Involuntary Manslaughter essay PDF

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Involuntary Manslaughter essay

Subjectivism Subjectivists argue that criminal liability should not be imposed in respect of a given harm unless D intended to cause or knowingly risked causing that harm (the principle of mens rea). Which main- tains that the limits of a person’s criminal liability should be determined, in principle, by what he or she intended or foresaw.

Barry Mitchell – Againt ‘one punch manslaughter’ Barry Mitchell argues that. Assuming that a ‘one punch killer’ does not foresee a risk of injury or death, he should not be convicted of UDA manslaughter. It is unwise to generalise however, certain scenarios, most commonly when one drunk person hits another, does result in a death as there is less control of eithers body. V could fall and hit his head, D could use too much force. In this light it can be argued that it is reasonably foreseeable. However, where these excpetions do not occur and there is no foreseeability, is it fair to convict the d of manslaughter. Dangerousness Driving, by its very nature, is almost inevitably a highly dangerous activity, however careful and competent the driver. A single punch in the face of another person is inherently less dangerous and significantly less likely to cause serious harm. On the other hand, in contrast to driving it is, of course, unlawful, but that simply means the puncher ought not to have thrown the punch; it does not provide a sufficient rationale for holding the puncher criminally liable for whatever consequences ensue.

Risk/Families of Offences/Moral Culpability Essentially, Moderate constructives argue that an offence should fall under the same category of crime for a defendant to be morally culpable, basically be a crime of the same nature. For example, a risk of injury unfolding due to an attack of personal violence. Considering this, it would mean that the defendant in DPP v Newbury would not be liable for the death caused as the attack was not of the same families of offence The main point that should be taken is that, what matters is not that the crime/act and the subsequent result of the act, but that, as Barry Mitchell had put it, one carries are higher intrinsic risk whereas the other doesn’t. Therefore, it is fair to hold the defendant culpable for an outcome when the offence committed is a vast scale away in comparison. Gavin Leigh the current, amalgamated, crime is illogical: liability may be established on the basis of a death that is neither intended nor foreseen, nor even capable of being foreseen by the individual concerned. With a view to separating out the possible justifications for two kinds of unlawful act manslaughter, I will establish some historical authority for both means of proof, before considering the possible justifications for each. The conclusion will suggest that

manslaughter by an act of intended bodily harm may be justifiable, but that this may be possible where death is caused through any advertent crime.’ It is okay to convict someone of UDA manslaughter as long as they know theyre committing a crime and they know it is a dangerous crime. It is unfair to depeict a situation as dangerous as the crime is being committed. Gavin also highlights that dangerousness does not take into account the opportunity for D to avoid the crime, or more so the outcome. He uses the case of Watson as an example. Although the risk of some harm became foreseeable during the course of the unlawful act, Watson could not avoid creating the risk of bodily harm caused by the victim's frailty and age. Horder suggested that this could be prosecuted by means of manslaughter by gross negligence but, even if it were proven that "D carried on with the burglary despite knowing that a frail householder was aware', the risk could not be minimised in this way, and should that even be relevant with regard to the commission of a crime?

There must be an objective look at the foreseeability of dangerousness.

The importance of having the mental capacity to foresee and the opportunity to avoid the required harm is illustrated in JF and NE's Case, reaffirmed by the court of appeal that, the objective nature of dangerousness with regard to unlawful act manslaughter. The medical evidence suggested that JF, who was 14 and a half at the time of the incident, had the mental capacity of a six-year-old. He was convicted of the manslaughter of a homeless man, which was caused by a fire that he had started in the basement of a derelict building. The defendants had been acquitted of arson recklessly endangering life and it is not even clear that an adult would have appreciated that the smoke and carbon monoxide from the fire could kill someone in less than five minutes. Heedlessness does not affect the degree of foreseeable harm required, neither does it affect the capacity to foresee, but its significance lies in the opportunity to avoid creating the risk. People should have the mental and physical capacity to follow the law, when one of thse is absent, as seen in JF v NE, should they be culpable for the outcome of their actions. Case of Dawson – Unforseeable rsk The courts take into account the capacity, age and fraity of the women in R v S but fail to do so in JF v NE. The lack of consistency regarding the objectiveness of law regarding UDA is alarming.

COUNTER – Jeremy Horder – Moral Threshold is crossed when D embarks on any criminal acivity. – UNLAWFUL ACT THEORY. Argues that when an intentional attack on another's physical integrity results in the other's death, that should be manslaughter. In Horder makes the comparison that any form of conduct by D which effects and harms the physical integrity of V, should be held as

manslaughter. The risk of damaging someone’s physical integrity is taken, therefore all consequences should be taken too. It does not matter if I did not intended to do something and it still happens, what is important is not the ‘luck’ involved but that it actually happened. If the moral threshold is crossed by taking a knowing risk, then liability should follow. The result would not have happened if D didn’t cross that threshold. Coke. Jeremy horder sees life as one body with one physical integrity. If any intentional harm is put on to V’s physical integrity, damaging any of its values in whatever form, then D can and should be found liable for whatever occurs from that point. Case of Mallett – D punched V, he fell, hit his head on stone and died. Contrast with the case of Watson – D burgarled house, saw V, shouted abuse and left. 90 mins later she has a heart attack. D not liable. Horder argued he could still be proescued however, due to the age and frailty of women, how could he minimise risk. Horder does recognise that the invasion of physical integrity must be morethan a mere trespass – Case of Mithell – Man pushes old lady. She stumbles, falls and dies. The push itself would have needed to be violent enough to be more than a mere trespass. If someone relies on luck, and the result in worse than expected, then you should take your own bad luck. Jeremy Horder describes this as ‘taking your own bad luck’. If you aren’t dependant on luck, then it is ‘pure luck’. Hagel also supports this theory, luck factors as a huge element within UDA, however, we still carry and make our own luck, as they transpire from our own actions. Recjlessness = ‘pure luck’ Similarly - Victor Tadros suggested that if the crime "creates a risk of death, even a small risk, there is good reason to see the imposition of that risk as wrongful’ CHANGES TO A NORMATIVE POSITION – Andrew Ashowrth Where a person embarks on conduct with a prohibited form of knowledge, that may amount to a change of normative position that renders the person liable for unforeseen circumstances and consequences. The correspondence principle: If a crime such as manslaughter involves causing of death, then the mental element for that crime should involve taking a risk of death. Ashworth states that people cannot rely on the excuse that it is just ‘bad luck’ that the injury subsequently lead to the death of the V.

IRISH SOLUTION

They have shown their disagreement with the UKs stance on culpability, liability and foreseeability in regard in to involuntary manslaughter. They take the approach that ‘minor acts’ i.e punching in the face, minor acts of violence, which unforeseeably result in fatalities should be removed from the scope of unlawful and dangerous act manslaughter because where deliberate wrong doing is concerned they are at the bottom of the scale. In a ordinary ‘one punch’ scenario there would be no prosecution for assault if a fatality hadn’t occurred. Prosecution for these types of accidental deaths are based purely on chance and luck. The Irish proposed a new offence called ACD. Assault Occasioning Death. This was created for minor assaults and death had to be ‘wholly unforeseeable’. This more accurately reflects the reality that the defendant has committed an assault which may not necessarily be that serious however had fatal consequences. Furthermore, it avoids the immediate implication that the defendant is morally culpable for causing death. The only issue with the Irish solution is that it forms a compromise if you will. On one hand it recognises that minor assaults should not effect the defedantds moral culpability. On the other hand, there is a undoubtedly big change when a fatality is added into the mix, which cannot be ignored.

More Academics

Oliver Quick The current test for liability (gross negligence) is unclear, unprincipled, often unfair and ought to be abolished. A more modern approach would see the creation of a specific offence for the health care context - perhaps "death by dangerous doctoring". Cases Constructive manslaughter Andrews v DPP – Something more than negligence is required. Kennedy – Heroin given to victim – The unlawful act on which a conviction for constructive manslaughter is based must itself be a crime and that act must be a significant cause of death....