#3089 - Involuntary Manslaughter - GDL Criminal Law

Introduction

• involuntary manslaughter: all unlawful homicide other than murder.

  • no malice aforethought: distinguished from murder.

• difficult to define:

  • [Ld Atkin] in Andrews v DPP [1937]: ‘so many and so varying conditions … absence of intent to kill, but with the presence of an element of “unlawfulness” which is the elusive factor’.

  • Law Commission Report: risk of becoming amorphous ‘catch-all’ offence.

• 2 forms considered:

  • 1. unlawful act (or constructive) manslaughter: d. causes victim’s death as result of committing some other, lesser criminal offence.

  • 2. gross negligence manslaughter: d. causes victim’s death as result of grossly negligent behaviour.

Unlawful Act (Constructive) Manslaughter

• constructive manslaughter: d. lacks MR for murder, but kills someone in course of committing a crime.

- Definition: DPP v Newbury and Jones [1977]: d. pushed concrete paving slab onto oncoming train, killed guard.

• 1. d. intentionally (voluntarily) did an act

• 2. act was unlawful

• 3. act was dangerous

• 4. act caused death of victim.

- Defendant’s act was intentional: only act, not consequences must be intended (i.e. voluntarily done).

• not omissions: R v Lowe [1973]

• not negligence: Andrews v DPP [1937]

- Defendant’s act was unlawful.

• a. act must be criminal act: i.e. not tort.

  • R v Franklin [1883]: established principle (previously, could be civil).

  • AR + MR must be proven: act must be criminal independent of fact that caused death.

    • R v Lamb [1967]: d. pointed revolver at v. as practical joke, both thought would not fire, but went off no manslaughter: no intention of committing unlawful act.

    • + no defence: R v Scarlett [1993]: d. removed violent v. from d’s pub, v. fell down stairs + died no manslaughter: using reasonable force acting in self-defence.

  • need not be really serious: e.g. can be common assault.

  • need not be offence vs person: e.g. can be criminal damage, if causal link + dangerous.

• b. act must be intrinsically unlawful: i.e. not because of negligent/reckless performance (e.g. driving).

  • Andrews v DPP [1937]: established principle.

• c. act not omission.

  • R v Lowe [1973]: d. criminally omitted to look after his 9-week-old daughter no manslaughter.

  • N.B. gross negligence manslaughter: if failure to act while under a duty of care.

• d. no need for act to be aimed at victim: just needs to be foreseeable that it hurts anyone at all.

  • A-G’s Reference (No.3 of 1994) [1998]: [Ld Mustill]: ‘all that is needed, once causation is established, is an act causing risk to anyone. … any wrongful act leading to death, in circumstances where it was foreseeable that it might hurt anyone at all’ even if actual victim not reasonably foreseeable.

    • affirming R v Goodfellow [1986].

  • examples: R v Larkin; R v Mitchell.

- Act must be dangerous.

• R v Church [1966]: [Edmund Davies J]: reasonable person foresees risk of some harm, not necessarily serious harm.

  • facts: d. fought with v., then dumped unconscious body in river

• objective test: what a sober and reasonable person would appreciate – DPP v Newbury.

• physical harm must be foreseen – R v Dawson [1985]: [Watkins LJ]: but inc. shock.

• circumstances to be taken into account: what does sober + reasonable man know?

  • 1. everything reasonable man would have known in d’s position at time of offence.

    • R v Dawson: d. robbed petrol station, did not know of v’s bad heart sober + reasonable man would know robbery could cause fear, but not heart condition.

  • 2. any special knowledge d. had or ought to have known (i.e. obvious to reasonable man).

    • R v Watson [1989]: d. broke into house of old frail man (not knowing), v. later died of heart attack reasonable man would have realised act dangerous once they became aware of v’s condition.

  • 3. NO unreasonable mistakes made by d.

    • R v Ball [1989]: d. mistook live cartridge for blank, shot + killed v. reasonable man would have realised (difference in weight) + not made mistake – act dangerous.

- Act caused death of victim: factual + legal causation.

- Causing death by supplying drugs – R v Kennedy (No 2) [2007] clarifies position.

• a. if d. administers drug to v.: s23 OAPA 1861 – can give rise to unlawful act manslaughter.

  • R v Cato [1976]: d. injected consenting v. with heroin manslaughter: unlawful act under s23 OAPA 1861 (administering noxious thing), consent irrelevant – confirmed by R v Kennedy.

  • R v Kennedy: clarified AR – administering a poison; causing a poison to be administered; or causing another to take a poison (not mere supply).

• b. if d. supplies drug to v. or assists v. to take drug:

  • if v. unaware of what substance is: s23 OAPA offence may be unlawful act manslaughter.

  • if v. aware: not unlawful act manslaughter – R v Kennedy (No 2): d. supplied heroin in syringe to v., v. injected self + later died.

    • HoL: not manslaughter – simple supply not enough (overturning CoA).

    • rationale: causation – v’s act voluntary + informed decision = novus actus interveniens; + also: supply of drugs itself not dangerous.

  • joint administration: R v Burgess; R v Bryam [2008]: d. prepared drug + helped v. inject it.

  • N.B. offence to supply controlled drug: s4(3)(a) MDA 1971.

Manslaughter by Gross Negligence

- Gross negligence: d. breached duty of care by act/omission – so bad that necessitates criminal charge.

• R v Bateman [1925]: classic definition – negligence ‘showed such disregard for life + safety of others as to amount to a crime against the State’.

• Andrews v DPP [1937]: [Ld Atkin]: not just ‘reckless’ (i.e. indifferent to risk) – also may have appreciated risk but been negligent in avoiding it.

• R v Adomako [1995]: d. anaesthetist, failed to notice dislodged tube, v. had heart attack from lack of oxygen guilty: [Ld Mackay]: gross negligence correct test – normal principles apply:

  • 1. d. owes duty of care to v.

  • 2. breach of duty

  • 3. breach causes death

  • 4. there was risk of death

  • 5. breach so bad as to amount to ‘gross negligence’.

- Duty of care: normal rules of negligence – where harm caused by d’s acts foreseeable.

• positive acts: everyone has duty to take care to avoid injury to his neighbour.

• omissions: where d. is under specific duty to act (statute, contract, special relationship with v., d’s voluntary assumption of duty of care, d. creating a dangerous situation) – judge can decide on facts:

  • R v Singh [1999]: d. ‘maintenance man’ of building, v. tenant died of CO poisoning from faulty gas fire gross negligence: assumed duty of care.

  • R v Ruffell [2003]: d. supplied drugs to v., v. suffered reaction, d. deliberately left v. outside in cold breach of duty of care (although not clear how duty arose).

• criminal liability poss. even if would be avoided in tort: e.g. ‘ex turpi’ defence does not apply.

  • R v Wacker [2003]: d. lorry driver, 58 illegal immigrants suffocated in lorry gross negligence even though in tort no duty of care between parties to criminal exercise.

- Breach of duty of care: normal rules of negligence – did d’s act fall below standard of reasonable person?

• special activity/skill taken into account: e.g. R v Adomako: standard of reasonable anaesthetist.

- Foreseeable risk of death.

• R v Adomako: [Ld Mackay]: breach must have involved risk of death.

  • but unclear: quoted R v Bateman test – ‘disregard for life + safety of others’.

• risk of serious injury not enough: R v Singh; confirmed by [Ld Judge] in R v Misra and Srivastava [2005].

- Breach sufficiently serious to constitute ‘gross negligence’ – i.e. criminal.

• question of degree: jury should decide with little guidance – R v Adomako.

  • [Ld Mackay]: attempt to specify degree would be spurious.

• R v Litchfield [1998]: ‘so bad, so obviously wrong, that it can be properly condemned as criminal … in the ordinary language of men and women of the world’.

  • facts: d. captain of antique schooner, sailed perilously close to coast aware of risk that engine might fail, 3 crew died.

• no need to prove particular state of mind: A-G Ref (No. 2 of 1999) [2000].

• general pointers:

  • more likely if d. responsible for series of acts/omissions:

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