1. Involuntary manslaughter Reform Exemplar
Involuntary manslaughter is an unlawful killing where the D does not have the
intention, either direct or oblique, to kill or to cause GBH. The maximum sentence for
involuntary manslaughter is life imprisonment so this gives the judge discretion to
impose any sentence which is suitable for the particular circumstances of the offence.
In some cases the judge may even pass a non custodial sentence. There are three ways
of committing involuntary manslaughter: unlawful act manslaughter, gross negligence
manslaughter and reckless, manslaughter.
Unlawful act manslaughter is where the liability of the death is constructed from the
facts that the D has done a dangerous unlawful act which caused the death. This
makes the D liable even though he did not realise that death or injury might occur.
The death must be caused by an unlawful act. In Franklin it was held that it must be a
criminal offence; a civil wrong is not enough. Another case illustrating that there must
be a criminal unlawful act is Lamb where the court held that the D had not done an
unlawful act. The pointing of the gun at the friend was not an assault as the friend did
not fear any violence from Lamb. An omission cannot create liability. This was
shown by the case of Lowe where the court of appeal quashed the conviction for
manslaughter because a finding of wilful neglect involved a failure to act, and this
could not support a conviction for unlawful act manslaughter.
The unlawful act must be dangerous on an objective test. In church it was held that it
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’. If a sober and reasonable 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 the D did not realise there was any risk of harm to another
person. The case of Larkin illustrates both the need for an unlawful act and on an
objective viewpoint the risk of some harm. The act of threatening someone with a
razor was a technical assault. It was also an act which was dangerous because it was
likely to injure someone. Humphreys explained this in his judgement when he said:
‘where the act which a person is engaged in performing is unlawful, then if at the
same time it is a dangerous act, that is, an act which is likely to injure another person,
and quite inadvertently he causes the death of that other person by that act then he is
guilty of manslaughter’. It is clear that the act need not be aimed at the victim. This
was the situation in Larkin where the assault was against the man but the woman dies.
It was also the case of Mitchell where the D had done an unlawful act by punching the
man. The final act inadvertently caused the death of the woman. The D’s in both
Larkin and Mitchell were guilty of unlawful act manslaughter despite the fact that in
each case the person threatened was not the one who died.
The risk of some harm refers to physical harm. Something which causes fear and
apprehension is not sufficient. This is so even if the D causes the V to have a heart
attack. This meant that in the case of Dawson convictions for manslaughter were
quashed as causing him fear through attempted robbery was not a dangerous act.
However where a reasonable person would be aware of the victim’s frailty and the
risk of physical harm to him, then the D will be liable. This was stated in Watson
where the court stated that the act of burglary could be dangerous as soon as the old
mans condition became apparent to the reasonable man.

2. The unlawful act must cause the death unless there was an intervening act which
broke the chain of causation. This point has caused problems in cases where the D has
supplied V with an illegal drug. If the D injects the drug into V, then there is no break
in the chain of causation. This was shown in the case of Cato. The problem has been
with situations where the D had prepared the injection, handed the syringe to the V
who has then injected himself. There are two points at issue: whether the D has done
an unlawful act; and whether the D caused the victims death, or the self injection is an
intervening act. The first case on this issue was Dalby where the COA held that
although supplying the drug was an unlawful act it was not the act of supplying which
had caused the death. The injection was the cause as this was a voluntary act by the V.
However in later cases it was suggested that the D could be guilty as he was
considered to have administered a noxious substance to V contrary to s23 of the
OAPA 1861. This was an unlawful act and if the V died the D could be guilty of
unlawful act manslaughter. This idea was criticised and was not followed causing
confusion in the law. The debate was settled in Kennedy when the HOl ruled that
there was no unlawful act by the D. The D did not administer the noxious substance
by filling a syringe and handing it to the V. The act of self injection was a voluntary
intervening act. The law lords did accept that there could be situations where it could
be regarded that both the V and D were involved in administering the injection. In
Rodgers the COA held that the act causing the death was the injection of heroin and it
was artificial and unreal to separate the tourniquet from the injection. By applying the
tourniquet the D was playing a part in the mechanics of the injection this made him
guilty. However the law lords stated in Kennedy that Rodgers was wrongly decided.
There was no unlawful act. If this is not administering a noxious substance then it is
difficult to think of situations in which D and V can be jointly involved in the act of
injecting therefore the law is in an unsatisfactory state and is in need of reform.
Gross negligence manslaughter is committed where the defendant owes the victim a
duty of care but breaches that duty in a very negligent way, causing the death of the
victim. It can be committed by an act or omission, neither of which has to be
unlawful. The leading case on gross negligence manslaughter is Adamako where
doctors giving evidence at the trial said that a competent anaesthetist would have
noticed the disconnection of the tube within 15 seconds and the D’s failure to notice
this was abysmal. A duty of care has been held to exist for the purposes of the
criminal law in various situations. It has been established using the civil neighbour
principle from Donoghue V Stephenson; ‘You owe a duty of care to persons so
closely and directly affected by…my acts or omissions’. It is a question of law as to
whether the D owes a duty of care, and therefore it is an issue for the judge to decide.
In Singh it was recognised that there was a duty on the D to manage and maintain
property properly. Then came Litchfield where the owed a duty to the crew. In both of
the above cases there was a contractual duty of care. However there does not need to
be a contractual duty as in khan khan where the COA thought that there could be a
duty to summon medical assistance. A further extension of the type of duty
recognised by the courts occurred in Wacker where it was held that the D knew that
the safety of the immigrants depended on his own actions in relation to the vent and
he clearly assumed the duty of care. Once a duty of care has been shown to exist, it
must be proved that the D was in breach of that duty of care and that this breach
caused the death of the victim. The D must have fallen below the standard of care
expected of the ordinary man. This was first explained in Bateman which involved
negligent treatment of a patient by a doctor. In Adamako the HOL approved this test.

3. The jury had to decide whether having regard to the risk of death involved the
conduct was so bad in as to amount in their judgement to a criminal act or omission.
Lord Mackey in Adamako approving the test in Bateman quoted ‘It is up to the jury to
consider whether the extent to which the D’s conduct departed from the proper
standard of care incumbent upon him, involving as it must have done a risk of death
to the victim, was such as it should be judged criminal’. In Adamako it was not clear
whether there has to be a risk of death through the D’s conduct or whether the risk
only needs to be heath and welfare of the victim. In stone and Dobinson the test was
expressed as the risk being to the health or welfare of the sister who died. When lord
MacKay Adamako approved this way of explaining the matter. However lord
MacKay also approved the test in Bateman where the test is disregard for the life and
safety of others. The matter has now been resolved in Mirsa where it was held that the
test in gross negligence manslaughter involves consideration of the risk of death. It is
not sufficient to show a risk of bodily injury or injury to health.
After the decision in Adamako it was thought that reckless manslaughter no longer
existed. However in Lidar the COA upheld the D’s conviction for manslaughter even
though the judge referred to subjective recklessness. It is obvious from facts that the
D could have been convicted on the basis of gross negligence manslaughter. The D
clearly owed a duty of care. In view of this it is difficult to see why it is necessary to
have a separate category of subjectively reckless manslaughter.
There have been many criticisms of manslaughter as an offence. In general, the same
offence covers a wide range of behaviour. The levels of blameworthiness of
individual D’s vary enormously yet are convicted of the same offence. For unlawful
act manslaughter the main criticisms are that death may be an unexpected result. If the
same act resulted in minor injury, the D would only be liable for the offence of ABH.
Secondly, a D who did not realise there was a risk of any injury is still guilty because
of the objective nature of the test. Therefore the law relating to involuntary
manslaughter is outdated and unsatisfactory and is in need of reform. In 1996 the law
commission recommended the abolition of unlawful act manslaughter: ‘it is
inappropriate to convict a D for an offence of homicide where the most that can be
said is that he or she ought to have realised that there was the risk of some, albeit not
serious, harm to another resulting from his or her commission of an unlawful act’.
This supports the above that the law is in desperate need of reform. In 2006 instead it
recommended a 3 tier structure of homicide offences. First degree murder, second
degree murder and manslaughter. Under these proposals manslaughter would cover:
1) killing another person through gross negligence; or 2) killing another person: a)
through the commission of a criminal act intended by the D to cause injury, or b)
thought the commission of a criminal act that the D was aware involved a serious risk
of causing some injury. This second category would be known as criminal act
manslaughter. It would be different to the present unlawful act manslaughter as D
could only be convicted on a subjective test. This would prevent D’s being convicted
of the serious offence of manslaughter where they did not intend any injury and were
unaware of the risk of injury. In addition more serious situations which at the moment
are classed as manslaughter could become second degree murder under the law
commission’s proposals. These are killings where the D intended to cause injury or a
fear of risk of injury and was aware that his or her conduct involved a serious risk of
causing death. Reform would allow for greater differentiation between the blame
worthiness of the D’s.

4. The main criticisms of gross negligence manslaughter are: firstly, the test is circular
as the jury is directed to convict of a crime if they think that the conduct was criminal.
There is no sequence of reasoning; instead the argument goes round in a circle. It’s a
crime because it’s criminal. The other problem with this test is that it leaves the jury
to decide a question of law. This may lead to inconsistent verdicts as it depends on
what different juries think and thirdly, the civil test for negligence should not be used
in criminal cases: the purpose of the two branches of law is quite different. There also
used to be a criticism that it was unclear whether the risk had to be of death or
whether risk of serious injury was sufficient to prove gross negligence manslaughter.
This point was clarified in Mirsa where the CA held that the test in gross negligence
manslaughter involves consideration of the risk of death. It is not sufficient to show a
risk of bodily injury or injury to health. Although this point of law has been cleared
up other criticisms show that the law on involuntary manslaughter is not in a
satisfactory state. In 2006 the law commission recommended that there should only
be gross negligence manslaughter which would be committed where: a person by his
or her conduct causes the death of another; a risk that his or conduct will cause
death… would be obvious to a reasonable person in his or her position; he or she is
capable of appreciating that risk at the material time; and his or her conduct falls far
below what can reasonably be expected of him or her in the circumstances. This
largely restates the existing law. It makes it absolutely clear that the risk must be to
cause death. A risk of serious injury is not sufficient. The law commission
recommended keeping the rule that gross negligence manslaughter can be committed
even when D was unaware of his or her conduct might cause death. They justified this
by pointing out: ‘this is because negligence, however gross, does not necessarily
involve any actual realisation that one is posing a risk of harm. It is a question of how
glaringly obvious the risk would have been to a reasonable person’. But under the
proposal, this rule is softened by the fact that the prosecution would have to prove that
the D is capable of appreciating that risk at the material time. This would prevent
those with mental disabilities or younger D’s being convicted if they are not capable
of appreciating the risk. The law is not in a satisfactory state therefore the law on
gross negligence is in need of desperate reform in order to clear up incoherencies.
If the law commission’s recommendations were carried out, reckless manslaughter
would become a very narrow category. It would be almost indistinguishable from
gross negligence manslaughter. The law commission therefore thought a separate
category would make the law too complex. Instead they recommended the abolition
of it. However the law commission pointed out that the worst cases of recklessness
would be accounted for within second degree murder. For the less serious cases, the
law commission thought that most cases would be covered by gross negligence
manslaughter. This was because D would be hard pressed to deny that he or she was
perfectly well aware of the risk of his or her conduct killing someone. For example
the situation in Lidar where the D drove off knowing that the v was hanging from the
car window with half of his body in the car, would be covered under the law
commissions proposals for gross negligence manslaughter.
The law governing involuntary manslaughter is not in a satisfactory state. It is simply
incoherent and has a lack of clarity which has created further confusion within the law
therefore the law is in need of reform by parliament.