The law on Involuntary Manslaughter highlights key questions about the proper scope of criminal responsibility, including imposing liability for omissions and controversy surrounding the mens rea requirements that are considered appropriate for serious offences in England & Wales.
Explain the above statement, illustrating your points with examples from case law.
Involuntary manslaughter has to be distinguished from voluntary manslaughter because in the case of former, there is a lack of intention to kill. According to the law, involuntary manslaughter has been divided in three categories which are unlawful act or constructive manslaughter; gross negligence manslaughter or medical manslaughter and the other categories that of reckless manslaughter. In this way, it is clear that a wide range of situations are covered by involuntary manslaughter and it is also echoed in the verdicts that are given by the courts. In case of unlawful act or constructive manslaughter, it is required that the death of the victim should have been caused by an unlawful act which is something more than a civil wrong (R v Franklin, 1883). In such a case it is required that the unlawful act can be considered as dangerous by applying the reasonable person standard. This means that an objective test has to be applied and not a subjective test (R v Church, 1965). According to this test, there should be an act as merely an omission cannot result in creating liability (R v Lowe, 1973). In the same way, it is also required that the unlawful act should have resulted in causing the death as was stated by the court in R v Kennedy (2005).
Challenging decisions need to be made in which the death of a person has been caused by injecting a drug. The effect of the decisions given in these cases is that the courts have a reason to scrutinize what can be considered as an unlawful act or constructive manslaughter. At present, it appears that the law provides in this regard that if the drug has been supplied by the defendant but nothing more has been done by the defendant towards administering the drug, generally the court will come to the conclusion that the death has not been caused by the defendant (R v Dalby, 1982). On the other hand, if the person has been helped by the defendant in taking the drug, and such an act has resulted in the death of the person, the defendant can be held guilty of manslaughter (R v Rodgers, 2003). In the same way, if the injection has been prepared by the present but victim took the needle and injected himself or herself with a deadly dose, the defendant can still be considered as guilty of unlawful act manslaughter because in such a case, an unlawful act of administering a noxious substance has been committed by the defendant as provided by section 23, Offenses Against the Person Act, 1861 (R v Kennedy, 2005).
Test that can be used in case of unlawful act manslaughter is an objective test however the act can also be related with property. At the same time, it is also required that the risk of harm should be of a physical harm and when they say it is not sufficient if there is a fear or concern even if it has resulted in the victim suffering from a heart attack. However, if the defendant was aware of the weakness of the victim and also the risk that is faced by the victim, in such a case the defendant can be held as liable. However the law requires that they should be evidence to support that the defendant had the mens rea for committing the act, even though it is not necessary that the defendant realized at that time that the act was dangerous or unlawful (DPP v Newbury, 1977).
On the other hand, the gross negligence manslaughter or medical manslaughter takes place when a person owes a duty of care and such a duty has been breached which resulted in the death of the victim. In R v Singh (1999), the conviction for manslaughter for gross negligence was upheld by the Court of Appeal for the death of the tenant although his son was left behind to look after the property. In the same way, a large number of immigrants were suffocated while they were under the charge of the driver of the truck that was carrying 60 illegal immigrants from China (R v Wacker, 2003). In such cases, it is required that the actus reus should be so ‘gross’ that in the opinion of the jury, it appears criminal in nature and at the same time, there should be a threat of death. For example the defendant in R v Adomako (1994), was an anesthetist who failed to see that a tube inserted in patient’s mouth has become detached while an eye operation was going on. As a result, the patients suffered a cardiac arrest and died. The approach adopted by Lord Mackay in this case was very clear when he stated that the fact that the breach of duty on the part of the defendant amounted to gross negligence relied on the degree of seriousness of the breach on part of the defendant keeping in mind all the conditions under which the defendant was at the time when the incident happened and also to see if, considering the risk of death that was involved in this case, the conduct of the defendant can be considered as so bad under the circumstances that it amounted to a criminal act or omission in the judgment of the jury. It has been mentioned by the courts on several occasions that a duty of care is present between the doctor and the patient similarly as a duty was present in case of the relationship between the ship’s owner and the crew of the ship (R. v. Litchfield, 1993). In Adamoko, the concept of gross negligence has been criticized upon which the Court of Appeal has based its judgment by submitting that its formulation involves circularity as the jury was told in effect to convict the defendant of a crime if they thought that a crime had been committed and that accordingly using gross negligence as conceptual basis for the crime of involuntary manslaughter was unsatisfactory and the law should be applied by the courts as provided in R v Seymour [1983] 2 All ER 1058, generally to all the cases in which involuntary manslaughter is involved or at least it should be used as the basis for providing general applicability and acceptability.
Another case that needs to be mentioned in this regard is that of R v Stone & Dobinson (1977) when a vulnerable sister of the defendant was staying with them. However, when she fell ill, the defendants did not call for a doctor. It was held by the court that a duty of care was present in this case on part of the defendants and as a result, the attitude of indifference adopted by the defendants was sufficient for substantiating the charge of gross negligence manslaughter. On the other hand, reckless manslaughter cannot be defined so easily. Before Adomako (1994), the general view was that manslaughter can be recklessly committed and an objective test has to be used in this regard. However, after this case, it started to be considered that this was not appropriate test that needs to be applied and recklessness can result in the manslaughter of the kind that was found by the court in R v Stone & Dobinson (1977).
As a result, now it is considered that reckless manslaughter can be present in cases involving motor vehicles which result in manslaughter. An important case in this regard is that of R v Lidar. No. 99/0339/Y4 where there was an argument between the defendant and the victim when the victim was leaning into the car of the defendants. The car was driven by the defendant at that time and as a result, the victim came under car’s rear wheel. In this case, the court stated that the defendant was guilty of manslaughter. It was stated by the court of appeal that for holding the defendant liable, it is required that the defendant should have foreseen the risk of serious injury or death taking place and at the same time, it should have been assessed by the defendant that at least it is highly likely to take place (Ashworth, 1989). These days, perhaps reckless manslaughter can be defined with the help of the test that has been provided by the court in this case.
It also becomes significant at this point to refer to corporate manslaughter. After the Corporate Manslaughter and Corporate Homicide Act, 2007 was introduced in at the 2008; number of prosecutions has been increasing ever since. The meaning of this legislation is that the corporations and other organisations can also be liable of manslaughter as a result of the failure to perform the duties imposed on them properly. In case of a fatality as a result of the breach of duty of care, and it is found that the company has failed to manage health and safety procedures, the company can be held liable for corporate manslaughter (Thomas, 1978). However the law of corporate manslaughter can be criticized on the ground that in case of big corporations, it is possible that these companies may get away with the offense because there are huge resources available to them as a result, these corporations are in a better position to defend themselves against the charge of corporate manslaughter as compared to small businesses.
Perhaps the subjective definition that has been given to gross negligence manslaughter does not help at present as it suggests that whether the offense has been committed or not depends on the situation and what has happened (Field and Jorg, 1991). As a result even a question can be asked if the offense of gross negligence manslaughter is present at all. Indeed, it can be hard for jury but there are freeware and forceful authorities present regarding gross negligence manslaughter. Similarly, it cannot be supported by a idea that civil law can deal with culpability where this type of negligence has been present for a number of years (Sharpe, 1994). Probably, due to this reason, it was preferred by the Law Commission that the term criminal manslaughter should be used. Of course, the judges have to apply the law so that it can be beneficial for the jury and they may be aware of the verdict that has to be considered during their discussions. As a result, anything done with a view to facilitate jury’s work is perhaps good (Smith and Hogan, 1992). Problem may not be faced by the judge regarding a reform that suggests that reckless manslaughter should be abolished which perhaps is present only in cases of motoring manslaughter (Field and Jorg, 1991). However this does not necessarily mean that our concept of second degree murder will be easier for the jury to understand or for that matter, gross negligence manslaughter. It also appears that this term is also full of probable difficulties and it is also likely that the members of the jury could have heard regarding the use of the term in America. It can be argued in this regard that it is more significant to make sure that justice is provided to the victims by devising wide and diverse range of offenses that are capable of covering all the wrongdoers, instead of having any niceties regarding the drafting (Virgo, 1995). However the work done by the Law commission in this regard is also valuable and it should not be disregarded. But in this regard it is also important to note that the Parliament has the responsibility of making sure that it is in step with the requirements of the society and also to ensure that the reforms are made according to the expectations and needs of the people (Glazebrook, 1960).
At present, it may be an unwieldy part of the law, however it can be stated in this regard that this is due to the reason that it has to fulfill the requirements of the society which includes the families of the victims. Concerns have been expressed that the offenses related with the death of someone due to dangerous driving, are not capable of showing the loss of life and therefore it is important that significant care is exercised in order to make sure that the reforms regarding unlawful act manslaughter is not treated as diluting of the law and therefore, mixed signals should not be given in this regard.
On the basis of the above mentioned the discussion, and considering the circumstances under which a person ought to be held criminally liable for causing death unintentionally, it can be said that this should be the case only where an obvious risk of causing death or serious injury is present, which the person was capable of appreciating. As mentioned above, involuntary manslaughter is a very wide category of offense. It appears to be inappropriate that the types of conduct which hugely vary in terms of fault should all have the same descriptive label. Moreover, as a result of the broad nature of the offense of involuntary manslaughter, problems can be traced by the judges while sentencing because in such a case, the judge is not able to receive the guidance of the jury regarding the matter is that the important for the severity of the penalty deserved, like the foresight of the accused regarding the risk of causing death. Therefore in this regard, it can be recommended that two different offenses of unintentional killing should be created that are based on differing fault elements instead of having one single, broad offense. Although there can be certain disadvantages of having separate offenses but having a single and very wide offense also carries with it much greater dangers that have been discussed in this assignment.
References
Ashworth, 1989, “The Scope of Criminal Liability for Omissions” 105 LQR 424.
A. Thomas, 1978, “Form and Function in Criminal Law”, in Peter Glazebrook (ed) Reshaping the Criminal Law p 28.
Graham Virgo, 1995 “Reconstructing the Law of Manslaughter on Defective Foundations” CLJ 14, 16
J C Smith and B Hogan, 1992, Criminal Law (7th ed) p 373
P R Glazebrook, 1960, “Criminal Omissions: The Duty Requirement in Offences Aga
inst the Person” 76 LQR 386
S Field and N Jörg, 1991, “Corporate Liability and Manslaughter: should we be going Dutch?” Crim LR 156, 158–159 Celia Wells, “Manslaughter and Corporate Crime” (1989) 139 NLJ 931
Sybil Sharpe, 1994 “Grossly Negligent Manslaughter after Adomako” 158 JP 725
DPP v Newbury [1977] AC 500
R v Adomako [1994] 3 WLR 288
R v Church [1965] 2 WLR 1220
R v Dalby (1982) 74 Cr App R 348
R v Franklin (1883) 15 Cox CC 163
R v Kennedy [2005] 1 WLR 2159
R v Kennedy [2005] 1 WLR 2159
R v Lowe [1973] QB 702
R v Rodgers [2003] 1 WLR 1374
R v Stone & Dobinson [1977] 1 QB 354
R v Wacker [2003] 1 Cr App R 329
v. Litchfield, [1993] 4 S.C.R. 333
Singh, R v [1999] CA
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