INVOLUNTARY MANSLAUGHTER

• In this lecture we will consider the problems in defining involuntary manslaughter and the 3 forms of this offence, namely :

• Constructive manslaughter (also known as unlawful and dangerous act manslaughter.)

• Gross negligence manslaughter• Reckless manslaughter

• Involuntary manslaughter is a difficult offence to define, see Lord Atkin’s dicta in Andrews v DPP (1937):

• “Of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions.”

CONSTRUCTIVE MANSLAUGHTER

• Where D intentionally does an act which is

• unlawful and dangerous and which causes

• death.

Unlawful

• Unlawful act must be a crime and not merely a civil wrong (Franklin (1883)).

• It must be a crime in itself i.e. it cannot consist of lawful conduct performed in a criminal manner (Andrews).

• An omission is insufficient, see Lowe (1973).

“Dangerous” act

• The act must be objectively dangerous - in the sense of likely to cause some harm (Church (1966)).

• D does not have to know that his act is dangerous (or unlawful) (Newbury (1977)).

• In deciding whether an act is dangerous, the sober and reasonable man has been held to have the same knowledge as D when he committed the offence (Dawson (1985)) and Watson (1989), including D’s background knowledge to the unlawful act (Ball (1989)).

• The unlawful act must expose V to the risk of some physical harm, not merely emotional distress or shock (Dawson) (although shock caused by a fright could result in manslaughter liability where it causes some physical harm e.g. a heart attack, as occurred in Watson).

• According to A-G’s Ref (1987), there is no requirement in constructive manslaughter (contrary to the decision in Dalby (1982)) that D’s act be directed at V.

Gross Negligence Manslaughter

• Where D intentionally does an act (or omits to act where he is under a legal duty to do so) which causes death, then he will be guilty if he was grossly negligent i.e. there was a high degree of negligence.

Criticisms of the Bateman Test

• It is circular - the jury should find D’s actions criminal (i.e. manslaughter) if they think the conduct falls so far below proper standards of care that it should be judged criminal.

• It focuses not on D’s state of mind but on the grossness of D’s conduct in the eyes of the jury.

• In Adomako (1995), the HL:

• overruled Seymour which had applied Caldwell recklessness in manslaughter;

• set out the requirements for gross negligence manslaughter.

• D is liable for manslaughter by gross negligence if:

• D owed V a duty of care AND• D was in breach of that duty of care AND• The breach of duty caused V’s death AND• The breach of duty was such, having regard

to the risk of death involved, as to be characterised as gross negligence and, therefore, a crime.

Duty

• The ordinary principles of of the law of negligence apply in determining whether D owed V a duty.

• If D is to be liable in respect of an omission, he would have to be under a legal duty to act.

Gross Breach Of Duty

• Whether the jury determine that D’s breach of duty amounted to gross negligence involves consideration of:

• the seriousness of the breach in all the circumstances in which D was placed that,

• taking into account the risk of death involved,• his conduct is so bad that it should be

regarded as criminal?

Criticisms of Adomako• How great the risk of death must be is not

clear.• The jury determine whether the negligence

was sufficiently gross for criminal liability - this leads to uncertainty.

• Should Adomako have been liable for manslaughter when, had the patient survived in a persistent vegetative state, he would not have been liable for an offence due to his lack of mens rea?

• The gross negligence test is circular.

Any arguments in favour of gross negligence?

• It allows juries to acquit a D who may objectively have acted very dangerously but did so in the context of, e.g. inexperience, stress, mistake or confusion which allows the jury to conclude that the conduct was not "bad enough" to justify punishment.

SUBJECTIVE RECKLESSNESS

• The existence of subjective reckless manslaughter as a separate head of manslaughter was recognised in Lidar (2000).

What is the nature of the risk which D must have

foreseen?

• According to Lidar, the risk must be of serious injury (or death).

• Question is: did D foresee the risk of serious injury as highly probable and decide to take the unjustified risk of such harm occurring anyway?