Manslaughter

Question 1

Involuntary manslaughter

Answer 1

Where D has no intention to kill or cause GBH

1) Gross negligence manslaughter
2) Constructive (unlawful) manslaughter

Question 2

Voluntary Manslaughter

Answer 2

Where D had the intention to kill or do GBH but some defined mitigating circumstances - loss of self control, diminished responsibility or killing in pursuance to a suicide pact - reduces his crime.

This defences were initially introduced to avoid the death penalty so are unsatisfactory now.

Question 3

Common law defence of provocation

Answer 3

Section 3 Homicide Act

1) things said or done provoked him; and
2) he suffered a sudden and temporary loss of self control
3) The provocation was enough to make a reasonable man do what D did.(reasonable man sharing D’s characteristics)

But by section 56 of the Coroners and Justice Act 2009, the common law defence of provocation is abolished and replayed by a new defence in s54 and 55

Question 4

The law commission believed that the defence of loss of self control should not require loss of self control but “the triggers + the normal person” were enough

Answer 4

yes

Question 5

Loss of control definition by authors of Smith and Hogan

Answer 5

mean a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning.

Question 6

Jewell [2014] EWCA

Answer 6

LOSC D must loose self control

defendant formed the view that V, a workmate was planning to kill him. Over a 12-hour period, the defendant armed himself with 2 guns and put together a “survival kit” for a getaway to Scotland. He then shot the victim twice and killed him. This was out of character for D. Trial judge withdrew defence from the jury on basis that there was no evidence of loss self control, judge thought that the defendants near assertion had done so was not enough. CA accepted this and pointed to the fact that the defendant seemed to be acting in a reasoned and controlled manner, taking into account the plan. They agreed with trial judge that correct definition should be found in Smith and Hogen as ”loss of ability to act in reasonable way”?.

Question 7

Gurpinar [2015] EWCA

Answer 7

“If the judge considers that there is no sufficient evidence of loss of self-control (the first component) there will be no need to consider the other two components. Nor if there is insufficient evidence of the second will there be a need to address the third.” Lord Thomas

Question 8

Dawes [2013] EWCA

Answer 8

D found wife cheating on him. He started punching the man. V then hit back and so D grabbed a knife and killed him.

Held: no LOSC

Question 9

LOSC and the ‘Normal Person’

Answer 9

Camplin v DPP (pre 2009)
Age was relevant before 2009: Camplin v DPP [1978] . Court has to make allowance that dont expect young people to save same degree of control.

As was sex

This was the common law which allowed D’s characteristics to be in place even though this did not leave him to lose self control.

Characteristics that serve only to explain/excuse D‘s inability to exercise normal self-control were excluded by the 2009 act.

Question 10

Asmelash [2013] EWCA

LOSC and the ‘normal person’ s54(1)

Answer 10

trial judge right to direct that the normal person is ‘unaffected by alcohol’. - so D who is under the influence of drink or drugs will succeed under LOSC only if a normal non-intoxicated D might have done as he did.

In Asmelash the intoxication was unrelated to the alleged trigger. The CA commented (obiter) that “different considerations would arise if a defendant with a severe problem with alcohol or drugs was mercilessly taunted about the condition; to the extent that it constituted a qualifying trigger”.

Question 11

Clinton

CA

Answer 11

D killed his wife after (he said) she had (a) admitted infidelity in graphic detail.

(1) sexual infidelity must be disregarded for the purposes of the second component of s54 if it stands alone as a qualifying trigger, but where it is ‘integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.’
(2) Though not itself a trigger, sexual infidelity may be a relevant ‘circumstance’ for purposes of the ‘normal person’ test in Section 54(1)(c)).

Clinton: CoA lists a number of hypothetical cases of sexual infidelity that are
1 – an element of sexual infidelity but reason for killing goes way beyond that, more about the rape. Does the rape constitute sexual infidelity?
2 – the boasting led to the killing. Does it constitute sexual infidelity? What if V was lying and had never had sex with her
3 – hard to accept ended relationship. Does the kissing constitute sexual infidelity.

Question 12

Constructive liability for manslaughter

Answer 12

A constructive crime = one where the mens rea of a lesser offence suffices for liability (“[offences] that include an additional actus reus element alone which is constructed on the basic offence to make a more serious crime

if D intends only gbh, still guilty of murder if V dies.

Question 13

R v Goodfellow

Answer 13

(1) Was the act intentional?
(2) Was it unlawful?
(3) Was it an act which any reasonable person would realise was bound to subject some other human being to the risk of physical harm, albeit not necessarily serious harm?
(4) Was the act the cause of death?”

Question 14

Can you have a defence with unlawful act manslaughter?

Answer 14

NO

Question 15

R v Scarlett

Answer 15

Not unlawful if D has a defence

Question 16

Franklin

Answer 16

unlawful act manslaughter attributable to D must be a crime

Question 17

Chief constable of Woking v smith

Answer 17

Smith was accused of being a peeping tom, unlawful purpose is the psychic assault. Magistrates convict he appeals on basis when he was peering in on window, there was no possibility on infliction of immediate harm because he was on the other side of the window. Held: no this does not matter, what matters is the reaction of the victim, if the victim fears that she might be attacked immediately and when she says so conviction fell.

Question 18

DPP v Newbury &Jones

Answer 18

Question on appeal: “Can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs, if he did not foresee that his act might cause harm to another?”
Answer Yes: “The test is still the objective test. In judging whether the act was dangerous, the test was not did the accused recognise that it was dangerous, but would all sober and reasonable people recognise its danger” (Lord Salmon)
NB This objective test for dangerousness was already well-established as an element separate from unlawfulness: Church [1966] 1 QB 59

Question 19

Harvey

Answer 19

D had an argument with his wife while they were watching TV – he threw remote control at her. Unknown to both them, she had an unusual weakness of the vertigral artery, she could have died at any moment if she turned her head sharply. What actually killed her was the remote. Held that for manslaughter on a guilty plea, was 21 months. CoA described it as an unhappy coincidence and extraordinary. Yet take victim as you find her.

Question 20

Folkes

Answer 20

D punched V in argument, V suffered injury when head comes to sudden stroke. The fall killed the victim. Proper sentence was 3 years at the time, no exceptional circumstances. Why one punch is a misleading label. Reform Of murder and manslaughter – one punch is a big range of possible wrongs.

Question 21

R v Scarlett

Answer 21

Not unlawful if D has a defence:

Question 22

JF [2015] EWCA

Answer 22

D, aged 14 and of low IQ, started a fire in a derelict building, causing the death of a homeless man sleeping rough there. He and his teenage friend were acquitted of arson being reckless as to the endangerment of life (CDA 1971 s.1(2)), but convicted of manslaughter and arson (s.1(3)- criminal damage by fire).
The Court of Appeal rejected a submission that a subjective test of awareness of risk should be required since G, and it was even ‘too favourable’ for the jury to be asked to consider if D contemplated the presence of someone in the building. The objective test was well established and it was for “Parliament to determine whether the long established law needs changing in the light of the Law Commission’s various recommendations or whether a further examination is needed by the Law Commission.”

Question 23

In Dawson

Answer 23

Ds attempted an armed robbery at a petrol station, where they threatened V, the 60-year-old attendant who, unknown to them, had a heart condition. V died of a heart attack. The CA thought a proper direction to the jury would have been that the reasonable man would be in the position of a bystander with no special knowledge – he would not know any more than D about V’s condition. In the circumstances, the reasonable man might have anticipated some fear or shock resulting, but not physical injury.

[Note that this rule needs to be distinguished from the rule of causation that says that D ‘takes his V as he finds him’. That rule entails a finding that D caused V’s death in Dawson, but the additional requirement in u/a m/s that the act is objectively ‘dangerous’ protects D from conviction where there is no obvious risk of harm].

Question 24

R v Ball

Answer 24

suggests Dawson is limited to the case where V has a peculiar vulnerability – mistake is not taken into account.

Ball was an odd case in which D shot at a trespasser intending, he said, to fire a blank to scare V, but it was a live cartridge and V was killed. The CA thought that the rule in Dawson (that the reasonable man had no more knowledge than D) worked in D’s favour only in cases where V had a particular vulnerability. There is no reason to read Dawson so restrictively, but the court was trying to find a formula under which D could not insist that the reasonable man had made the same factual judgment as he had (in this case the ‘mistake’ about the cartridge). This could have been achieved, consistently with Dawson, by pointing out that as D knew that the pocket from which he took the cartridge contained both live and blank cartridges in his pocket, so the reasonable man with the same knowledge as D (and no more) would have seen the risk of pulling out a live one.

Question 25

Watson

Answer 25

where the two Ds burgled the house of V, an elderly man. It would have been obvious that he was frail and vulnerable once the burglars were in the house, and therefore that their criminal activity was dangerous to him. The conviction was however quashed for other reasons (to do with causation).

Question 26

A-G’s Ref (No 3 of 1994)

Answer 26

It does not appear that the actual V has to be foreseeable to the reasonable man, provided risk of physical injury to another is apparent. It was so held in AG ref 3 of 94, the case where D stabbed the pregnant girl. The HL, you remember, said a conviction for murder was impossible because it was too much of a stretch of transferred malice(TM) to move the intent from mother to fetus to the born baby. But the wide way in which u/a m/s is defined was said to mean there is no need to invoke the TM doctrine and so it would have been possible to convict of that offence– D’s act of stabbing M is an unlawful and dangerous act in the sense that it is dangerous to someone - the mother - and it doesn’t matter that the person who ultimately suffers death is not M. This however is transferred malice by another name – surely V should at least be one of a class of victims that RM might contemplate? It might seem a just outcome where the RM could see M is pregnant, but what if two girls, D and M, have a fight and even M doesn’t know she is pregnant, then M has her baby prematurely as a result and it dies as a result of a minor injury caused by D? Or, more remotely, if D throws a stone over a railway bridge and it goes through the cab and strikes M, a pregnant guard, who suffers minor injury but then has the baby prematurely and it does of the injury. There seems no reason to hold D automatically liable for a danger that the reasonable person would not foresee in substitution for the danger that the RM would have seen (the harm to the mother).

Question 27

R v Kennedy (No 2)

Answer 27

Lastly, the specific causal link must be proved, in that the death flows from the unlawful act. So in Kennedy (2) it was crucial that the only unlawful act done by D was the supply, and it was not the supply that killed V but the administration, which V did himself. There is an unlawful act of administering a noxious substance, or causing it to be administered (s.23 OAPA) but D neither administered it, nor did he ‘cause it to be’ administered, because V’s voluntary act broke the chain. Had D been guilty of jointly administering the dose, as sometimes happens where one party finds the vein and another presses the plunger on the syringe, that could have satisfied the requirement. It would clearly also have done so if D had slipped V a drug in his tea when V was not looking, or dosed V with it pretending it was ‘medicine’. In neither of those cases can V be said to have administered the drug to himself freely and voluntarily.

Question 28

C &;F

Answer 28

because it seems to have all the ingredients but they do not ‘add up’ to manslaughter. C, a teenage girl, was one of a group who threatened another group including Aimee, the victim, in circumstances amounting to the crime of ‘affray’ (Public Order Act 1986, s.3). Blows were struck by C’s group, and C punched A, who ran off. No evidence of pursuit. Shortly afterwards A collapsed, and later died, of heart failure – unknown to anyone she had a serious heart condition and the running triggered the heart failure. The prosecution based its case on the U/A of affray, rather than the punch (battery) but the affray was held not to be dangerous in the relevant sense as against A, carrying no risk of actual physical injury, whereas the act which was capable of being dangerous in that sense (the punch) was not the cause of death, which resulted from the running. (There is a suggestion that if V had been escaping from a continuing threat from C the outcome could have been different, but as C was not giving chase at that point the link was broken).

Question 29

Carey,

Answer 29

The victim was threatened by some gang members, and ran away
During the running away, the victim suffered a fatal heart attack
Held: not guilty of UAM. no evidence that Aimee was running away in order to escape from the possibility of further attack, rather than because she wanted to get home as quickly as possible.

The threats were not unlawful
The victim was not escaping, merely exiting at speed, not as a result of the threats
The threats therefore did not cause the victim’s deat

Question 30

R v Dhaliwal

Answer 30

. In that case the CA, in a considered dictum, put forward the view that violence used against someone with a fragile and vulnerable personality who then committed suicide might amount to u/a m/s. CA recognizes that such violence might provide a ‘material cause’, even if the most immediate cause was the suicide, if the violence triggered a ‘recognised psychiatric’ illness leading to the suicide (as distinct from ‘mere mental distress’ which would not be enough). There are problems reconciling this with Kennedy(2),

Question 31

Bateman

Answer 31

“In order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of 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.”

(Per Lord Hewart CJ)

Question 32

Andrews v DPP

Answer 32

Bateman was approved by the HL in Andrews, in which D had killed V, a pedestrian, while overtaking another vehicle. Lord Atkin again used the language of degrees of negligence to mark the distinction between civil and criminal cases. His Lordship also went on to use the word ‘reckless’ to sum up the very high degree of negligence required, but we need to be careful when reading this with modern eyes, in light of the fact that the word now has a settled technical meaning to the effect that D was aware of the risk of death (as laid down in G, the ‘wheelie bin’ case in the HL decided under the CDA 1971). There is no such requirement of subjective awareness in GNM. (Of course if D is actually aware of the danger of his conduct this just makes him all the more culpable – see below under ‘reckless manslaughter’).
So when reading Andrews today, we need to bear in mind that Lord Atkin would have been unlikely to select the ‘epithet’ ‘reckless’ in modern times!

Question 33

Adomako

Answer 33

GNM requirements

1) a duty of care based on the tort of negligence;
2) a breach
3) a breach which caused death and
4) a breach which was serious enough to be a crime

The defendant, a doctor, failed to notice that a respiratory tube had become disconnected from the patient during an operation
The disconnection would have been obvious, and the patient died from cardiac arrest

Question 34

R v Misra

CA

Answer 34

GNM - A reasonably prudent person would have foresee a serious risk, not merely of injury but of death.

The defendants (appellant doctors) sought to challenge the circularity of offence of gross negligence manslaughter following their conviction for the neglect of their patients.

Held: Although R v Adomako [1995] requires a jury to decide, in order find a defendant guilty of a crime, whether his breach of duty was sufficient to be classed as a crime, this test is not circular as it is merely a question of fact put to the jury and is indicative of an objective standard of care which is severely below that which is acceptable

Question 35

R v Holloway

Answer 35

GNM can occur even when D thinks that what he is doing is safe, provided the actual risk to life is apparent to a reasonable person. In Holloway (an appeal heard with Adomako in the HL). D was an electrician who had wired up a kitchen wrongly so that the householders were getting shocks. He was asked to check the work, but so incompetently that he failed to spot the fault and pronounced it safe when it wasn’t, and the householder was killed. The question in law is whether the defendant’s conduct was proof of gross negligence on his part, not whether he was indifferent to causing harm or whether he was doing his incompetent best.

Question 36

In S [2105] EWCA

Answer 36

suggests age is relevant. In a case that recalls the facts of Lamb, D had come into possession of a gun and was showing off to his girlfriend. It went off and killed her. The test was said to be a reasonable and prudent person of D’s age and experience. (D was still convicted – CA upheld sentence of 9yrs). Seems right in principle – no point in applying criminal standards to those too immature to see risks- and ideally one would like to see the same approach in relation to people with mental disability, eg in a case like Stone and Dobinson.

Question 37

R v Wacker

Answer 37

Can be GNM even where act is criminal.

W drove a lorry into the country knowing it contained 60 illegal immigrants. There was only a small vent to supply air to them during the journey, and even that had to be closed temporarily when there was a risk that noise from the passengers could be overheard. W shut the vent at one point but forgot to reopen it. 58 of the passengers died. In civil law there was a possible argument that there was no duty, because where there is a common unlawful purpose no action can be brought (the ex turpi causa rule). But the criminal law recognizes no such restriction – it is not about recovery of compensation for an illegal enterprise, but about protection fot the lives of those involved.

Question 38

Evans

Answer 38

the case of the stepsister who supplied heroin and was convicted of manslaughter by omission on the basis of a ‘Miller’ duty, it was up to the judge to decide that Miller could apply, and the jury then to find the facts supporting the duty.

Question 39

R v Willoughby [2005]

Answer 39

The defendant set fire to his pub in order to claim insurance monies
The fire accidentally killed an innocent other.

Held: guilty of GNM, No duty was identified, but the Court of Appeal accepted that a manslaughter conviction could be upheld on the basis that it is for the jury to decide whether a duty exits as a question of fact, and not for the judge to decide as a question of law

Question 40

Stone and Dobinson

Answer 40

(which is rarely applied, though there was a sentencing case of Barass where D was sentenced to 32m for failing to cater to the medical needs of his housebound sister, even though it appeared D had a low IQ and was unable to respond to these needs as distinct from need for food which he did meet). Cases like this are as much a failure of the social welfare system as they are suitable for criminal prosecution.

Question 41

Sinclair (1998) 148 NLJ 1353

Answer 41

which is more similar to Evans, D was a close friend of V and went with him to J’s flat to get drugs, which D paid for. J made attempts to help V when he reacted badly, but then abandoned him, whereas D stayed with him but did not call an ambulance. It was D’s close relationship with V that was held to found a duty, but J’s perfunctory attempts did not.

Question 42

Hyam

Answer 42

the old case formerly thought to be murder, where D set fire to her rival’s home to frighten her away, there is no doubt that the jury’s verdict that H saw GBH as ‘highly probable’ would now sustain a verdict of m/s, even though Woollin prevents it being murder if D did not want death/gbh to occur or appreciate that it was certain to happen. And the death/gbh does not have to be seen as ‘highly’ probable to support a manslaughter verdict – in Hussain, D drove off after a collision with a child who ran in front of his car, but must have realized that the child was still in the road and might be killed or seriously injured by being dragged along, as he was. (6yrs).
But reckless m/s is rarely prosecuted as a separate head, given that Hyam would also clearly have been guilty of u/a m/s, and Hussain of GNM

Question 43

Litchfield

Answer 43

breach of duty can be positive conduct or omission.

Litchfield shows that the fact that there is a lesser offence that deals with the activity in which D is engaged doesn’t prevent there also being a duty for GNM. In that case a ship’s master whose ship had run aground with loss of life objected to being prosecuted for m/s on the basis that there was a lesser offence under the Merchant Shipping Acts for which he might have been prosecuted. CA held this did not preclude GNM, any more than the existence of careless or dangerous driving offences precludes liability for death caused on the roads.

Question 44

Church

UAM

Answer 44

Dangerousness test

the unlawful act must be such as all sober and reasonable people wold inevitable recognise must subject the other person to, at least, the risk of some harm, albeit not serious.

1) There must be a likelihood of harm
2) “some harm”, albeit not serious
3) no requirement for D to foresee any risk of harm.

Question 45

Newbury

Answer 45

the Church test is not whether the accused recognised that it was dangerous but whether all sober and reasonable people would recognise its danger.

Question 46

D

Answer 46

CAUSES DEATH - UAM

CoA gives obiter support to suggestion that an unlawful and dangerous act may be enough for a manslaughter conviction where the victim was of “fragile and vulnerable personality”

Question 47

Are drugs dealers liable for GNM?

Answer 47

Dealers who supply to their users to self-inject are not liable for manslaughter, unless they stay with the user and witness the user becoming ill (like in Evans). The duty arises (evans) at the point in time when D realised or ought to have realised that V was suffering life-threatening illnesses. This duty arises because D created/contributed to the creation of the life-threatening situation.

CA uses broader expression “created or contributed”. Therefore, a duty arises when D becomes aware (or ought to be aware), of V’s dangerous illness and he supplied to V.

Question 48

Church

Answer 48

Defines dangerousness of UAM.

the unlawful act 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 there from, albeit not serious harm.”

The Church test was subsequently approved by Lord Salmon in Newbury