Involuntary Manslaughter Revision Notes PDF

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Involuntary Manslaughter Revision Notes:Overall: - Murder = an intention to kill or to cause serious harm and death - Voluntary Manslaughter = where a murder charge is met with a possible defence - Involuntary Manslaughter = homicide (death) offence lacking mens rea (intention) for murder, but a dea...

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Involuntary Manslaughter Revision Notes: Overall: - Murder = an intention to kill or to cause serious harm and death - Voluntary Manslaughter = where a murder charge is met with a possible defence - Involuntary Manslaughter = homicide (death) offence lacking mens rea (intention) for murder, but a death that is still deemed to be culpable = where D does not satisfy the mens rea of murder, so does not commit murder, but does commit a lesser offence Types of Involuntary Manslaughter: 1. Unlawful and dangerous act manslaughter (constructive manslaughter) - Converts a lesser offence into a homicide offence 2. Gross negligence manslaughter 3. Reckless manslaughter 4. Corporate manslaughter 1. Unlawful and dangerous act manslaughter (constructive) - D commits UDAM when s/he acts to commit a criminal offence (base offence), the base offence carries an objective risk of some physical harm to V, and V dies as a result - There must be a basic crime on which the manslaughter charge is built o Can include all criminal offences, including civil wrongs (check this?*) o The charge that D would be faced with if no-one died o The base offence must be committed by an act, not by an omission o EG Andrews (1937) = Cannot be a crime of negligence o EG Lowe (1973) = cannot be an omission: ‘mere neglect’ of a child o EG Gibbins and Proctor (1918) = you can commit murder by omission o The general doctrines of the criminal law will still apply to this offence including rules that can be used to create liability such as intoxication rules o Creating liability: where D commits the actus reus of a base offence (EG hits V), but lacks the mens rea due to involuntary intoxication, D remains liable for basic intent offences because the intoxication rules serve to replace the absent mens rea. With all elements of the base offence now satisfied, D may be liable for UAM o Defences: where D commits a base offence but satisfies the elements of a complete defence, there is no crime upon which to construct UADM liability o Base offence must be dangerous to V:  EG R v Church (1996) = objective requirement: a sober and reasonable person in D’s position would have foreseen that his/her acts carried a risk of harm to V at the time that D acted  Danger to whom?  D’s conduct must be dangerous to the ‘other person’  The base offence does not need to be directed or targeted at V for UDAM (EG R v Watson (1989)) but nevertheless, D will still be liable for UDAM when V died from a stress-induced heart attack

Dangerousness will only be satisfied if danger to V is foreseeable o Type of recognition:  Requirement: a sober and reasonable person would have recognised or foreseen a danger to V, not whether D him/herself foresaw it = an objective test and strict liability (not a question of D’s personal perception or mens rea)  EG R v Dawson (1985) = the only time that court would take into account D’s subjective state of mind is if D had ‘special knowledge’ or the risks to V that may not have been obvious to the reasonable person o Degree of recognition:  Risk must be one that a reasonable person would have foreseen o Recognition of what?  D must foresee “the risk of some harm…albeit not serious harm” (Akomado)  EG R v Church = suggests that the foreseeable risk of harm need not be a risk of serious harm, and certainly need not be a risk of lifethreatening harm  But there must be a “foreseeable risk of legally recognised harm”  Something can still be foreseeably dangerous even if no physical contact with V is anticipated EG where bodily harm is still likely  The foreseeable risk of psychiatric harm/s would also be sufficient 

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Domestic abuse-related suicide o EG Dhaliwal (2006) = woman killed herself after prolonged abuse by her husband and question was whether or not he could be guilty of manslaughter  Could psychological abuse constitute a crime?  Distinguish ‘psychological’ from ‘psychiatric’. ‘Psychiatric’ = needs to be recognised by psychiatric testimony and is a form of serious harm under the OAPA 1861 (Ireland v Burstow, 1998)  Dhaliwal could not be covered by manslaughter but can now be covered by The Serious Crime Act 2015 s.76 = controlling or coercive behaviour in an intimate or family relationship  S.76 = where A’s behaviour to B caused fear that violence will be used or…a substantial adverse effect on B’s day-to-day activities Suicide o V is distressed by D’s base offence (EG physical abuse of V) to such an extent that s/he commits suicide o Category 1: D’s base offence causes physical injury to V, and V fails to treat or exacerbates that injury in some manner to cause death = in these cases, causation (and therefore liability for UDAM) has been found on the bass that D’s original offence remains a substantial and operating cause of death. V has no duty to limit the harm caused by D. EG R v Blaue (1975) = D must take his/her victim as s/he found her o Category 2: D’s base offence causes psychiatric harm or where D’s injuries are healed at the point of suicide = in these cases, it will be much more difficult to

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demonstrate that V’s suicide was not a free and voluntary act that breaks the chain of causation The criminal law’s response to domestic abuse-related suicide in England and Wales (Munro and Aitken): o The issue of manslaughter liability for domestic abusers whose victims took their own lives = became relevant after R v Dhaliwal o Although the relationship between domestic abuse and suicide is not linear, there is a correlation that is clear that “the propensity to suicidality increases with the severity, frequency and/or longevity of duration of abuse experienced” o Problem = that too many studies only look at sexual violence and do not consider or take into account psychological and economic abuse o Statistics about domestic abuse may not necessarily be truly representative and may indeed under-represent because of the stigma and shame that is attached to the issue o The strongest correlation however was those who were sexually abused and had been involved in enforced prostitution o “The mean duration of physical abuse for those in the suicidal group was 4.31 years, compared with 2.96 years, and 15.6% of suicidal clients had been abused by more than one perpetrator, compared with 8% of the non-suicidal cohort.” o Stannard argued that “it is an affront to justice that the criminal law is unable to cope with” this sort of situation and he has highlighted the absurdity of the outcome o Post-Dhaliwal = there has been a new offence created: s.76 of the Serious Crimes Act 2015 which includes a range of positive acts that produce psychological harms, not all of which would be deemed criminal in their own right o After a recent decision by the CPS in Staffordshire to bring charges against an abusive partner for unlawful act manslaughter there was a suggestion that the “time is ripe for further consideration of the outcome in Dhaliwal” but the opportunity to reset these legal boundaries was lost by D’s decision to plead guilty ahead of the trial o Case in 2018 = D was charged and convicted of assault occasioning ABH and coercive control, but not manslaughter when the victim took her own life. The judge made a remark that expressly acknowledged D’s controlling and coercive behaviour “drove (his partner) to hang herself that morning” because he “beat her and ground her down and broke her spirits” o Overall = very difficult to prove causation in relation to suicide-related domestic abuse cases because the perpetrator doesn’t “pull the trigger” or “tie the noose” but they are clearly a significant cause of the victim’s death o Bespoke offence: Stannard observed that an obstacle t acknowledging forms of psychological injury as bodily harm is that there is a risk of opening the floodgates to over-criminalisation o In Moldova, Tajikistan and Albania = they all have separate offences that address this

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The basic crime must be the cause of death o Strict liability element: D’s base offence must cause the death of V o There is no requirement for D to have intended, known or foreseen that this result would have come about (no mens rea requirement) o Causation element of UADM = apply the standard causation rules o Barriers to UDAM liability: where D appears healthy and no obvious physical hazards, it can be difficult to demonstrate an objectively foreseeable risk of harm in a fight (EG R v Carey (2006)) o V’s conduct in taking flight has not broken the chain of causation between D’s base offence and V’s death: V’s response may not be ‘wholly disproportionate’ or ‘daft’ (EG R v Lewis (2010)) o Drug supply:  EG Kennedy No 2 (2007) = V voluntarily takes controlled drugs supplied by D (supply being the base offence) and died from the effects = V’s voluntary and free act in self-administering the drug will break the chain of causation  However, if D fails/omits to then calling the emergency services and V dies as a result = UDAM o EG Dalby (1982) = the unlawful act must be ‘aimed at V’ = although it satisfied manslaughter, the courts didn’t think that D was really the right person to prosecute for a manslaughter charge = there has to be some sort of criminality within the causal link o EG Dias (2001) = supply of the drug is not enough: the casual chain is broken by the free act of taking the drug by V o EG Rogers (2003) = D helped to administer the drug by applying the tourniquet to his friend’s arm and V then inserted the syringe themselves and it was held that d helped to take part in the mechanics of the injection o EG Kennedy No 2 (main authority) (2007) = D prepared syringe for V who then died = it was not joint administration but V’s act was free in one injecting themselves o EG Finlay (2003) = causation was not singular = Kennedy No 2 disapproves of Finlay because freewill is ‘fundamental’ The basic act must be ‘dangerous’ o EG Church (1966) = there must be an “act…such that all sober and reasonable people would inevitably recognise…at least the risk of some harm resulting therefrom, albeit not serious harm” o It is the ‘reasonable person’ that would recognise the risk, not D = makes the test objective o What the ‘reasonable person’ foresees:  EG Dawson (1985) = armed robbery, 60-year-old man dies from a heart attack = not reasonably foreseeable  EG Watson (1989) = frail 87-year-old man died during burglary = held that reasonable person would have appreciated the risk during the course of the burglary

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EG Carey (2006) = affray charge = 15-year-old girl with heart condition = reasonable person would not have foreseen the risk EG Ball (1989) = a subjective mistake is irrelevant to the objective reasonable person’s view in this case

Problems with Unlawful and Dangerous Act Manslaughter (Constructive Manslaughter): 1. UDAM encompasses an enormous spectrum of blameworthiness: can be nearly virtual certainty of death but also a relatively minor offence where it was very hard to foresee the death of V and both will have the same sentence 2. Moral (bad luck) involved (‘the one-punch killer’) 3. People committing the crime take too many of the consequences that they didn’t intend or foresee 4. Imprecision of the legal concepts 5. Unfair labelling and problematic convictions 6. The need to distinguish more from less culpable crimes and the Law Commission’s proposal for ‘Second Degree Murder’ = where ‘D intended to cause or risk some injury and was aware of a serious risk of causing death’ 2. Gross Negligence Manslaughter: - GNM = Duty of care + breach of duty + reasonable foresight + causing death + grossly negligent - Where C causes V’s death through criminal negligence - Liability for serious offences will be imposed where D makes the choice to harm or to risk harm: to punish D for the harms but also D’s blameworthy choice of bringing them about - GNM can be punishable by maximum life imprisonment - GNM arises where D’s conduct is seriously negligent (unreasonably careless and inattentive) and where that negligence causes death - GNM can be committed by an act or an omission (unlike UDAM which can only be committed by an act, not by an omission) - Following Adomako = GNM cannot be found unless it was reasonably foreseeable that D’s breach of duty gave rise to a serious and obvious risk of death to V - Five elements established by R v Adomako (1994) = (1) whether or not D has been in breach of a duty of care towards the victim, (2) whether that breach of duty caused the death of the victim, (3) whether that breach of duty should be characterised as gross negligence and therefore a crime 1. A duty of care o The ordinary principles of negligence apply (Adomako) o EG parent and child relationship or doctor and patient relationship and a driver to other road users o EG Wacker (2002/3) = duty of care exists in illegal enterprise contract law = public policy is in favour of duty in criminal cases and applying duty where possible = the ability of the criminal law to recognise duties of care outside of the recognised categories o EG Willoughby (2004) = D had engaged V to help him burn his public house down and killed V in the process. A duty of care existed because D was the owner and the pub was to be destroyed for his own financial benefit

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o EG Miller (1983) = duty to avert danger from one’s own acts under criminal law of omissions o EG Evans (2009) = both a duty of care and a duty to act may exist in GNM cases = D supplied drugs to V, who became ill. D stayed with V but failed to seek any medical help = held that there was a duty of care under GNM when one has contributed to a life-threatening state of affairs. The failure of D to act comes after the self-injection when D realises that the supply of drugs has created a dangerous situation. However, following Kennedy No 2 = the voluntary act still remains: V self-injected and therefore V created the dangerous situation because the self-injection was voluntary and breaks the chain of causation o Drugs related: D’s supply of the drug would cause V’s death but D is not responsible but if D supplied the drug and then omitted to helping, it would be D’s fault Breach of the duty of care (negligence) o How the ‘reasonable person’ would have acted in the situation o Whether D’s conduct ‘fell below’ how the ‘reasonable person’ would have acted Reasonable foresight: A ‘mental element’: an objective test = reasonable foreseeability of an outcome (a serious and obvious risk of death) o Objective test = whether the ‘reasonable person’ would have foreseen a serious and obvious risk of death o EG Rose (2017) = reasonable person test to what was foreseeable at the time that D acted or omitted Causation (causing death) o Standard causation requirements: causation in fact (‘But-For’) and causation in law (D’s actions must have been a: substantial, blameworthy and operating cause of death) Grossly negligent: The breach of the duty must be gross (negligence must be gross) o EG Misra (2004) = must involve a serious risk to life o Meaning of ‘gross’ = EG Bateman (1925) = ‘such a disregard for life and safety of others as to amount to a crime’, EG Adomako = ‘conduct…was so bad in all the circs to amount to a criminal act or omission’ o There is therefore a reliance on the jury to decide what is ‘gross’ but without any real guidance o Although the court does not have a definition for ‘grossness’ in relation to negligence, the bar should be set high for ‘grossness’

3. Reckless Manslaughter: - Involves death where D had foresight of a risk of death or serious injury to V - Most cases would actually fall into Unlawful and Dangerous Act (Constructive) Manslaughter or Gross Negligence Manslaughter - If UDAM = it is easier to prove the base offence and then the further mens rea is objective - If GNM = foresight of death or serious injury would be seen as evidence of the grossness of the negligence

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EG Hyam (1975) = setting fire to a house in order to scare and death ensues o No mens rea for murder o Foresight of high probability of risk of death or serious injury o Could be charged with UDAM but perhaps should be recognised as the more serious reckless manslaughter...