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How is it proven?
In order to prove that gross negligence has occurred in a manslaughter case, the courts use 4 standards:
Breach of duty
This determines whether the defendant had a duty of care towards the deceased. The court will compare the actions of the defendant in this situation to what a competent person would do in the same situation. This will determine whether a breach of duty of care has occurred leading to the death of the victim.
This relates to what caused the death, and whether the actions of the person accused led to the death. This factor is necessary for a gross negligence manslaughter case to be successful.
In order for the nature of the defendant’s negligence to be gross, it has to go beyond normal negligence. The court will determine whether the case is sufficient to pass the evidential threshold for grossness.
An obvious risk to death
This dictates that, to the defendant, it should have been obvious that their actions could likely result in the death of somebody else. They do not have to know whose death their actions would result in, such as in the case of a construction accident.
If they are handling dangerous machinery, they should know that ignoring safety guidelines could cause serious injury or death.
|A – Very high culpability
|A combination of high culpability factors
The extreme character of one or more high culpability factors
|B – High culpability
|The offender continued the negligent conduct despite the obvious suffering caused to the deceased by the conduct
Financial gain or cost avoidance motivated the negligent conduct
The negligent conduct was in the context of other serious criminality
|C – Medium culpability
|Factors are present in high and lower which balance out
The offenders culpability falls between the factors as described in high and lower
|D – Lower culpability
|The negligent conduct was a lapse in the offenders otherwise satisfactory standard of care
The offender has a reduced responsibility due to mental disorder, learning disability, etc
The offender was in a subordinate role
|12 years’ custody
|8 years’ custody
|4 years’ custody
|2 years’ custody
|10 – 18 years’ custody
|6 – 12 years’ custody
|3 – 7 years’ custody
|1 – 4 years’ custody
- Previous convictions
- Offence committed whilst on bail
- Offence motivated by characteristics of the victim
- Others put at risk of harm
- Attempt to cover up/conceal evidence
- Ignored previous warnings
- Under influence of alcohol or drugs
- Involvement of others through coercion, intimidation or exploitation
- Attempts to assist victim
- Offender was subject to excessive stress or pressure
For reasons out of their control the offender lacked the necessary;