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Topic 4. Involuntary manslaughter. Involuntary manslaughter. Actus reus.

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Topic 4

Involuntary manslaughter


Involuntary manslaughter

Actus reus

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.


Involuntary manslaughter

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.


Involuntary manslaughter

Types of involuntary manslaughter

  • There are two types of involuntary manslaughter:
  • constructive manslaughter (unlawful and dangerous act)
  • gross negligence manslaughter

Involuntary manslaughter

Comparing types of involuntary manslaughter

  • Constructive manslaughter is also known as unlawful and dangerous act manslaughter.
  • Gross negligence manslaughter is based on the rules of civil negligence, with the extra requirement of risk of death. It was established in the case of R v Adomako (1994).

Involuntary manslaughter: constructive


  • The act must be unlawful. The case of R v Franklin (1883) stated that the unlawful act must also be a criminal offence rather than a tort (civil wrong).
  • The unlawful act must be considered dangerous. The test for dangerousness was established in R v Church (1967). It is an objective test in that the ordinary reasonable person would see a risk of some harm.
  • Constructive manslaughter requires an unlawful act – an omission is not sufficient (R v Lowe, 1973).
  • The transferred malice rule applies (R v Mitchell, 1985).

Involuntary manslaughter: constructive

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’.


Involuntary manslaughter: constructive


  • The normal rules of causation apply.
  • R v Watson (1989) – ‘but-for’ test.
  • R v Kennedy (1999) – the victim injecting himself did not break the chain of causation.

Involuntary manslaughter: constructive

Mens rea

  • The defendant does not require any mens rea that shows that he or she intended or foresaw a risk of death. Instead, the defendant must have the mens rea required for the unlawful and dangerous act.
  • R v Lamb (1967): the defendant killed his best friend with a revolver. He did not have the appropriate mens rea, as neither of the men thought the gun would fire. He was not liable.
  • The Goodfellow test (1986) summarises constructive manslaughter.

Involuntary manslaughter: gross negligence

Gross negligence manslaughter


Involuntary manslaughter: gross negligence

Actus reus

  • Gross negligence manslaughter was defined in the case of R v Adomako (1995). It requires:
  • a duty of care
  • a breach of that duty that caused death
  • a risk of death

Involuntary manslaughter: gross negligence

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.


Involuntary manslaughter: gross negligence

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).


Involuntary manslaughter: gross negligence

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.


Involuntary manslaughter: gross negligence

Mens rea

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.


Involuntary manslaughter: evaluation and reform

Evaluation (1)

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).


Involuntary manslaughter: evaluation and reform

Evaluation (2)

Drugs cases

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.


Involuntary manslaughter: evaluation and reform

Evaluation (3)

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.


Involuntary manslaughter: evaluation and reform

Evaluation (4)

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.

Civil law

The fact that gross negligence manslaughter is based on civil law has caused much criticism.


Involuntary manslaughter: evaluation and reform


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.