Willoughby, R v

For gross negligence manslaughter, the existence of a duty of care is normally for the jury, once the judge has decided that there is evidence capable of establishing it. A judge may direct that a duty exists only in an exceptional case, such as an obvious doctor-patient duty or a statutory duty.

Joint participation in criminal conduct does not preclude a duty of care. Ownership alone is insufficient, but ownership, financial benefit, recruitment of the deceased and allocation of a dangerous role may together support a duty. Manslaughter by unlawful and dangerous act and gross negligence are not mutually exclusive routes to liability.

The appellant owned a disused public house which was destroyed by fire and explosion. The Crown alleged that he recruited Derek Drury to assist in setting it alight with petrol for the appellant’s financial benefit. Mr Drury died in the explosion.

At Maidstone Crown Court, the appellant was convicted of reckless arson contrary to sections 1(2) and 1(3) of the Criminal Damage Act 1971 and of manslaughter. He appealed against conviction, with leave limited to the judge’s direction on gross negligence manslaughter.

The central issue was whether the direction on duty of care rendered the manslaughter conviction unsafe.

1. Appeal dismissed. The jury’s arson verdict established that the appellant had deliberately sprayed petrol, alone or jointly with the deceased, intending or being reckless as to the destruction of the premises and as to endangerment of life. If that conduct caused the death, it was capable of amounting to manslaughter by unlawful and dangerous act. The case would more simply and preferably have been left to the jury on that basis.

2. Manslaughter by unlawful and dangerous act and by gross negligence are not mutually exclusive categories. Depending on the circumstances, the same conduct may establish liability by both routes.

3. The court accepted the analysis in R v Wacker [2003] 1 Cr App R 329. Participation in a joint unlawful enterprise does not itself displace a criminal-law duty of care. Public policy may require criminal responsibility despite the absence of a civil remedy based on ex turpi causa.

4. The appellant’s ownership of the premises alone could not create a duty to safeguard the deceased. However, the ownership, the proposed destruction for the appellant’s financial benefit, the appellant’s recruitment of the deceased, and the deceased’s assigned role of spreading petrol were capable together of establishing a duty. The judge’s focus on ownership was therefore a misdirection, but it was immaterial because the direction also identified the further relevant factors.

5. Once the judge has determined that there is evidence capable of establishing a duty, its existence is ordinarily a question for the jury. Exceptional cases may permit a judge to direct that a duty exists, including an obvious doctor-patient relationship or an applicable statutory duty. Applying that approach, and given the arson verdict, there was no proper basis for regarding the manslaughter verdict as unsafe.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2004] EWCA Crim 3365.
• Maidstone Crown Court: On 27 November 2003, the appellant was convicted of reckless arson and manslaughter. On 7 April 2004, he received concurrent sentences of seven years’ imprisonment for arson and 12 years’ imprisonment for manslaughter.