Gross Negligence Manslaughter: The Duty to Act and Omissions Liability, Summaries of Law

Download Gross Negligence Manslaughter: The Duty to Act and Omissions Liability and more Summaries Law in PDF only on Docsity! 1 Gross Negligence Manslaughter by Omission: the emergence of a Good Samaritan law? Dr Cath Crosby* Abstract: There has been much academic debate concerning criminal liability for omissions and the extent to which such liability should be extended. The focus here concerns a recent, unreported, conviction for gross negligence manslaughter which raises the question of how far the courts and the Crown Prosecution Service are willing to blur existing boundaries of omissions liability and the established principles of causation. By scrutinising the current legal duties to act required for such liability to arise in the context of R v Bowditch, it will be demonstrated that we are moving incrementally towards a Good Samaritan law but with an absence of fair warning to guide citizens. Further, it is apparent from this conviction that the restricted principles of causation that apply to actions are not as restrictive when applied to omissions. It is clearly timely for the Law Commission to act to determine appropriate boundaries so that omissions liability complies with the rule of law. Keywords: Gross negligence manslaughter, liability for omission, Good Samaritan law, causation. Introduction. This article aims to examine a recent conviction1 for gross negligence manslaughter which raises issues of legal and moral culpability. Although the conviction received some media coverage, at the time of writing it has not received attention in academic literature. The case highlights a difficulty with the gross negligence manslaughter offence in the context of omissions liability: where did the legal duty to act arise to substantiate a conviction? This analysis will further question the established principles of criminal omissions liability and causation, or lack thereof. The current boundaries of certain recognised duties have become 2 nebulous and it would appear that we are moving ever closer to a Good Samaritan law for England and Wales. The case for critical exploration is the conviction of 21-year-old Michael Bowditch of gross negligence manslaughter at Maidstone Crown Court in January 2017. Bowditch had met the victim, seventeen-year-old Becky Morgan, at a party on 30th April 2016, before going with her to the harbour arm in Ramsgate later that night. Soon after 2am, the pair had been on the harbour arm, ‘a long, arcing walkway with the harbour one side and the sea, protected by a low wall, the other.’2 The defendant had consumed alcohol, cocaine and cannabis. He could not remember how Miss Morgan came to fall into the sea but had told police that they had been ‘mucking about.’3 Miss Morgan had asked for his help, saying that she could not swim but Bowditch had said he could not help her. He stood and watched her drown and, shortly afterwards, he was seen dancing in a bar before door staff threw him out for being too drunk.4 Nearly two more hours passed before he rang the police to say he had seen someone die that night. Bowditch initially faced three allegations, each in the alternative. First, murder on the basis he pushed the victim into the sea with intent, which he denied. Second, unlawful act manslaughter on the basis that he pushed her into the sea without intent. Finally, gross negligence manslaughter in that he owed her a duty of care, given the circumstances in which she went into the water, and failed to act on it.5 Bowditch denied murdering Miss Morgan during a previous court appearance but changed his plea to guilty to gross negligence manslaughter just before his trial was due to start.6 The prosecution accepted that the defendant had not pushed Miss Morgan into the sea nor had any contact with her prior to her going into the water.7 Judge Jeremy Carey noted that what was not disputed is that the defendant ‘very soon realised she was in the sea, and you did absolutely nothing.’8 Bowditch received a five and a half year custodial sentence. The learned judge found the case to be an almost unique one, raising issues on the question of omission with regard to gross negligence manslaughter, the existence of a duty of care, causation and the effect of the intoxicants on the defendant’s awareness of what was happening on the harbour arm, and his memory and behaviour afterwards.9 5 duties to act within the criminal law are a pertinent example of this as citizens are able to apprise themselves of the current law before acting or omitting to act, but new duties or nebulous duties would fail to achieve the set purpose. Alternatively, if a person fulfils their duty purely because it is their duty, this is internal coercion, or as he calls it ‘ethical’ legislation. In this latter example, the act would be termed as merely ‘moral’ rather than ‘legal.’21 In recent years, it appears that the courts have been combining moral duties with existing categories of recognised legal duties to impose criminal responsibility in an uncertain and haphazard way in omissions cases to meet the moral exigency of the moment in an effort to do justice. This can be extrapolated from the judgments in the drug supply homicide cases,22 particularly the controversial judgment in Evans,23 considered below, and now in the present case. It is acknowledged that the categories of legal duty that have developed for omissions liability have moral foundations. What is remarkable in Bowditch’s case is the apparent absence of a recognised legal duty to act. As there must have been a legal duty, without one there can be no conviction for failing to act to prevent harm, it is incumbent to determine what duty might be applicable in these circumstances. As is known, there are six possible duties: statutory,24 public,25 contractual, 26 a duty arising from a special relationship,27 a voluntarily assumed duty,28 and a duty arising from creating, or possibly contributing to, the creation of a dangerous situation/supervening fault.29 The relevant duties to the limited reported facts, given that Bowditch pleaded guilty to the charge, could potentially be one of the last three listed common law duties, in the absence of a Good Samaritan law. The extent of their potential applicability to the case will now be scrutinised. Special Relationship Duty: For a duty to arise under this category, current law suggests that duties only arise between spouses30 and between parents and their children under eighteen years of age.31 Ashworth highlights that the parent/child relationship lacks clarity as there are conflicting authorities with regard to the existence of a duty after the child reaches the age of majority.32 He identifies that the basis of this parental duty has shifted in focus from familial ties to 6 voluntarily assumed duties.33 This proposition clearly has merit even though Stone and Dobinson34 suggested that siblings have a duty of care to each other.35 The judgment in Stone is difficult to interpret as it suggests three possible factors in finding a duty, one being the familial tie, but it is not clear whether any single one of these was sufficient to constitute a duty or all three were combined to create one. There are further dicta elsewhere where a sibling duty has been considered as a possibility36 but this duty is not recognised according to the Court of Appeal in Evans.37 Certainly, there is a statutory duty in this regard where the siblings live together, one of the parties is over 16 years and the other is a child or vulnerable person.38 Bowditch and Miss Morgan were not related to each other which would appear to exclude this category altogether, unless the relationship duty were to be extended to friendship. The existence of a duty owed by friends is now also unclear. According to Lewin v CPS,39 there is no duty of care between friends but this is possibly because the friend in this case could not have appreciated the danger Lewin was in when he left him. Here, three friends were on holiday in Spain and, on a night out, Lewin consumed a large amount of alcohol. Leaving a club at 8am, Lewin had to be helped by his friend and others into the passenger seat of a car as he was barely conscious. His friend drove them back to their accommodation, parking the car in the shade. As Lewin was large and heavy, his friend did not think he could get him out of the car unaided and left him in the car to sleep off the effects of alcohol. Lewin was found dead in the car approximately four hours later. On appeal against the CPS’ decision not to prosecute Lewin’s friend for manslaughter, the court found that if a reasonable person would have foreseen that by leaving the deceased in the vehicle parked in that position he was being exposed to the risk ‘not merely of injury or even of serious injury but of death’40 then a duty may have arisen. However, anyone leaving Lewin and knowing that his comatose state was due to an excessive intake of alcohol would probably have envisaged that in due course he would rouse himself and make his way to bed. The idea that he might suffer significant injury, as opposed to discomfort, as a result of being overheated in the car would be unlikely to cross the mind of anyone not medically trained.41 The Court of Appeal in Sinclair and Johnson42 have previously expressed the contrary view that a duty between friends could theoretically be found43 but, as with the decision in Stone 7 above, there were other factors the Court considered relevant too. If friends can potentially owe such a duty to each other then it may be that Bowditch was under a duty to act because he had befriended Miss Morgan at a party that night. This seems improbable; it would be surprising if a friendship duty could arise on the basis of such a brief acquaintance. If such a duty could arise it would have a potentially severe impact on people socialising as a duty to assist could arise in any reasonably foreseeable life threatening situation based on the briefest acquaintance. Evans44 may have changed this position, and if it has, it is possible that a duty could arise but under an alternative category, the creation of a dangerous situation, as will be considered.45 Given that the special relationship duty appears to be inapplicable to Bowditch, another possibility is that he voluntarily assumed a duty for Miss Morgan. This category of duty will now be examined. Voluntarily Assumed Duty: The most cited example of this duty is Stone and Dobinson.46 Stone had allowed his sister to live in a room of the house he shared with Dobinson. Dobinson had tried to wash and feed the sister, who suffered from anorexia nervosa. This case is problematic on every level, as alluded to above. The court struggled to pinpoint where the duty of care originated; it may have been because the victim was Stone’s sister, or alternatively that the defendants had voluntarily assumed a duty for the sister by taking her into their home and attempting to look after her. Unfortunately, neither of the defendants were really capable of looking after their own needs as they both had low intellectual abilities. Clearly, in the current case, Bowditch had not taken the victim into his home, so how could he assume such a duty? Precedents on this duty are unclear and seem to be based on a combination of factors that cannot be pinpointed, suggesting that the courts are finding the existence of duties to impose liability where they see fit. Consternation has been expressed that the courts have used the concept of a duty in this category to connote simple acts of kindness47 which greatly extends the ambit of liability for manslaughter. In Ruffell48 a duty arose in a matter of hours. Ruffell had briefly tried to resuscitate the victim who had taken an overdose of heroin. This suggests that a duty can arise very quickly, 10 police, he told them that Miss Morgan had jumped in but when he accompanied the police to the harbour he said that they had both been lying on the harbour arm when Miss Morgan stood up, was messing about and fell in. Later, in his Prepared Statement to the police, Bowditch stated that he did not know how Miss Morgan had gone into the water; he did not see it happen. He remembered being on his feet and hearing a splash. He said that he did not believe he could have pushed her in.62 He was intoxicated at the time and failed to appreciate the seriousness of the situation until he started to sober up, his memory of the events was fragmented. Following sentencing, DS Mattholie stated that ‘there is only one person who will ever really know the full details of what happened that night to cause a 17-year-old girl to lose her life. Bowditch has now admitted he did play a part in her death’63 presumably by pleading guilty to the offence. In his intoxicated state, it is at least possible that Bowditch might not know exactly what happened that night. The extension of the Miller principle in Evans renders any personal incapacity irrelevant, it being sufficient that Bowditch ought to have realised it was a life threatening situation. His admission to the charge of gross negligence manslaughter may well have seemed the lesser of the evils faced. He was clearly remorseful that Miss Morgan had drowned but this does not mean that he legally owed her a duty to act, unless he created the dangerous situation or contributed to her drowning. As a minimum, to satisfy the current legal requirements, he needed to have accidentally knocked her into the water. If he did, he would have created a dangerous situation and it would be a straightforward application of the Miller principle to arrive at a duty to act. There is no evidence that this happened. He did not admit that he was involved in her fall. As the prosecution accepted his assertion that he had no contact with Miss Morgan prior to her fall into the sea and the investigating officers could not determine the extent, if any, of Bowditch’s part in the death, it is difficult to see why he pleaded guilty, rather than leave it to the Crown to prove their case beyond reasonable doubt. Did Bowditch contribute to the creation of a dangerous situation? As noted above, this extension of the Miller principle was found in the judgment in Evans. Evans was found to have contributed to the danger by supplying the heroin that her step-sister had overdosed on and then failing to summon medical assistance. Accordingly, she had either created the 11 danger by the drug supply64 or contributed to it by not doing anything to help once she realised the seriousness of the situation. Without her involvement in supplying the heroin, there would have been no duty to act. The other ‘undisputed facts’ in Evans do not seem to have an influence in the present case, although, like Evans, Bowditch felt responsible in some way. Extrapolating this, without Bowditch having a duty to act first (by knocking Miss Morgan into the water) he cannot have contributed to the dangerous situation by simply failing to act. To find a duty in these circumstances would be to impose a Good Samaritan law. Consequently, a legal duty to act would be imposed upon everyone who witnesses a life threatening situation and fails to act to minimise harm. A Good Samaritan Law: Could it be that we have now inadvertently moved a step closer to a new duty of proximity and a Good Samaritan Law? There has been much academic debate about the advantages and disadvantages of such a law.65 Those opposed to such an extension of the law include Joel Feinberg who contended ‘[t]he most basic autonomy right is the right to decide how to live one’s life, in particular how to make critical life decisions.’66 Even John Stuart Mill believed that moral harm could not be sufficient grounds for criminalisation per se.67 By way of contrast, Lord Devlin argued that the criminal law could be used against immoral behaviour that deviated from a common morality and could affect society injuriously.68 This is why Elliot69 has called for the duty to act to be removed. Certainly, the more serious the harm threatened, the more justified it could be to insist on acting, especially where there is no risk to the rescuer and the harm is life threatening.70 If this is further extended by the existence of circumstances whereby an agent fixed with such a duty to act is the only person who can assist the victim, as was the case with Bowditch, the argument becomes more compelling. However, it would be unjust to impose a duty without requiring the defendant’s appreciation that the situation is so grave.71 Otherwise, those who lack the capacity to appreciate the seriousness of a given situation could find themselves criminalised where they lack any moral culpability for the consequences. This in itself would be immoral. It is not the purpose of this article to argue for or against such an extension of the current law. What is called for, however, is clarity and transparency demarking when liability will arise to give fair warning to citizens, fulfilling one of the most fundamental principles of criminal law. 12 What compounds the current mystique regarding establishing a legal duty to act is the more obsequious erosion of principles of causation. Causation and omissions: As is known, established principles of causation were thrown into disarray following the Court of Appeal’s judgment in Kennedy (No 1).72 By way of synopsis, Kennedy supplied the victim, V, with a syringe of heroin. V self-injected the drug and died from an overdose. Kennedy’s appeal against his conviction for unlawful act manslaughter73 was dismissed. It was established law at that time that the free, voluntary and informed act of a third party broke the chain of causation between a drug supplier and an addict who subsequently died from an overdose of the drug supplied for this offence.74 Whilst the decision in Kennedy (No 1) 75 was subsequently overruled by the House of Lords judgment in Kennedy (No 2),76 setting the law back upon the right track with regard to settled causation principles, their Lordships further stated that the judgment did not apply to the offence of gross negligence manslaughter.77 No further guidance on this matter was forthcoming. In consequence, although the free, voluntary and informed act of a third party forms a new intervening act that breaks the chain of causation of a defendant for one type of involuntary manslaughter, it has been held not to be the case where the manslaughter is by gross negligence, as in Evans. There is no theoretical rationale for such a difference but it is a method of bypassing more restrictive causation principles, ameliorating the hitherto restrictive nature of omissions liability and imposing criminal liability for morally reprehensible behaviour. In essence, it is implementing the proposal that the courts should focus purely on a duty of care78 and produces a version of oblique causation. Indeed, as Ormerod highlights, the Court of Appeal’s focus in Evans was not a question of whether Evans’ supply of heroin to the victim caused her death, because such a position could not be reconciled with the principle that the victim’s voluntary consumption of heroin would have been a novus actus interveniens.79 Instead, the question was whether Evans was under a duty to take reasonable steps to help her stepsister once she realised the heroin she had supplied was causing a life threatening impact. Evans then breached her duty to the victim by failing 15 35 The judgment suggest three possible factors in finding a duty but it is not clear whether any one of them alone constituted a duty or all three combined to create the duty. 36 In R v Sinclair and Johnson (1998) 21 Aug, CA, it was noted that Sinclair and the deceased were like brothers and this was deemed potentially relevant to the existence of a duty, combined with other factors. 37 [2009] EWCA Crim 650. 38 S.5 Domestic Violence, Crime and Victims Act 2004 (as amended). 39 [2002] EWHC Crim 1049. 40 Applying the judgment in R v Singh (Gurphal) [1999] Criminal Law Review 582. 41 [2002] EWHC Crim 1049 at para. 24 per Kennedy LJ. 42 Above n. 36. 43 R v Sinclair, Johnson and Smith [1998] EWCA Crim 2590. Apart from the fact that they were such close friends that they were like brothers, Sinclair had supplied the drug knowing the victim was not an addict and stayed with him for several hours before calling for medical assistance. 44[2009] EWCA Crim 650 45 A duty could now arise by contributing to the creation of a dangerous situation if you realise, or ought to realise your friend is in danger: R v Evans [2009] EWCA Crim 650. 46 Above n. 31. 47 See Ashworth, above n. 32 at 574. 48 [2003] EWCA Crim 122. 49 Above n. 23. 50 [1983] 2 AC 161 HL, per Lord Diplock. 51 Ibid. 52Above, n. 23. Gemma Evans was convicted for the death of her step-sister, Carly, by gross negligence manslaughter. Gemma was an intermediary in the supply of heroin that Carly overdosed on. Recognising that she had overdosed, Gemma and her mother failed to get medical assistance, trying to look after Carly themselves with fatal consequences. The mother was convicted on the basis of her parental duty to the deceased. Given that parents have a legal duty to act as primary carers for their children, unless they have relinquished that responsibility, it could be argued that Evans’ responsibility to act was subjugated by the mother’s presence. It would have been more appropriate to charge Gemma with the “failure to protect” offence under s.5 Domestic Violence, Crime and Victims Act 2004 (as amended), rather than manslaughter. 53 As Professor Ormerod notes, this would be inappropriate following R v Kennedy (No 2) as Carly’s free and voluntary act of self-injection would break Gemma’s chain of causation in supply, D. Ormerod, ‘Case comment R v Evans (Gemma)’ [2009] Criminal Law Review 661. 54 R v Evans [2009] WLR 1999 at 2003 per Lord Judge CJ. 55 Ibid. at para.31, per Lord Judge CJ. 56 Ibid. 57 [2002] EWHC Crim 1049. 58 Author’s emphasis added. 59 Above n. 54, at para. 35. per Lord Judge CJ. 60 Although the focus here is predominantly on the duty to act, it has been recognised that there are also causation issues, G. Williams, ‘Gross negligence manslaughter and duty of care in “drugs” cases: R v Evans’ [2009] Criminal Law Review 631. 61 See http://www.6pumpcourt.co.uk, above, n. 2. 62 Ibid. 63 www.kent.police.uk/news/policing-news/0117/Ramsgate-man-jailed for the manslaughter of Becky Morgan- Kent Police, accessed 10/04/2017 64 This is a little simplistic as she was merely an intermediary between the supplier and the victim. 65 A. Ashworth, ’The Scope of Criminal Liability for Omissions’ (1989) 105 Law Quarterly Review 424; cf. G. Williams, ‘Criminal Omissions- the Conventional View’ (1991)107 Law Quarterly Review 86. 66 J. Feinberg, Harm to Self (Oxford University Press: New York, 1986) 54. 67 J.S. Mill, On Liberty ( J.W. Parker & Son: London, 1859) 68 P. Devlin, The Enforcement of Morals (Oxford University Press: Oxford, 1965) 11. 69 Above n. 11. 70 G. Dingwall and A. Gillespie, ‘Reconsidering the Good Samaritan: A Duty to Rescue?’ (2008) 39 Cambrian Law Review 26. 71 Ibid. A suggested two stage test which takes account of the state of mind of the omitter is postulated. 72 Kennedy (No 1) [1999] Cr App R54. 16 73 Ibid. 74 R v Dalby [1982] 1 All ER 916 (CA). 75 Kennedy (No 1), above n. 72. 76 [2007] UKHL 38. 77 [2007] UKHL 38; [2008] 1 AC 269 at 274, per Lord Bingham of Cornhill. 78 Above n. 11. 79 Above n. 53. 80 Ibid. 81 Law Commission, No 177, A Criminal Code for England and Wales (London: HMSO, 1989) Cl 17(1)(b). 82 G. Williams, ‘Criminal Omissions- the Conventional View’ (1991)107 Law Quarterly Review 86. 83(1882) 15 Cox. 35. 84 Above n. 82 at 98. 85 D. Baker, ‘Omissions liability for homicide offences: reconciling R. v Kennedy with R. v Evans’ (2010) 74(4) Journal of Criminal Law 310 at 316.