Manslaughter in English law
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- For a discussion of the law in other countries, see manslaughter
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea (Latin for "guilty mind"). In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option (see lesser included offense). The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
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[edit] Voluntary Manslaughter
This arises where the accused kills another with the necessary mens rea for murder, but is not liable for murder either because he or she satisfies the tests for a mitigatory defence or (now rare) he or she was the survivor of a suicide pact.[1] The defences capable of reducing a charge of murder to manslaughter are provocation and diminished responsibility.
[edit] Involuntary Manslaughter
This arises where the accused did not intend to cause death or serious injury but caused the death of another through recklessness or criminal negligence. For these purposes, recklessness is defined as a blatant disregard for the dangers of a particular situation. An example of this would be dropping a brick off a bridge, landing on a person's head, killing him. Since the intent is not to kill the victim, but simply to drop the brick, the mens rea required for murder does not exist because the act is not aimed at any one person. But if in dropping the brick, there is a good chance of injuring someone, the person who drops it will be reckless. This form of manslaughter is also termed "unlawful act" or "constructive" manslaughter.
[edit] Manslaughter by gross negligence
Under English law, where a person causes death through extreme carelessness or incompetence, gross negligence is required. While the specifics of negligence may vary from one jurisdiction to another, it is generally defined as failure to exercise a reasonable level of precaution given the circumstances and so may include both acts and omissions. The defendants in such cases are often people carrying out jobs that require special skills or care, such as doctors, police or prison officers, or electricians, who fail to meet the standard which could be expected from a reasonable person of the same profession and cause death. In R v Bateman 1925 Cr. App R. 8 the Court of Criminal Appeal held that gross negligence manslaughter involved the following elements:
- the defendant owed a duty to the deceased to take care;
- the defendant breached this duty;
- the breach caused the death of the deceased; and
- the defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.
The House of Lords in Seymour 1983 2 AC 493 sought to identify the mens rea for "motor manslaughter" (negligently causing death when driving a motor vehicle). Reference was made to Caldwell 1982 AC 341 and Lawrence 1982 AC 510 which held that a person was reckless if:
- he did an act which in fact created an obvious and serious risk of injury to the person or substantial damage to property; and
- when he did the act he either had not given any thought to the possibility of there being any such risk or had recognised that there was some risk involved and had nonetheless gone on to do it.
The conclusion was that for motor manslaughter (and, by implication, for all cases of gross negligence), it was more appropriate to adopt this definition of recklessness. Consequently, if the defendant created an obvious and serious risk of causing physical injury to someone, there could be liability whether there was simple inadvertence or conscious risk-taking. It was no longer a defence to argue that the negligence had not been gross.
In Adomako 1995 1 AC 171 an anaesthetist failed to notice that a tube had become disconnected from the ventilator and the patient died. Lord Mackay disapproved Seymour and held that the Bateman test of gross negligence was the appropriate test in manslaughter cases involving a breach of duty, allowing the jury to consider the accused's conduct in all the surrounding circumstances, and to convict only if the negligence was very serious. Individuals have a duty to act in the following situations:
- to care for certain defined classes of helpless relatives, e.g. spouses must take care of each other, and parents must look after their dependent children. In R v Stone and Dobinson 1977 QB 354, an elderly woman with anorexia nervosa, came to stay with her brother and his cohabitee, who were both of low intelligence, and subsequently starved herself to death. The Court of Appeal held that the question whether the couple owed a duty to care for the deceased was a question of fact for the jury, which was entitled to take into account the facts that she was a relative of one of the appellants, that she was occupying a room in his house, and that the other appellant had undertaken the duty to care for her by trying to wash her and taking food to her.
- where there is a contract (even if the person injured was outside the contractual relationship and, in the civil law would be barred by privity from enforcing the contract). In R v Pittwood 1902 TLR 37, a railway crossing gatekeeper had opened the gate to let a cart pass and forgot to shut it again. Later a hay cart was struck by a train while crossing. He was convicted of manslaughter. It was argued on his behalf that he owed a duty only to his employers, the railway company, with whom he had contracted. Wright J, held, however, that the man was paid to keep the gate shut and protect the public so had a duty to act. In contracts relating both to employment and to the provision of services, R v Yaqoob 2005 EWCA Crim 1269 considered a partner in a taxi firm who was responsible for making all necessary arrangements for the inspection and maintenance of a minibus which had overturned after its tyre burst, killing one of its passengers. He was convicted of manslaughter because the failure properly to maintain the minibus was the direct cause of the accident and there was an implied duty owed both to other members of the partnership and to those renting the vehicle, to inspect and maintain beyond the standard required for an MOT test, council inspections, and other duties imposed by regulation. The jury was competent to assess whether the failure to discharge that implied duty was gross negligence without hearing any expert evidence; these were not technical issues and they did not need expert help. The sentence of four years imprisonment was within the sentencing band and not excessive.
In Attorney-General’s Reference (No 2 of 1999) 2000 3 AER 182, a case on corporate manslaughter that arose out of the Southall rail crash, the Court of Appeal decided the defendant's subjective state of mind (i.e. whether there was conscious risk-taking) is irrelevant and, therefore, so is the question of recklessness, leaving the objective test as the only test for liability. Rose LJ, said:
Although there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence. The Adomako test is objective, but a defendant who is reckless as defined in Stone may well be the more readily found to be grossly negligent to a criminal degree. In our judgment unless an identified individual’s conduct, characterisable as gross criminal negligence, can be attributed to the company, the company is not, in the present state of the common law, liable for manslaughter.
Civil negligence rules are not apt to confer criminal liability…the identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter. (see imputation). This was only persuasive authority for the law of manslaughter at large, but R v DPP, ex p Jones 2000 (QBD) IRLR 373 which said that the test of negligent manslaughter is objective, confirmed Attorney General’s Reference (No 2 of 1999) as a correct general statement of law.
[edit] Motor manslaughter
Because of a reluctance by juries to convict when the charge was manslaughter, a statutory offence of "causing death by dangerous driving" was introduced. Following the Road Traffic Law Review Committee (1988), the Road Traffic Act 1991 abandoned recklessness in favour of the pre-statutory objective test of "dangerousness", i.e. did the driving fall far below the standard of the competent and careful driver. The Committee also recommended that manslaughter should be an optional charge for the more serious driving cases. Note the possibility of charging an aggravated taking without consent for less seriously dangerous driving where death results.
[edit] Unlawful act manslaughter
Under English law, according to R v Creamer 1966 1 QB 72, a person is guilty of involuntary manslaughter when he or she intends an unlawful act that is likely to do harm to the person, and death results which was neither foreseen nor intended. The alternative name for this crime is constructive manslaughter. Although the accused did not intend to cause serious harm or foresee the risk of doing so, and although an objective observer would not necessarily have predicted that serious harm would result, the accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act.
In R v Dawson 1985 81 Cr. App R. 150 a petrol station attendant with a weak heart died of heart failure when the appellant attempted a robbery of the station. In judging whether this act was sufficiently dangerous, the Court of Appeal applied a test based on the "sober and reasonable" bystander who could be assumed to know that the use of a replica gun was likely to terrify people and so be a danger to those with a weak heart. Note the aggravated form of criminal damage with intent to endanger life under s1(2) Criminal Damage Act 1971 which could provide the unlawful act if the damage actually causes death. But R v Carey, C and F 2006 EWCA Crim 17 limits the scope of unlawful act manslaughter. An argument became violent and the first defendant punched and kicked one victim. The second defendant assaulted the deceased by pulling her hair back and punching her in the face. The third defendant assaulted another. The deceased was one of the first to run away, after which she felt faint, and later died of a heart condition (ventricular fibrillation or dysrhythmia) which was congenital but which had not been diagnosed before her death. The unlawful act was said to be the affray and the judge held that it was legitimate to aggregate the violence by the other defendants in order to decide whether the affray had subjected the deceased to the threat of at least some physical harm, and so had been a cause of death. On appeal, it was inappropriate to hold the defendants liable for the death. There must be an unlawful act that was dangerous in the sense that sober and reasonable persons would recognise that the act was such as to subject Y to the risk of physical harm. In turn, that act must cause the death. When deciding whether an act is dangerous, knowledge of the victim's characteristics may be relevant. In this case, no reasonable person would have been aware of the victim's heart condition which distinguishes this case from Dawson, and from R v Watson 1989 1 WLR 684 in which the victim's approximate age (he was 87 years old) and frail state would have been obvious to a reasonable person. A sober and reasonable person would not have foreseen that an apparently healthy person of 15 years would suffer shock as a result of it. The court held that the deceased's death was not caused by injuries that were a foreseeable result of the affray. The assault by the second defendant was an unlawful act causing death. The other two defendants could have been convicted by virtue of common purpose given that the death was an accidental departure from the general plan of the affray. But the Crown did not elect to present the case in this way, but pleaded the case as a public order group activity. The result would be that if anyone died in a general disturbance amounting to an affray, all those who participated could be convicted of manslaughter which would be against public policy. Deaths in a general disturbance are too remote to be caused by all participants.
Thus, a punch which causes a person to fall will almost inevitably satisfy the test of dangerousness, and where the victim falls and suffers a fatal head injury the accused is guilty of manslaughter. It is foreseeable that the victim is at risk of suffering some physical harm (albeit not serious harm) from such a punch and that is sufficient. Physical harm includes shock. The reason why the death resulting from the attempted robbery of the 60 year old petrol station attendant was not manslaughter was that the attempted robbery was not dangerous in the relevant sense. It was not foreseeable that an apparently healthy 60 year old man would suffer shock and a heart attack as a result of such an attempted robbery. But the jury properly found that it was foreseeable that an obviously frail and very old man was at risk of suffering shock leading to a heart attack as a result of a burglary committed at his home late at night.
In R v Charles James Brown 2005 EWCA Crim 2868, following the break-up of his relationship with his girlfriend, at about 3 pm., the applicant sent a text message to his mother saying that he did not want to live any more. He then drove his car against the flow of traffic along the hard shoulder of the A1(M) at high speed, before moving into the carriageway, still accelerating and straddling the centre line. He then crashed, head on, into an oncoming car, killing the passenger and injuring many others in the resulting consequential crashes. A sentence of 10 years' detention in a young offender institution was upheld because although the intentional focus might have been only on suicide, the defendant must have known from the way he was driving that he would kill or injure at least one other person (thus enforcing an objective standard on the defendant).
[edit] Unlawful (Constructive) Act Manslaughter and the liability imposed on drug suppliers
The law on those who supply the (post) deceased with drugs had been uncertain until the case of R v Kennedy (no.2) 2007 UKHL 38. Prior to this House of Lords ruling, the lower courts (in particular the Court of Appeal) struggled to strike a balance between those suppliers considered to have administered the drug (in the subsequent cases, heroin) to the victim themselves, and those suppliers who simply "supply" the drug for the victim to then voluntarily administer themselves.
[edit] See also
[edit] References
- ^ Section 4, Homicide Act 1957
- Gardner, Simon. (1995). "Manslaughter by Gross Negligence" 111 Law Quarterly Review 22
