#17260 - Involuntary Manslaughter - GDL Criminal Law

Difference from murder/voluntary manslaughter as unintentional, therefore trying to construct liability out of another crime.

Three types:

• 1) Unlawful Act Manslaughter

  • Defendant is prima facie carrying out an unlawful act. It is dangerous and likely to cause some injury to another person.

• 2) Gross Negligence Manslaughter

  • Defendant is prima facie conducting a lawful activity, but so negligently that it becomes unlawful (e.g. speeding at 120mph). Punishing wrongdoer for their gross negligence.

• 3) Reckless Manslaughter

  • NB hasn’t been indicted since 1999

  • Defendant consciously thinks about risk of harm, but goes ahead and takes the risk. The victim dies.

Aka Constructive Manslaughter

Four Elements:

• 1) D must do the act intentionally

• 2) The act must be unlawful

• 3) The act must be dangerous

• 4) The act must make cause or make a significant contribution to the death

1) D must do the act intentionally

• This is not an intention to kill, rather that the initial unlawful act must be intentional

• This must be a positive action not an omission:

  • R v Lowe (1973) – Child died after neglect of parents. Held omission was insufficient for unlawful act manslaughter.

• Cannot be based on negligence:

  • Andrews v DPP (1937) – negligent driver hit and killed a pedestrian. Held that unlawful act manslaughter cannot apply to negligenta cts.

2) The act must be unlawful

• This must be a crime of some sort. A tort is insufficient (R v Franklin – swimmer died after being struck by a box thrown from pier;)

• Prosecution must demonstrate both AR and MR of unlawful act.

  • R v Lamb (1967) – playing with a gun, didn’t believe it would go off. Prosecutors argued UAM on basis of assault. Failed to demonstrate an immediate apprehension of violence therefore failed.

  • NB therefore need to know basic principles of OAPA, Drugs offences, theft, sexual offences etc for Q on unlawful act?

• R v Newbury (1977) – Defendants had thrown paving slabs from a bridge. They crashed through the train and killed the guard.

  • The HoL incorrectly assumed an unlawful action, the unlawful action itself was not articulated. Likely to be criminal damage.

• Can be a strict liability crime:

  • R v Andrews (2002) – Defendant and victim went out and drank large amounts of alcohol, defendant injected the victim with insulin as a “pick me up.” Held unlawful act was a strict liability crime: constraining the distribution and use of prescription only medicine.

• The defences which apply to the unlawful act also apply to unlawful act manslaughter (R v Scarlett)

• The crime need not be directed at the eventual victim. Could even be directed at objects (criminal damage etc.) Follows principles of transferred malice.

  • R v Larkin (1942) – D was trying to scare mistress’ lover. Accidentally killed mistress. Doctrine of transferred malice applied.

  • R v Mitchell – D pushed old man in queue at Post Office. Knocked over old lady who died. UAM applied.

3) The act must be dangerous

• The degree of dangerousness:

  • R v Church (1966).- D knocked woman unconscious who mocked him for sexual ability. Believing her dead D threw V in the river drowning her.

    • Edmund Davies LJ “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 therefrom, albeit not serious harm.”

• Initially required that D saw that some physical harm might result from the action:

  • R v Dawson (1985) – three men robbed petrol shop with fake guns. Cashier had heart condition and died from heart attack. Successfully appealed UAM conviction.

    • Subjective test: on the facts known to the D was the act dangerous. Ds did not know of heart condition therefore did not believe it to be dangerous.

• Now objective, msut that it would have been obvious to a reasonable person that some harm might result:

  • R v Watson [1989] – Burglar shouted at 87yo man during burglary. Victim died of heart attack. Held it was obvious to any reasonable person that the frailty of the man made the act dangerous.

  • Carey & Ors [2006] – V was assaulted by appellants who had been drinking. Ran 109m then collapsed and died from latent heart condition.

    • Held that this was not act which the hypothetical sober and reasonable person would regard as subjecting Aimee to some physical harm.

    • Take you victim as you find them is a separate issue.

  • R v JM and SM [2012] – JM and SM had been involved in a fight with a few doormen in a nightclub. One of the doormen, who had no signs of health problems, had a renal artery aneurysm and died.

    • Only needed to demonstrate that the unlawful act posed the risk of some harm.

    • This was left to the jury to decide.

  • R v JF and NE [2015] – D’s (age 14 and 16 – IQ of 6yo) set fire to a derelict building, killing a squatter in the building.

    • Held the test for dangerousness is an objective not a subjective one. Up to parliament should they wish to change the law.

4) The act must make cause or make a significant contribution to the death

• It is irrelevant whether the act is directed against the victim

  • R v Goodfellow(1986) – The appellant had been harassed by two men and wished to move from his council accommodation. In order to get re-housed he set fire to his house making it look as if it had been petrol bombed. Unfortunately his wife, son and son's girlfriend all died in the fire.

    • Held there was no requirement that the unlawful act was directed at the victims nor that it was directed at a person.

• Recall Lord Bignham in Kennedy (No.2) – a freely self-administered drug caounts as a novus actus interveniens therefore supplier of the drug is not liable in manslaughter.

• Recall R v Wallace (2018 – retrial pending), horrific acid attack leading to V taking own life. May not break chain of causation as lacked ‘free and unfettered volition’

• Recall AG’s Ref No 3 of 1994 – D stabbed pregnant girlfirned. Baby born prematurely. Died 121 days later as a result. The attack on the mother was an unlawful act which caused the death of the baby.

  • There is no requirement under constructive manslaughter that the unlawful act is aimed at the actual victim or that the unlawful act was directed at a human being.

Under R v Rose [2017] there is a five part test for GNM:

• 1) D must owe a duty of care

• 2) D must breach of this duty

• 3) It must be reasonably foreseeable that the breach of duty gave rise to an obvious and serious risk of death

• 4) The breach cause the death

• 5) The breach must amount to gross negligence.

1) D must owe a duty of care

• The normal tort law rules on DoC apply here.

• However, there are some differences. Notably ex turpi causa does not apply:

  • R v Wacker [2002]: Chinese immigrants paid a lorry driver to get them into England. Coming into the country, the driver closed the air vents and 58/60 died. Wacker liable for GNM.

• Willoughby [2003] – normally the judge will tell the jury if there is a duty.

• R v Evans (2009) Evans accused of supplying a syringe to her half-sister as she came out of rehab. Did not phone for help as they were worried they would get into trouble with the authorities.

  • Judge can direct the jury in the alternative: if you find facts A, B and C then there is a duty, if you find X, Y and Z then there is no duty between the parties

2) D must breach of this duty

• Normal tort principle apply here.

3) It must be reasonably foreseeable that the breach of duty gave rise to an obvious and serious risk of death

• Condition added in Rose [2017] Optometrist, statutory duty of care, victim was a 7 y/o boy, build up fluid on the brain which should have been visible on the retinal image

  • Initially convicted of GNM. Overturned on appeal. Conflicting evidence on the origin and timing of the images. Cannot use the benefit of hindsight.

  • The test must be objective and prospective.

4) The breach cause the death

• Causation principles above

5) The breach must amount to gross negligence.

• Defined in Bateman (1925) per Lord Hewitt CJ:

  • Negligence to a degree that “amounts to a crime against the State and conduct deserving punishment.”

• Followed in Adomako [1994] – anaesthetist failed to notice breathing tube had come disconnected. Patient died.

  • per Lord Mackay: “the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission…It is true that to a certain extent this involves an element of circularity”

• Misra [2004] – D’s failed to notice an infection post-op. Patient died. GNM.

• Bowler...