Assessment of whether the Current Law

To conclude that a Gross Negligence Manslaughter was committed by an individual, the following conditions must be satisfied. First, there must be a duty owed by the defendant to the victim. Second, there must be a breach of this duty that brings the victim to a risk of death. Third, the breach causes the victim’s death. Fourth, there must be circumstances of breach which are so bad that is tantamount to gross negligence (Simester and Sullivan).

Negligence, as it is generally defined, is a failure to exercise a reasonable level of precaution given the circumstances and so may include both acts and omissions. Furthermore, manslaughter as it is explained in the English law of homicide is a less serious offence than murder with the law differentiating between levels of fault based on mens rea (a Latin term for a “guilty mind”) (Wikipedia. org). Manslaughter can be categorized as voluntary or involuntary. Manslaughter is said to be voluntary if an individual was intentionally killed by the accused.

Although the killing was intentional, the accused is not liable for murder because of two possible reasons – the accused defended his self because of any provocation or he has less responsibility that will reduce the offence from murder to manslaughter, or the accused survived from a suicide pact. On the other hand, manslaughter is involuntary if the accused had no intention to cause death or any serious injury but caused death of an individual through recklessness (defined as a wanton disregard for the dangers of a particular situation) or criminal negligence.

Often, the defendants of manslaughter by gross negligence are people whose jobs require special skills or care. Examples of them are doctors, police or prison officers, or electricians who failed to meet the standard which is expected from them, consequently causing death (Wikipedia. org). In this paper, the case of Dr. Misra and Dr. Srivastava will be examined. Dr. Misra and Dr. Drivastava were senior house officers. A patient had an injured tendon in his knee. Because of this, he had had routine surgery to treat it. The doctors are the ones who were responsible for the patient’s post operative care.

Because of a toxic shock syndrome, the patient died. The toxic shock syndrome was caused by a rare bacterial infection. The patient had a rare bacterial infection because his wound became infected. Because the patient died, manslaughter by gross negligence was charged to the defendants. The bases why they were charged with gross negligence by manslaughter were the following: (1) there was an allegation that they owed a duty of care to the patient; (2) that patient’s nature of illness did not have any sufficient diagnosis, so, the defendant committed a breach of his duty.

In addition, the defendant should have identified the nature of illness of the patient as a sever infection. This condition of the patient needs therapy and antibiotics. Also, the defendant should have taken steps that the appropriate treatment received by the patient is ensured. Classic signs of infection were shown by the patient but the defendant failed to diagnose it; and (3) that gross negligence was committed by the defendants because of the breach of their duties. Furthermore, it is enough to say that the defendant’s negligence was the cause of the patient’s death (lawinabox. net). According to hri.

org, it is stipulated in Article 7 of the European Convention on Human Rights that: “(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. and (2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.

” To critically assess whether the current law in this area is uncertain or unsatisfactory, the elements of the offence of Gross Negligence Manslaughter must be studied and analyzed carefully. In the criminal case mentioned above, the test of liability for the offence of gross negligence by manslaughter was considered. Causation, recklessness or willful blindness, and criminal negligence are the elements that must be studied and analyzed to assess whether the test complied with the requirement of legal certainty in article 7 of the European Convention on Human Rights.

Causation refers to the bringing about or generation of a result. In law, it is one of the elements that are used on various tests for legal liability. The test for legal liability of the criminal offence aforementioned requires that the defendant have caused the harm that resulted to the patient’s death. In creating legal liability, causation of an event is not necessary. It is not also sufficient. Legal liability has a multi-stage test. Sometimes, causation is one of the parts of this test. There are other circumstances that legal liability’s only requirement is causation.

There are also other instances in legal liability that causation is irrelevant. To establish a legal liability, a causation that involved a two-stage inquiry should be established first. In the first stage, establishing a factual causation is involved while in the second stage, establishing ‘legal’ causation is involved. There is a method usually used to establish a factual causation. This test is called the ‘but for’ test. The but for test, as a test of necessity, wants to know if it is ‘necessary’ that for the harm to have occurred, the act of the defendant should have occurred.

For causal problems, the right answer is usually given by the but for test. But sometimes, because of two difficulties the right answer to causal problems is not given by the but for test. Under the but for test, almost anything is a cause. This is the first difficulty. The other dilemma is the over determination. Although surrounded by these weaknesses, the but for test is still generally accepted by courts. The problem of a ‘too many causes’ was tackled in Hart and Honore’s famous work a Causation in the Law a According to them, casual contribution has degrees.

An example of the condition that is relevant is a member of the NESS set. This condition is then raised to a ‘cause’ which is an abnormal act in the context. Other set of guidelines are very important for the reason that causation is a complex fusion of facts and policy. Examples of other set of guidelines are foreseeability and risk. In the example case, the prosecution had established the causal link between the defendant’s act and the patient’s death. This was proven by the evidences given by the two toxicologists.

The first toxicologist gave evidence that the severity of the patient’s illness, as he expects it, would be recognised by a final year medical student. He added that the doctors did not meet the standard of the quality of care that they should provide which are expected from them. The second toxicologist also gave evidence. According to him, if a third or fourth year medical student failed to diagnose such an infection he would fail them. He believed that the patient’s severe illness should be recognised by every doctor.

These statements of evidences against the defendants prove an actus reus (a Latin term which means a “guilty act”) (Wikipedia. org). Recklessness, which is sometimes termed as willful blindness, is one of the three possible classes of mental state constituting mens rea. It is one of the elements that establish liability. When it comes to culpability, recklessness shows less of it than intention. On the contrary, it is more culpable than criminal negligence. Usually, recklessness arises when an accused is in fact aware that the planned actions would be a source of potential adverse consequences.

Even though the accused is aware, he still went ahead making an individual expose to the risk of suffering of the foreseen harm but without desire to harm the individual. Recklessness is where there is a clear subjective that the accused did not desire the patient’s death but foresaw it. What is the proof that the accused foresaw it? Again, based from the evidences given by the two toxicologists the doctor should be able to recognise the severe illness of the patient since doctors are expected of it. But then again, it is subjective as mentioned earlier whether the doctor committed recklessness.

And to prove that the defendant is guilty in this element of crime a mens rea should be proven. To satisfy this, the defendant must be judged taking into consideration the duration of his conduct. During the course of his conduct, the accused foresees that he may be putting the patient at risk of harm or death. At that point in time, he may intend to not recognise the patient’s condition thus exposing the patient to risk of death. If the probability of the risk maturing into foreseen harm or death is greater, then there is also a greater degree of recklessness.

With these conditions, a sentence will be rendered (Wikepedia. org). Another case of gross negligence where an individual is said to have committed manslaughter is motor manslaughter. In this case, an individual is said to be reckless if the act that the individual did created an obvious and serious risk of harm to the person or substantial damage to property, and when the individual did the act he either had not given thought to the possibility of there being any such harm or had recognised that there was some harm involved and had nonetheless gone to do it.

For motor manslaughter, it was concluded that adopting this definition of recklessness was more appropriate. As a result, if an obvious and serious harm of causing physical harm to another individual was created by the defendant, there could be a liability whether there was conscious risk-taking or simple inadvertence. If the negligence had not been gross is no longer a defence to argue. Criminal negligence is where there is credible subjective evidence that the accused neither foresaw nor desired the death of the patient.

With this, intention and recklessness would be excluded. To judge the defendant using this element, a doctor with the same skills and abilities as the defendant would have foreseen and taken precautions to prevent the death of the patient. That doctor would have recognised the severe illness of the patient. Now, to assess whether the current law in this area is unsatisfactory and uncertain criminal offence should be defined first. Or what are the bases on saying that a committed act was a crime.

There will be a criminal offence if there is a violation of the law in which there is injury to the public or a member of the public and a term in jail or prison and/or a fine as possible penalties (legal-dictionary. thefreedictionary. com). Based from the examined elements of the Gross Negligence Manslaughter, one can conclude that the current law in this area is satisfactory and certain. What are the justifications for the conclusion that the current law is satisfactory and certain?

First, again according to hri.org, the current law specifically Article 7 of the ECHR requires that “an individual will be held guilty of any criminal offence on account of any act or omission if it constituted a criminal offence under national or international law. ” In this paper, the criminal case considered has complied with this requirement. It was proven using the elements of Gross Negligence Manslaughter that the defendants were guilty of criminal offence. The argument that gross negligence was so unclear in its formulation as to contravene Article 7 of ECHR is not true.

Condition four of the gross negligence manslaughter leaves it to the jury to decide, whether the negligence causing death resulted to gross negligence hence a crime is constituted. Performing the evaluation of this by different juries at each respective trial affords those who owe duties of care with little guidance. And this, argued as lacking with clarity is compounded by circularity: gross negligence manslaughter is any killing in breach of duty found to be grossly negligent (Simester and Sullivan). This argument failed because the jury gave verdict on the basis of the facts found within the parameters of a legal standard.

The requirements of Article 7 of ECHR are satisfied by the legal standard because it was sufficient. Finally, there should not be any more argument whether gross negligence is unclear. An individual would have committed a crime because of gross negligence and one should not question anymore a verdict of guilty based on negligence that is gross. Bibliography ”Article 7 of the European Convention on Human Rights. ” 5 Nov. 2006 <http://www. hri. org/docs/ECHR50. html#C. Art7> Baird, Norman. “Criminal Law: Manslaughter by Gross negligence.

”The Consilio/Law in a Box. 5 Nov. 2006 <http://www. lawinabox. net/lbnewswire06c. html>. “Causation. a Wikipedia. ” 5 Nov. 2006 <http://en. wikipedia. org/wiki/Causation %28law%29>. Duff, R. A. a Virtue, Vice, and Criminal Liability: Do We Want an Aristotlean Law? a 5 Nov. 2006 <http://wings. buffalo. edu/law/bclc/bclrarticles/6/1/duff. pdf>. Dyer, Clare. “Anaesthetist loses final appeal. ” BMJ. (1994): 5 Nov. 2006 <http://bmjjournals. com/cgi/content/full/309/6947/78>.

“Gross Negligence Manslaughter and Corporate Manslaughter. ” The Crown Prosecution Service. 5 Nov. 2006 <http://www. cps. gov.uk/publications/communications/fs_grossneg. html>. “Manslaughter in English Law. ” Wikipedia. 5 Nov. 2006 <http://en. wikipedia. org/wiki/Manslaughter_in_English_law>. “Recklessness (criminal). ” Wikipedia. 5 Nov. 2006 <http://en. wikipedia. org/wiki/Recklessness_(criminal)>. Simester and Sullivan. “Gross Negligence, Manslaughter and Legal Certainty. ” 18 May 2005. 5 Nov. 2006 <http://www. hart. oxi. net/updates/crimlaw/crimlaw_negligence. htm>. Skitka, Linda J. and David A. Houston. Social Justice Research. 5 Nov. 2006 <http://www. springerlink. com/content/6drrug4a7wm23kmh/>.