Case 1: Church 1966<br />Church hit V and threw her into a river thinking she was dead. V drowned and Church was convicted of murder and unsuccessfully appealed. Despite the Court of Criminal Appeal upholding the conviction of the court below, the case represents clarification and development of constructive manslaughter through judicial precedent. It makes it clear that it was a misdirection to tell the jury that it did not matter whether or not D believed V was dead which amounted to saying that whenever any unlawful act is committed which results in death there must be a conviction of manslaughter. <br />The critical point that a further element of danger – on top of unlawfulness – is necessary for constructive manslaughter can be found at lines 28-33 of Source 1. Prior to 1966 it had been possible to argue, as the trial judge did, that ANY unlawful act, other than a merely negligent act, causing death was manslaughter. This view was rejected by the Court of Criminal Appeal. As source 1 states at lines 18-25 for a verdict of manslaughter to inexorably follow an unlawful act resulting in death the following must be established: <br />
D must subject V to at least the risk (suggesting likelihood, more than mere possibility) of some harm
The harm need not be serious harm, but it was made clear in Dawson & Others 1985 that the harm must be physical, fear alone is not enough
An objective test should be used so that if a sober and reasonable person recognises the risk of harm then D can be found guilty of constructive manslaughter.
Church was therefore guilty of constructive, unlawful and dangerous manslaughter because his act would be considered dangerous by reasonable people. The mistaken belief that she was dead was not relevant. <br />Although it was not made clear in Church, a later case of Newbury & Jones 1976 made it clear that there is no requirement that D himself foresee any risk of harm. The use of an objective test in Church marked a significant deviation from the historical position. Buxton (writing outside his judicial role) described it as a decision which ‘turns its back on the major part of the 19th Century development of the law’ which required foresight on behalf of D. <br />Despite the objected test it has since been made clear that the jury must put themselves in the position of the accused with their knowledge (Watson 1989). The reasonable person is given the knowledge that the accused acquired throughout the crime but not the mistaken beliefs that he had. In Carey (2006) the Court of Appeal said that despite the principle in Church being wide, it is ‘clear and now well established as part of our law.......This principle must be loyally applied without reservation’. <br />The Law Commission in a report in 2006 recommended that unlawful and dangerous act manslaughter be replaced with ‘criminal act manslaughter’. This would be different from the present law as D could only be convicted on a subjective test i.e. that he or she is aware that the act involved a serious risk of causing some injury. This would prevent D’s from being convicted where they did not intent any injury and were unaware of the risk, a situation which is possible and criticised under the precedent of Church. <br />Case 2: Andrews v DPP 1937<br />In this case D drove a van above the speed limit and overtook another car. As he did so he struck V, a pedestrian and killed him. D was found guilty of Gross Negligence Manslaughter. <br />Historically case decisions indicated that ANY death caused by lack of due care will amount to manslaughter. However as manners softened and the law became more humane, a narrower criterion appeared. The law shrank away from finding manslaughter and imposing the serious consequences on a D where the result was produced by mere inadvertence. <br />Andrews v DPP represents development in the understanding of the type of negligence that was required for D to be guilty of manslaughter when a death has occurred as a result of their act or omission. Prior to Andrews the case of Williamson (1807) indicated that D must have been guilty of criminal misconduct arising from the grossest ignorance or criminal inattention. The focus therein was on criminal behaviour. In Bateman 1925 words such as ‘gross’, ‘criminal’, ‘wicked’, and ‘culpable’ were used to describe the act/omission required for a D to be guilty of manslaughter. It was stated in this case that the matter must go beyond one of mere compensation between subjects and show such disregard to the life and safety of others to amount to a crime against the state and deserve punishment. (Lines 19-21 Source 5)<br />Andrews agreed with the substance (although not the use of the various adjectives) of Bateman and approved it. Simple lack of care such as will constitute civil liability is not enough for the purposes of criminal law. There are degrees of negligence and a very high degree is required to be proved before the felony is established (Lines 21- 22 Source 5). A direction which indicated that any lack of due care would result in a manslaughter conviction would therefore be a misdirection. The critical point of Andrews therefore is that for the purposes of manslaughter, negligence must be GROSS and this means that a VERY high degree of negligence is required. Death caused by driving should be treated as any other form of negligence and the same tests should be applied so as to avoid getting ‘tangled in the meshes’ of the Road Traffic Acts. <br />In Seymour 1983 the development of Gross Negligence Manslaughter stopped when the House of Lords decided that it should be revised as reckless manslaughter, they did this because they were trying to standardise the test for involuntary manslaughter around Caldwell recklessness. <br />Adomako 1995 approved the tests (source 3 lines 11-14) in both Bateman and Andrews v DPP and describes them as correct and satisfactory despite the circularity of the test (it is a crime because it is criminal) (Line 15). As lines 17-19 of source 2 suggest the House of Lords went no further in providing a precise definition for gross negligence as they thought it would be too complicated for the jury to understand. This means that it has not been limited in scope and has a very broad meaning. It is not just the circularity of the test that has been criticised but also the fact that it is left up to the jury to decide whether or not negligence is gross. This may lead to different juries convicting or acquitting on the same facts one finding carelessness not gross, the other disagreeing. This leaves a question of law to the jury which normally would be one for the judge, the jury deciding on fact alone. The Law Commission in 2006 go no further in providing a recommendation for defining through legislation the meaning of ‘gross’ merely saying that D’s conduct should fall far below what can be reasonably expected of him or her in the circumstances. <br />Case 3: Adomako 1995 <br />In Adomako an anaesthetist was convicted of manslaughter when his patient dies through lack of oxygen. The oxygen tube had become disconnected from the ventilator and D failed to realise quickly enough why his patient was turning blue. His appeal to the House of Lords was dismissed. The case of Adomako heard in the House of Lords in effect, although not formally, overruled its previous decision in Seymour 1983 where it has been held that gross negligence manslaughter did not exist separately from ‘Lawrence’ or ‘Caldwell’ reckless manslaughter. Adomako returned to the legal principles established in Bateman 1925 and Andrews v DPP 1937 which involves the use of tests from the tort of negligence. In effect the case returned to developing gross negligence manslaughter after a gap of over 10 years. <br />The first signs of returning to gross negligence manslaughter came in Prentice & Others 1994 and Holloway 1994 where the Court of Appeal quashed convictions based on reckless manslaughter indicating that both cased involved a duty of care and should have come under gross negligence manslaughter. In Adomako the law lords held that there was no manslaughter by ‘Lawrence’ or ‘Caldwell’ recklessness and that reckless manslaughter was in fact part of Gross Negligence Manslaughter. It would now be wrong to direct a jury on any charge of manslaughter in terms of ‘Lawrence’ recklessness. The law lords developed the law in a sense by returning to principles established in the past. Since the judgement in R v R & G 2003 it would be unthinkable to apply an objective test for recklessness anyway. It would have to be a subjective (Cunningham) recklessness test. In Lidar 2000 it was recognised that recklessness manslaughter did exist and required proof that D foresaw a serious (significant) risk that V would suffer serious injury and took the risk unjustifiably. This would be harder to prove than Gross negligence where an objective test is used and it is suggested by academics that this is the reason that gross negligence is preferred by the courts. Lidar far from providing clarity has confused matters and it is not certain whether the case considered reckless manslaughter as a separate offence from gross negligence manslaughter or as part of it. Due to this confusion the Law Commission propose the legislative abolition of reckless manslaughter. Under their proposals the worst cases of recklessness, those in which there was also an intention to cause injury or a fear or risk of injury, would be accounted for within their 2nd degree murder proposals which would allow for differentiation between the blameworthiness of defendants. <br />Adomako established the various tests to be used to establish ‘gross negligence’ based around a breach of a duty of care. <br />D must have a duty of care (line 6, source 2). This is a wide principle based on the civil law neighbour principle established in Donoghue v Stephenson 1932. Adomako extended the duty situations in criminal law which had in the past been restricted and in Khan and Khan 1998 the Court of appeal indicated that duty situations were likely to be rather more extensive than previously established and can involve duties arising in the course of hazardous activity such as smuggling illegal immigrants (Waker 2002) or duties arising from relationships such as failing to seek assistance for a spouse (Hood 2004). <br />D must breach the duty of care and this can be by act or omission. This breach must be ‘gross’ so as to amount to a criminal act or omission, as first indicated in Bateman 1925 in that the negligence must go beyond a mere matter of compensation and clarified in Adomako (Source 5, lines 21-22). As source 2 lines 17-19 suggests, the law lords did not give a precise definition for Gross Negligent Manslaughter which gives it a broad meaning without limited scope. <br />At lines 20 Source 2 the proposition in Adomako refers to the risk of death as a requirement for gross negligence to be established and this narrower interpretation of risk involves (as opposed to risk of serious injury) was confirmed in R v Misra and Others (2004). The law commission in their 2006 proposals make it clear that if their suggestions for reform took place, legislation would make it clear that there would need to be a risk of death. <br />An objective test is required to determine any breach of duty so if risk is obvious to the reasonably prudent and skilful doctor, aneasthestist, electrician etc then D has breached the duty. This has been criticised and in 1996 the Law commission recommended a subjective test however in 2006 the Law Commission returned to an objective test however it was softened to some extend with D being required to be capable of appreciating the risk of causing death at the time. This would protect younger defendants or those with mental disabilities. <br />Case 4: Lidar <br />In Lidar, a passenger in D’s car shouted something at V, a pub doorman. V approached the car and put his arms through the window. D drove off with V hanging from the car window. V was run over and killed. D was tried for reckless (subjective) manslaughter. This means that they jury had to consider whether D had foreseen that it was highly probable that V would suffer serious injury or worse. D was convicted but appealed against the sentence on the grounds that the judge should have used gross negligence manslaughter. The court of appeal upheld D’s conviction. <br />The case represents judicial development in the recognition of the existence of the offence of reckless manslaughter after the House of Lords in Adomako 1995 overruled its decision in Seymour 1989 holding that reckless manslaughter did not exist and was in fact part of Gross Negligence Manslaughter, seeing a return to principles established in Bateman 1925 and Andrews v DPP 1937. <br />Despite the decision in Adomako, it was held in Lidar that there was nothing in that judgement to suggest that reckless manslaughter had in fact disappeared. (Lines 22-23 Source 4). Although Caldwell or Lawrence Recklessness could not be used, subjective (Cunningham) recklessness could. In fact it was held that it would be difficult not to refer to the concept of recklessness as it is commonly understood (lines 37 Source 4) when gross negligence is alleged and that even if the gross negligence direction had been given (failure to do this being the basis of the appeal) the reckless direction would still have been necessary. <br />The fact that Lord Justice Evans judgement spent so much time considering the issue of whether recklessness exists or is part of gross negligence manslaughter reflects the lack of certainty that has existed in Smith and Hogan’s view for many years (lines 23-27 Source 4). <br />Despite calling the gross negligence direction superfluous (lines 3-5 Source 5) it is not certain whether the case considered reckless manslaughter as a separate offence or whether it was part of gross negligence manslaughter. The facts of the case suggest that Gross Negligence Manslaughter could have been used as there is a clear duty – all road drivers owe road users a duty of care and this was breached by driving off with him in the window. All that would have been left to the jury is a decision of whether the negligence was gross. <br />Jefferson suggests that further development would occur if constructive manslaughter were abolished. There would then, in Jefferson’s opinion, be a need for subjectively reckless manslaughter and pressure would develop for an exact definition of its elements. <br />The Law Commission in 2006 recommended the abolition of the offence of reckless manslaughter as a separate category pointing out that the worst cases of recklessness (those in which there was also an intention to cause injury or a fear or risk of injury) would be accounted for within their second degree murder proposals which would allow for differentiation between blameworthiness of defendants. <br />Case 5: R v Bateman 1925<br />D was a doctor accused of gross negligence manslaughter. V, his patient died whilst giving birth. D was negligent because he had caused serious internal damage and delayed sending V to hospital. D’s conviction was quashed however because he had not been grossly negligent. <br />This case represents important judicial development of the meaning of the term ‘gross’ negligence which had not previously been defined clearly. In Bateman it was recognised that an accused could be guilty only if he acted in a grossly negligent fashion. Lord Hewart said that a person was guilty only if he demonstrated ‘such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment’ and that negligence went beyond a mere matter of compensation (Lines 19-21 Source 5). Adjectives such as ‘criminal’ ‘wicked’, and ‘culpable’ were used to describe the act/omission required for a D to be guilty of manslaughter.<br />Andrews v DPP 1937 agreed with the substance (although not the use of the various adjectives) of Bateman and approved it. Simple lack of care such as will constitute civil liability is not enough for the purposes of criminal law. There are degrees of negligence and a very high degree is required to be proved before the felony is established (Lines 21- 22 Source 5). <br />In Seymour 1983 the development of Gross Negligence Manslaughter stopped when the House of Lords decided that it should be revised as reckless manslaughter, however this was changed in Adomako 1995 which approved the tests (source 3 lines 11-14) in both Bateman and Andrews v DPP and describes them as correct and satisfactory despite the circularity of the test (it is a crime because it is criminal) (Line 15). As lines 17-19 of source 2 suggest the House of Lords went no further in providing a precise definition for gross negligence as they thought it would be too complicated for the jury to understand. This means that it has not been limited in scope and has a very broad meaning. It is not just the circularity of the test that has been criticised but also the fact that it is left up to the jury to decide whether or not negligence is gross. This may lead to different juries convicting or acquitting on the same facts one finding carelessness not gross, the other disagreeing. This leaves a question of law to the jury which normally would be one for the judge, the jury deciding on fact alone. The Law Commission in 2006 go no further in providing a recommendation for defining through legislation the meaning of ‘gross’ merely saying that D’s conduct should fall far below what can be reasonably expected of him or her in the circumstances. <br />In Bateman ‘life and safety’ of the V was used to describe the risk involved in D’s act or omission. It is not clear using this test whether D had to disregard a risk of death or whether disregarding a risk of serious injury was sufficient. In Adomako 1995 the proposition refers to a risk of death (line 20 Source 2) and in Smith and Hogan’s opinion if we are to have an offence of homicide by gross negligence at all, it seems right that it should be limited this way. The point was clarified in Misra 2004 where the Court of Appeal confirmed this narrower interpretation. There was no breach of Article 7 of the ECHR due to uncertainty as the elements laid down in Adomako were clear, a risk of death was required. <br />The Law Commission in 2006 recommended that it be made clear via legislation that the risk must be to cause death. This would add statutory clarity to an established case law principle. <br />Case 6: Goodfellow 1986<br />In Goodfellow D wished to move from his council house but could not, so he set fire to it as part of a scam. His wife, son and another woman died. The case represented important judicial development of the law of unlawful and dangerous act manslaughter. The court of appeal put an end to the ‘aimed at’ rule when it held that for the purposes of the offence the unlawful act need not be aimed at a person (the victim). It could be aimed at property provided it is ‘such that all sober and reasonable people would inevitably recognise must subject another person to, at least, some risk of some harm. The court of appeal upheld D’s conviction because all elements of unlawful act manslaughter were present. Reasonable people would recognise that it might cause some harm to another person. There was an obvious risk that someone in the flat might be hurt. <br />The decision widened the rule in Larkin (1943) and Mitchell (1983) that the unlawful act can be an indirect act which inadvertently causes the death of V and departed from the previous case of Dalby (supporting the argument that it was decided wrongly) where the act had to be aimed at the victim in a direct act. In Goodfellow it was held that obiter statements made in Dalby did not mean what they said because they were concentrating on the delivery of a causation direction. The result in Dalby was correct but not because D did not aim the act at V. Despite an apparent return to Dalby in the case of Ball, the law was clarified in Attorney General’s Reference (No 3 of 1994) where Lord Hope stated that the ‘aimed at rule’ was not a requirement of constructive manslaughter. Goodfellow is therefore correct and approved. <br />The justification is that since D need not foresee the harm, why should he have to aim his act at V? The opposing view is that the aimed at rule would limit the very wide ambit of constructive manslaughter which would take into account blameworthiness. <br />It was also established that the same act could be both unlawful act manslaughter and gross negligence manslaughter. The unlawful act was arson and he was grossly negligent. It would be easier to prove unlawful act manslaughter as there is an objective test which requires only reasonable foresight of some harm, however slight rather than foresight of death under gross negligence manslaughter (Willoughby). <br />Case 7: Kennedy 2007<br />In Kennedy a man V asked D to supply him with heroin, both lived in a hostel; D filled a syringe and gave it to V, who injected himself, he died by inhalation of gastric contents while acutely intoxicated by opiates and alcohol. The critical point of the case is that where the deceased was a fully informed and responsible adult, it was never appropriate to find guilty of manslaughter a person who had been involved in the supply to the deceased of a Class A controlled drug, which had then been freely and voluntarily self-administered by the deceased, and the administration of the drug had caused his death. (Lines 12 Source 6). <br />It was confirmed that D’s unlawful act must be a significant cause of death. Because the act of supply would of itself cause no harm to V (lines 25 Source 6) then D could not be guilty of constructive manslaughter. <br />The case overrules a Court of Appeal decision in Rogers (2003), the binding precedent followed by the Court of Appeal in Kennedy. Rogers tried to make a distinction between D assisting V’s act of self administration and a situation where D and V are engaged in a joint and combined operation of injecting V. Where the latter was the case and D played an active part in the injection by applying and holding a tourniquet around the arm then according to the court in Rogers, D would be guilty of constructive manslaughter.<br />This was rejected in Kennedy. Only where D injects V would they be guilty (Cato 1976). If this happens there is a clear case of unlawful act manslaughter. <br />The Law Lords in Kennedy did accept that there could be situations in which it could be regarded as both D and V being involved in the administration of the injection but did not give any examples. It is hard to see if holding a tourniquet is not being involved, what could be regarded as involvement. <br />The case of Dias suggests gives the view that in situations involving the supply of drugs like in Kennedy, that D could be liable for gross negligence manslaughter if it were possible to establish a duty of care because of relationship between the drug dealer and client. This would apply especially where the drug user is vulnerable or D is aware of problems following self injection. <br />It is suggested at lines 41-45 that Parliament should intervene and create the necessary substantive offenses to avoid confusion. The source author it suggesting that recourse to judicial development through precedent is not always effective because it creates inconsistency and uncertainty. But it is clear from Kennedy that where V self injects, unlawful act manslaughter cannot be proven. It constitutes a break in the chain of causation. This was also held to be the case in Dias 2002. Unless the House of Lords (now supreme court) uses the practice statement to overrule its decision in Kennedy or Parliament intervenes this will be the precedent to follow. As stated in source 6 line 19, the decision of the House of Lords in this case brought some welcome clarity to the law. <br />Case 8: Cato 1976<br />D and V agreed to inject each other with heroin. V died as a result of the drug taking. D was convicted of manslaughter. The Court of Appeal upheld D’s conviction. V’s consent to be injected could not remove D’s liability, nor could it remove the unlawfulness of D’s actions. The critical point in this case is that where D and V prepare an injection of a controlled class A drug and inject each other and one dies, the other will be guilty of unlawful act manslaughter as he committed an unlawful act of administering a noxious substance to V contrary to s.23 of the Offences against the Person Act 1861, which was dangerous and which caused V’s death. <br />It was held in this case that although administration of the drug is not an offence under the Misuse of Drugs Act (possession and supply being the offences rather than administration) there was a possible charge under s.23 of the OAPA 1861 of administering a noxious substance which makes D’s act unlawful. It was also stated that if this were not available D would still have been acting unlawfully in that he injected the drug and at the time of injecting and for the purpose of injecting, the accused has unlawfully taken the drug into his possession. <br />It w as also made clear that consent is not a defence in the sense that by merely proving permission the matter is at an end. The jury must take into account consent when looking at gross negligence or recklessness however. <br />For the purposes of proving that D had maliciously administered the noxious substance D’s foresight of consequence is not needed like in Cunningham as it does not involve an indirect act but rather a direct one. In a case where there is a direct act, it is enough that the syringe was inserted deliberately for malice to be satisfied. <br />This decision has been confirmed in Kennedy and any subsequent attempts at extending the liability of those that supply drugs to situations where they have been somehow involved in the administration (tying and holding a tourniquet in Rogers 2003) have been overruled by Kennedy 2007. There must be a substantial link between D’s actions and V’s death which cannot be de minimus. It is a misdirection to say that some contribution or acceleration of death is all that is needed. <br />