Law-Involuntary Manslaughter

Question 1

What are the three types of involuntary manslaughter?

Answer 1

Unlawful act manslaughter, gross negligence manslaughter and subjective recklessness manslaughter

Question 2

What is the other term for unlawful act manslaughter?

Answer 2

Constructive manslaughter, because the liability for the death is built up, or constructed, from the facts that the defendant has done a dangerous unlawful act which caused the death-this makes the defendant liable, even though he did not realise that death or injury might occur

Question 3

What are the elements of unlawful act manslaughter?

Answer 3

The defendant must do an unlawful act, the act must be dangerous on an objective test, the act must cause the death and the defendant must have the required mens rea for the unlawful act

Question 4

What is an unlawful act?

Answer 4

Death must be caused by an unlawful act which must be a criminal offence (Franklin) (Lamb). It can be offences against the person but not GBH S18 as that would be implied malice murder

Question 5

What happened in the case of Franklin?

Answer 5

Defendant threw a large box into the sea from the West Pier at Brighton. The box hit and killed a swimmer. It was held that a civil wrong was not enough to create liability for unlawful act manslaughter

Question 6

What happened in the case of Lamb?

Answer 6

Defendant and friend were playing with a revolver that they both knew was loaded with two bullets in a five chamber cylinder. They both thought it wouldn’t fire unless one of the bullets was opposite the barrel and knew none of the bullets were in this position, but didn’t know that the cylinder turned and so Lamb shot the gun and killed his friend. It was not an unlawful act as pointing the gun wasn’t an assault as the friend did not fear any violence from Lamb

Question 7

Can an omission count as an unlawful act?

Answer 7

Omissions cannot create liability for unlawful act manslaughter (Lowe)

Question 8

What happened in the case of Lowe?

Answer 8

The defendant was convicted of wilfully neglecting his baby son and of his manslaughter. The trial judge had directed the jury that if they found the defendant guilty of wilful neglect, he was also guilty of manslaughter. The court of appeal quashed the manslaughter conviction as wilful neglect involved failure to act which cannot create liability for unlawful act manslaughter

Question 9

What happened in Khan and Khan?

Answer 9

The court of appeal pointed out than an omission was not sufficient for unlawful act manslaughter (supplied prostitute with too much heroin for a new user and left her flat when she was in a coma, she then died)

Question 10

What is a dangerous act?

Answer 10

Unlawful act must be dangerous on an objective test. In Church it was held that it must be ‘such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm’

Question 11

What does the statement made in Church mean?

Answer 11

The risk only needs to be of ‘some harm’ which doesn’t have to be serious. If a sober and reasonable person realises that the unlawful act might cause some injury, then this part of the test is satisfied. It doesn’t matter that the defendant didn’t realise there was any risk of harm to another person (Larkin-illustrates need for unlawful act and risk of some harm on an objective viewpoint)

Question 12

What happened in the case of Larkin?

Answer 12

Defendant threatened another man with open cut-throat razor in order to frighten him. Drunk mistress of other man tried to intervene but accidentally fell onto the blade which cut her throat and killed her. On appeal the manslaughter conviction was upheld. The act of threatening the other man was a technical assault and it was also an act which was dangerous as it was likely to injure someone

Question 13

What case does Larkin link to?

Answer 13

Mitchell because the act does not have to be aimed at the victim, as the defendant pushed his way into a queue and punched an elderly man who had told him off, the man then fell into an elderly woman who died of her injuries. The unlawful act was punching the man, which was dangerous as it was likely to cause some harm to him and others and it caused the death of the woman. Guilty of constructive manslaughter despite the fact that the person threatened was not the one that died

Question 14

What is some harm?

Answer 14

It isn’t necessary for the sober and reasonable person to foresee the particular type of harm that the victim suffers. It is enough that they would foresee some harm, stated in JM and SM where the death was caused by something which was unlikely to have been spontaneous and was accepted as a substantial cause of the death. Although this would not have been foreseen, some harm would have been foreseen if a fight is started

Question 15

What was illustrated in Goodfellow?

Answer 15

The act doesn’t have to be aimed at a person, it can be aimed at property, provided sober and reasonable people would foresee some harm. (Set fire to his council flat because he wanted to be rehoused but it burned out of control and his wide, son and another woman died in the fire-guilty as all elements of constructive manslaughter were present)

Question 16

How can an act against the property create unlawful act manslaughter?

Answer 16

Burglary is an unlawful act which isn’t normally dangerous under the Church definition. However a burglary may be carried out in such a way that the circumstances of the commission of the offence make it dangerous (Bristow, Dunn and Delay-using vehicles to commit burglary)

Question 17

What was decided in the case of Dawson?

Answer 17

The risk of harm includes causing a person to suffer shock, however mere ‘emotional disturbance’ is not sufficient

Question 18

What was stated in the case of Watson?

Answer 18

Where a reasonable person would be aware of the victim’s frailty and the risk of physical harm to him, then the defendant will be liable

Question 19

What does causing the death mean?

Answer 19

The unlawful act must cause the death, and the rules on causation are the same for murder (factual and legal causation). An important point is that if there is an intervening act that breaks the chain of causation, then the defendant cannot be liable for manslaughter

Question 20

What is a case where there could have been a possible intervening act?

Answer 20

Cato-defendant supplied victim with an illegal drug. The defendant injects the drug into the victim who dies (no break in causation-guilty) however the problem is in cases where the defendant prepares the injection and then the victim injects them self. The two points of this are whether the defendant has done an unlawful act, and has the defendant caused the victims death, or was the self-injection and intervening act (Dalby) (Kennedy)

Question 21

What happened in the case of Dalby?

Answer 21

Defendant supplied drug to victim who self injected it and died. The injection caused the death which was a voluntary act by the victim so the chain of causation had been broken

Question 22

Why did later cases suggest that the defendant could be guilty in similar cases to Dalby?

Answer 22

The defendant considered to have administered a noxious substance to the victim, contrary to s23 Offences Against The Person Act 1861. Unlawful act that could cause death. However this has been criticised and not used in all cases, therefore causing confusion in the law

Question 23

What happened in the case of Kennedy?

Answer 23

Victim self-injected drugs prepared by the defendant. The House of Lords ruled that there was no unlawful act by the defendant under s23. The defendant did not administer the noxious substance by filling a syringe and handing it to the victim. The act of self-injection was a voluntary act by the victim which broke the chain of causation

Question 24

What is joint involvement?

Answer 24

The Lords accepted that there could be situations in which it could be regarded that both the defendant and victim were involved in administering the injection. However they did not five examples of when this could be considered to have happened, and specifically stated that the case of Rogers had been wrongly decided by stating he had not been guilty, even though he had helped the victim inject himself by providing a tourniquet-so in what situation would joint involvement be used?

Question 25

What is the mens rea for unlawful act manslaughter?

Answer 25

The mens rea must be for the unlawful act that was committed eg the mens rea for ABH if that is what caused the death

Question 26

What was decided in Newbury and Jones?

Answer 26

It is not necessary for the defendant to realise that the act is unlawful or dangerous

Question 27

What is gross negligence manslaughter?

Answer 27

It is committed where the defendant owes the victim a duty of care but breaches that duty in a very negligent way, causing the death of the victim. It can be committed by an act or an omission, which does not have to be unlawful

Question 28

What are the two main cases for gross negligence manslaughter?

Answer 28

Bateman-introduced gross negligence manslaughter into criminal law in 1925, and re-affirmed in Adomako which gives three elements for gross negligence manslaughter

Question 29

What happened in the case of Adomako?

Answer 29

Defendant was the anaesthetist for a mean having an operation. During the operation one of the tubes that supplied oxygen to the patient became disconnected. Defendant failed to notice until minutes later when the patient had a heart attack because of the lack of oxygen which also caused brain damage and death 6months later. Doctors stated that a competent anaesthetist would have noticed the disconnected tubes within 15 seconds

Question 30

What are the elements of gross negligence manslaughter (from Adomako)?

Answer 30

The existence of a duty of care towards the victim, a breach of that duty of care which causes death, gross negligence which the jury considers to be criminal, that the gross negligence was as substantial cause of death of the victim

Question 31

What is duty of care?

Answer 31

A duty of care has been held to exist for the purposes of the criminal law in various situations including doctor to patient (Adomako). In this case, Lord Mackay said that in his opinion, the ordinary principles of negligence in the civil law could be applied to decide whether there was a duty of care and whether it had been breached

Question 32

Where do the principles of duty of care come from?

Answer 32

Donoghue v Stevenson-the neighbour principle (must take reasonable care to avoid acts and omissions which can be reasonably foreseen to injure your neighbour who is anyone close and directly affected by defendants act. This civil test is much wider than the duty situations which the criminal law recognises can lead to criminal liability for an omission

Question 33

What was decided in the case of Singh?

Answer 33

The courts recognised a duty to manage and maintain property where a faulty gas fire caused the deaths of tenants (contractual duty)

Question 34

What was decided in the case of Litchfield?

Answer 34

It was held that the owner and master of a sailing ship owed a duty to the crew when he sailed knowing that the engines might fail because of contamination to the fuel. The ship was blown on to rocks and three crew members died (contractual duty)

Question 35

What are examples of where there does not have to be contractual duty?

Answer 35

In Adomako, the House of Lords approved the decision in the case of Stone and Dobinso where defendants failed to feed or summon medical help for Stone’s elderly ill sister, who then died. Convicted of manslaughter as they had voluntarily undertaken a duty to care for her and failed in this

Question 36

What was decided in Khan and Khan, relating to duty of care?

Answer 36

Although they were not convicted of manslaughter, the court of appeal thought that there could be a duty to summon medical assistance in certain circumstances

Question 37

What was said in the case of Dias?

Answer 37

The court of appeal suggested that it might be possible to establish a duty not to supply and prepare drugs

Question 38

What happened in the case of Wacker?

Answer 38

Defendant agreed to bring 60 illegal immigrants into England in the back of his lorry across the channel crossing on the ferry. There was a small air vent which was agreed to be shut at certain times to stop the immigrants being found. Defendant closed the vent before boarding the ferry but the crossing took an hour longer than normal, and 58 immigrants were found dead. Defendant owed a duty of care to the victims under ordinary principles of law of negligence but unlike civil law, it was irrelevant that the victims were parties to an illegal act, on this point the court of appeal held that the purposes of civil and criminal law were different so the fact that no action could arise in a civil case did not mean there was no breach in a criminal case

Question 39

What was said in the case of Willoughby?

Answer 39

The court of appeal confirmed that the fact that the defendant and the victim were engaged in a criminal activity did not prevent the defendant owing a duty of care. They also held that a duty of care can exist where the defendant has created a state of affairs which he knows or ought to reasonably to know has become life threatening, seen in the case of Evans where defendant did not get medical help for the victim who he knew had overdosed

Question 40

What is gross negligence?

Answer 40

The fact that a defendant has been negligent is not enough to convict him of gross negligence manslaughter, it has to be ‘gross’. In Bateman it was stated that the negligence is gross when it goes ‘beyond a matter of mere compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment’.

Question 41

What was said in Adomako about the statement made in Bateman?

Answer 41

The house of lords approved the test and stressed that it was a matter for the jury to decide. The jury had to decide whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all circumstances as to amount, in their judgement, to a criminal act or omission. The jury has to consider the seriousness of the breach of duty in all circumstances in which the defendant was placed when it occurred

Question 42

Why have there been criticisms of these tests for gross negligence manslaughter?

Answer 42

Because they are left to individual jury panels to decide the appropriate standard for ‘gross’ negligence which can lead to inconsistent decisions in similar cases. Also there is little guidance on what should be considered ‘gross’ negligence

Question 43

What is risk of death in gross negligence manslaughter?

Answer 43

Originally it was not clear if the test was that there had to be a risk of death through the defendant’s conduct or whether the risk need only be to ‘health and welfare’ of the victim (Stone and Dobinson, approved in Adomako but also approved the Bateman test)

Question 44

What happened in the case of R v Misra;R v Srivastava?

Answer 44

Defendants appealed against a conviction for gross negligence manslaughter on the basis that it was not clear whether the risk should be to life or only to health and safety. This, they argued, meant that the offence of gross negligence manslaughter breached Art7 of the European Convention on Human Rights as it was too uncertain, however the court of appeal held that as all elements of gross negligence manslaughter were clear, there was no breach of Art 7

Question 45

What is the mens rea for gross negligence manslaughter?

Answer 45

As this happens when the defendant did not intend to cause death or GBH, there is no mens rea

Question 46

What is subjective reckless manslaughter?

Answer 46

After the decision is Adomako it was thought that reckless manslaughter no longer existed. However, in Lidar the Court of Appeal upheld the defendant’s conviction for manslaughter even though the judge referred to recklessness (rather than gross negligence) in his directions to the jury. Although the trial judge directed the jury in the basis of recklessness, it is obvious from the facts that the defendant could have been convicted on the basis of gross negligence manslaughter, as the defendant clearly owed the victim a duty of care as road users, so driving off with victim half in/half out the window breaches that. In view of this, it is difficult to see why it is necessary to have a separate category of reckless manslaughter