involuntary manslaughter Flashcards
(40 cards)
1
Q
Involuntary manslaughter
A
- This has nothing to do with involuntariness – it is a homicide offence where the D has been unable to fulfil the MR requirements that are needed for Murder
2
Q
Invol vs vol
A
- The difference between Invol and Vol MS (as discussed last session) are major
- These are effectively two different offences
- 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
3
Q
Main types of invol MS
A
1) Unlawful Act MS: D commits a criminal act in dangerous circumstances, and this causes the death of V
2) Gross Negligence MS: D causes V’s death through criminal negligence
3) Reckless Manslaughter: D causes V’s death, being reckless to causing death or GBH
4
Q
Corporate manslaughter
A
- 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
5
Q
Unlawful act manslaughter (UAM)
A
- AKA: unlawful and dangerous act MS, constructive MS
6
Q
How do you commit it?
A
- 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
7
Q
The 3 main elements
A
1) Unlawful Act – base offence
2) Objectively dangerous
3) Causing death
8
Q
The breadth of the offence
A
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
9
Q
The unlawful act (base offence)
A
- 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
10
Q
Restrictions on the ‘base offence’- must be one req subjective MR
A
- 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
11
Q
- The base offence must have been and act rather than an omission
A
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
12
Q
Identifying a potential base offence
A
- 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
13
Q
The base offence must be dangerous to V
A
- 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
14
Q
Church [1996]
A
“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
15
Q
Who needs to recognise the danger?
A
- 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
16
Q
What level of recognition?
A
- 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
17
Q
‘special knowledge’
A
- 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
18
Q
What degree of recognition?
A
- It must be that the person would have foreseen rather than that they may have forseen
19
Q
Recognition of what?
A
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
20
Q
The base offence must cause the death of v
A
- 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
21
Q
Causation
A
- The standard causation rules apply; D’s act must be the cause of death in fact and the cause pf death in law
- As long as it can be proven, liability can be established
- There are 3 areas which can be problematic here
22
Q
Fright/flight
A
- 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’
23
Q
Drug supply
A
- 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
24
Q
suicide
A
- 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
25
Gross negligence manslaughter
- Generally, 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
26
GNM exception
- 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
27
5 core elements
1) Duty of Care
2) Breach of Duty
3) Reasonable Foresight
4) Causing Death
5) Grossly Negligent
28
Adomako [1994]
- 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
29
Duty of Care
- 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
30
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
31
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
32
Breach of DoC
- 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
33
Reasonable foresight
- 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
34
Rose [2017]
- 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
35
Causing death
- 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
36
Standard causation
- 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)
37
Grossly negligent
- 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?
38
‘grosss’
- An ambiguous term at best…
- It should be conduct which is ‘truly exceptionally bad…’ providing useful intelligence that it needs to be an incredibly high bar to achieve liability
39
The role of the Jury
- 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…
40
Reckless MS
- 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
