Involuntary Manslaughter
Three part test:
1. Must be an unlawful act:
Fern recklessly cuts Jodie's hand with a knife. Jodie goes to hospital, but the nurse fails to give her a clean bandage. The wound becomes infected, and Jodie dies.
1. Is it an unlawful act?
Yes: Fern commits a s. 20 offence on Jodie through recklessness. AR: s.20 wounding (Eisenhower). MR s.20 recklessness as to some harm (Cunningham and R v G).
2. Is it a dangerous act?
Yes: Would the reasonable person foresee some harm as a result of a cut?
3. Has it caused the death of the victim?
Maybe: But for Fern's actions, would Jodie have died? No. Are the nurse's actions enough to break the chain of causation (Smith, Cheshire, Jordan)? No: likely to be unlawful act manslaughter.
Reform:
Alex fancies Clare, and is annoyed that Barry has started going out with her. He encounters Barry in the street and punches him on the side of the face, in order to 'ruin his good looks.' Barry loses his balance, falls backwards, and hits his head on a car bonnet behind him. He dies from his injuries.
1. Is it an unlawful act?
Yes: battery or s.47 offence.
2. Is it a dangerous act?
Yes: will cause some physical harm.
3. Has it caused the death?
Yes: it was a consequence of the punch.
Lindsey is angry about the recent performances of a member of the football team she supports. After one match she confronts the player in question with a knife to scare him into putting more effort into the game. Unfortunately she misjudges the distance between the end of the knife and the player's neck and fatally wounds the player.
1. Is it an unlawful act?
Yes: s.20 offence: GBH.
2. Is it a dangerous act?
Yes: It is reasonably foreseeable that if you wave a knife in front of someone's face you could injure them.
3. Has it caused the death?
Yes.
Seminar question 2:
1. Is it an unlawful act?
Yes: s. 47 ABH. The intention is to cause some minor harm. It is not murder because there is no intention to cause GBH or murder.
2. Is it a dangerous act?
Yes: reasonably foreseeable that falling down the stairs can cause harm.
3. Has it caused the death?
Yes: but for John's actions, Craig wouldn't have died. Turning off the life support machine isn't enough to constitute a break in the chain of causation.
Would your answer differ if he'd woken from the coma but died after contracting an infection in hospital?
No (Smith, Cheshire, Jordan)?! Difficult for things in hospitals to break chain of causation.
1. Must be an unlawful act:
- The base offence must be a criminal offence proven in full (actus reus + mens rea + absence of defences)
- Arobieke: D followed V to train station, got on train, then got off the train to hide from D. D walked along the platform then looked into the carriages. V was electrocuted as he was hiding in that place. There was no unlawful act as there was no mens rea for assault.
- Slingsby 1995: D convicted for cutting V internally with his signet rings. There was no unlawful act as there was no battery: no intention/recklessness for non-consentual touching.
- Dhaliwal 2006: V had been subject to domestic violence. D hit her in the face and cut her. V committed suicide. Evidence was that there was a direct link between his violence and her suicide. Prosecution relied upon s.20 OAPA 1861. Trial was halted by the judge because the prosecution was seeking to rely on psychiatric damage as a result of years of abuse. The threshold for psychiatric injury was too high: not enough evidence. Psychological harm but no psychiatric injury. Prosecution should have used the final act rather than s.20.
- Lamb 1970: Two friends were playing Russian roulette with a loaded gun. There weren't bullets in each part. They were firing the gun at each other. There were no bullets in the chamber, but when D fired, it rotated and a bullet loaded and killed V. There was no assault: no mens rea and no apprehension of personal violence. There was no risk in D's mind.
- AR: causing V to apprehend immediate infliction of unlawful personal violence
- MR: intentionally/recklessly causing such fear
- Absence of defence (e.g. consent, self-defence etc.)
- The defence must be proven in full
- There is no requirement that the unlawful act has to be directed at V
- Dolby: Unlawful act had to be directed...?
- Goodfellow 1986: Confirmed that it didn't. D wanted to be moved by the council, but was in arrears with his rent. D set his house on fire, killing V1 and V2. The force hadn't been directed at anyone; it was intended to be criminal damage.
- Omissions as unlawful acts:
- Senior: D didn't believe in giving medical treatment. D's child V died of malnutrition. Not involuntary manslaughter - but gross negligence manslaughter instead.
- Must be an unlawful act, not an omission.
- The test for this is objective
- Would the sober and reasonable person have appreciated that the act was dangerous in the light, not only of the circumstances actually known to the accused, but also of any additional circumstances of which the hypothetical person would have been aware.
- Church 1965: D was impotent. V started to laugh at him. D strangled and beat V. D had lost his temper, but had then started to panic when V became unresponsive. D threw her out of the van into the river because he thought she was dead. V was not dead and drowned.
- '... The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.'
- Confirmed by DPP v Newbury and Jones 1976: Ds threw concrete slab off bridge onto train. Smashed through and killed V.
- A peculiarity of the victim is relevant if it would have been known to the sober and reasonable observer of the event, even if it wasn’t known to the accused.
- Dawson 1985: Ds went into station and threatened V with a pick-axe. V pressed the panic button and Ds ran off. V died from a heart attack; he had a heart condition. It was possible that the attempted robbery could've triggered the heart attack. The issue was around the dangerousness of the activity. V had been placed in a position where he was emotionally disturbed and very fearful: this was an incorrect stance. An observer could not have known of the heart condition. The reasonable person would've thought V would be shaken up, but not actually harmed.
- Watson 1989: Ds broke into V's house (87 year old man). V confronted them having found them in the house. Ds pushed V. There was little physical contact. Ds ran off. V suffered heart attack and died. Although Ds didn't know the age/physical condition of V at the point of entering the flat, a sober and reasonable bystander would've realised V's vulnerability at once. The conviction was upheld.
- Carey 2006: V was a 15 year old girl who was hanging out with her friends. Another group of young people came up to them and pulled V's hair, shouted at her, stamped on her. V ran away and collapsed. Nobody knew that there was anything wrong with her but she'd had a heart condition and died. It wasn't the pulling of the hair or anything physical that caused it, but it was the affray not the assault that caused it. Public Order Act 1986 s.3.
- The law required that the unlawful act committed was recognised by a sober and reasonable person, as dangerous and likely to subject V to harm that could cause death. The affray lacked the quality of dangerous in the relevant sense. It wouldn't have been recognised by a sober and reasonable bystander that an apparently healthy 15 year old was at risk of suffering shock as a result of the affray. Followed Dawson: decision to convict was overturned. The only dangerous act was the assault by D on V. If V had fallen as a result of D's push and hit her head on a hard surface and V died, it would be manslaughter, but this wasn't the case. It wasn't reasonably foreseeable that the assault would've caused the harm she actually sustained.
- Normal principles of causation apply: the unlawful and dangerous act must have caused the death of V (Johnston 2007).
- Factual causation (but for test); legal causation (intervening acts).
Fern recklessly cuts Jodie's hand with a knife. Jodie goes to hospital, but the nurse fails to give her a clean bandage. The wound becomes infected, and Jodie dies.
1. Is it an unlawful act?
Yes: Fern commits a s. 20 offence on Jodie through recklessness. AR: s.20 wounding (Eisenhower). MR s.20 recklessness as to some harm (Cunningham and R v G).
2. Is it a dangerous act?
Yes: Would the reasonable person foresee some harm as a result of a cut?
3. Has it caused the death of the victim?
Maybe: But for Fern's actions, would Jodie have died? No. Are the nurse's actions enough to break the chain of causation (Smith, Cheshire, Jordan)? No: likely to be unlawful act manslaughter.
- The correspondence principle: that the mens rea should correspond to the actus reus.
- This principle is based on the notion that D has the choice about whether or not to risk the harm.
Reform:
- The Law Commission 1996 proposal: concerned about the correspondence principle.
- Proposed that there had to be a serious, obvious risk of harm.
- ‘… We consider, as a matter of principle, that the criminal law ought to hold a person responsible for unintentionally causing death only in the following circumstances:
(1) when she unreasonably and advertently takes a risk of causing death or serious injury; or
(2) when she unreasonably and inadvertently takes a risk of causing death or serious injury, where her failure to advert to the risk is culpable because
(a) the risk is obviously foreseeable, and
(b) she has the capacity to advert to the risk’.
- Home Office issued a consultation 2000:
- The offence should require D to intend/be reckless as to the injury.
- Law Commission 2006 proposal: manslaughter would cover situations where death was caused by a criminal act intended to cause injury, or where D was aware that the criminal act involved a serious risk of causing injury.
Alex fancies Clare, and is annoyed that Barry has started going out with her. He encounters Barry in the street and punches him on the side of the face, in order to 'ruin his good looks.' Barry loses his balance, falls backwards, and hits his head on a car bonnet behind him. He dies from his injuries.
1. Is it an unlawful act?
Yes: battery or s.47 offence.
2. Is it a dangerous act?
Yes: will cause some physical harm.
3. Has it caused the death?
Yes: it was a consequence of the punch.
Lindsey is angry about the recent performances of a member of the football team she supports. After one match she confronts the player in question with a knife to scare him into putting more effort into the game. Unfortunately she misjudges the distance between the end of the knife and the player's neck and fatally wounds the player.
1. Is it an unlawful act?
Yes: s.20 offence: GBH.
2. Is it a dangerous act?
Yes: It is reasonably foreseeable that if you wave a knife in front of someone's face you could injure them.
3. Has it caused the death?
Yes.
Seminar question 2:
1. Is it an unlawful act?
Yes: s. 47 ABH. The intention is to cause some minor harm. It is not murder because there is no intention to cause GBH or murder.
2. Is it a dangerous act?
Yes: reasonably foreseeable that falling down the stairs can cause harm.
3. Has it caused the death?
Yes: but for John's actions, Craig wouldn't have died. Turning off the life support machine isn't enough to constitute a break in the chain of causation.
Would your answer differ if he'd woken from the coma but died after contracting an infection in hospital?
No (Smith, Cheshire, Jordan)?! Difficult for things in hospitals to break chain of causation.