Manslaughter

From CrimeLine from Andrew Keogh

Voluntary manslaughter

(Archbold 19-97)
Voluntary manslaughter occurs when all the elements of murder are present including intent to kill or cause grievous bodily harm but the crime is reduced to manslaughter by reason of provocation – diminished responsibility – Infanticide - death being caused in pursuance of a suicide pact.

Involuntary manslaughter

Involuntary manslaughter is unlawful killing without intent to kill or cause grievous bodily harm. Apart from intent the elements of the offence are the same as in murder. The rules of causation, self defence etc, therefore apply. The difficulty is in identifying the elements which make the killing unlawful. The law has developed whereby there are two classes of involuntary manslaughter - Constructive manslaughter - and - Manslaughter by gross negligence involving breach of duty. This development was clarified by the House of Lords in R v Adomako [1994] UKHL 6 (30 June 1994); [1995] 1 AC 171

(Archbold 19-98)

Constructive manslaughter

Elements of the offence of Constructive Manslaughter:

An Unlawful Act ^[1]

that is also Objectively Dangerous ^[1] and

was a substatial cause of the death of the victim ^[1]

Constructive manslaughter may also be termed "Unlawful Act Manslaughter".

The offence will be proved if:

The defendant's act caused, or was a substantial cause of the death of the victim; (an unlawful omission will not be sufficient)

The defendant's act constituted a criminal offence in itself , requiring proof of mens rea; that any reasonable and sober person would realise that there was a risk that the victim would suffer some harm, although not necessary serious harm. An unlawful act such as assault would suffice.

The defendant had the mens rea appropriate to the unlawful act which caused the victim’s death.

The defendant's unlawful act would objectively be recognised as subjecting the victim to the risk of some physical harm, albeit not serious harm.

It is irrelevant whether the defendant knew the unlawful act was unlawful or whether or not he intended to cause harm. The mens rea required is that appropriate to the unlawful act in question.

The unlawful act must be directed at the victim.

(Archbold 19-99)

Unlawful act (manslaughter)

Lord Parker CJ:

“A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence”.

R v Creamer [1966] 1 QB 72, 82C–D See also: CPS Unlawful act Manslaughter

Appleby, R v (18 December 2009)

Appleby, R v [2009] EWCA Crim 2693 (18 December 2009) Joint enterprise – manslaughter – murder – concern about the disparity between the sentence imposed on the defendant and that imposed on a co-accused who was convicted of manslaughter. Times Law Report Attorney-General’s References 2009 As a result of recent changes in legislative structures, when sentencing those convicted of manslaughter as a result of an unlawful act of violence, not only should the offender’s culpability be considered but there should be an increased focus on the fact that a victim had died as a consequence of the unlawful violence.

Yemoh & Ors v R. (22 May 2009)

Yemoh & Ors v R. [2009] EWCA Crim 930 (22 May 2009) The issue raised the "fundamentally different" test applicable to cases of murder and manslaughter. It was submitted by two of the defendants that the judge should have withdrawn from the jury the possibility of bringing in a manslaughter verdict or that he misdirected the jury when directing them about manslaughter

Wood, R v (02 April 2009)

Wood, R v [2009] EWCA Crim 651 (02 April 2009) After the jury rejected defences of provocation and diminished responsibility the appellant was convicted of murder. He was sentenced to life imprisonment. The minimum term to be served was fixed at 18 years' imprisonment. An appropriate order was made under section 240 of the Criminal Justice Act 2003 (the 2003 Act). A differently constituted court quashed the appellant's conviction for murder and substituted a conviction for manslaughter on the grounds of diminished responsibility. The question of provocation did not arise for consideration. The jury was satisfied that the prosecution had disproved it, and the judge himself made plain that he did not believe a word of the defence case on the issue. After reflection the Crown did not seek a new trial for murder and accordingly the appellant was sentenced for manslaughter. Times Law Report A defendant could be sentenced to life imprisonment for manslaughter on the ground of diminished responsibility and, when fixing the minimum term, guidance in murder cases was relevant.

R v. Coutts, R v. (19 July 2006)

R v. Coutts, R v. [2006] UKHL 39 (19 July 2006) In DPP v Newbury [1977] AC 500 Lord Salmon in a speech with which all the other members of the House agreed stated:

"The direction which [the trial judge] gave is completely in accordance with established law, which, possibly with one exception to which I shall presently refer, has never been challenged. In Rex v Larkin (1942) 29 Cr.App.R.18, Humphreys J said, at p.23:

'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 the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.'

I agree entirely with Lawton LJ that that is an admirably clear statement of the law which has been applied many times. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence and sometimes to little less than murder.

Attorney General's Reference No 3 of 1994

Attorney General's Reference No 3 of 1994 [1997] UKHL 31; [1998] AC 245; [1997] 3 All ER 936; [1997] 3 WLR 421; [1998] 1 Cr App Rep 91; [1997] Crim LR 829 (24th July, 1997)

“Nor is it necessary, in order to constitute manslaughter, that the death resulted from an unlawful and dangerous act which was done with the intention to cause the victim to sustain harm. This is because it is clear from the authorities that, although the accused must be proved to have intended to do what he did, it is not necessary to prove that he knew that his act was unlawful or dangerous. So it must follow that it is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result. The case of Regina v. Mitchell [1983] Q.B. 741 is a good example of this point. During an altercation in a queue at a busy post office the appellant hit a man who fell against an old lady, causing her to fall to the ground. Her leg was broken, with the result that she died later as a result of a pulmonary embolism. The Court of Appeal held that he was rightly convicted of manslaughter, although he had aimed no blow at the lady and had had no other physical contact with her. As Lord Salmon put it in D.P.P. v. Newbury [1977] A.C. 500, 509C, manslaughter is one of those crimes in which only what is called a basic intention need be proved--that is, an intention to do the act which constitutes the crime.” See: Transferred malice

D.P.P. v. Newbury [1977] A.C. 500, 509C Lord Salmon:

"Reg. v. Lamb [19671 2 Q.B. 981 was referred to by Lord Denning for the proposition that in manslaughter there must always be a guilty mind. This is true of every crime except those of absolute liability. The guilty mind usually depends on the intention of the accused. Some crimes require what is sometimes called a specific intention, for example murder, which is killing with intent to kill inflict grievous bodily harm. Other crimes need only what is called a basic intention, which is an intention to do the acts which constitute the crime. Manslaughter is such a crime, see R. v. Larkin and Reg. v. Church. Reg. v. Lamb is certainly no authority to the contrary. Two young men were playing about with a revolver which, to their knowledge, had two shells in chambers, neither of which was opposite the barrel. The defendant in jest and with no intention to harm or frighten pointed the revolver at his friend, who was also treating the incident as a joke. The revolver fired and the friend was killed. The defendant was charged with manslaughter on two grounds (a) killing by doing an unlawful and dangerous act and (b) killing by criminal negligence. The defendant was convicted but his conviction was quashed on appeal because, luckily for him, there had been a series of serious misdirections by the learned trial judge.

Lord Justice Lawton had observed that in manslaughter cases, some judges are now directing juries not in accordance with the law as correctly laid down in R. v. Larkin and Reg. v. Church but in accordance with the observations of Lord Denning M.R. in Gray v. Ban taken in their literal sense. For the reasons I have already given they should cease to do so."

LAMB R v (22 June 1967)

LAMB R v [1967] 2 QB 981 (22 June 1967) A dreadful human drama. In this case, the appeal court formulated an important rule about what does and doesn’t amount to an unlawful assault. The appropriate state of mental blameworthiness must exist at the time of the defendant’s conduct. Terence Lamb pointed a revolver in fun at a friend. He knew that there were two bullets in the revolver and also that neither of them was in the chamber opposite the barrel. But he didn’t realise that when the gun was fired the cylinder would automatically rotate. He shot his friend dead. The judge directed the jury that they could convict of manslaughter if the accused had been grossly negligent or if the killing had occurred in the course of an unlawful act. He told them that the pointing and firing of the revolver amounted to an unlawful act even if the accused had not intended to alarm or injure. On appeal, it was held that the pointing and firing was only the actus reus (the physical conduct) of assault but there was no criminal assault without the mens rea (a blameworthy mind). Although the accused might have been criminally negligent, the trial judge hadn’t properly explained to the jury what was required for there to be an criminal assault. His direction to them on an unlawful act had been wrong and so the conviction was quashed. Times on Line cases that changed Britain: 1955-1971 Newspaper report

R v Church (22 March 1965)

R v Church [1966] 1 QB 59
The defendant had gone to his van with a woman for sexual purposes. She mocked his impotence and slapped him he had knocked her unconscious. The defendant unable to revive her panicked, and wrongfully thinking he had killed her, threw her unconscious body into a river. The woman drowned.

Held: The Defendant’s conduct amounted to a series of acts, which culminated in the woman’s death and thus constituted manslaughter.

Edmund Davies stated:
'an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, 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 there from, albeit not serious harm.'

See Hopley, R. v [1860] EW Misc J73 (11 January 1860) for an unlawful chastisement case.

Dangerous act

In Attorney General's Reference No 3 of 1994 [1997] 3 WLR 421 Lord Hope said at page 443C:

"So it must follow that it is unnecessary to prove that he [the defendant] knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognise the risk that some harm would result."

At page 446D Lord Hope held that the only questions which needed to be addressed were:

"(1) whether the act was done intentionally, (2) whether it was unlawful, (3) whether it was also dangerous because it was likely to cause harm to somebody and (4) whether that unlawful and dangerous act caused the death."

R v Dawson [1985] 81 Cr App R 150 Concerning the test for determining whether or not the unlawful act was dangerous the judge said:

"This test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of the crime and watched the unlawful act being performed he has the same knowledge as the man attempting to rob and no more."

To establish the crime of unlawful act manslaughter it must be shown

that the defendant committed an unlawful act;
that such unlawful act was a crime (R v Franklin (1883) 15 Cox CC 163; R v Lamb [1967] 2 QB 981, 988; R v Dias [2001] EWCA Crim 2986, [2002] 2 Cr App R 96, para 9); and
that the defendant's unlawful act was a significant cause of the death of the deceased (R v Cato [1976] 1 WLR 110, 116-117).

Substantial cause of death

R v Pagett [1983] 76 Cr App R 279 a gunman while firing at the police used a woman as a shield and she died as a result of the gunfire returned by the police. At page 288 Goff LJ, giving the judgment of the court, observed:

"Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result."

CPS: Gross Negligence manslaughter== See also:

CPS Gross negligence manslaughter
Offences of omission

It must be proved that:

The defendant owed the victim a duty of care

The defendant's act or omission amounted to a breach of that duty

The defendant's act or omission caused the death of the victim, and

The jury must be satisfied that the conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission

There is a general duty of care on all persons not to do acts imperilling the lives of others.

To show a breach of a duty of care will require proof that the breach of duty:

fell far below the minimum acceptable standard expected of the accused; and

involved a risk of death; and

was so bad in all the circumstances as, in the opinion of the jury, to amount to a crime.

R v Gibbins & Proctor (1918) 13 Cr App R 134 (CA)
Walter Gibbins and his common-law wife Edith Proctor failed to feed Gibbins’ seven year-old daughter, who died of starvation. They were both tried and convicted of murder and sentence to death.

On appeal the Court Held: "If you think that one or other of these prisoners wilfully and intentionally withheld food from that child so as to cause her to weaken and to cause her grievous bodily injury as the result of which she died, it is not necessary for you to find that she intended, or he intended, to kill this child then and there. It is enough for you to find that he or she intended to set up such a set of facts by withholding food, or anything, as would in the ordinary course of nature lead gradually but surely to her death."

Gibbins, as her father, owed a duty of care to the child . Procter by taking on the responsibility of looking after the child also owed a duty of care to the child.

R v Stone and Dobinson [1977] QB 354 This case demonstrates how a duty of care may be assumed, even where there is no formal duty. Stone's sister lived with Stone and Dobinson. The sister was anorexic, and although ill she refused to leave her room to seek medical attention. Stone and Dobinson made some effort to care for the sick woman, but did not call the medical services. Eventually she died. Stone and Dobinson were convicted of manslaughter. The essence of their appeal was that, first, they had no legal duty of care to the sick woman and, second, there prosecution could not demonstrate that `recklessness' necessary to support a conviction of manslaughter. The Appeal Court ruled that on the first point the accused had assumed a duty of care, by allowing the sick woman to live in their home and making no other arrangements for her. On the second, the court ruled that `indifference to an obvious risk' did constitute recklessness.
Copyright Kevin Boone K - Zone

R v Adomako [1994] UKHL 6 (30 June 1994); [1994] 3 All ER 79

Attorney General's Reference No 2 of 1999 [2000] EWCA Crim 91 (15 February 2000) The court's opinion was sought in relation to two questions referred by the Attorney General under section 36 of the Criminal Justice Act 1972:

1. can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant's state of mind? Held: question 1 must be answered "Yes".

2. can a non-human defendant be convicted of the crime of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime? the answer to question 2 is "No"

Andrews v DPP [1937] UKHL 1 (22 April 1937) An unintentional killing caused by negligence, i.e., the omission of a duty to take care.

(Archbold 19-108)

Research into doctors charged with manslaughter.

Gross negligence manslaughter

CPS Gross negligence manslaughter
CPS Gross Negligence Manslaughter and Corporate manslaughter

In order to determine whether an act constitutes the offence of gross negligence manslaughter, the Crown must establish that:

There was a duty of care owned by the accused to the deceased.
There was a breach of the duty of care by the accused.
Death of the deceased was caused by breach of the duty of care by the accused
The breach of the duty of care by the accused was so great as to be characterised as gross negligence and therefore a crime.

Duty of Care

A duty of care may be imposed by common law or statute, by contract, or by acceptance by an individual. In some case the law imposes a duty of care. An example of this is parents’ duty of care towards their children, where manslaughter by omission can be committed if that duty is breached. Another example is the duty of care the police have towards someone they have arrest. There is no general duty of care upon any member of the public towards the public at large. A doctor, for example, does not have a general duty of care towards the public at large, so an omission to act cannot render the doctor liable to manslaughter. If, however, a doctor/ patient relationship exists, the doctor owes a duty of care towards the patient. If no duty of care has been imposed by law, has an individual accepted such a duty towards the deceased? The question is addressed by consideration of the following:

Nature and duration of relationship between accused and deceased; the longer and more involved the relationship, the greater the likelihood of a duty of care having been accepted.
Action by the accused to prevent any other person from helping the deceased, where such assistance could have prevented death. This amounts to acceptance by the accused of a duty of care which must be performed to a reasonable standard.
Whether the accused has claimed that they possess the skills necessary to perform an action competently, thereby leading others to allow them to carry it out.

Breach of the Duty of Care

To determine a breach of the duty of care, the ordinary civil law of negligence is applied. The question is whether the accused in acting, or omitting to act, has failed to reach the standard of a reasonable person.

Death caused by Breach of the Duty of Care

If there has been a breach of duty of care by the accused, it must also be established that the breach directly caused the death.

Gross Negligence

If a breach of the duty of care by the accused has occurred, and it is established that death of the deceased was caused by that breach, it is necessary to establish whether the breach was so great as to be classified a gross negligence. The main consideration is the extent to which the accused’s conduct departed from the standard expected of any reasonable person in that position.

Duty of care ‘close ties of love and affection’

The Home Office v Robert Butchart The Court of Appeal concluded that the control mechanisms set out in Frost v Chief Constable of South Yorkshire Police [1999] 2AC 455 (the Hillsborough litigation) do not arise because of the nature of the relationship between a prisoner and the Prison Service. Mr. Butchart did not have to prove ‘close ties of love and affection’ to the deceased to recover compensation for foreseeable psychiatric damage. In circumstances where a prisoner is vulnerable to psychiatric harm, the Prison Service therefore owes a duty to take reasonable steps to minimise that risk.

Frost v Chief Constable of South Yorkshire Police [1999] 2AC 455

White and Others v. Chief Constable of South Yorkshire and Others [1998] UKHL 45;(1999) 2 AC 455; (1999) 1 All ER 1 (3rd December, 1998)

Evans, R v (02 April 2009)

Evans, R v [2009] EWCA Crim 650 (02 April 2009) The Lord Chief Justice reviews cases on manslaughter by gross negligence. In the context of manslaughter the appellant's criminal liability, if any, depended on manslaughter by gross negligence. Her involvement in the supply to her sister of the fatal dose of heroin could not found a conviction for manslaughter on the basis of her unlawful and criminal act. (R v Kennedy (No 2) an authority expressly stated to have no application to gross negligence manslaughter).

The problem of fixing liability, whether in tort or in crime, on the basis of omission has generated much, indeed prolonged, debate. The Good Samaritan would have been disconcerted to discover that, at common law, absent a pre-existing responsibility for the child, a fit strong adult could watch him drown in shallow water although he was within easy reach and safety. In civil law the virtual inevitability of inroads into this principle was anticipated by Lord Goff in Smith v Littlewoods Organisation Limited [1987] AC 241. The exemption applies only to what was described as "mere" or "pure" omission. In a variety of circumstances what may appear to be an omission to act may be converted into "a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard…from harm or injury".... "In our judgment the jury should not have been left to decide the question whether the appellant owed a duty of care to the deceased."

Specimen directions

14. Recklessness/Gross Negligence - in Manslaughter Following the decisions of the Court of Appeal in R v Prentice and Others [1994] QB 302 and the House of Lords in R v Adomako 99 Cr App R 362 it will now rarely be necessary for a manslaughter direction to make reference to the concept of recklessness. In Adomako the House of Lords gave guidance as to the correct approach to be taken in cases of this nature. In his speech at pages 369-370, Lord Mackay LC said: 'The decision of the Court of Appeal (Criminal Division) in other cases with which they were concerned at the same time as they heard the appeal in this case indicates that the circumstances in which involuntary manslaughter has to be considered may make the somewhat elaborate and rather rigid directions inappropriate (see Note 1). I entirely agree with the view that the circumstances to which a charge of involuntary manslaughter apply are so various that it is unwise to attempt to categorise or detail specimen directions. For my part I would not wish to go beyond the description of the basis in law which I have already given.' In any event it is desirable in a case such as this that the proposed direction should be discussed with counsel before final speeches.

Notes

Here referring to the directions given in R v Lawrence [1982] AC 510.
See also: R v Watts, [1998] Crim L R 833, R v Khan (R), [1998] Crim L R 830 and R v Lidar [2000] Archbold News 3.

Archbold (2003) 17-50 page 1565 et seq and 19-108 page 1645 et seq.

Blackstone (2003) B1.37 page 143 et seq.

References and Notes

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