Involuntary Manslaughter

Question 1

What is involuntary manslaughter?

Answer 1

Involuntary manslaughter is simply the unlawful killing of another human being without the intention necessary for murder. The defendant has killed someone with no intention to kill or to cause serious harm. It covers a large range of possibilities ranging from acts that are almost accidents to acts which fall just short of murder as the necessary mens rea cannot be quite established. ‘Involuntary manslaughter is an offence of ill-defined boundaries covering the middle ground between murder and accidental death’.

Question 2

What are the three types of involuntary manslaughter?

Answer 2

• unlawful act manslaughter (constructive manslaughter)
• gross negligence manslaughter
• subjective reckless manslaughter

Question 3

What are the three essential elements to unlawful act manslaughter?

Answer 3

• an unlawful act
• the unlawful act must be dangerous
• the unlawful act must have caused the death

Question 4

An unlawful act?

Answer 4

The unlawful act must be a crime and not a tort. This established in the case of Franklin 1883. The defendant threw a box into the sea off Brighton Pier. The box stuck a swimmer who died as a result of being hit. This was not an unlawful act so there was no charge. The unlawful act must be criminal in itself and not just a crime because it is something done negligently e.g. a driving offence causing death, this was confirmed in Andrews V DPP 1937.

Question 5

Larkin 1943?

Answer 5

The defendant waved an open razor at a man in order to terrify him. The mans drunken mistress fell against the razor and her throat was cut and she died. The defendant’s manslaughter conviction was upheld by the Court of Appeal. There was an unlawful act, intentionally assaulting the man and it was also dangerous as someone was likely to be injured. Just because the defendant’s act has caused death does not automatically mean they will be convicted.

Question 6

R V Lamb 1967?

Answer 6

The defendant and his friend were messing around with a revolver, he didn’t know who it worked and thought there were two bullets in the chamber he assumed that as neither was opposite the barrel it shouldn’t be a problem. He pulled the trigger, the barrel rotated and his friend was shot and killed. The unlawful act would have been assault, but as neither the defendant nor his friend took it seriously and thought it was a joke there was no mens rea and therefore no unlawful act.

Question 7

R V Simon Slingsby 1995?

Answer 7

The defendant met a woman in a night club and they went back to her flat and had consensual sex. Unfortunately, he caused an internal injury with his ring and she died of septicemia. He was charged with unlawful and dangerous act manslaughter but on appeal the Court of Appeal said he was not guilty of any offence, he had no mens rea for any offence and therefore was not liable for manslaughter.

Question 8

Will an omission be enough for unlawful act manslaughter?

Answer 8

No, there must be an act.

Question 9

R V Lowe 1973?

Answer 9

The defendant committed the offence of neglecting his child under the Children and Young Person Act 1993. Although the neglect had led to the death of the child this could not lead to a conviction for unlawful act manslaughter as there was no positive act.

Question 10

The unlawful act must be dangerous?

Answer 10

The act must be one that reasonable people would see as dangerous. The leading case is R V Church 1966.

Question 11

R V Church 1966?

Answer 11

The defendant and a woman went to his van to have sex but he was unable to satisfy her, they had a fight during which he knocked her unconscious. He then panicked as he thought she was dead and threw her into a river. In fact, she was alive when he threw her in but she subsequently drowned. He appealed against a manslaughter conviction but it was upheld by the Court of Appeal. They made the following ruling, ‘an act is dangerous if it was such as all sober and reasonable people would inevitably recognise. It must subject the person to at least the risk of some harm…albeit not serious harm.’ So the test is partly objective, the defendant need not have considered any possibility of harm and even a reasonable bystander would only need to foresee the risk of slight harm.

Question 12

DPP V Newbury and Jones 1977?

Answer 12

The two defendants were 15 year old boys who threw a concrete block off a railway bridge hitting the train passing underneath and killing a guard. The defence tried to argue that their age might have meant they did not appreciate that the act was dangerous. The Court of Appeal upheld their convictions, the act would have been obviously dangerous to a reasonable bystander and no characteristics of the accused could have been taken into account. The test is objective, the sober and reasonable person is assumed to have the same knowledge as the defendant. They might not be aware of something about the victim that makes them especially vulnerable.

Question 13

R V Dawson 1985?

Answer 13

The victim was a 60 year old man working in a petrol station when the defendants attempted an armed robbery. The victim pressed an alarm button and the defendants ran off. Unknown to them the victim had a serious heart condition and he died of a heart attack soon after the police arrived. The conviction was quashed as the defendants could not have been aware that the victim has such a weakness and a reasonable bystander would have known that either. The act was not dangerous in the sense used in Church.

Question 14

R V Watson 1989?

Answer 14

The defendants committed burglary in the house of a frail 87 year old man. He had a fatal heart attack shortly after they left. Their unlawful act became dangerous for the purposes of the Church test as soon as the old mans frailty would have been obvious to a reasonable person even if they had not recognised it. However, the Court of Appeal quashed their manslaughter conviction because it could not be proved the burglary itself caused the heart attack.

Question 15

Carey 2006?

Answer 15

Two groups of girls had got into an argument with each other. The victims group tried to move away but the defendants followed them. The victim’s hair was pulled and another punched her in the face. The victim ran away and collapsed after running about 100m. She died later that evening of an undiagnosed heart complaint that was aggravated by the running. The physical injury she had suffered during the attack was very slight. The defendants appeal against the conviction for unlawful act manslaughter was allowed. The punch had not caused the death, the unlawful act was not dangerous in the sense that it was recognised by a sober and reasonable people as subjecting the victim to the risk of some physical harm. A reasonable bystander would not have expected an apparently healthy 15 year old to have died in those circumstances.

Question 16

The unlawful act must have caused the death?

Answer 16

The prosecution must show a causal link between the defendants unlawful and dangerous act and the death. So in the Waston Case the defendants appeal was allowed, not because there was no unlawful and dangerous act but because it could not be proved that the shock of the burglary had caused his death.

Question 17

R V Johnstone 2007?

Answer 17

The victim was playing with his son when a group of around 20 youths approached and started shouting abuse and spitting at him. Then they threw stones and sticks at him and at least one stone hit him on the head. Shortly afterwards the victim died of a heart attack and medical evidence showed that the attack was caused by a rush of adrenaline. The youths had caused the heart attack but it was not clear whether the shouting and spitting, which were not dangerous, had triggered the heart problem or the dangerous act of throwing the stones and sticks. The Court of Appeal felt that on evidence the jury could not then decide whether the act which was unlawful and dangerous had caused the death. The appeal was allowed because the Court of Appeal ruled that spitting and shouting would not constitute an unlawful and dangerous act. However, this seems unsatisfactory, could the two acts not be separated out?

Question 18

Cato 1976?

Answer 18

A drug dealer injected the victim with heroin and the victim died. The unlawful act was administering a noxious substance under Section 23 OAPA 1861. The Court of Appeal upheld his manslaughter conviction.

Question 19

Kennedy (No 2) 2007?

Answer 19

A drug dealer gave a heroin filled syringe to the victim who self-injected and then died from a overdose. The defendant appealed against a manslaughter conviction, quashing his manslaughter conviction the House of Lords held that a drug dealer is never responsible for the users death if the user is fully informed and responsible adult who voluntarily chooses to self-administer the drug. The unlawful act does not have to be aimed at the victim, it is enough for criminal liability if the defendant caused the death.

Question 20

Mitchell 1983?

Answer 20

The defendant argued with a man in front of him in a post office queue over queue jumping. The defendant pushed the man who fell against an 89 year old woman knocking her over. She broke her leg and subsequently died from thrombosis caused by the broken leg. The defendant was convicted of manslaughter, upholding his conviction said it was irrelevant that the defendants action was not aimed at the victim but at the man in the queue. It was simply an issue of causation. Also, the defendants action was objectively dangerous even though someone other than the man in the queue suffered harm. The unlawful act does not have to be aimed at the victim, it is enough for criminal liability if the defendant caused the death.

Question 21

Goodfellow 1986?

Answer 21

The defendant wanted to move from his council house and with little chance of this happening he set the house on fire so it would look like a petrol bomb attack. But the fire got out of control and his wife, son and another woman died. The Court of Appeal upheld his manslaughter conviction and rejected his argument that as he had not wanted their deaths his acts were not directed at the victims.

Question 22

What is the mens rea for unlawful act manslaughter?

Answer 22

The mens rea for unlawful act manslaughter is that of the crime leading to the death. It depends on the original crime as to what the mens rea is, so in Larkin 1943, where the defendant had the mens rea for the original crime of assault was enough for liability for unlawful act manslaughter. No further mental element is needed for liability for manslaughter, this was emphasised in DPP V Newbury and Jones 1977. This might mean a very low level of mens rea is all that is necessary. If the offence is strict liability, then the defendant may not need any mens rea at all.

Question 23

Andrews 2003?

Answer 23

With the victims agreement, the defendant injected him with the prescription drug of insulin in order to produce a rush. The victim died soon afterwards. The defendant was convicted of unlawful act manslaughter based on the offence of the unauthorised administration of specified medicinal products. This offence under the Medicines Act 1968 was strict liability so there was no need for the prosecution to prove mens rea.

Question 24

Advantages of unlawful act manslaughter?

Answer 24

• the offence covers a very wide range of conduct, it could be as minor as pushing someone who then falls down the stairs and dies or conduct falling just short of murder.

Question 25

Disadvantages of unlawful act manslaughter?

Answer 25

• causation has caused problems for the courts, the decision in Kennedy has created some concerns. It places emphasis on the freedom of the victim to choose and allows the drug dealer to escape any liability when someone dies. This raises a number of questions - is an addict really choosing? At what age is someone entirely responsible for their own actions?
• it can be argued that there should be liability for omissions, if someone deliberately omits to do something and causes death then perhaps they should be held liable.
• the difficulty of establishing which of a series of unlawful acts is dangerous and then the defendant may be acquitted as in Johnstone.
• the biggest criticism is the low level mens rea required. Someone may be convicted of manslaughter even though they had not considered the risk of any physical harm at all, this seems harsh.
• The Church test is also very strict, not only does this defendant not have to be considered that the act was dangerous but a reasonable bystander would only have to be aware of the risk of some harm, not even serious harm.

Question 26

Reform of unlawful act manslaughter?

Answer 26

The Law Commission criticised this in 1996 ‘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.’

Question 27

What is gross negligence manslaughter?

Answer 27

This type of manslaughter involves a defendant who is not initially committing any sort of criminal act. They are doing something they are entitled or even obliged to do but they do it so badly that someone dies as a result. The cases often involve people who we would not regard as criminals at all in the normal sense. It is committed when an individual owes a duty of care to another and breached it in a very negligent way. Under civil law a person who fails to take the care as a reasonable person would exercise in a situation is described as negligent. The civil case of Donoghue V Stevenson 1932 established a general duty of care in negligence which is known as the ‘neighbour principle’. Where death of a person is caused by anothers negligence which is so severe to deserve punishment under the criminal law.

Question 28

R V Adomako 1994?

Answer 28

The victim was a patient undergoing an operation for a detached retina. The defendant was the anesthetist whose job it was to make sure that the patient was unconscious but still breathing during the surgery. The oxygen tube became disconnected and the defendant did not notice for several minutes. The patient went into cardiac arrest, suffered brain damage and subsequently died. Two expert witnesses described his failure to notice as ‘abysmal’ and said that a competent anesthetist would have noticed there was a problem within 15 seconds. He was convicted of gross negligence manslaughter and this was upheld by the House of Lords. It was established in Adomako that gross negligence manslaughter requires three things:

1. the defendant must owe the victim a duty of care
2. the defendant must have breached the duty and the breach caused the death
3. the defendant must have been grossly negligent, in the sense that a jury would decide they had be so negligent as to justify convicting them.

Question 29

What is the duty of care?

Answer 29

The criminal law recognises a certain duty in situations e.g. under a contract of employment as in Adomako or where a defendant had undertaken a duty of care for another as in Stone and Dobinson 1977. Many of the cases overlap with those under omissions, where the defendant failed to act appropriately in various situations where they owed a duty of care. They duty is very wide, which means that the scope of the offence is very wide too. In Wacker 2003 the Court of Appeal held that a defendant owed a duty of care to illegal immigrants that he agreed to smuggle into the UK.

Question 30

Wacker 2003?

Answer 30

The defendant was a lorry driver who tried to smuggle 60 illegal Chinese immigrants into the country. On the ferry crossing over from the Netherlands, he closed the air vent on the container to make it more difficult for them to be discovered. It was impossible to open either vent or the door from the inside of the lorry and 58 of the people died from a lack of air. Wacker tried to argue that as they were all involved in a criminal activity he did not owe a duty of care to them. The Court of Appeal upheld his conviction. They said ‘we see no justification for concluding that the criminal law should decline to hold a person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity at the time…public policy manifestly points in the totally opposite direction.

Question 31

Wiloughby 2004?

Answer 31

The owner of a public house hired the victim to help burn it down so that he could claim the insurance. They both spread petrol around and started a fire but there was an explosion and the building collapsed killing the victim. It was held that the defendant owed the victim a duty of care as he was the owner, he stood to gain and he was involved with the victim in setting the fire.

Question 32

Evans 2009?

Answer 32

It was stated that whether a duty of care existed was a question of law for the judge.

Question 33

What is the breach of a duty?

Answer 33

The breach of duty of care must cause the victims death. The defendant has to reach the standard of care expected from a reasonably competent person doing whatever it was they were doing. The question is how far did the defendant depart from the accepted standard of care in the circumstances.

Question 34

Bateman 1925?

Answer 34

If a defendant is a doctor they are judge against what a reasonably competent doctor would do.

Question 35

Litchfield 1998?

Answer 35

A defendant sailing a boat has to meet the standard of a reasonably competent sailor, the defendant was the owner and master of a sailing ship and sailed too close to the rocks causing the death of three crew members.

Question 36

Singh 1999?

Answer 36

A landlord has to be a reasonably competent landlord, the defendant (landlord) did not maintain his property properly and some tenants died as the gas fire was faulty.

Question 37

Bateman 1925?

Answer 37

Bateman was a doctor who attended a woman in childbirth at her home despite medical problems he did not send her to hospital for five days. His conviction was quashed as it was felt that he had carreid out the normal procedures that any competent doctor would have done. The Court of Appeal held that for gross negligence conviction the prosecution must prove that the defendants negligence was so gross that compensation between the parties was insufficient and that the defendant showed such disregard for the life and safety of others as to amount to a crime deserving punishment.

Question 38

Misra 2004?

Answer 38

The two defendants were senior officers in a hospital and they were responsible for the post-operative care of a young man who had undergone knee surgery. They did not notice that his wound was infected, it went untreated and he died as a result of their gross negligence. The Court of Appeal rejected the appeal against a manslaughter conviction. They held that the law was clear, the jury did not have to determine what would be sufficiently gross to amount to a crime, that was a question of law for the judge. They only had to decide whether the conduct in a particular case was sufficiently gross, which was a question of fact. Misra also clarified that the test involved consideration of a risk of death not just a risk of injury. Previous cases had confused the issue but the Court of Appeal used the opportunity to clarify the law.

Question 39

Advantages of gross negligence manslaughter?

Answer 39

• the test is circular, the jury is directed to convict for gross negligence manslaughter if they think the negligence was bad enough for it to mean the defendant should be punished. The jury are being asked to convict if they think the conduct is criminal.

Question 40

Disadvantages of gross negligence manslaughter?

Answer 40

• Elliot and Quinn say ‘it is absurd to ask a jury to decide whether the negligence goes beyond a mere matter of compensation. The question should not be whether it is bad enough to give rise to criminal liability but whether it is bad enough to give rise to liability for the very serious offence of manslaughter.
• the test can lead to inconsistent verdicts, one jury might convict when another would acquit.
• there is an overlap between civil and criminal concepts which can cause confusion.
• if a defendant actually does foresee a risk of harm it should not matter whether a reasonable person would have foreseen it. In criminal law a defendants state of mind should be the key issue when deciding whether they should be blamed, unlike civil law where a duty of care is defined in objective terms.
• Glanville Williams argue that gross negligence manslaughter is not a sufficient basis for manslaughter. He argued that cases like Adomako should not be dealt with in the criminal arena. He questioned that although Adomako was extremely negligent was it appropriate to charge him with manslaughter. Doctors work continually with high levels of risk and surely the law should allow for human error. He argues that Adomako should have been struck off. Could he have been dealt with by the civil law as he was not a danger society to society in the criminal sense.
• Clarkson and Keating point out that little guidance is given to juries and there is always the risk of inconsistent verdicts.

Question 41

Subjective recklessness manslaughter?

Answer 41

In the case of Lidar, the defendant tried to argue that following the decision in Adomako, this type of manslaughter no longer existed. The Court of Appeal disagreed. The AR is that the defendant caused a death, there is no need to establish a duty of care. The MR is that the defendant must have foreseen a risk of death or serious injury and have assessed that the risk was at least highly probable.

Question 42

Lidar 2000?

Answer 42

The defendant drove his car for 200m with the victim hanging out of the window. His feet were eventually caught in the wheel and he was run over and killed. The trial judge summed up using the test for subjective recklessness and the Court of Appeal upheld the conviction. The defendant had tried to argue that the judge should have used the gross negligence test but this argument failed.

Question 43

Reform of involuntary manslaughter?

Answer 43

The Law Commission Reform suggestions in 2006, its report ‘Murder, Manslaughter and Intanticide 2006’ the Commission proposed replacing the current law with the three-tier structure of homicide offences:
- first degree murder
- second degree murder
- manslaughter
Manslaughter would cover killing another person through gross carelessness where:
- death occurred as a result of the defendants conduct falling far below what could reasonably be expected in the circumstances.
- where there was a risk that the defendants conduct could cause death.
- the defendant must have had the capacity to appreciate the risk.
OR
Killing another person:
- through the commission of a criminal act intended by the defendant to cause injury.
- through the commission of a criminal act that those involved were aware of a serious risk of causing some injury.
The proposed abolishing reckless manslaughter but the worst cases i.e. where the defendant had intention to cause injury or risk or injury would be included in second degree murder. Initially the government seemed to have accepted the proposals but later withdrew. They are of interest as they show how the law might possibly be improved. The Law Commission 2006 suggested gross negligence manslaughter should be retained but there should no longer be a requirement of a duty of care. Instead, there would be a requirement that ‘it would be obvious to a reasonable person in the defendant’s shoes that the conduct involved a risk of death’. This would have the advantage of moving away from a civil test.