Topic 4. Involuntary manslaughter. Involuntary manslaughter. Actus reus.
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Involuntary manslaughter has the same actus reus as murder (unlawful killing) but a different mens rea. Murder requires an intention to kill or to cause grievous bodily harm, whereas involuntary manslaughter does not state what the required mens rea is, just that it is something other than the intention to kill or to cause grievous bodily harm.
Voluntary and involuntary manslaughter
In cases of voluntary manslaughter, the defendant commits murder but has one of the three partial defences contained in the Homicide Act 1957. Involuntary manslaughter is a separate crime.
Types of involuntary manslaughter
Comparing types of involuntary manslaughter
R v Church (1966)
In this case, the Court of Appeal established the test for dangerousness. 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’.
Gross negligence manslaughter
Duty of care
A duty of care is established using the civil neighbour principle from Donoghue v Stevenson (1932). 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 defendant owes a duty of care, and therefore it is an issue for the judge to decide. Since Caparo Industries v Dickman (1990), the judge can establish the existence of a duty of care incrementally and does not have to establish one if it is against public policy to do so.
Breach of duty
In gross negligence manslaughter, there must also be a breach of duty, which means that the defendant has fallen below the standard of care expected of the ordinary ‘reasonable man’. The breach must also be serious. It is up to the jury to ‘consider whether the extent to which the defendant’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’ (Lord MacKay in R v Adomako, 1995).
Risk of death
In R v Litchfield (1998), the Court of Appeal favoured the subjective test stating that the defendant ‘must have appreciated the risk he was taking’.
In R v Singh (1999), the trial judge directed the jury that: ‘The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury or even serious injury but of death.’ This suggests that the ‘risk of death’ requirement of gross negligence manslaughter is now regarded as an objective test.
The mens rea of gross negligence manslaughter is gross negligence. Lord MacKay referred to the earlier case of R v Bateman (1925), in which Lord Hewart CJ said:
‘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.’
This is a subjective test.
Evaluation and reform
Specific nature of the crime
The specific nature of the crime of constructive manslaughter means that only cases that are unlawful, dangerous and that involve an act rather than an omission will be liable. This means that some cases can ‘slip through’ if, for example, they involve an omission, as in R v Lowe (1973), or if they do not involve a criminal act, as in R v Franklin (1883).
Cases such as R v Kennedy (1999) and R v Rodgers (2003) could be regarded as the courts’ attempt to make sure people involved in drugs and drug dealers are found responsible for any resulting death. This could be an example of the courts showing their moral disapproval of such activities.
The dangerous test
The ‘dangerous test’ from R v Church (1967) is objective, requiring only a risk of some harm. The ‘risk of death’ requirement for gross negligence manslaughter is based on an objective test that there was a risk of death (R v Singh, 1999). This makes the offence of gross negligence manslaughter more difficult to establish than the ‘dangerous test’ for constructive manslaughter. The use of objective tests in serious crimes is usually avoided, as the courts feel that it is important only to convict people who see a risk for themselves. It is also unlikely that the jury will not regard a defendant’s conduct as dangerous in a case where somebody has died.
Problems with mens rea
The Law Commission 1996 did not think it appropriate that a person could be convicted of constructive manslaughter when he or she only had the mens rea required for assault. The Home Office Report 2000, however, disagreed with this, as it maintained that a person who commits any illegal violence should be liable for the result of his or her acts, even if he or she did not foresee that the victim would die.
The fact that gross negligence manslaughter is based on civil law has caused much criticism.
A Law Commission report in 1996 recommended that involuntary manslaughter should be abolished and replaced with two new crimes of reckless killing and killing by gross carelessness.
The government’s home office report in 2000 agreed with this proposal, in that reckless killing would be based on subjective recklessness, and killing by gross carelessness would not require a breach of duty of care. The government has since decided not to go ahead with these proposals.