#15536 - Homicide 2 Involuntary Manslaughter - GDL Criminal Law

Criminal Law : Homicide 2, Involuntary Manslaughter

• There are many varieties of involuntary manslaughter

• Involuntary manslaughter distinguished from murder by the lack of ‘malice aforethought’.

  • Lord Atkin, Andrews v DPP: ‘ ... the law recognises murder on one hand based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intent to kill, but with the presence of an element of ‘unlawfulness’ which is the elusive factor’.

• Two offences within involuntary manslaughter on GDL

  • (1) Unlawful Act manslaughter

  • (2) Gross negligence manslaughter

(1) Unlawful Act (constructive) Manslaughter

• Where the accused lacks the MR for murder, but kills someone in the court of committing an unlawful (criminal) act.

• Requirements from AG’s Reference (no 3 of 1994); confirmed in HL DPP v Newbury & Jones, HL

  • Facts of DPP v Newbury & Jones:: 2 15-yr old boys, killed guard by pushing a concrete paving slab onto an oncoming train.

  • Requirements:

  • (1) D must do an intentional (voluntary) act

  • (2) The act must be unlawful

  • (3) The act must be dangerous

  • (4) The act must cause the death

(1) D must do an Intentional Act

• Intention as to act, not outcome. A voluntary act.

• The act does not need to be aimed directly at the victim, R v Goodfellow

• AG Ref (no 3 of 1994): it is enough that it was foreseeable that the act might hurt anyone—no requirement that the risk be perceived in respect of the ultimate victim.

• Liability can only be based on a positive act, not an omission. R v Lowe [in study notes this comes under the ‘unlawful act’ bit below]: Lowe charged with manslaughter of 2-month-old daughter. Basis of offence—his failure to ensure she was seen by a doctor; and generally neglected her. Held: liability cannot be based on an omission/failure to act, for unlawful act manslaughter, even if the omission is deliberate.

• (NB: this doesn’t apply to gross negligence manslaughter, which can result from a failure to do something while under a duty to do it).

(2) An unlawful act

• Must be a criminal act not just a tort/civil wrong: R v Franklin.

• All elements of the criminal offence must be made out (AR and MR), R v Lamb: Lamb and friend playing with a revolver; 2 of 5 chambers were loaded, but they both appeared to know which chambers were loaded. Lamb pulled trigger, expecting empty chamber. Friend was shot and killed. CA held: the only possible unlawful act here could be assault, but neither the AR nor MR was met (AR—victim did not apprehend immediate unlawful personal violence; and MR did not intend, nor did he foresee the risk). So he couldn’t be guilty of assault, as all elements had not been proven; so couldn’t be guilty of unlawful act manslaughter.

• And must be lack of defences, R v Scarlett: Must consider all the elements of the unlawful act, including defences. Scarlett a publican, removing a drunk from his pub. The drunk took a swing at Scarlett. Scarlett bundled him out the pub. Outside the drunk fell down, hit his head, later died. Held: if battery caused the fall, then Scarlett was entitled to defence of self-defence, so not guilty.

• Liability cannot be based on negligence, it must be intrinsically unlawful: Andrews v DPP. The unlawful act cannot be based on a lawful act, which becomes unlawful only because of the negligent or reckless manner. Andrews was driving at over 30mph, collided with a pedestrian who was killed. HELD: the unlawful act was negligence, negligence cannot form the basis for unlawful act manslaughter.

  • ‘There is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness which the Legislature makes criminal ... ‘

• Unlawful act manslaughter is like a parasite offence: cannot exist on its own, prosecution must prove a separate offence (often an offence against the person, but could be arson, robbery, criminal damage etc). Can be any offence which is voluntary, not negligence, and not an omission.

(3) The act must be dangerous

• R v Church: Church took a woman to back of his van for sexual purposes; seemed to be consensual; she mocked Church and slapped him. He knocked her out; thinking she was dead, he dumped her in river and she drowned.

• CA: test of dangerous is an objective test: ‘the unlawful act must be such that all sober and reasonable people would inevitably recognise must subject the other person to, at least, the the risk of some harm resulting therefrom, albeit not serious harm’—

• i.e. whether the ‘reasonable man’ would foresee ‘some harm’.

• So based on what reasonable person would appreciate, objective test, confirmed in DPP v Newbury

• What is meant by harm? Must be physical harm, R v Dawson: 3 Defendants; went to rob a petrol station. Black was a petrol attendant. They threatened Black and demanded money; Black pressed alarm; they ran off; Black had collapsed and died, from a heart attack. HELD: must be physical, not psychological harm, that is reasonably foreseen. But if you frighten some massively it could be foreseeable that physical harm is caused.

  • Can include shock--Watkins LJ: ‘no sensible reason why shock produced by right should not come within the definition of harm in the context ... Shock can produce devastating and lasting effects, for instance upon the nervous system. That is surely harm’.

• R v Watson: described how death can be caused by shock or fear in people with narrow arteries. And the reasonable man might know that older people have narrower arteries, so foreseeable risk of ‘some harm’.

• No need for the RM (reasonable man) to foresee the type of harm which led to death. R v JM & SM: rejected from a nightclub; fight with bouncers ensued. S and one bouncer fell down the stairs. Another bouncer later collapsed and died of a ruptured aneurism, caused by shock and increased blood pressure. HELD at first instance: a reasonable person would not foresee an increase in blood pressure and rupture of aneurism. But CA said: no need to foresee the precise type of harm that led to the death; a reasonable man would have foreseen ‘some harm’ from the fight .

• CA also reiterated that must foresee some physical injury, but that could include shock (although not ‘concern, fear or distress’). But if reasonable person could foresee ‘shock’ (a medical condition), the requirement is satisfied.

• Dangerous—knowledge of the RM

  • He will be in the shoes of the defendant, R v Dawson: RM will know what the RM would have known in shoes of the D, even if the actual D was particularly dense. eg If the victim was on crutches, RM would foresee harm of pushing that person.

  • In Dawson, D and accomplices, wearing masks and armed with an imitation gun and a pickaxe handle, robbed a petrol station; cashier suffered from a heart condition, died after the robbery. Trial judge directed that the RM would know of the victim’s bad heart. CA: this was a misdirection.

  • CA: in Dawson, an RM present at the scene, in D’s shoes, would not have known something (in this case a heart condition) which D could not possibly have known.

  • So you put a RM in the shoes of the D as if he were there at the time, and ask what would a RM have noticed.

  • ‘The test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene ... ‘

• Confirmed in R v Watson, and took further—includes knowledge which would become apparent during the course of the unlawful act: Watson broke into a house; abused the houseowner, who died later as a result of heart attack. Watson argued he was not aware of victim’s condition and didn’t know the house was occupied. CA: the RM would have known, when they confronted the owner, that he was frail and elderly, so RM would have foreseen ‘some harm’. And it didn’t matter they didn’t know of his condition before, it was enough that it became apparent during the unlawful act. Once they realised the old man was in the house, a RM would consider that there was the risk of some harm being caused to an elderly and frail man.

• Special knowledge D has both before and at the time of the unlawful act, obiter in R v Farnon: the RM is given knowledge of facts known by D, even if he would not have had knowledge of them just by being in D’s shoes at the time of the event. Was obiter in Farnon, D’s didn’t have special knowledge in that case. They had set a mattress alight; basement filled with acrid smoke; killed a homeless man.

• Special knowledge given to RM, confirmed in R v Ball: an argument, Ball shot G and killed her as she was climbing over a wall. Ball had kept live and blank cartridges in packet of his overall. After the argument he had loaded the gun and fired at G. He claimed he only intended to frighten her by firing a blank cartridge. But HELD: Ball knew some of the cartridges were live, so the RM would be given this knowledge too.

• + The jury do not take into account (unreasonable) mistakes by the D, R v Ball: If the ordinary prudent person would not have made that mistake. The RM, who would have known that some cartridges were live, would not have made the mistake of assuming the cartridge he used was a blank one, would have been able to tell the difference.

• SUMMARY on dangerousness

  • (1) Harm means physical harm (includes ‘shock’)

  • (2) The harm foreseen by the RM does not have to be the harm caused

  • (3) the RM knows everything he would have known from being in D’s shoes at time of offence

  • (4) the RM has any special knowledge the D has

  • (5) The RM does not make unreasonable mistakes

(4) The act...