The distinction between gross negligence and recklessness in English criminal law

Abstract

Merry states that ‘in practice the distinction between gross negligence and recklessness may be very subtle’.1 I wonder if his discussion of both the law and the relevant medical errors is outdated. Recklessness in English criminal law is advertent, and as Merry states, requires the conscious choice to take an unjustified risk. Criminal negligence is variously defined, but is usually regarded as not requiring advertence. One textbook definition is ‘… the inadvertent taking of an unjustifiable risk’.2 Historically, confusion has arisen from gross negligence manslaughter being sometimes known as reckless manslaughter. This should no longer be the case. The current leading cases, which Merry does not cite, are Adomako3 and Misra.4 Following these cases, a conviction for gross negligence manslaughter requires the existence of a duty of care, breach of that duty resulting in death and a risk of death which would be obvious to a reasonable prudent person. Additionally, the defendant's conduct must have fallen so far below the standard of a reasonable practitioner as to be grossly negligent in the view of the jury, and thereby warranting a criminal conviction for manslaughter. Although there is overlap, reckless manslaughter has a distinctly different meaning. Similarly, Merry's discussion of intrathecal vincristine administration would be enhanced by discussion of the incident at Nottingham in 2001. A junior doctor was prosecuted for gross negligence manslaughter, and pleaded guilty. However, an external inquiry identified over 50 other contributory factors to the fatal event.5 I hope this additional material may prove interesting and informative to JRSM readers.