Involuntary Manslaughter Special Study Topic 2011
This is the unlawful killing when D does not have any intention, oblique or direct, to kill or to cause grievous bodily harm. The lack of intention is what distinguishes it from murder It is also important to know that it is different from Voluntary Manslaughter where D has the intention but due to circumstances they are able to use one of the special defences
Involuntary manslaughter covers a wide range and be as little as carelessness or there can be a massive amount of blame on D’s part The sentence can range from life to a non custodial sentence if the judge sees fit
Unlawful Act Manslaughter AKA Constructive Manslaughter because the liability for the death is built up or constructed from the facts that D had done a dangerous unlawful act which resulted in the act This makes D liable even if he did not realise that death or injury might occur
Definition D must do an unlawful act The act must be dangerous on an objective test The act must cause the death D must have the required mensrea for the unlawful act
Unlawful Act The death must be caused by an unlawful act The unlawful act must be a criminal offence A civil wrong is not enough as per Franklin 1883; D threw a large box from the West Pier in Brighton and it hit a swimmer and hilled them, it was held that a civil wrong was not enough to create liability for unlawful act manslaughter.
Lamb 1967 Two boys were playing with a revolver. There were two bullets in the chamber but neither were opposite the barrel. The two boys believed that this meant it would not fire. One of the boys pointed the gun at the other and fired. As he pulled the trigger the chamber turned and the gun went off killing the boy. The other was charged with unlawful act manslaughter. Held:There was no unlawful act as no assault had been committed as the victim did not believe the gun would go off therefore he did not apprehend immediate unlawful personal violence.
There must be an act, an omission cannot create liability as per Lowe 1973 – wilful neglect of baby son In many cases the unlawful act will be some kind of assault, but any criminal offence can form the unlawful act, provided that it involves an act that is dangerous in the sense that it is likely to cause some injury
Dangerous Act Must be dangerous on an objective test, Church 1966 tells us “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” From this, it can be seen that the risk need only be of ‘some harm’. The harm need not be serious. If a reasonable, sober person realises that the unlawful act might cause some injury, then this part of the test for unlawful act manslaughter is satisfied. It does not matter what D thinks.
Larkin 1943 The defendant waved a razor about intending to frighten his mistress's lover. His mistress, who was drunk, blundered against the razor and was killed. The defendant was convicted of manslaughter. It was held that where the act which a person is engaged in performing is unlawful, then, if at the same time it is an act likely to injure another person, and that person dies, the accused is guilty of manslaughter.
It is clear that the act need not be aimed at V. this was the situation in Larkin, where the assault was against the man but the woman dies. This is also the case in Mitchell 1983
Mitchell 1983 The defendant, having become involved in an argument whilst queuing in a post office, pushed an elderly man, causing him to fall accidentally on the deceased, an elderly woman, who subsequently died in hospital from her injuries. The defendant was convicted of unlawful act manslaughter. He unsuccessfully appealed on the ground that his unlawful act had not been directed at the victim.
Staughton J held that although there was no direct contact between the defendant and the victim, she was injured as a direct and immediate result of his act. Thereafter her death occurred. The only question was one of causation and the jury had concluded that the victim's death was caused by the defendant's act. The actions of the elderly man in falling on the victim were entirely foreseeable and did not break the chain of causation between the defendant's assault and the victim's death. Dalby was distinguishable on its facts as a case where the victim was not injured as a direct and immediate result of the defendant's act. In addition, the court saw no reason of policy for holding that an act calculated to harm A cannot be manslaughter if it in fact kills B: see Latimer (1886).
Act Against Property An act can be aimed at property as long as the reasonable man test is satisfied. This was seen in Goodfellow 1986
R v Goodfellow 1986 The defendant had deliberately fire bombed his own council house in the hope that he would be rehoused by the council. His wife and children, who had been in the house, were killed in the ensuing blaze. He appealed against his conviction for manslaughter on the ground that his unlawful act (criminal damage) had not been directed at the victims as required by Dalby. The Court of Appeal held that Dalby should not be construed as requiring proof of an intention on the part of the defendant to harm the victims. It was to be viewed as an authority on causation, in that the prosecution had to establish that there had been no fresh intervening cause between the defendant's act and the death.
Goodfellow shows us the elements of Unlawful Act Manslaughter 1) The act was committed intentionally: Intended to set the flat on fire 2) It was lawful: Arson Criminal Damage Act 1971 3) Reasonable man test 4) The act caused the death
Physical Harm The risk of harm is that of Physical harm. Fear and apprehension is NOT sufficient, even if the fear results in a heart attack, so in Dawson the convictions for manslaughter were quashed.
Dawson 1985 The defendant and two other men carried out an attempted robbery at a petrol station. The cashier at the petrol station was a 60 year old man who, unknown to the defendants, suffered from a heart disease. Dawson had pointed a replica handgun at the victim and his partner had banged a pick-axe handle on the counter. Money was demanded, but the victim pressed the alarm button and the defendants fled empty handed. Shortly afterwards the victim collapsed and died from a heart attack.
The defendants were convicted and successfully appealed to the Court of Appeal, following a misdirection by the trial judge. Watkins LJ held that (a) if the jury acted upon the basis that emotional disturbance was enough to constitute harm then, they would have done so upon a misdirection. A proper direction would have been that the requisite harm is caused if the unlawful act so shocks the victim as to cause him physical injury. (b) Regarding the test for determining whether or not the unlawful act was dangerous, he stated: "This 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 of the crime and watched the unlawful act being performed … he has the same knowledge as the man attempting to rob and no more." Thus, the reasonable man must be taken to know only the facts and circumstances which the defendant knew. It was never suggested that any of the defendants knew that their victim had a bad heart; therefore the reasonable man would not know this.
D will be liable if V is known to have the condition by D that makes him frail
Watson 1989 The defendant had burgled a house occupied by an 87 year old man who suffered from a heart condition. The defendant disturbed the victim, and verbally abused him, but made off without stealing anything. The police were called shortly afterwards, and a local council workman arrived to repair the windows broken by the defendant in gaining entry. An hour and a half after the burglary the victim had a heart attack and died. The defendant was convicted of manslaughter but appealed successfully on the issue of causation
As to the nature of the unlawful act however, the Court of Appeal recognised that, following Dawson and applying the test established by Watkins LJ, the unlawful act had to be dangerous in the sense that all sober and reasonable persons would foresee that it created a risk of some physical harm occurring to the victim, but added that in applying this test, the reasonable person was to be imbued with all the knowledge that the defendant had gained throughout his burglarious trespass (ie his realisation of the victim's frailty) and not just the defendant's limited or non-existent knowledge at the moment he first entered the property. Note: On this basis therefore, the burglary did constitute a dangerous unlawful act, but only because the court assumed that the defendant, during the course of the unlawful act, must have become aware of the frailty of the victim.
Causing the Death The unlawful act must cause death and the rules on causation are the same as they are for murder, so if an act breaks the chain in a suitable way then D is no longer liable. This has been a specific issue with cases that involve drug supply. If D injects V there is no break in the chain
Cato 1976 The defendant and the victim agreed to inject each other with heroin. The victim had consented to a number of such injections during the course of an evening. The following morning he was found to have died from the effects of the drug-taking. The defendant was convicted of maliciously administering a noxious substance contrary to s23 of the Offences Against the Person Act 1861, and of manslaughter, either on the basis that his unlawful act had caused death, or on the basis that he had recklessly caused the victim's death.
The Court of Appeal held that the defendant had been properly convicted. Lord Widgery CJ stated that heroin was a noxious substance on the basis that it was likely to injure in common use, and that the defendant had administered it knowing of its noxious qualities. The victim's consent to suffer harm of this nature could never relieve the defendant of his liability, or destroy the unlawfulness of the defendant's act.
The problem is clearly where D prepares the drug but V injects himself. There have been several cases on this and the main two points are as follows; 1) Whether D has done an unlawful act, and 2) Whether D caused V death, or the self injection is an intervening act
Dalby 1982 The defendant was a drug addict who lawfully obtained drugs on prescription. He gave some of the tablets to the victim, also known to be a drug addict. The victim had consumed a large quantity of the drug in one session, and subsequently injected himself with other substances. The following morning he was found to have died of a drug overdose.
The defendant was convicted of unlawful act manslaughter, based on his unlawful supply of the controlled drug, and he appealed on the basis that his supply of the drug was not a dangerous act which had operated as the direct cause of death. He contended that the death was due to the victim's act in consuming such a large dose of the drug in such a short space of time. The Court of Appeal allowed the appeal, Waller LJ holding that the defendant's act had not in any event been the direct cause of death, but had merely made it possible for the victim to kill himself. His Lordship stated that where manslaughter was based on an unlawful and dangerous act, it had to be an act directed at the victim which was likely to cause immediate injury, albeit slight.
Later on it was thought that D could be guilty in a similar circumstance as it was contrary to Offences against the person act 1861 The debate was finally settled in Kennedy
Joint Involvement Read this area p90 Law lords have accepted that there are situations where the D and V could both be involved, but when this could have happened is unclear, the case of Rogers 2003 started to clarify the area but is seen as being wrong in Kennedy http://www.parliament.the-stationery-office.co.uk/pa/ld200607/ldjudgmt/jd070228/rogers.htm
The Alternative It is possible that in situations where D has supplied the drugs he could be guilty liable for gross negligence manslaughter, this view was put forward in Dias 2002 http://www.lawteacher.net/criminal-law/cases/dias.php
There have been convictions on the basis of what was found in Dias, where the two in question are in a close relationship. In these cases it may be possible to show a D of C. It may also be possible to rely on Gross neg mans if the drug user is particularly vulnerable or if D is aware of a specific condition, BUT Kennedy shows us that Un act mans cant be proved if V injected himself.
Mens Rea Mens Rea must be proved but they do not have to realise that it is an unlawful act or dangerous, this was seen in Newbury and Jones
Newbury and Jones 1976 The defendants, both teenage boys, had thrown a piece of paving stone from a railway bridge onto a train which had been passing beneath them. The object struck and killed the guard who had been sitting in the driver's compartment. The defendants were convicted of manslaughter, and unsuccessfully appealed, on the ground that they had not foreseen that their actions might cause harm to any other person. Lord Salmon explained that a defendant was guilty of manslaughter if it was proved that he intentionally did an act which was unlawful and dangerous and that act caused death, and that it was unnecessary that the defendant had known that the act in question was unlawful or dangerous.
Gross Negligence Manslaughter This is another way of committing manslaughter, although it is completely different from unl act mans. It is committed where D owed V a D of C, but breaches that duty in a very negligent way, causing the death of the V This can be committed by an act or an omission, neither of which has to be unlawful. The leading case on this is Adomako
R v Adomako 1994 D, an anaesthetist, failed to observe during an eye operation that the tube inserted in V’s mouth had become detached from the ventilator, causing V to suffer a cardiac arrest and eventually die.
Held: D was guilty of manslaughter by gross negligence, which is established where D breached a duty of care towards V that caused V’s death and that amounted to gross negligence. Lord MacKay LC: “…gross negligence…depends…on the seriousness of the breach of the duty committed by the defendant in all the circumstances in which he was placed when it occurred and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s judgment to a criminal act or omission”.
The essential ingredients of involuntary manslaughter by breach of duty: (1) proof of the existence of the duty; (2) breach of that duty causing death; and (3) gross negligence which the jury considered justified a criminal conviction.
Duty of Care Things that we have already seen so doctor and patient etc In Adomako, Lord Mackay said that the ordinary principles of negligence in the civil law applied to ascertain whether there was a D of C and whether the Duty had been breached and these civil principles come from Donoghue v Stevenson 1932
Case Examples of D of C Singh 1999 Litchfield 1998 Khan and Khan 1998 Wacker 2002
Singh 1999 A landlord left his son in charge of his Ipswich property while he returned to India. The tenant died as a result of carbon monoxide poisoning caused by a gas boiler. The landlord, agent son and the gas fitter responsible for servicing the boiler were all convicted of manslaughter. HELD: The landlord appealed against his conviction, but it was upheld by the Court of Appeal as there was sufficient proximity between the son and the landlord father for a duty of care to apply to the son’s management role. The son was in effect acting as his father's agent, and the father landlord has had sufficient information about the dangers of defective gas fires to have taken action. A custodial sentence of nine months imprisonment was imposed.
Litchfield 1998 D, a ship’s captain followed an unsafe course and relied too heavily on his engines even though he knew the fuel was contaminated. The ship foundered off the Cornish coast and three crew members were drowned.
Held; It is up to the jury to decide whether or not negligence is gross negligence even though negligently endangering a ship is a statutory offence. The question for the jury is whether it amounts to the crime of manslaughter.
Khan and Khan 1998 D’s supplied heroin to a new user who took it in their presence and then collapsed. They left her alone and by the time they returned to the flat she had died. Their conviction for unlawful act manslaughter was quashed but the C of A thought that there could be a duty to summon medical assistance in certain circumstances.
Wacker 2002 D caused the deaths of 58 illegal immigrants travelling in the back of his lorry because he failed to ensure they had air. Held: The ordinary principles of the law of negligence do not create a duty of care between those involved in a criminal enterprise; the principle had no application to the facts of this case, as a matter of pubic policy.
Guilty Note: Sentences on appeal increased from 6 years to 14 years.
In Wacker the V’s were party to an illegal act, so in civil law they would have no claim in negligence against D. The C of A held that in criminal law this is not the case they did have a case and this will allow for future development of this area in future cases
Breach of Duty causing Death Once D of C has been shown to exist it must then be shown that D was in breach of that duty of care and that the breach caused the death of V. Whether there is a breach is a factual matter. Did D negligently do or fail to do something? Causation is important, as it must be proved that the breach caused the death.
Gross Negligence The D being negligent is not enough it has to be ‘Gross’, this was first seen in Bateman 1925
Bateman 1925 D a doctor attended the confinement of a woman who died while giving birth. Held: Where a doctor is consulted, by or on behalf of a patient, he owes a duty to that patient to use due caution in undertaking the treatment. If he accepts the responsibility he owes a duty to the patient to use a fair and reasonable degree of diligence, care, knowledge, skill, and caution in administering the treatment.
Lord Hewart CJ: “…in order to establish criminal liability the facts must be such that, in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.” Not guilty
In Adomako 1994 the H of L approved this test and stressed that this was a matter for the jury. The jury has to consider the seriousness of the breach of duty in all the circumstances in which the D was placed when it ocured Read p94
Risk of Death In Adomako it was not totally clear whether there has to be a risk of death through the D’s conduct or whether the risk need only be to ‘health and welfare’ of the victim. This was seen in Stone and Dobinson but the matter only became clear in Misra and another 2004
Misra and another 2004 V had an operation on his knee. The two D’s were senior house doctors who were responsible for the post op care of V. They failed to identify and treat an infection, V died. The D’s were convicted and appealed on the basis that the elements of gross negligence manslaughter were uncertain and so breached Art 7 of the ECHR
The C of A held that Adomako had clearly laid down the elements, so there was no breach of Art 7. the test in gross neg manslaughter involves consideration of the risk of death. It is not sufficient to show a risk of bodily injury or injury to health. The D’s conviction for manslaughter was upheld.
Reckless Manslaughter After Adomako it was thought that reckless manslaughter no longer existed, however in Lidar 2000 the C of A upheld the D’s conviction for manslaughter even though the judge referred subjective recklessness (rather than gross negligence) in his directions to the jury.
R v Lidar 2000 http://www.lawteacher.net/criminal-law/cases/lidar.php D drives off with V a doorman half in and half out of his vehicle after an exchange of words. By driving off in this situation the D owed V a D of C and this action was a breach so it was open to the jury to decide that the breach was gross negligence. In view of this, it is difficult to see why it is necessary to have a separate category of subjectively reckless manslaughter.