Criminal Law: Involuntary Manslaughter

Involuntary Manslaughter

Constructive Manslaughter

The Elements of Constructive Manslaughter

The actus reus of constructive manslaughter is causing the death of a human being by committing an unlawful act which was dangerous: Webster v CPS [2014] EWHC 2516.

There is no mens rea for constructive manslaughter, beyond establishing the mens rea of the relevant unlawful act: DPP v Newbury [1977] AC 500.

Constructive manslaughter is sometimes referred to as ‘unlawful act manslaughter’.

An Unlawful Act

The following principles apply to determining whether there is a relevant unlawful act:

Criminal law, prisoner

The unlawful act must be unlawful under the criminal law: R v Franklin (1883) 15 Cox CC 163. It must not be an ordinary act done negligently: Andrews v DPP [1937] AC 576. It appears that strict liability offences can suffice: R v Alliston (Crown Court 2017).

Crime, gun, gunman

It must be a crime involving an action, not an crime of omission: R v Lowe [1973] QB 702.

Defence, defending self

The prosecution must prove all elements of the unlawful act, including mens rea: R v Scarlett [1993] 98 Cr App 290; R v Lamb [1967] 2 QB 981. There must be no defence: R v Slingsby [1995] Crim LR 570.

Many people, beach

There is no need for the unlawful act to be directed at the victim: R v Larkin (1942) 29 Cr App R 18.

Wanton destruction

In fact, the crime does not need to be directed at a person at all: R v Goodfellow (1986) 83 Cr App R 23.

Property damage, flood

However, the reasonable person must foresee physical harm, not merely property damage: R v Carey [2006] EWCA Crim 17.

When is the Unlawful Act Dangerous?

An unlawful act is dangerous if a reasonable and sober person would appreciate that the act subjects any person to the risk of some harm (regardless of severity): R v Church [1965] 2 WLR 1220. The harm foreseen must be physical or amount to a recognised psychiatric injury: R v Dhaliwal [2006] EWCA Crim 1139.

Because the test is objective, there is no need to show that the defendant foresaw death or any danger: DPP v Newbury [1977] AC 500. The fact that the defendant could not foresee the harm, for example because of his age of mental disability, is irrelevant: R v JF [2015] EWCA 351.

The reasonable person is only aware of circumstances which are objectively apparent from the scene: R v Dawson [1985] 81 Cr App R 150. This is true even if the defendant believes something to be the case (mistakenly or otherwise): R v Ball [1989] Crim LR 730.

Self-Inflicted Harm

An unlawful act is not dangerous if the victim or a third-party must make a voluntary, fully-informed action in order to make the defendant’s contribution dangerous: R v Kennedy (No 2) [2007] 3 WLR 612.

For example, handing a person a syringe saying it is full of poison is not dangerous. This is because it will not harm anyone unless the victim voluntarily injects it.

This principle could also be viewed as a matter of establishing proper causation. For this reason, if the victim’s actions are a reasonably foreseeable response to the defendant’s unlawful act, the defendant might still be guilty of manslaughter even if the cause of death is suicide: R v Wallace [2018] EWCA Crim 690.


Gross Negligence Manslaughter

The Elements of Gross Negligence Manslaughter

The actus reus of gross negligence manslaughter is established if the defendant breaches a duty of care in a manner which gives rise to an obvious and serious risk of death, is grossly negligent and which caused the death of a human being: R v Rose [2017] EWCA Crim 1168.

There is no subjective mens rea for gross negligence manslaughter: the offence is established purely on the basis of the defendant’s negligence. There is no need for the defendant to personally foresee or intend any harm: R v Singh [1999] Crim LR 582.

Duty and Breach

Any duty of care under the criminal law or tort law will suffice: R v Adomako [1994] 3 WLR 288. The question of breach also seems to be determined by reference to the principles of tort law. Whether there is a duty of care is a question for the jury to decide: R v Yaqoob [2005] Crim LR 383. Examples of common situations where duties exist include:

Child, vulnerable, responsibility

Where the defendant has a position of power or responsibility over a person, for example because they are vulnerable or a family member: R v Reeves [2012] EWCA Crim 2613.

Hazard, dangerous explosion, fire

Where the defendant is engaging in a hazardous activity or has contributed to the existence of a dangerous situation that they are aware of: R v Evans [2009] EWCA Crim 1540. This duty can arise even if the victim is also responsible for being in danger, such as where they take drugs supplied by the defendant.

Dangerous gun

Where the defendant has control over a dangerous object: R v S [2015] EWCA Crim 558.

Defences which might negate the existence of a duty in tort may also negate the existence of a duty in this context, such as the defence of illegality.

Obvious and Serious Risk of Death

The relevant duty must give rise to an obvious and serious risk of death if breached: R v Rose [2017] EWCA Crim 1168. It is not sufficient that there was an obvious risk of mere harm (even if serious) – death must be foreseeable: R v Misra & Srivastava [2005] 1 Cr App R 328.

  • The risk is assessed from the perspective of a reasonable person who knows what the defendant knows: R v Rose [2017] EWCA Crim 1168.
  • The jury cannot take into account anything the defendant did not know. For this reason, it is not enough that the situation was ambiguous in a way which would have led a reasonable person to investigate further to rule out the possibility of death: R v Rudling [2016] EWCA Crim 741.
  • However, the test is objective so there is no need for the defendant to have subjectively foreseen death: R v S [2015] EWCA Crim 558.
Gross Negligence

The breach is grossly negligence if it was so bad and shows such disregard for life and safety as to move beyond the realm of civil compensation and into the realm of actions which ought to be criminally punished: R v Bateman (1925) 19 Cr App R 8. This is a high standard, and a question for the jury to decide by reference to all the circumstances. Relevant considerations include:

Foresight, eyes

Whether the defendant subjectively foresaw the risk: Attorney General’s Reference (No 2 of 1999) [2000] Crim LR 475.

Experience, doctor, surgeon

The defendant’s experience in fulfilling the duty and level of responsibility in the circumstances: R v Singh [1999] Crim LR 582.

Pressure, duress, threat, punch

Whether the defendant was subject to any external pressures. Systemic issues with the defendant’s environment are often not considered relevant, however: Bawa-Garba v General Medical Council [2018] EWCA Civ 1879.


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Fatal Offences Against the Person Quiz

Test yourself on the principles governing the fatal offences against the person.

1 / 27

Daphne is a doctor who is treating Gillian for a terminal disease. Gillian is in considerable pain and asks for morphine. Daphne agrees and gives him a dose which causes him to die several days before he would otherwise. When questioned by police, she says she was just trying to help his pain and did not want him to die, though she knew that it was certain that he would. Has Daphne committed murder?

2 / 27

Laura has severe depression. Peter makes fun of her, telling her if she is so depressed she should go kill herself. She has a fit of anger and kills him. At trial for murder, she relies on the defence of loss of control. Can the jury take into account her depression when assessing whether the defence is established?

3 / 27

Which two are qualifying triggers for the loss of control defence?

4 / 27

The prosecution are trying to establish unlawful act manslaughter against a defendant who burned down a shed. While the defendant admits to committing the unlawful act, they convince the jury that a reasonable person would have thought the shed was empty. Are the prosecution likely to succeed?

 

5 / 27

Camilla is fed up with her partner, Adrian. She deliberately winds them up to let off some steam. She knows there is a risk that Adrian will become seriously violent if she does this, but is past the point of caring. When Adrian becomes violent, Camilla draws a knife and stabs them. Does Camilla have a qualifying trigger for when she tries to establish the defence of loss of control?

 

6 / 27

Chip learns that his husband Frederick is no longer in love with him. When confronted, Frederick calmly explains that Chip has not done anything wrong, they just drifted apart. Chip responds by shooting him dead in a fit of anger. At trial for murder, he argues that he lost control in response to circumstances of an extremely grave character that caused him to feel justifiably and seriously wronged. Is he likely to establish a qualifying trigger for the loss of control defence?

 

7 / 27

Can an offence of strict liability form the basis of constructive manslaughter?

 

8 / 27

Daphne is a doctor who is treating Gillian for a terminal disease. Gillian is in considerable pain and asks for morphine. Daphne agrees and gives him a dose which causes him to die several days before he would otherwise. When questioned by police, she did what she did because she thought it would be better if Gillian died, given he was in so much pain. Has Daphne committed murder?

9 / 27

What is the mens rea of murder?

10 / 27

Celia falls out of the window of her 8th storey apartment. When she passes the 4th storey window, she is hit by a bullet fired by William and killed instantly. It was certain that Celia would have died on hitting the ground. Did William cause Celia's death?

 

11 / 27

For the purposes of constructive manslaughter, when is an unlawful act dangerous?

12 / 27

A defendant is on trial for murder. They are relying on the defence of loss of control. Part of the reason they killed the victim is that they discovered the victim was cheating on them. Can the jury take this into account?

13 / 27

What three elements must a defendant show to establish diminished responsibility?

14 / 27

For the purposes of gross negligence manslaughter, what facts may the jury take into account when determining whether there was an obvious and serious risk of death?

15 / 27

What four elements does the prosecution need to show to establish gross negligence manslaughter?

16 / 27

Camilla wants to kill her partner, Adrian. She deliberately winds them up, knowing that it will cause them to become violent. When Adrian become violent, Camilla draws a knife and stabs them. Camilla tells police that Adrian is normally very seriously violent when they start a fight. Does Camilla have a qualifying trigger for when she tries to establish the defence of loss of control?

 

17 / 27

For the purposes of gross negligence manslaughter, what factors are relevant to determining whether the negligence was gross?

18 / 27

Yulia shoots Mia in the abdomen, causing Mia to go into early labour. The child is born alive, but dies a few days due to complications from the premature birth. Yulia intended to kill Mia. Has Yulia committed murder against the baby?

 

19 / 27

What three elements must the defendant show to establish loss of control?

20 / 27

When is a person legally considered dead?

21 / 27

Caleb and Cassandra have a blazing argument about Cassandra's drug taking habit. Caleb hands Cassandra a needle full of heroin, and tells her to knock herself out, and that he won't help her again if she overdoses. Cassandra overdoses, and Caleb does nothing. Cassandra dies. Caleb is charged with unlawful act manslaughter. The prosecution rely on his supplying Cassandra drugs as the unlawful act. Will Caleb be found guilty?

 

22 / 27

The prosecution is trying to establish unlawful act manslaughter against the defendant. While the defendant admits to committing the unlawful act, they argue that their unlawful act was not directed against the victim, but against the victim's property. The defendant foresaw that the victim might be injured by his act. Are the prosecution likely to succeed?

 

23 / 27

What is grievous bodily harm?

24 / 27

What must the prosecution show to establish unlawful act manslaughter?

25 / 27

Yulia shoots Mia in the abdomen, causing Mia to miscarry her child. Yulia intended to kill Mia. Has Yulia committed murder against the baby?

 

26 / 27

Can an offence of negligence form the basis of constructive manslaughter?

 

27 / 27

For the purposes of constructive manslaughter, can a defendant rely on mistaken beliefs they possess?

 

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