Per Judge LJ R. v. Misra and Srivastava  EWCA Crim 2375 para 64 (in the Court of Appeal Criminal Division)
In light of the above comments, consider the elements of the offence of Gross Negligence Manslaughter and, referring to relevant authority, critically assess whether the current law in this area is certain and satisfactory.
This paper is going to consider elements of the offence of Gross Negligence Manslaughter and will assess, whether the current law in this area is certain and satisfactory. In order to discuss whether the law governing Gross Negligence Manslaughter is in a certain and satisfactory state, I need to first consider its elements and then look at the current law, outlining the problems, and lastly discuss the proposed changes. Gross negligence manslaughter is a form of involuntary manslaughter where the defendant is apparently acting lawfully. Involuntary manslaughter may arise where the defendant has caused death but neither intended to cause it nor intended to cause serious bodily harm and therefore lacks the mens rea of murder. Whereas constructive manslaughter happens where the defendant commits an unlawful act which results in death, gross negligence manslaughter does not depend on representing an unlawful act has been committed. It can be said to apply where the defendant commits a lawful act in such a way as to render the actions criminal. Gross negligence manslaughter also differs from constructive manslaughter in that it can be committed by omission. The leading authority for gross negligence manslaughter is decision of the House of Lords in Adomako (1994) , where doctor Adomako’s actions of negligence caused his patient’s death. It was decided by Lord Mackay, that liability for this type of manslaughter arises where the jury decides that “Having regard to the risk of death involved, the conduct of the defendant was as bad in all the circumstances as to amount in their judgement to a criminal act or omission” In Adomako, House of Lords decided that gross negligence test is correct to use in all cases where duty of care has been broken. According to Adomako case, the following elements are considered to be a form of this involuntary manslaughter: the existence of a duty of care, breach of that duty resulting in death and gross negligence which the jury consider justifies criminal conviction.
I will now study the first element of the gross negligence manslaughter offence which is duty of care. The criminal law recognise certain duty situations, Adomako itself involved a breach of duty owed by a hospital anaesthetic towards a patient (under a contract of employment). The requirement of a duty of care is fundamentally a civil law concept found in the law of tort. (Wacker ). D owes a duty of care not to injure anyone whom he or she could reasonably foreseeably injure. Applying that to this context, there is a duty of care if there was a risk that an act or omission of the defendant might kill the victim. As it is a legal concept, it is for the judge to decide whether a set of facts gave rise to a duty of care. When bearing in mind the Adomako, the House of Lords approved the case of Stone v Dobinson (1977), in which D had undertaken a duty of care. The Miller principle, in turn, was used as the basis of the duty in the recent gross negligence manslaughter of Evans (2009), which decided that a duty may be imposed on those who ‘create or contribute to “life...