Gross negligence manslaughter on the cusp: the unprincipled privileging of harm over culpability

Despite playing a significant role in defining the boundaries of manslaughter, the ‘gross negligence’ concept is notoriously indeterminate. There is no comprehensible and consistent means of measuring whether conduct is sufficiently gross to warrant criminal conviction. The gross negligence condition also sets the culpability bar too low by permitting the criminal censure of undeserving defendants who did not advert to any risk of death associated with their conduct. Whilst acknowledging the difficulties of distinguishing advertence from inadvertence in cases that straddle the margins of legitimate criminal punishment and accidental death, it is argued that punishment should only be meted out to those who are consciously aware, or at least had a conscious inkling, of the risk of encroaching on the victim’s legally protected interests. A reformulated offence that regards the defendant’s conscious choices as the true determinant of culpability is theoretically plausible and would inject the clarity, certainty and consistency that is required of a law that dictates the parameters of a serious homicide offence.