'...
the ordinary principles of the law of negligence
apply to ascertain whether or not the defendant
has been in breach of a duty of care towards the
victim who has died. If such a breach of duty is
established the next question is whether that breach
of duty caused the death of the victim. If so, the
jury must go on to consider whether that breach
of duty should be characterised as gross negligence
and therefore as a crime. This will depend on the
seriousness of the breach of duty committed by the
defendant in all the circumstances in which the
defendant was placed when it occurred. The jury
will have to consider whether the extent to which
the defendant's conduct departed from the proper
standard of care incumbent upon him, involving as
it must have done a risk of death to the patient,
was such that it could be judged criminal.
‘It is true that to a certain extent this involves
an element of circularity, but in this branch of
the law I do not believe that is fatal to its being
correct as a test of how far conduct must depart
from accepted standards to be characterised as criminal.
This is necessarily a question of degree and an
attempt to specify that degree more closely is I
think likely to achieve only a spurious precision.
The essence of the matter, which is supremely a
jury question, is whether, having regard to the
risk of death involved, the conduct of the defendant
was so bad in all the circumstances as to amount
in their
judgment to a criminal act or omission.’
To
access judgment, click on hyperlink - [1995]
1 AC 171
