Lecture 13 - Involuntary Manslaughter PDF

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Lecture notes on Involuntary Manslaughter....

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LECTURE 13

INVOLUNTARY MANSLAUGHTER 1. Reckless Manslaughter Although Caldwell reckless manslaughter was abolished by the HL in Adomako, it is thought that reckless manslaughter still exists, eg: Lidar (2000) unreported. Relevant mens rea will be Cunningham recklessness, ie: awareness of the risk of death or GBH. It may be committed by either:A. Killing by a lawful act done legislature makes criminal, or

with a

degree

of

carelessness which the

B. Killing by an unlawful act done with such a high degree of recklessness that it borders oblique intention, eg: Hyam/Nedrick might now be regarded as cases of reckless manslaughter.

2. Gross Negligence Manslaughter This category of manslaughter existed historically, sometimes interchangeably with reckless manslaughter, but disappeared whilst Caldwell recklessness became the recognized form of mens rea for reckless manslaughter. Gross negligence manslaughter was revived by the case of Adomako [1994], see below. The only distinction from reckless manslaughter is in relation to: - Awareness of risk - recklessness requires awareness of the risk whilst gross negligence requires no awareness at all. It might be just seriously negligent conduct. R v. Bateman [1925] l9 CAR Note the circularity of the argument; that a question of law is left to the jury and the distinction drawn with civil negligence. (see earlier mens rea lecture on gross negligence). Andrews v. DPP [l937] AC 576 "There are degrees of negligence and a very high degree must be proved before a felony can be established. Of all the epithets that can be applied 'reckless' most nearly covers the case. But it is not an all -embracing term because recklessness suggests indifference to risk whereas D may have appreciated the risk and intended to avoid it, yet showed by the means adopted such a degree of negligence as would justify conviction." per L. Atkin.

R v. Adomako [l995] All.E.R.(HL) Gross negligence defined:

"The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the D was so bad in all the circumstances as to amount in their judgment to a criminal act or omission... In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the CA in the present case following R v. Bateman and Andrews v. DPP and it is not necessary to refer to the definition of recklessness in R v. Lawrence, although it is perfectly open to the trial judge to use the word 'reckless' in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case..." Thus: 1. 2. 3. 4.

There must be a duty of care; There must be a breach of that duty; There must be a risk that the D's conduct would cause death; Together with a finding of gross negligence.

[NB: Death resulting from dangerous driving may give rise to either a charge of manslaughter by recklessness/gross negligence or a charge of Dangerous Driving contrary to s2A Road Traffic Act 1988 (as imposed by s1 RTA 1991). Penalty 10 years.] R v. Litchfield [1998] CLR 507 A ship captain owed a duty of care to his seamen. R v. Singh (Gurphal) [1999] Crim LR 582 July. A landlord owed a duty of care to his tenant. The risk must be foreseeable by the ordinary reasonable person. The existence of a duty was a matter of law. R v. Wacker [2002] Crim LR 839 Conspiracy to facilitate the entry into the UK of illegal immigrants and 58 offences of manslaughter. Gross negligence. No comparable case. R v Gemma Evans [2009] EWCA Crim 650 1. It is for the judge to define whether a duty arises on the facts by instructing the jury that if they find the facts of the case to be X, a duty will be established. The jury must then decide whether they find that the facts occurred. 2. Where D supplies drugs to V who self-injects and dies, a duty of care may arise under the Miller principle (duty by omission: creation of a situation of danger) leading to gross negligence manslaughter provided there are facts additional to mere supply so that D is contributing to the creation of danger. Here, it was the failure to call for medical assistance in full awareness of the risks. R v Misra & Srivastava [2005] Crim LR 234 Gross medical negligence. The argument on appeal that gross negligence manslaughter should be replaced and confined to reckless manslaughter was rejected. The offence was not incompatible with Art 7 of the ECHR.

3. Unlawful & Dangerous Act/Constructive Manslaughter

This applies to killing whilst committing an unlawful act. 3.1 The unlawful act must be a crime requiring mens rea greater than negligence. R v. Fenton (1830) 1 Lew CC 179 R v. Lamb [l967] 2 QB 981 R v. Simon Slingsby [1995] Crim LR 570 R v D [2006] Crim LR 923 R v Dhaliwal [2006] EWCA Crim 1139 R v Carey [2006] EWCA 17 NB: Lawful excuse or justification will negate 'unlawfulness'. 3.2 It must be a crime of commission. R v. Lowe [l973] AC 576 Charge: s1(1) Children & Young Persons Act l933 & manslaughter. 3.3 The unlawful act must be dangerous for which the test is objective. R v. Church [l966] 1 QB 59 “The unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other to at least the risk of harm, albeit not serious harm." R v. Dawson [l985] Cr App R 150 The objective test was modified so that the sober and reasonable man is to be credited with the same knowledge as the Acc. at the time of the offence. R v. Watson [l989] 2 All ER 865 R v. Carey [2006] EWCA Crim 17 V’s characteristics might be relevant to the assessment of danger. 3.4 The unlawful act must cause death R v. Cato [l976] 1 All ER 260 R v. Kennedy (No 2) [2007] UKHL 38

3.5 Foresight of harm by D is not necessary. R v. Ball [l989] CLR 730 Once it was established that the act was unlawful and that he intended to commit the assault, the question of its danger is to be judged not by the D's appreciation but by that of the sober and reasonable man who would have no reason to be aware of the D's mistake. DPP v. Newbury [l977] AC 50 What must be proved is an intention to commit an unlawful and dangerous act and that the act inadvertently caused death. 3.5 Must the unlawful act be "directed at" V?

NO.

R v. Goodfellow [l986] 83 CAR 23 R v. Mitchell [l983] QB 741 AG’s Ref [No 3 of 1994] [1997] 3 AllER 936...