2. Copyright … (May 2013) Strode’s College Laws students are free to make use of this ‘Pdf Print files’ for study purposes (they should print them off and take them to class). Others should ask before copying or using these ‘Pdf Print Files’. Copyright of Dr Peter Jepson - law@peterjepson.com law@peterjepson.com

3. Involuntary Manslaughter Prior to this lecture - you should have read and précised Chapter 8 of ‘Criminal Law for A2’ by Jacqueline Martin and/or Chapter 5 of ‘Criminal Law’ by Diana Roe. Take you read and précis notes to class for inspection. 1

4. Involuntary Manslaughter This covers two broad categories: (1) Constructive manslaughter: where D has committed an unlawful and dangerous act and from that act a death has resulted. (2) Gross negligence manslaughter: where D has been so grossly negligent that someone has died. 2

5. Involuntary Manslaughter It is important to NOTE that, unlike murder/voluntary manslaughter, with involuntary manslaughter the accused will not have intended to kill or cause GBH. 3

6. Constructive Manslaughter This offence is called constructive manslaughter because the liability for death is ‘constructed’ from the unlawful and dangerous act from which V’s death has resulted, even though the risk of death may never have been contemplated by D. 4

7. Constructive Manslaughter There are 3 elements to be established before D is liable for constructive manslaughter: (1) S/he must have committed an unlawful act. (2) This act must have caused the death. (3) The unlawful act must be a dangerous one. 5

8. (1) There must be an unlawful act … The unlawful act must be a crime (as opposed to a civil wrong or tort); Franklin 1883 For liability to arise, the prosecution must prove that an unlawful act has taken place. Compare Larkin 1943 and Lamb 1967. It may be said that the classic case of constructive manslaughter occurs during a fight when D punches V, who falls over and bangs his head with fatal results. 6

9. The unlawful act may, typically, thus be a battery. However, the courts have faced difficulties specifying what constituted the unlawful act in less clear-cut cases; see Cato [1976] ; DPP v Newbury and Jones [1977] 7

10. (2) Act must have caused the death The unlawful act must have caused the death. It need not, however, be the sole cause of the death, provided that it made a significant contribution to it (Note that any novus actus interveniens can break the chain of causation - where have we seen this before?). 8

11. The C of A originally stated that the unlawful act must have been directed at the victim; Dalby [1982] Must the person at whom the unlawful act is aimed also be the person whose death is caused? This was the question for the C of A in Mitchell [1983]. The acceptance of indirect acts 9

12. In Goodfellow [1986, the C of A stretched the law still further and decided that D could be liable for manslaughter even where his unlawful act was not directed at a person at all. What happened in Rogers [2003]? 10

13. (3) The act must also be dangerous Whether the act is considered dangerous is decided objectively, i.e. it must be an act that a sober and reasonable man would regard as dangerous - Church [1966]. When assessing whether the act is dangerous, the circumstances known to D are relevant as well as those that would have been known by a “sober and reasonable person”. See Dawson [1985] and Watson [1989] 11

14. Consider … According to the Church test, V must be subjected to the “risk of some harm”. What does this mean? Will a shock or a fright suffice? Note that in Dawson, the C of A thought that “harm” included “injury to the person through the operation of shock emanating from fright”. 12

15. Gross negligence manslaughter Under this form of manslaughter, D may be charged because his behaviour has been so grossly negligent that it has brought about the death of another person. 13

16. Gross negligence manslaughter According to the leading case, Adomako 1995, the elements of this offence are: 1 The existence of a duty of care; 2 Breach of that duty causing death; 3 Gross negligence which the jury consider justifies a criminal conviction. 14

17. (1) Duty of care What happened in Wacker [2003] ? (2) Breach of that duty … If D is driving a car - it is the standard of a reasonable driver. If D is a Doctor it is the standard of a reasonably competent Doctor - no more and no less. 15

18. (3) Gross negligence which a jury considers to be criminal The H of L in Adomako confirmed a long line of case law which had been thrown into confusion by the appearance of objective recklessness in 1981. Bateman 1925: the C of A said that the jury should find D guilty of manslaughter by gross negligence if they think that D’s negligence was bad enough to amount to a crime. This test was subsequently approved by the H of L in Andrews v DPP 1934. 16

19. The rise/death of reckless manslaughter During the 1980s and early 1990s, the concept of gross negligence manslaughter seemed to have given way to Caldwell- style reckless manslaughter. This was caused by the H of L decision in Lawrence [1982] to apply the Caldwell test (followed in Seymour [1983]) However, in Adomako, the H of L overruled Lawrence and re-established gross negligence as the correct test. 17

20. The re-emergence of gross negligence manslaughter In Adomako, the H of L stated that the gross negligence test was the one to be used in all forms of involuntary manslaughter where no unlawful act was found. Please note, however, the case of Lidar (2000) where the Court of Appeal argued that subjective reckless manslaughter was not ruled out by Adamoko (1994). 18

21. In Adomako The H of L agreed that ordinary principles of negligence should be adopted to see if D had broken a duty of care to V and this breach had caused V’s death. If yes, the jury must decide whether the negligence was so gross as to amount to a crime. The jury must thus consider whether, having regard to the risk of death involved, D’s conduct was so bad that it should be classed as criminal. 19

22. Recent cases on gross negligence manslaughter Lichfield [1998]: D, the captain of a ship, had sailed too close to the shore and also used contaminated fuel, which caused the engines to fail. Three crew members died as a result. The C of A agreed, applying Adomako, that D had been in breach of duty serious enough to amount to gross negligence 20

23. A key question … However, a key question remains unanswered about what D must be proven to have foreseen, or not foreseen, or been indifferent about. There are various possibilities depending on the circumstances; the existing law is unclear in this matter. 21

24. Corporate Manslaughter In certain circumstances, a company may incur criminal liability for the acts of its senior officials: the “identification” principle. Kite 1996: K and his company, OLL Ltd, were convicted of manslaughter; it was easy to identify K, the MD, as the “mind” of the company as the organisation was so small. 22

25. Corporate Manslaughter AG’s Ref (No 2 of 1999) [2000]: The C of A decided that it is not always necessary to take D’s state of mind into account before gaining a conviction. 23

26. The Punishment for Gross Negligence Manslaughter There is a maximum sentence of life imprisonment for this offence - but no minimum. This discretion is felt to be necessary as the circumstances are often so varied. 24

27. Reform of Involuntary Manslaughter … The inherent vagueness of the gross negligence test suggests that reform may be necessary. Note the Law Commission’s proposals for reform of involuntary manslaughter. 25

28. Other Unlawful Homicides Causing death by dangerous driving This offence is found in s.1 Road Traffic Act 1988 (as amended). Infanticide This offence is found in s.1(1) Infanticide Act 1938. 26

29. Other Unlawful Homicides Abortion This is an offence under s.58 OAPA 1861; however lawful abortions are permitted by s.1(1) Abortion Act 1967 Child Destruction Found in s.1(1) Infant Life Preservation Act 1929. 27