Involuntary Manslaughter

Question 1

what is involuntary manslaughter

Answer 1

it is a homicide offence where the D has been unable to fulfil the MR requirements that are needed for Murder

Question 2

what is the difference between invol and vol

Answer 2

Where Vol MS involves relying on a partial defence

Invol MS means that D does not satisfy the MR of murder and therefore commits a less MS offence

Question 3

what are the 3 main types of involuntary MS

Answer 3

unlawful act MS
gross negligence MS
reckless manslaughter

Question 4

what is unlawful act MS

Answer 4

D commits a criminal act in dangerous circumstances, and this causes the death of V

Question 5

what is gross negligence MS

Answer 5

D causes V’s death through criminal negligence

Question 6

what is reckless manslaughter

Answer 6

D causes V’s death, being reckless to causing death or GBH

Question 7

corporate manslaughter

Answer 7

There is also the separate offence of CM, which comes under the fatal offences umbrella but is not considered under these MS due to the fact it has a different AR

Question 8

how do you commit unlawful act MS

Answer 8

D commits UAM when they act to commit a criminal offence (a base offence), the base offence carries an objective risk of some physical harm to V and V dies as a result

Question 9

what are the three main elements of UAM

Answer 9

Unlawful Act – base offence

Objectively dangerous

Causing death

Question 10

the breadth of the offence - UAM

Answer 10

The need for 3 elements to be satisfied, allows there to be a wide room for offences to be charged

Some UAM are crimes which fall just short of Murder due to their intent, where some are more accidental, but due to the base offence and result, can be considered to be UAM

Question 11

element 1 of UAM - the unlawful act (base offence)

Answer 11

This is the charge that the D would have faced if no one died – called the base offence

Only criminal offences will be appropriate here – civil used to be allowed, but this was held to be too wide

The most common base offences are OAP, but other offences do qualify such as arson and burglary

Question 12

restrictions on the ‘base offence’

Answer 12

must be one req subjective MR

Established in Andrews v DPP [1937] – the base offence must be one of an intrinsically criminal offence

Interpreted to mean that any offences satisfied by an MR of negligence or SLO

Where the D acts negligently to cause death – the appropriate course of action will be to consider liability for Gross Negligence Manslaughter

Question 13

the base offence must be what

Answer 13

The base offence must have been and act rather than an omission

Until this is revisited by the courts (and inevitably gets reversed) the current position is that the base offence should have been committed by an action rather than an omission

This does not seem to make logical sense – but if there is an omissions case, it can then be applied to a GNM case

Question 14

identifying a potential base offence

Answer 14

• Once a base offence has been established – a criminal offence, requiring subjective MR, committed by D’s acts
It remains essential that the D satisfied every element of that base offence and lacks a valid defence

Question 15

element 2 of UAM - the base must be dangerous to V

Answer 15

The requirement for this element is that a reasonable and sober person in D’s position would have foreseen that their acts carried a risk of harm to V at the time

Question 16

church 1996 - UAM

Answer 16

“The unlawful act must be such that all sober and reasonable people would inevitably recognise that it must subject the other person to, at least the risk of some harm…”

This is an objective test and requirement and leads to four questions

Question 17

church 1996 question 1

Answer 17

Who needs to recognise the danger?
The Church definition stated that D’s conduct must be dangerous to ‘the other person’

It is now clear that the base offence does not need to be directed at V – if the person is within a close location in some way, than that is sufficient

The second element – that of dangerousness does need to apply and needs to be foreseeable to V

There must be a foreseeable risk of harm to the V

Question 18

church 1996 question 2

Answer 18

What level of recognition?

A sober and reasonable person would have recognised danger to the V – irrelevant as to whether D foresaw it themselves

The test is objective and not one of D’s personal perception

It is irrelevant whether D foresaw the risk and even whether D was capable of foreseeing the risk

The exception to this rule is where D has ‘special knowledge’ of risks to V that the usual, reasonable person may not have been aware of

If D knew about this – then it far more likely that the danger will be foreseeable according to the Church test

Question 19

church 1996 question 3

Answer 19

What degree of recognition?

It must be that the person would have foreseen rather than that they may have forseen

Question 20

church 1996 question 4

Answer 20

Recognition of what?

Church did help with this – there must “be a risk of some harm…albeit not serious harm..”

It does not need to be a risk of serious harm or life-threatening harm – seeing a risk of some harm (such as bruising) is appropriate

Question 21

element 3 of UAM - the base offence must cause the death of V

Answer 21

D’s base offence must have caused death – but there is no requirement for D to have intended, known, foreseen or had any MR to the result

Est in A-G’s Reference [no 3 of 1994] 1998

Question 22

causation

Answer 22

The standard causation rules apply; D’s act must be the cause of death in fact and the cause of death in law

As long as it can be proven, liability can be established

There are 3 areas which can be problematic here

Question 23

fright/flight

Answer 23

V flees from the scene of a crime (base offence) committed by D and dies when in flight

Heart attacks from exertion, tripping and falling injuries, running in front of a car etc

The response should have been predictable, and the response of the V should not have been ‘daft’

Question 24

drug supply

Answer 24

V voluntarily takes controlled drugs supplied by D (supply being the base offence) and dies from the effects

The free and voluntary action of D taking the drugs will break the chain of causation – unless it can be shown that D administered the drugs themselves

Question 25

suicide

Answer 25

If V is distressed by D’s base offence to such an extent that they commit suicide Situation 1: D’s offence causes physical injury and D fails to treat the injury – causing death = D still liable Situation 2: Where D causes psych harm or where D’s injuries are healed at time of suicide – more difficult, and more likely that V is responsible

Question 26

gross negligence manslaughter

Answer 26

liability for serious offences will be imposed only where the D makes the choice to harm or to risk harm This is an approach reflecting the idea of autonomy and therefore, there are few serious offences which are based on negligence The obvious exception is that of GNM, a serious offence where the punishment can result in a maximum of life imprisonment GNM arises where D’s behaviour is seriously negligent (unreasonably careless or inattentive) and that negligence then causes death

Question 27

what are the 5 core elements of gross negligence manslaughter

Answer 27

1) Duty of Care 2) Breach of Duty 3) Reasonable Foresight 4) Causing Death 5) Grossly Negligent

Question 28

adomako 1994 - GNM

Answer 28

D (anaesthetist) failed to notice that a tube supplying oxygen to his patient had become detached. D was charged with GNM as his conduct fell far below the standards expected of a reasonable anaesthetist

Question 29

element 1 - GNM - duty of care

Answer 29

At the time of causing death to the V, D owed a duty of care Core examples inc: transport carriers to passengers, employers to employees, doctors to patients etc However, this is a civil duty and the criminal law is not bound to follow this Wacker 2003 • D was engaged in smuggling illegal immigrants into the UK. D shut the air vent to the container and 58 of them suffocated • Under the civil law, this would not constitute a DoC – but within the crim law, it does Act or Omission • GNM, unlike UAM can be committed by an act or omission • If commited by an omission, then the court must also establish a duty of care from those duties (special relationship etc) – effectively a double duty of care

Question 30

element 2 - GNM - breach of DoC

Answer 30

Did D’s conduct fall below what was expected of a reasonable person in their position? Similar to the civil law, if the D purports to exercise a particular skill, the standard of their conduct is measured against a reasonable person with that skill

Question 31

element 3 - GNM - reasonable foresight

Answer 31

When the DoC is breached, it is evident that D’s conduct must pose a risk to the V which is both serious and obvious, as well as being reasonably foreseeable Irrelevant as to whether the D actually saw the risk themselves

Question 32

rose 2017 - reasonable foresight

Answer 32

D, an optometrist perfomed an eye test on V and recorded no problems. They then died 5 months later following a build up of fluid within the brain If the D had viewed the scan efficiently, then this would have been noticed and treated D charged with GNM but on appeal wasn’t held that there was a breach at the time This case demonstrated the key issue of when the D must be aware of the risk, when should they have foresight of the risks? The foresight should happen at the moment D breaches their duty to V

Question 33

element 4 - GNM - causing death

Answer 33

Once established that D owes V a duty of care, that D breached that and that breach entailed a serious risk of death we must prove that the this did cause the death To establish the cause of death – the standard causation issues apply D’s conduct must be a cause of death in fact (but for) and a cause of death in law (substantial and operating)

Question 34

element 5 - GNM - grossly negligent

Answer 34

The conduct of the D must be sufficiently ‘bad’ This is what takes this from Civil > Criminal Was the conduct of the D…so bad in all circumstances as to amount to a criminal act or omission?

Question 35

gross definition

Answer 35

It should be conduct which is ‘truly exceptionally bad…’ providing useful intelligence that it needs to be an incredibly high bar to achieve liability

Question 36

the role of the jury

Answer 36

In order to assess whether the D has breached within this element, the jury are required to look at surrounding circs However, this lack of criteria has led to a disparity in explanation and different application by different juries The issue with this, is that the judge is asking the jury to establish facts as they believe them to be – and then decide whether they believe the breach has been satisfied Despite asking the jury to define parts of the offence as they apply it…it has survived challenges on HR and remains…

Question 37

reckless MS

Answer 37

Where they cause V’s death by act or omission and are at least reckless as to causing death or GBH Very rarely prosecuted, and there are few appeal cases with which to discuss Most of the cases are satisfied by UAM or GNM as these do not require subjective MR These are mainly prosecuted where the case involves a level of culpability just shy of murder – where the D foresaw a risk of causing death or GBH but it is too difficult to demonstrate the virtual certainty