#4611 - Involuntary Manslaughter - GDL Criminal Law

• Where the jury cannot prove the MR for murder: difficult to define

  • Lord Atkin in Andrews v DPP: ‘based mainly, though not exclusively, on the absence of intent to kill, but with the presence of an element of ‘unlawfulness’

1. Unlawful act (constructive) manslaughter; and

2. Manslaughter by gross negligence

Unlawful act (constructive) manslaughter

• Accused lacks the MR for murder but kills someone in the course of committing an unlawful act

• DPP v Newbury and Jones: modern definition: to be guilty the prosecution must prove –

1. The D(s) intentionally (voluntarily) did an act;

2. The act was unlawful;

3. The unlawful act was dangerous;

4. The unlawful act caused the death of the victim

1. The D’s act was intentional

• Intentional as to the act not to the consequences which flow from it

2. The D’s act was unlawful

1. The unlawful act must be a criminal act

   • crime not a tort (civil):

     • R v Franklin: civil wrong cannot be used as ‘an incident which is a necessary step in a criminal case’

   • The criminal act must be independent of the fact that it has caused death

     • Must prove the AR and the MR

     • R v Lamb: D pointed a revolver at the victim as a practical joke: both parties believed there was no risk of the revolver firing a bullet – could not make out the MR for assault so could not be guilty of unlawful act manslaughter (did not have necessary intention)

     • Scarlett: If the D is using reasonable force in acting in self-defence then there will be no unlawful act manslaughter (had a defence)

   • Can arise from any criminal offence

2. The act must be intrinsically unlawful

   • Cannot be based on a lawful act which becomes unlawful because of the negligent or reckless manner in which it was performed: e.g. driving – Andrews v DPP (cannot be based on negligence)

3. There must be an act rather than an omission

   • R v Lowe: Cannot be based on an omission – must be on a positive act

     • Failure to do something whilst under a duty would correctly be charged as gross negligence manslaughter (here criminal omission to look after 9 week old daughter)

4. There is no need for the act to be aimed at the victim

   • A-G’s Reference (No 3 of 1994): ‘all that is needed, once causation is established, is an act creating a risk to anyone’

3. The unlawful act was dangerous

• R v Church: the sober and reasonable man would recognise that some harm, albeit not serious would result from the act

• Objective test based on what the reasonable person would appreciate: DPP v Newbury

1. Type of harm

   • R v Dawson: the type of harm likely to result from the act must be physical rather than emotional: although Watkins LJ seemed to recognise shock leading to actual physical harm

   • R v JM & SM: fight btw brothers and bouncers – 1 bouncer later collapsed and died (weakened blood vessel ruptured) – CA: no need to foresee precise type of harm, just that some harm might occur

2. Circumstances to be taken into account

   • Dangerousness judged by sober, reasonable man : takes into account any facts known to the D

   • R v Dawson: test can only be based on a reasonable man who has the same knowledge as D and no more (trial judge had misdirected Jury that the D would have had knowledge of the V’s bad heart)

   • But :could become liable if he became aware of special knowledge during the commission of the offence which would make the act dangerous:

     • R v Watson: D(s) did not know that the elderly frail victim was present. CA said that the reasonable man would have realised it was dangerous once they became aware of the particular circumstances: the unlawful act comprised the whole of the burglarious intrusion

   • R v Ball: D claimed he had mistakenly thought he’d put a black cartridge into gun but the reasonable man wouldn’t have made the mistake – reasonable man has any special knowledge that the D has

   • So it is assumed:

1. The sober and reasonable man knows everything he would have known if he had been in the D’s shoes at the time of the offence

2. The sober and reasonable man has any special knowledge that the D has or ought to have known

3. Being reasonable he does not make any unreasonable mistakes made by the D

4. The unlawful act caused the death of the victim

• Normal rules of causation apply: must be the factual and legal cause of the death of the victim

Causing death by supplying drugs

1. Administration of the drug by the D: where X directly administers drug to Y

• R v Cato: D argued that there was no unlawful act as the V had consented – CA held that there was unlawful act manslaughter, D had acted unlawfully by administering a noxious thing contrary to s23 OAP 1861

• Confirmed by R v Kennedy

2. Supply of drugs and assisting the deceased to take drugs: where X merely supplies Y with the drugs or assists him

• If the deceased is deceived then supplier may still be guilty of an offence under s23 OAPA – elements in R v Kennedy – this s23 offence could form the basis of a conviction for unlawful act manslaughter

• Situations where the deceased voluntarily consumes the drugs, in awareness of what they are taking:

  • Confusion as to what the unlawful act was (accessory ‘taking drugs’ Cato) (supplying drugs in R v Rogers; R v Finlay) and causation issues (taking = NAI)

  • Issues determined by HL in R v Kennedy: D supplied a dose of heroin in a syringe which he handed to the victim, who injected himself and suffered adverse reaction

    • HL: manslaughter will never be found where the D supplies a class A drug to someone who then voluntarily self-administers (in the case of a fully informed and responsible adult)

    • The act of supplying is not in itself dangerous

    • Need a breach of s23 OAP 1861 for unlawful act manslaughter

• ‘Joint administration’ – R v Burgess, R v Byram: CA concluded that you can have unlawful act manslaughter in cases of joint administration, as it is so close to administration that it constitutes an unlawful act (Byram had prepared the drug, drew it into the syringe, helped the deceased find a vein and may have helped him inject it – helped to withdraw the needle from the vein) – Byram’s conviction was actually quashed as he had pleaded guilty on advice based on CA’s decision in Kennedy, subsequently overruled

Manslaughter by gross negligence

• No requirement that the D was involved in a criminal act: basis of the charge is that the D has breached a duty of care (can be done by omission)

• Act or omission must be considered so bad that it necessitates a criminal charge:

  • R v Bateman: ‘showed such disregard for the life and safety of others as to amount to a crime’

• Andrews v DPP: HL summarised degree of negligence as being close to reckless, but not completely the same: reckless suggests an indifference to risk, whereas accused may have appreciated the risk and intended to avoid it but means adopted to avoid it had such a high degree of negligence as to justify conviction

• R v Adomako (HL)appealed on the basis of whether correct test should be recklessness or negligence

  • HL upheld Andrews v DPP: that the test was gross negligence and not recklessness

• Basic requirements from Adomako:

1. Existence of a duty of care

2. Breach of that duty

3. That the breach causes death;

4. That there was a risk of death; and

5. That the breach was so bad as to amount to ‘gross negligence’

1. Duty of care

• Usually easy to satisfy: essentially the same meaning as in tort - duty owed to anyone who could foreseeably be harmed by one’s acts

• Everyone has a general duty to take care to avoid injury by a positive act to his neighbour

• Can arise for an omission in circumstances where the D is under a specific duty to act (can arise by statute or contract) or where there is a special relationship (assumption of responsibility) or where the D has created a dangerous situation

  • R v Singh: deceased tenant died from carbon monoxide poisoning – D was a maintenance man who was in charge of the lodging house: ‘there existed a close relationship between him and his father’s tenants’: several tenants had complained over 4 months and Singh knew of the dangers : he had assumed a duty of care

  • R v Ruffell: CA found that the D had breached a DOC towards the victim even though it is not clear on what basis the duty arose: supplied drugs to the victim and then deliberately left him outside after suffering adverse reaction to drugs

• Possible to have a duty of care in criminal cases even though liability would have been avoided in tort:

  • R v Wacker: appellant, a lorry driver, was convicted of killing by gross negligence after 58 illegal immigrants were suffocated in his lorry

    • In tort ‘ex turpi causa non oritur actio’, but this didn’t apply in criminal law

2. Breach of duty of care

• HL in Adomako: ordinary principles apply in deciding whether there is a breach (whether acts fell below the standard expected of a reasonable person)

• Reasonable man will have any special skill used by the D (in Adomako – reasonably competent anaesthetist)

3. The breach caused the death of the victim: normal causation rules apply

4. There was a risk of death: must be foreseeable

• Singh: there must be an obvious and serious risk of death (not merely injury or even serious injury) – confirmed by CA in R v Misra and...