Involuntary Manslaughter
There are three types of involuntary manslaughter: Constructive (also known as Unlawful Act), Gross Negligence and Subjectively Reckless.
CONSTRUCTIVE MANSLAUGHTER
The prosecution must establish four factors:
1. An Unlawful Act
Case examples of an unlawful act include:
- Administering a noxious substance contrary to s23 Offences Against the Person Act 1861, ie, heroin - as in Cato;
- Assault – as in Larkin;
- Battery – as in Church and in Mitchell;
- Criminal damage – as in Newbury & Jones; and
- Arson (criminal damage by fire) – as in Goodfellow.
Cases where there was no unlawful act include:
- Lamb – the defendant pointed a loaded gun at another person in jest but the victim was not alarmed. As both of them thought it was safe to pull the trigger, there was no assault.
- Arobieke – the victim ran away from the defendant, across a train track, and was electrocuted but the defendant had not physically threatened or chased the victim.
- Dias – the defendant purchased heroin on behalf of himself and another. The defendant prepared the syringe, which he passed on to the victim and also used himself. It was held that the defendant’s action in injecting himself was an intervening act which probably broke the chain of causation.
- Kennedy - supplying a heroin-filled syringe for immediate use by the victim.
2. The Act Must be Dangerous
The act must be dangerous in the sense that the reasonable person would realise that it could cause some physical harm to another person. See, for example:
- Larkin – the defendant waved a razor about intending to frighten X but the victim slipped onto it and was killed.
- Church – the defendant knocked the victim unconscious and, thinking he had killed her, threw her body into the river where she drowned.
- Dawson – the defendant robbed a petrol station and the cashier died of a heart attack. The Court of Appeal held that the defendant could only have been found guilty if the judge had directed the jury that the requisite harm would have been caused if the unlawful act so shocked the victim as to cause him physical harm.
It is sometimes necessary to decide how much knowledge the reasonable bystander has:
- According to Watson, the reasonable bystander has whatever knowledge the defendant possessed. Here, the defendant burgled a house but was disturbed by the 87 year old occupier who later had a fatal heart attack. The Court of Appeal held that the reasonable person was to be imbued with all the knowledge that the defendant had gained throughout the burglary.
- However, according to Ball, the bystander cannot be endowed with any mistaken belief held by the defendant. Here, the defendant mistakenly thought he had loaded his shotgun with blanks and only intended to frighten the victim when he fired at her.
3. Substantial Cause of Death
The unlawful act must be the substantial cause of death. This was not the case in:
- Dalby – the defendant supplied the victim with drugs who took them and then other drugs, before overdosing. The Court of Appeal held that the defendant’s act had not been the direct cause of death but merely made it possible for the victim to kill himself.
- Watson – the excitement caused by the arrival of the police and then a council workman, following a burglary, may have taken over as the operating and substantial cause of death.
However, it was the cause of death in the following cases:
- Mitchell – the defendant had an argument with a man and then pushed the man who fell onto the victim (an elderly woman who later died from her injuries). The actions of the man falling were foreseeable and did not break the chain of causation between the defendant’s assault and the victim’s death. Also, the doctrine of transferred malice could be used: Latimer.
- Goodfellow – the defendant firebombed his own council house (with his family inside) as part of a plan to be rehoused. The Court of Appeal held that there had been no fresh intervening cause between the defendant’s act and the deaths of his wife and children.
4. Mens Rea
The mens rea of Constructive Manslaughter consists of the mens rea for the unlawful act itself. The prosecution does not have to prove that the defendant realised the risk of causing some harm. This was accepted by the House of Lords in:
- DPP v Newbury & Jones – the defendant’s threw a paving stone from a bridge onto a train, which killed the guard (sitting next to the driver). The defendants were liable because they intentionally did an act which was unlawful and dangerous and that act caused death. It was unnecessary that the defendants had known that the act in question was unlawful or dangerous.
GROSS NEGLIGENCE MANSLAUGHTER
In R v Adomako, the House of Lords held that a defendant could be convicted of involuntary manslaughter by breach of duty if:
- The defendant was in breach of a duty of care towards the victim;
- The breach of duty caused the death of the victim; and
- The breach of duty was such as to be characterised as gross negligence and therefore a crime.
1. Breach of Duty
Lord Mackay, in Adomako, stated that “the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.” The principles to establish a duty of care, from Caparo v Dickman, are: foreseeability of damage; a relationship of proximity or neighbourhood; and that the court considers it fair, just and reasonable that the law should impose a duty on one party for the benefit of another. Established case examples of a duty of care include:
- Doctor and patient (Bateman and Adomako);
- Driver and pedestrian (Andrews);
- Master of a sailing ship and crew (Litchfield); and
- Driver and passengers (Wacker).
A duty to act can also be established by:
- A contract, as in Pittwood;
- A person assuming responsibility for another, as in Stone & Dobinson;
- Statute, eg, the Children & Young Persons Act 1933 which applied to Lowe; and
- The creation of a dangerous situation, based upon Miller.
A defendant will be in breach of the duty of care by falling below the standard of the ordinary reasonable person. For example:
- In Adomako, an anaesthetist failed to notice that a tube leading to a patient’s ventilator had become disconnected. When an alarm sounded, he wrongly assumed that the machine was faulty and took no action for several minutes, then panicked. The patient died;
- In Andrews, a driver was speeding and, while on the wrong side of the road, hit a pedestrian who was carried along on the bonnet of the car for some time;
- In Litchfield, the master of a sailing ship sailed too close to rocks despite being aware that the ship’s engines might fail because of fuel contamination. The ship struck the rocks and broke up, killing three crew members; and
- In Wacker, the defendant agreed to bring illegal immigrants into England in a container on his lorry. An air vent was closed during the ferry crossing in order to reduce the risk of the immigrants being discovered but the journey took an hour longer, killing fifty-eight people.
2. Causing Death
The “But For” Test from White can be used to establish factual causation. Should there be the possibility of a novus actus interveniens then causation in law will need to be established.
3. Gross Negligence
The jury must consider whether the breach of duty should be characterised as gross negligence and therefore a crime, rather than a civil matter. The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk of death. Having regarding to the risk of death involved, the conduct of the defendant must be so bad in all the circumstances as to amount to, in the opinion of the jury, a criminal act or omission. This was considered, for example, in:
- Bateman – the defendant doctor removed part of a woman’s uterus during childbirth but did not send her to hospital until five days later. She later died. Although he had been negligent, his actions were not seriously out of line with normal medical procedures at the time (1920s). The Court of Appeal quashed his conviction for manslaughter.
SUBJECTIVELY RECKLESS MANSLAUGHTER
Subjectively reckless manslaughter was considered by the Court of Appeal in: R v Lidar.
USEFUL BBC NEWS ARTICLES
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