instance; it is true that a conviction of manslaughter can result in a term of imprisonment, but this penalty could not have been imposed on a corporate employer. Gross negligence manslaughter? Where death has resulted from industrial activity, the charge has been of gross negligence manslaughter. The difficulty with this branch of the law, as unsuccessful prosecutions have demonstrated, is that, firstly it is not clear whether the accused conduct must be shown to have been ‘grossly negligent’ or ‘reckless’ and secondly, there is confusion as to what these expressions mean and how they should be established. So the problem is firstly of determining what conduct is wrongful and secondly of determining whether the accused did conduct himself in the proscribed manner. Judges have struggled to determine whether the criterion of liability should be negligence or recklessness. Whichever criterion of conduct is adopted, however, there is the additional problem of identifying whether the accused was guilty of that conduct. The difficulty is that negligence and recklessness are attitudes; in other words, they are states of mind. So gross negligence manslaughter is a mens rea offence, rather than an offence of strict liability. The question, therefore, is how is the jury to find out the state of mind of the wrongdoer at the time when he or she caused the death? One solution is to make an objective judgment: ask, ‘Does it look like reckless conduct to behave in that way?’ It might be argued that any observer would regard it as reckless to drive through a built up area at 60 miles per hour and this is strong evidence that the accused, having conducted himself in this way, was reckless. However, this has not been universally accepted as an appropriate approach. This difficulty of finding an appropriate test for identifying reckless behaviour was acutely felt in road traffic law, where the two principal offences were formerly causing death by reckless driving and driving dangerously. Significantly, the Road Traffic Act 1991 (set out below, p 238) amended ss 1 and 2 of the Road Traffic Act 1988, so that reckless driving is no longer a statutory offence. The ss 1 and 2 offences are now committed by driving dangerously and s 2A defines driving dangerously in objective terms. Thus, the two principal road traffic offences have become offences of strict liability. Obtaining a conviction for one of these offences does not depend on establishing what was going on in the mind of the accused; it depends on establishing that the accused driver’s conduct was not of the standard which a competent driver would have achieved. This amendment of the legislation may have clarified road traffic law and made it easier to achieve convictions for road traffic offences but, significantly, the maximum penalty under these

doi:10.4324/9781843140504-133

Chapter

instance; it is true that a conviction of manslaughter can result in a term of imprisonment, but this penalty could not have been imposed on a corporate employer. Gross negligence manslaughter? Where death has resulted from industrial activity, the charge has been of gross negligence manslaughter. The difficulty with this branch of the law, as unsuccessful prosecutions have demonstrated, is that, firstly it is not clear whether the accused conduct must be shown to have been ‘grossly negligent’ or ‘reckless’ and secondly, there is confusion as to what these expressions mean and how they should be established. So the problem is firstly of determining what conduct is wrongful and secondly of determining whether the accused did conduct himself in the proscribed manner. Judges have struggled to determine whether the criterion of liability should be negligence or recklessness. Whichever criterion of conduct is adopted, however, there is the additional problem of identifying whether the accused was guilty of that conduct. The difficulty is that negligence and recklessness are attitudes; in other words, they are states of mind. So gross negligence manslaughter is a mens rea offence, rather than an offence of strict liability. The question, therefore, is how is the jury to find out the state of mind of the wrongdoer at the time when he or she caused the death? One solution is to make an objective judgment: ask, ‘Does it look like reckless conduct to behave in that way?’ It might be argued that any observer would regard it as reckless to drive through a built up area at 60 miles per hour and this is strong evidence that the accused, having conducted himself in this way, was reckless. However, this has not been universally accepted as an appropriate approach. This difficulty of finding an appropriate test for identifying reckless behaviour was acutely felt in road traffic law, where the two principal offences were formerly causing death by reckless driving and driving dangerously. Significantly, the Road Traffic Act 1991 (set out below, p 238) amended ss 1 and 2 of the Road Traffic Act 1988, so that reckless driving is no longer a statutory offence. The ss 1 and 2 offences are now committed by driving dangerously and s 2A defines driving dangerously in objective terms. Thus, the two principal road traffic offences have become offences of strict liability. Obtaining a conviction for one of these offences does not depend on establishing what was going on in the mind of the accused; it depends on establishing that the accused driver’s conduct was not of the standard which a competent driver would have achieved. This amendment of the legislation may have clarified road traffic law and made it easier to achieve convictions for road traffic offences but, significantly, the maximum penalty under these

Chapter

instance; it is true that a conviction of manslaughter can result in a term of imprisonment, but this penalty could not have been imposed on a corporate employer. Gross negligence manslaughter? Where death has resulted from industrial activity, the charge has been of gross negligence manslaughter. The difficulty with this branch of the law, as unsuccessful prosecutions have demonstrated, is that, firstly it is not clear whether the accused conduct must be shown to have been ‘grossly negligent’ or ‘reckless’ and secondly, there is confusion as to what these expressions mean and how they should be established. So the problem is firstly of determining what conduct is wrongful and secondly of determining whether the accused did conduct himself in the proscribed manner. Judges have struggled to determine whether the criterion of liability should be negligence or recklessness. Whichever criterion of conduct is adopted, however, there is the additional problem of identifying whether the accused was guilty of that conduct. The difficulty is that negligence and recklessness are attitudes; in other words, they are states of mind. So gross negligence manslaughter is a mens rea offence, rather than an offence of strict liability. The question, therefore, is how is the jury to find out the state of mind of the wrongdoer at the time when he or she caused the death? One solution is to make an objective judgment: ask, ‘Does it look like reckless conduct to behave in that way?’ It might be argued that any observer would regard it as reckless to drive through a built up area at 60 miles per hour and this is strong evidence that the accused, having conducted himself in this way, was reckless. However, this has not been universally accepted as an appropriate approach. This difficulty of finding an appropriate test for identifying reckless behaviour was acutely felt in road traffic law, where the two principal offences were formerly causing death by reckless driving and driving dangerously. Significantly, the Road Traffic Act 1991 (set out below, p 238) amended ss 1 and 2 of the Road Traffic Act 1988, so that reckless driving is no longer a statutory offence. The ss 1 and 2 offences are now committed by driving dangerously and s 2A defines driving dangerously in objective terms. Thus, the two principal road traffic offences have become offences of strict liability. Obtaining a conviction for one of these offences does not depend on establishing what was going on in the mind of the accused; it depends on establishing that the accused driver’s conduct was not of the standard which a competent driver would have achieved. This amendment of the legislation may have clarified road traffic law and made it easier to achieve convictions for road traffic offences but, significantly, the maximum penalty under these

DOI link for instance; it is true that a conviction of manslaughter can result in a term of imprisonment, but this penalty could not have been imposed on a corporate employer. Gross negligence manslaughter? Where death has resulted from industrial activity, the charge has been of gross negligence manslaughter. The difficulty with this branch of the law, as unsuccessful prosecutions have demonstrated, is that, firstly it is not clear whether the accused conduct must be shown to have been ‘grossly negligent’ or ‘reckless’ and secondly, there is confusion as to what these expressions mean and how they should be established. So the problem is firstly of determining what conduct is wrongful and secondly of determining whether the accused did conduct himself in the proscribed manner. Judges have struggled to determine whether the criterion of liability should be negligence or recklessness. Whichever criterion of conduct is adopted, however, there is the additional problem of identifying whether the accused was guilty of that conduct. The difficulty is that negligence and recklessness are attitudes; in other words, they are states of mind. So gross negligence manslaughter is a mens rea offence, rather than an offence of strict liability. The question, therefore, is how is the jury to find out the state of mind of the wrongdoer at the time when he or she caused the death? One solution is to make an objective judgment: ask, ‘Does it look like reckless conduct to behave in that way?’ It might be argued that any observer would regard it as reckless to drive through a built up area at 60 miles per hour and this is strong evidence that the accused, having conducted himself in this way, was reckless. However, this has not been universally accepted as an appropriate approach. This difficulty of finding an appropriate test for identifying reckless behaviour was acutely felt in road traffic law, where the two principal offences were formerly causing death by reckless driving and driving dangerously. Significantly, the Road Traffic Act 1991 (set out below, p 238) amended ss 1 and 2 of the Road Traffic Act 1988, so that reckless driving is no longer a statutory offence. The ss 1 and 2 offences are now committed by driving dangerously and s 2A defines driving dangerously in objective terms. Thus, the two principal road traffic offences have become offences of strict liability. Obtaining a conviction for one of these offences does not depend on establishing what was going on in the mind of the accused; it depends on establishing that the accused driver’s conduct was not of the standard which a competent driver would have achieved. This amendment of the legislation may have clarified road traffic law and made it easier to achieve convictions for road traffic offences but, significantly, the maximum penalty under these

instance; it is true that a conviction of manslaughter can result in a term of imprisonment, but this penalty could not have been imposed on a corporate employer. Gross negligence manslaughter? Where death has resulted from industrial activity, the charge has been of gross negligence manslaughter. The difficulty with this branch of the law, as unsuccessful prosecutions have demonstrated, is that, firstly it is not clear whether the accused conduct must be shown to have been ‘grossly negligent’ or ‘reckless’ and secondly, there is confusion as to what these expressions mean and how they should be established. So the problem is firstly of determining what conduct is wrongful and secondly of determining whether the accused did conduct himself in the proscribed manner. Judges have struggled to determine whether the criterion of liability should be negligence or recklessness. Whichever criterion of conduct is adopted, however, there is the additional problem of identifying whether the accused was guilty of that conduct. The difficulty is that negligence and recklessness are attitudes; in other words, they are states of mind. So gross negligence manslaughter is a mens rea offence, rather than an offence of strict liability. The question, therefore, is how is the jury to find out the state of mind of the wrongdoer at the time when he or she caused the death? One solution is to make an objective judgment: ask, ‘Does it look like reckless conduct to behave in that way?’ It might be argued that any observer would regard it as reckless to drive through a built up area at 60 miles per hour and this is strong evidence that the accused, having conducted himself in this way, was reckless. However, this has not been universally accepted as an appropriate approach. This difficulty of finding an appropriate test for identifying reckless behaviour was acutely felt in road traffic law, where the two principal offences were formerly causing death by reckless driving and driving dangerously. Significantly, the Road Traffic Act 1991 (set out below, p 238) amended ss 1 and 2 of the Road Traffic Act 1988, so that reckless driving is no longer a statutory offence. The ss 1 and 2 offences are now committed by driving dangerously and s 2A defines driving dangerously in objective terms. Thus, the two principal road traffic offences have become offences of strict liability. Obtaining a conviction for one of these offences does not depend on establishing what was going on in the mind of the accused; it depends on establishing that the accused driver’s conduct was not of the standard which a competent driver would have achieved. This amendment of the legislation may have clarified road traffic law and made it easier to achieve convictions for road traffic offences but, significantly, the maximum penalty under these

ABSTRACT

Where death has resulted from industrial activity, the charge has been of gross negligence manslaughter. The difficulty with this branch of the law, as unsuccessful prosecutions have demonstrated, is that, firstly it is not clear whether the accused conduct must be shown to have been ‘grossly negligent’ or ‘reckless’ and secondly, there is confusion as to what these expressions mean and how they should be established. So the problem is firstly of determining what conduct is wrongful and secondly of determining whether the accused did conduct himself in the proscribed manner.