Instances of Manslaughter

Question 1

Killing in a sudden fight

Answer 1

When you come across a killing that is a result of a sudden fight, you need to
consider whether there was:

• self-defence
• the requisite mens rea for a murder charge.
  It is crucial for you to consider these issues if you are to decide the way in
  which the killing should be viewed:
• If the homicide can be justified as having arisen out of self-defence (s48)
  the proper verdict is an acquittal.
• If the fact there was a fight negates that the defendant had the required
  mens rea to bring a charge of murder within section 167, the proper
  verdict is manslaughter.

Question 2

Manslaughter by unlawful act

Answer 2

Section 160(2) deals with deaths that occur by way of an unlawful act.

An English matter, Newbury and Jones 11outlines a four-point test for
proving an unlawful act for manslaughter.

1. The defendant must intentionally do an act
2. The act must be unlawful
3. The act must be dangerous
4. The act must cause death

Question 3

Manslaughter by negligence

Answer 3

The situations that may give rise to a charge of manslaughter by negligence
are diverse, and include negligence while in charge of or using trains, factory
machinery, mines, motor vehicles, ships or weapons, or while administering
medical or surgical treatment.

Remember that in many instances the defendant will have been engaged in a
dangerous act or in charge of a dangerous thing, so you need to follow the
standards set out in s155 and 156 to establish what, if any, negligence there
has been.

The following examples show the range of possible circumstances and
indicate some of the distinctions that may need to be made:

Example One:
When someone is charged with manslaughter on the basis that they used a
dangerous thing riskily or negligently, the consent of the person who
subsequently died is no defence. So, it would be no defence against a
manslaughter charge to say the deceased agreed to ride on the bonnet of a
car you drove dangerously, knowing the deceased was in that position.

Example Two:
When the death occurs during a lawful game or contest, such as during a
football or hockey match, the death is treated as non-culpable homicide
unless the defendant’s actions were likely to cause serious injury, in which
case the defendant is guilty of manslaughter (see s160).

Example Three:
Even if the deceased contributed to their own death by their own negligence,
this does not afford the defendant a defence against manslaughter by
negligence. Contributory negligence is no defence.

Question 4

Negligent Drivers

Answer 4

Juries have been reluctant to convict negligent drivers of manslaughter, so
alternative offences have been formulated. These are contained in s36A, 38,
39 and 39AA of the Land Transport Act 1998 and relate to aggravated
careless, dangerous and reckless driving causing death.

These charges carry lesser penalties. Consult with Legal Section to decide
what would be the most appropriate charge. In many cases there is little
point charging the person with manslaughter, as the driver may receive a
lesser penalty than, for example, the maximum penalty of 10 years contained
in s36AA of the Land Transport Act 1998.

On occasions, the particular circumstances surrounding the death may
include a number of aggravating contributory factors that may indicate that a
charge of manslaughter is preferable. In such cases, consult with Legal
Section for guidance. It may be appropriate to file a separate charging
document under the Land Transport Act 1998.

In deciding on the charge and looking at the particular circumstances, take into
account the facts of the case and consider the offender’s degree of negligence.
Consider, also, the type of intent or act that caused the death – for example,
if the offender was “playing chicken” with an oncoming train, or if they had
bet passengers in a vehicle they were driving that they could beat a train and
cross a railway track, and in the process had killed the passengers.