments that support the status quo that strangers should not have a legal burden to help each other.
The first is that we live in a society that promotes freedom of choice, and so there is an argument that individuals should be free to make their own decision about whether or not to take action to help others. They argue that imposing a legal duty to act would infringe on people’s freedom of choice and autonomy.
There are also some general practical difficulties here. It can be challenging to determine when a legal duty to act arises when strangers need assistance. In some cases, it may be clear that a person has a duty to act, such as when a person witnesses a crime being committed and can intervene or report the crime to the authorities. In other cases, however, it may be less clear whether a duty to act exists, such as when a person witnesses a medical emergency but is not trained in first aid.
Another practical issue is that when you don’t do something, and then something bad happens, your failure to act would only be illegal after the fact. There may not be any way that you could have know that your failure to act would cause harm to an individual.
This also means that even the most law-abiding citizen could commit some quite serious crimes by omission during their daily routine. Perhaps there is a human bias at play here, but we do generally feel that results that come from omissions are less severe than results that come from direct acts.
On the other side of the argument, some people argue that it is morally wrong to stand by and do nothing when someone is in trouble, especially if there is a clear risk of harm to that person. They argue that all members of society have a moral obligation to help others, and that not having a legal duty to act is inconsistent with this moral obligation. However, it is worth remembering that while all law is morality, not all morality is law.
There is also an argument that creating a general duty of care for all strangers increases public safety and makes us all better off. If people are not required to take action to prevent harm to others, there is a greater risk of harm.
So while in most situations, there is no duty of care and an individual will not be prosecuted for an act of omission, there are exceptions to this rule that people do not owe a duty of care to each other. In some instances, an individual may be legally obligated to act due to a special connection with another person. For instance, parents owe a duty of care to their children, and someone taking charge of another person (such as a doctor treating a patient) has a duty to them.
Furthermore, criminal law outlines certain offences that require an individual to act in particular circumstances. For example, in the United Kingdom, Section 5 of the Coroners Act 1988 stipulates that carers must report the death of a child to the relevant authorities or else be liable for a criminal offence.
We will discuss the five cases where individuals do have a duty of care:
- Close relationship: e.g. parent to child, doctor to patient or spouses to each other.
- Contract: where the purpose of the contract is to protect the public (e.g. a swimming pool lifeguard).
- Statutory duty: e.g. a driver failing to provide an alcohol breath test commits an offence under section 6(4) of the Road Traffic Act 1988.
- Creating a dangerous situation: a person who creates the danger, even accidentally, has a duty to counteract it, e.g. by calling the emergency services.
- Assuming responsibility: where a person voluntarily takes responsibility for looking after someone else, e.g. by staying with a frail, elderly relative.
So, let’s tackle all of this one by one.
I find this one absolutely fascinating because it makes it even more important to choose your friends and acquaintances carefully. A close relationship can be a family relationship, but it can also be a friend or loved one with whom you do not share genes. So, you can walk past someone dying and not be criminally liable, but you cannot walk past a good friend of yours and not do anything — for this, you may be held criminally liable.
So this, in some ways, nullifies some of the arguments that we discussed earlier that are against there being no general duty. While yes, there is no general duty to help, there is a duty to help those with whom you have a close relationship. This is not explicitly enshrined and defined in statutory law; the primary test here is whether you believe someone you know should help you. So perhaps if it’s just the guy at the grocer’s, that may not be a close relationship, but a neighbour you know well and have lived next to for twenty years? Then most likely, yes.
So this particular exception to the general rule does, is some ways, alleviate my concern about this approach to the law creating an uncaring and cold society where nobody helps each other.
In certain cases, an individual may have a duty of care due to a contract they have signed. For instance, a lifeguard at a swimming pool has a duty to safeguard the safety of swimmers, as this is the purpose of their contract. Likewise, a security guard at a concert has a duty to protect the audience’s safety. This duty of care is a legal obligation that arises from the contract itself.
Interestingly, this can also exist even when there is no specific contract in place. For instance, consider some underlining obligations that are entered into whenever you step into a restaurant. Society expects that the restaurant owner and employees will ensure that the kitchen is sanitary and that there is no cross-contamination of cooked and raw products. Essentially, there is an unofficial contract not to get poisoned while eating at a restaurant.
In some cases, an individual may have a duty of care due to a law or statute that imposes such a duty. For example, drivers have a duty to provide an alcohol breath test when requested to do so by a police officer, as required by the Road Traffic Act 1988. Failing to fulfil this duty can result in criminal liability.
Creating a Dangerous Situation.
If an individual accidentally creates a dangerous situation, they have a duty to take steps to counteract it. For example, suppose a person accidentally starts a fire in their home. In that case, they have a duty to call the emergency services and take any other necessary steps to address the situation. This duty arises from the fact that the individual has caused the danger, and it is their responsibility to take action to address it.
Finally, an individual may have a duty of care if they voluntarily take responsibility for looking after someone else. For example, suppose a person agrees to stay with a frail, elderly relative to help them with their daily needs. In that case, they have a duty to fulfil this responsibility and ensure the safety and well-being of their relatives. In this case, the duty arises from the individual’s voluntary assumption of responsibility for another person’s care.
So, when reviewing a case, we need to establish a clear duty of care for the defendant to the victim. If not, we do not have a basis for a GNM charge.
Was there a Gross breach of the duty of care?
The next step in our methodology is to review if there was a gross breach in the duty of care, where things get very murky. A gross breach of the duty of care has to go beyond mere negligence. So it does not mean that every doctor that makes a mistake that results in the death of a patient is guilty of GNM.
I believe there is some sound logic to this idea that the breach of care has to be “gross”. Because let’s take the example of medical professionals. There are a large number of them, and they are human. It is a statical certainty that some patients will die while in the care of medical professionals, and not because of any underlining medical issues but due to mistakes on behalf of the very medical professionals that were trusted to look after that individual.
But, while we can hold accountable an individual for a mistake, is it reasonable to say that 200,000 medical professionals are expected, as a group, never to make a mistake? Especially in a profession and system that is chronically underfunded and under the strain of many lifestyle diseases ripping through the world? Is the doctor who is at the end of an 18-hour shift due to staff shortages and makes a mistake liable for the mistakes he or she makes? If yes, should they refuse to work past a certain number of hours, although patients will then certainly die due to them not being on shift?
And so, instead of punishing all mistakes, we only punish mistakes that are “gross”, but defining this is where we get into a rather grey area. I think this is often a case of “I know it when I see it”. Some mistakes, actions, or omissions are clearly so far below the expected standard of care that a medical professional (or any other professional for that matter!) should be held criminally liable. As a society, we see these types of mistakes as so bad that they must be dealt with in court, not just within the professional bodies that govern the standards for many industries.
But many types of mistakes are not so clear cut, and so it is up to the judge to provide clear guidance to the juries, and this is something which there have been significant struggles with over the centuries.
I’ll send Part 2 here; we will continue discussing what is and isn’t a gross breach of duty of care in part 3.