Background
Andrew Hill, the pilot of the vintage aircraft that crashed at the Shoreham Airshow in August 2015 has been acquitted of 11 counts of gross negligence manslaughter on Friday 8 March 2019 at the Central Criminal Court (Old Bailey).
Mr Hill who had been performing a loop stunt in the aircraft crashed on to the A27 in August 2015 killing 11 people.
At his trial, the prosecution argued that Mr Hill had been flying too low and too slow as he attempted the stunt. Mr Hill's attitude to safety was also considered including his conduct at former air shows where he was involved in a near incident.
The prosecution argued that Mr Hill's airmanship had fallen below acceptable standards. At his trial, Mr Hill had argued that he suffered with cognitive impairment whilst at the controls of the doomed aircraft. This is despite medical evidence suggesting that he had not previously suffered from a medical condition.
The difficulties with gross negligence manslaughter
Many individuals may be dismayed by the jury's verdict. However, the offence of gross negligence manslaughter has been plagued with issues for many years as a number of components of the offence must be satisfied. Each component has a high standard of proof and leads to ambiguity. Therefore, it is unsurprising that the offence has led to low conviction rates.
Firstly, a duty of care must be established. The existence of a duty of care is a question of law for the judge. The jury should then be directed as to whether the facts establish the existence of the duty. With some relationships such as a doctor and patient, the duty of care is clearly established. However, difficulties may arise in a case such as this where the duty of care is extended to members of the public at large.
Secondly, there has to be a breach of duty. This is set at an exceptionally high standard. Case authorities have shown that the jury must be directed as to whether the breach of the duty of care is akin to something which is truly exceptionally bad and which showed such a departure from the standard to be expected so as to constitute the crime of manslaughter. Therefore, the conduct in question must amount to a crime. This is contrasted from the lower threshold for negligence as set out in civil law.
The extent of what is exceptionally bad is poorly understood. There is no requirement for subjective foresight of risk and evidence in relation to the defendant's particular state of mind is not required. However, it is difficult to see how one can avoid looking into the facts the individual either knew or did not know and in Mr Hill's case, it appears that his state of mind at the time of the incident was closely scrutinised.
Instead, the jury must be satisfied as to whether death would have been foreseen by a prudent person in any given case of the defendant's age and experience. This is an objective test and is focused on death rather than the assessment of injury or serious injury. Even in a case such as the Shoreham Air Disaster, it may be difficult for a reasonable person to foresee death rather than serious injury.
Once the breach of duty is satisfied, the jury must be satisfied that death was a contributing factor to the breach of duty.
The ambiguous nature of the offence of gross negligence manslaughter has been challenged in the Courts as being too legally uncertain. Although this challenge was rejected, it is clear that a number of high threshold components must be satisfied by the jury for a conviction for gross negligence manslaughter and some are poorly understood. Therefore, it is unsurprising that conviction rates are low. Historically, a wide range of sentences were imposed for this common law offence. However, with the recent Sentencing Guidelines for Manslaughter which came into force in November 2018, custodial sentences seem to be the inevitability once (and if) the offence is successfully made out.
Elliott's comments on the Shoreham Air Disaster can also be found in an article published by the Health and Safety at Work Magazine on 12 March which can be found here.