the Mens Rea of Gross Negligence Manslaughter

Watch
Edessa
Badges: 0
Rep:
?
#1
Report Thread starter 9 years ago
#1
I am struggling a bit with this - Is the Mens Rea of Gross Negligence Manslaughter simply Gross Negligence. Does Mens Rea always have to be present in this kind of offence because I have a feeling it doesn't have to be ? Also I understand that this type of offence can be confusing to the Courts but what is it exactly that causes the confusion ? Is it that in many cases the Judge has to give too much direction to the Jury??

Also are there any specific books that would help with this topic?

Any help would be most appreciated
0
reply
draikzer
Badges: 14
Rep:
?
#2
Report 9 years ago
#2
(Original post by Edessa)
I am struggling a bit with this - Is the Mens Rea of Gross Negligence Manslaughter simply Gross Negligence. Does Mens Rea always have to be present in this kind of offence because I have a feeling it doesn't have to be ? Also I understand that this type of offence can be confusing to the Courts but what is it exactly that causes the confusion ? Is it that in many cases the Judge has to give too much direction to the Jury??

Also are there any specific books that would help with this topic?

Any help would be most appreciated
Yes, it is simply Gross Negligence. So the Adomako test is the current test.

So just look at the test - "The conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission."

The main problem with the test is the fact you have to remember the Jury have no knowledge of the law, and the test is of circular logic.

So basically, the test is saying if the act is bad enough to be criminal, it will be criminal. The problem for the Jury here is the massive discretion it gives them. Since the judge can give them the test and then outline the factors they should take into account - but the main decision is up to them.

The problem with large amounts of discretion is that there is the threat of inconsistent decision, as each Jury is different. What conduct is 'so bad' to one Jury may be decided entirely differently by another. The inconsistent nature of this process can be contrasted with the concept of the Rule of Law, the way decisions should be certain and ascertainable. Specifically when you're talking about imprisoning someone for a criminal offence, effectively removing their liberty.
2
reply
Edessa
Badges: 0
Rep:
?
#3
Report Thread starter 9 years ago
#3
(Original post by draikzer)
Yes, it is simply Gross Negligence. So the Adomako test is the current test.

So just look at the test - "The conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission."

The main problem with the test is the fact you have to remember the Jury have no knowledge of the law, and the test is of circular logic.

So basically, the test is saying if the act is bad enough to be criminal, it will be criminal. The problem for the Jury here is the massive discretion it gives them. Since the judge can give them the test and then outline the factors they should take into account - but the main decision is up to them.

The problem with large amounts of discretion is that there is the threat of inconsistent decision, as each Jury is different. What conduct is 'so bad' to one Jury may be decided entirely differently by another. The inconsistent nature of this process can be contrasted with the concept of the Rule of Law, the way decisions should be certain and ascertainable. Specifically when you're talking about imprisoning someone for a criminal offence, effectively removing their liberty.
Thank you for your speedy response and the way in which you explained it means I understand it now
0
reply
draikzer
Badges: 14
Rep:
?
#4
Report 9 years ago
#4
(Original post by Edessa)
Thank you for your speedy response and the way in which you explained it means I understand it now
No problem!

If you need any more clarification let me know.

Just to add, if you're writing an essay it's good to mention previous tests. Andrews, Bateman, Seymour ect
0
reply
Edessa
Badges: 0
Rep:
?
#5
Report Thread starter 9 years ago
#5
Following on from my previous question - Does Mens Rea have to be present in all cases of Gross Negligence manslaughter, because I have been looking at the Southhall train case and here it was stated that Mens Rea was not required???

Again any help appreciated as I have been doing this since 8am
0
reply
Edessa
Badges: 0
Rep:
?
#6
Report Thread starter 9 years ago
#6
(Original post by draikzer)
No problem!

If you need any more clarification let me know.

Just to add, if you're writing an essay it's good to mention previous tests. Andrews, Bateman, Seymour ect
Sorry I didn't see your reply before I posted. Any suggestions?

Thanks in advance
0
reply
draikzer
Badges: 14
Rep:
?
#7
Report 9 years ago
#7
(Original post by Edessa)
Sorry I didn't see your reply before I posted. Any suggestions?

Thanks in advance

That's the Attorney General Ref case right?

That is in regards to the defendant being aware of the risk of death.

Basically there was dispute by some about the ambiguity of Adomako - suggesting that the defendant had to be aware of the risk of death.

This case showed that the defendant doesn't need to see a risk of death or even injury. (Think about the context of the case, the defendant was a company, it's unlikely the highest director of the company would have any foresight of the death)

This said, although the case makes it possible to convict without any foresight of death, a Jury would generally be incredibly reluctant to convict unless similar circumstances arose.

So yeah, in this case you could argue there was no mens rea needed, but generally the Adomako test will apply and there will need to be shown the defendant saw a risk of death.

And if you were arguing in a problem scenario you would only mention this briefly - unless the particular scenario was similar to the AGREF case. Or in an essay it'd be a good point of criticism.
0
reply
Edessa
Badges: 0
Rep:
?
#8
Report Thread starter 9 years ago
#8
(Original post by draikzer)
That's the Attorney General Ref case right?

That is in regards to the defendant being aware of the risk of death.

Basically there was dispute by some about the ambiguity of Adomako - suggesting that the defendant had to be aware of the risk of death.

This case showed that the defendant doesn't need to see a risk of death or even injury. (Think about the context of the case, the defendant was a company, it's unlikely the highest director of the company would have any foresight of the death)

This said, although the case makes it possible to convict without any foresight of death, a Jury would generally be incredibly reluctant to convict unless similar circumstances arose.

So yeah, in this case you could argue there was no mens rea needed, but generally the Adomako test will apply and there will need to be shown the defendant saw a risk of death.

And if you were arguing in a problem scenario you would only mention this briefly - unless the particular scenario was similar to the AGREF case. Or in an essay it'd be a good point of criticism.
Thank you very much again - You have been so helpful. I have nearly finished!!!!!
0
reply
essex_ellz
Badges: 2
Rep:
?
#9
Report 3 years ago
#9
what degree of mens rea is needed for gross negligence manslaughter to be shown?
0
reply
Forum User
Badges: 19
Rep:
?
#10
Report 3 years ago
#10
(Original post by essex_ellz)
what degree of mens rea is needed for gross negligence manslaughter to be shown?
There is a clue in the name: gross negligence manslaughter.

I suppose you could make a technical argument that negligence (gross or otherwise) is not really a mental state at all, and thus not a mens rea, in which case there is no mens rea for gross negligence manslaughter.
0
reply
X

Quick Reply

Attached files
Write a reply...
Reply
new posts
Back
to top
Latest
My Feed

See more of what you like on
The Student Room

You can personalise what you see on TSR. Tell us a little about yourself to get started.

Personalise

Are you worried that a cap in student numbers would affect your place at uni?

Yes (252)
60.43%
No (86)
20.62%
Not sure (79)
18.94%

Watched Threads

View All