Chapter 4 - Involuntary Manslaughter Flashcards
1
Q
What is involuntary manslaughter?
A
Involuntary manslaughter is an unlawful killing where the defendant does not have the intention, either direct or oblique, to kill or cause grievous bodily harm
2
Q
What distinguishes involuntary manslaughter from murder?
A
The lack of intention
3
Q
What is the maximum sentence of involuntary manslaughter?
A
Life imprisonment
4
Q
Does the judge have discretion when sentencing a charge of involuntary manslaughter?
A
Yes, they have discretion to impose a sentence which is suitable for the particular circumstances of the offence, and in some circumstances the judge may even impose a non-custodial sentence
5
Q
What are the 2 main ways of committing involuntary manslaughter?
A
(1) unlawful act manslaughter
(2) gross negligence manslaughter
6
Q
What is the other name for unlawful act manslaughter?
A
Constructive manslaughter
7
Q
Why is unlawful act manslaughter also known as constructive manslaughter?
A
Because the liability for the death is built up or constructed from the fact that the D has done a dangerous unlawful act which caused the death
8
Q
What is the definition of unlawful act manslaughter?
A
Where the defendant causes a death through doing an unlawful act that is objectively dangerous with the necessary mens rea for the unlawful act
9
Q
What are the 4 elements of unlawful act manslaughter?
A
(1) the defendant must commit an unlawful act
(2) the act must be dangerous on an objective test
(3) the act must cause death
(4) the defendant must have the required mens rea for the unlawful act
10
Q
Can the unlawful act be a civil wrong?
A
No, the unlawful act must be a criminal offence
11
Q
Which case held that a civil wrong is not enough to create liability for unlawful act manslaughter?
A
R v Franklin (1883)
12
Q
What case illustrates that there must be a criminal unlawful act?
A
R v Lamb (1967)
13
Q
Can an omission create liability for unlawful act manslaughter?
A
No, there must be an act
14
Q
Which case shows that an omission cannot create liability for unlawful act manslaughter?
A
R v Lowe (1973)
15
Q
Must the unlawful act be dangerous on an objective test?
A
Yes
16
Q
What was held in the case of R v Church (1965)
A
It was held that the risk need only be of ‘some harm’ and this harm need not be serious
17
Q
What is the objective test for a dangerous act?
A
If a sober and reasonable person realises that the unlawful act might cause some injury, then this part of the test for unlawful act manslaughter is satisfied
18
Q
Does it matter whether the defendant did not realise there was any risk of harm to another person?
A
No, because the test is not subjective
19
Q
Which case illustrates both the need for an unlawful act and an objective risk of some harm?
A
R v Larkin (1943)
20
Q
Must the unlawful act be aimed at the victim?
A
No, as in the case of R v Larkin where the assault was against the man but the woman died
21
Q
Is it necessary for the sober and reasonable person to foresee the particular type of harm?
A
No, it is enough that the sober and reasonable person would foresee some harm
22
Q
In which case was it illustrated that the D only needed to foresee some harm and not the particular type of harm?
A
R v JM and SM (2012)
23
Q
Can the unlawful act be aimed at property?
A
Yes, provided it is ‘such that all sober and reasonable people would inevitably recognise must subject another person to, at least, the risk of some harm’
24
Q
Which case illustrated that an unlawful act can be aimed at property?
A
R v Goodfellow (1986)
25
The ‘risk of harm’ refers to physical harm, so if something causes fear and apprehension is this sufficient?
No
26
In what case was it illustrated that fear and apprehension is not sufficient for the ‘risk of harm’?
R v Dawson (1985)
27
What is the exception as to when fear and apprehension can amount to the ‘risk of harm’?
Where a reasonable person would be aware of the victim’s frailty and the risk of physical harm to them, then the defendant will be liable?
28
Under the Church definition, is burglary a dangerous unlawful act?
No
29
When can a burglary amount to a dangerous unlawful act?
If a burglary is carried out in such as way that the circumstances of the commission of the offence make it dangerous, then this may amount to an unlawful act
30
In which case did burglary amount to a dangerous unlawful act?
R v Bristow, Dunn and Delay (2013)
31
Must the unlawful act cause death?
Yes
32
What causes a break in the chain of causation?
An intervening act
33
In which type of cases has causation been an issue?
In drug related cases
34
Which case illustrates that if the D injects the drug into V, then there is no break in the chain of causation?
R v Cato (1976)
35
Which 4 cases are associated with causation and drug?
(1) R v Cato (1976)
(2) R v Dalby (1982)
(3) R v Kennedy (2007)
(4) R v Evans (2009)
36
What is the name for the the offence of injecting another with drugs?
Administering a noxious substance contrary to s 23 OAPA 1861
37
What is the mens rea for unlawful act manslaughter?
It must be proved that the defendant had the mens rea for the unlawful act committed
38
Is it necessary for the defendant to realise that the act is unlawful or dangerous?
No
39
What case makes it clear the the D does not have to realise that the act is unlawful or dangerous?
DPP v Newbury and Jones (1976)
40
What is gross negligence manslaughter?
A form of involuntary manslaughter committed where D is grossly negligent in breach of a duty of care towards V and this results in V’s death
41
Does the negligence have to be more than just civil negligence?
Yes, the negligence has to be so bad as to amount to criminal negligence
42
Can gross negligence manslaughter be committed through an omission?
Yes
43
Does the act or omission have to be unlawful for gross negligence manslaughter?
No
44
What is the leading case on gross negligence manslaughter?
R v Adomako (1994)
45
What were the 3 element of gross negligence manslaughter laid down in R v Adomako?
(1) the existence of a duty of care by the defendant towards the victim
(2) a breach of that duty of care which causes death
(3) gross negligence which the jury considers to be so bad as to be criminal
46
What was the duty of care used in the case of R v Adomako?
The duty of a doctor to his patient
47
In what case do the civil principles of a duty of care come from?
Caparo v Dickman (1990)
48
What are the 3 elements of the three stage test?
(1) proximity of relationship
(2) reasonable foreseeability of harm
(3) being just, fair and reasonable to impose a duty of care
49
Can an omission form the basis of negligence?
Yes
50
Which 2 cases illustrate a contractual duty of care?
R v Singh (1999)
R v Litchfield (1997)
51
What case illustrates an actual extension of the type of duty recognised by the courts?
R v Wacker (2002)
52
What is the difference between the civil and criminal law of negligence in regards to the victims being party to an illegal act?
In the civil law of negligence because the victims are party to an illegal act they are unable to make a claim against the defendant whereas in the criminal law of negligence the victims are still able to make a claim against the defendant even though they are party to the illegal act
53
Can a duty of care exist where the defendant has created a state of affairs?
Yes
54
What is a duty of care where the defendant has created a state of affairs?
A duty of care can exist where the defendant has created a state of affairs, which s/he knows, or ought reasonably to know, has become life-threatening and has broken that duty
55
In which case did a duty of care exist where the defendant has created a state of affairs?
R v Evans (2009)
56
In which case did the defendants owe a duty of care because of a relationship with the victim?
R v Stone and Dobinson (1977)
57
What must next be proven after a duty of care has been established?
It must be proven that the defendant was in breach of the duty of car and that this breach caused the death of the victim
58
Is whether or not there was a breach of duty a factual matter?
Yes
59
Who decides whether the defendant was negligent?
The jury
60
Does the negligence have to be ‘gross’ for gross negligence manslaughter?
Yes, the fact that the defendant has been negligent is not enough to convict him of gross negligence manslaughter as the negligence has to be ‘gross’
61
In which case was it established that the negligence had to be ‘gross’?
R v Bateman (1925)
62
What did Lord Hewart state in the case of R v Bateman about gross negligence?
“The negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of other as to amount to a crime against the State and conduct deserving of punishment”
63
In which case was the test in R v Bateman approved?
R v Adomako (1994)
64
Why have there been criticisms of the test in R v Bateman?
Because it is left to individual juries to decide appropriate standard for ‘gross’ negligence and this may lead to inconsistent decisions as there is little guidance on what should be considered as ‘gross’ negligence
65
Why is it unclear what the risk of death means in gross negligence manslaughter?
In R v Adomako it was not clear whether there has to be a risk of death through the D’s conduct or whether the risk needs only be to ‘health and welfare’ of the victim
In R v Stone and Dobinson the test was expressed as the risk being to the ‘health and welfare’ of the sister who died
When Lord Mackay gave judgment in Adomako he approved of this way of explaining the matter but he also approved the test in Bateman where the test is ‘disregard for the life and safety of others’
66
In which case is the matter of ‘risk of death’ resolved?
R v Misra and Srivastava (2004)
67
What are the 3 main criticisms of unlawful act manslaughter?
(1) it covers a very wide range of conduct
(2) death may be an unexpected result
(3) a defendant who did not realise there was risk of any injury to the victim is still guilty of manslaughter because of the objective test
68
How does unlawful act manslaughter cover a wide range of conduct?
The unlawful act for unlawful act manslaughter can be as minor as pushing the V or it may be an unlawful killing where the prosecution are unable to prove the mens rea of murder
69
What does unlawful act manslaughters wide range of conduct lead to?
Because of such a wide range of conduct the defendants level of blameworthiness can vary hugely but they are being charged for the same offence
70
How would different levels of unlawful act manslaughter help a judge when sentencing?
It would help the judge when sentencing as s/he has to decide on the level of blameworthiness of the defendant and therefore if there were separate categories of offence, each would have a narrower band of sentences available
71
In which case was death an unexpected result of D’s conduct?
R v Mitchell (1983)
72
What would have happened if the victim did not die in R v Mitchell?
Mitchell would have been charged with a less serious, non-fatal offence
73
What was the name of the consultation paper which recommended the abolition of unlawful act manslaughter?
‘Involuntary Manslaughter’ (Law Com consultation paper No. 135)
74
According the the consultation paper why is the concept of unlawful act manslaughter inappropriate?
It is inappropriate to convict a defendant for an offence of homicide where the most that can be said is that he or she ought to have realised that there was the risk of some, albeit not serious, harm to another resulting from his or her commission of an unlawful act
75
Having an objective test imposes what question?
Why should a defendant be guilty of manslaughter when he or she did not realise the risk of some harm occurring to the victim?
76
Why does the objective test cause conflict?
The objective test conflicts with other offences where recklessness is required for the mens rea here the defendant must be aware of the risk but goes ahead with the action (subjective test) and it seems inconsistent that this serious offence should require a different form of mens rea from all offence requiring recklessness
77
What was the Law Commissions report called in 2006?
‘Murder, Manslaughter and Infanticide’
78
In the 2006 report what did the Law Commission recommend?
A three-tier structure of homicide offences
79
What were the three-tier structure of homicide offences?
(1) first degree murder
(2) second degree murder
(3) manslaughter
80
Under the Law Commissions proposals what would manslaughter cover?
(1) killing another person through gross negligence
(2) killing another person -
(a) through the commission of a criminal act intended by the defendant to cause injury
(b) through the commission of a criminal act that the defendant was aware involved a serious risk of causing some injury
81
According to the 2006 report what would the second category be known as?
Criminal act manslaughter
82
How would criminal act manslaughter be different to unlawful act manslaughter?
It would be different to unlawful act manslaughter as a defendant could only be convicted using a subjective test which therefore means the D must either intend to cause injury or be aware that the act involved a serious risk of causing some injury
83
What would result from using the subjective test in criminal act manslaughter?
Using the subjective test would prevent defendants being convicted where they did not intend any injury and were unaware of the risk of injury
84
Could manslaughter become second degree murder?
Yes, more serious situations in which at the moment are classed as manslaughter could become second degree murder
85
In which situations could manslaughter turn into second degree murder?
Killings where the defendant intended to cause injury or fear or risk of injury and was aware that their conduct involved a serious risk of causing death
86
How is having a three-tier structures of homicide offences beneficial?
It allows for greater differentiation between the blameworthiness of defendants
87
What are the 3 main criticisms of gross negligence manslaughter?
(1) the test is circular, as the jury is directed to convict if they think that the conduct was criminal
(2) the test may lead to inconsistent verdicts, as it depends on what different juries think
(3) the civil test for negligence should not be used in criminal cases: the purpose of the two branches of law is quite different
88
How is GNM regarded as a circular test?
That fact that the jury has to decide whether to convict the defendant of manslaughter by deciding whether their conduct was criminal is regarded as a circular test
89
What is the negative of the test being circular?
There is no sequence of reasoning, and instead the argument goes round in a circle
90
How is the juries function different in gross negligence manslaughter compared to usual?
In gross negligence manslaughter the jury decides whether the conduct is capable of being criminal whereas normally the judge decides if the defendant’s conduct is capable of being a crime and the jury then decides in the facts whether the defendant has committed the alleged crime
91
What is the problem with the jury deciding whether the D’s conduct is criminal?
It may lead to different decision in very similar circumstances and therefore there would be inconsistencies in the law
92
How could this inconsistency in the law be solved?
It would be fairer if the judge made the decision as to whether the defendant’s conduct was capable of amounting to gross negligence manslaughter
93
Has negligence in criminal law developed in the same ways as in civil law?
No
94
In the ‘risk of death’, is it sufficient to show a risk of bodily injury or injury to health?
No
95
What was the main reform proposed by the Law Commission in 1996 on gross negligence manslaughter?
The Law Commission proposed that instead of gross negligence manslaughter there should be two categories of killing involving negligence
96
What were the two proposed offences for gross negligence manslaughter in 1996?
Reckless killing
Killing by gross carelessness
97
The Law Commission Report of 2006 recommended that there should only be gross negligence manslaughter which would be committed where: (4 answers)
(1) a person by their conduct causes the death of another
(2) a risk that their conduct will cause death would be obvious to a reasonable person in their position
(3) they are capable of appreciating that risk at the material time
(4) their conduct falls far below what can reasonably be expected of them in the circumstances
98
According to the 2006 report must the risk be to cause death for gross negligence manslaughter?
Yes
99
According to the 2006 report is risk of serious injury be sufficient for gross negligence manslaughter?
No
100
What did the Law Commission also recommend in their 2006 report about the mens rea of gross negligence manslaughter?
They recommended keeping the rule that gross negligence manslaughter can be committed even when D was unaware that his or her conduct might cause death
101
Who is the burden of proof on for proving that the defendant was capable of appreciating the risk at the material time?
Prosecution
102
Have these proposals for reform been implemented by Parliament for involuntary manslaughter?
No
103
It is uncertain as to whether there is an offence of subjective reckless manslaughter?
Yes
104
Why is it uncertain as to whether there is an offence of subjective reckless manslaughter?
Until or unless the case of R v Lidar (2000) is specifically overruled, it is uncertain
