Taster day power point presentation on iv manslaughter 2nd july 2015

UNIT 4

HOMICIDE: INVOLUNTARY MANSLAUGHTER

MANSLAUGHTER

The actus reus is as for murder, but there is insufficient fault for murder.

There are two types of manslaughter:

• Voluntary – Not considered in this module.• Involuntary – Considered in this Unit.

VOLUNTARY MANSLAUGHTER

A defendant who successfully pleads loss of control (previously provocation), diminished responsibility or suicide pact will have the actus reus and mens rea for murder.

Loss of control, diminished responsibility and suicide pact amount to partial defences to murder that reduce the crime to manslaughter.

INVOLUNTARY MANSLAUGHTER

A defendant charged with unlawful homicide committed without malice aforethought may be guilty of involuntary manslaughter:

• constructive manslaughter, • gross negligence manslaughter and • Cunningham reckless manslaughter.


The defendant has unlawfully killed the victim but does not have the mens rea for murder.


1. Constructive manslaughter (unlawful act manslaughter).

2. Gross negligence manslaughter.

3. Cunningham (subjective) reckless manslaughter.


• Larkin [1943] 1 All ER 217

• Stone and Dobinson [1977] QB 354 CA

• Willoughby [2004] EWCA Crim 3365

CONSTRUCTIVE MANSLAUGHTER

Causing a death whilst committing an unlawful and dangerous act.


Actus Reus

As for murder – unlawful killing of a reasonable creature in being under the Queen’s peace.


Mens Rea

Intention to do the act and the mens rea for the crime committed.


Elements to be proved:

• The defendant committed an unlawful act.

• The unlawful act must be dangerous.

• The unlawful act must be the substantial cause of the death.


POINT OF TECHNIQUE

When dealing with constructive manslaughter, identify the criminal offence and prove the actus reus and mens rea of the offence before going on to establish the other two essential elements.


Lamb [1967] 2 QB 981

Scarlett [1993] 4 All ER 629 CA

If there is no lawful act there can be no liability.


Senior [1899] 1 QB 283

Lowe [1973] QB 702 CA

It is doubtful whether an omission will suffice for constructive manslaughter.

There is a reluctance to establish liability for omissions.


The unlawful act must be dangerous (an objective test)

Causing death is not enough; the unlawful act must be dangerous in the sense that it must expose the victim to the risk of some bodily harm.

The test is objective; it is enough if a reasonable person observing the event would have foreseen some harm as likely to result.


The objective test was established in Church [1966] 1 QB 59 CA.

“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”


The unlawful act must be the substantial cause of death

It must be proved that the unlawful act caused the death. It must be the substantial cause but need not be the only cause.


Goodfellow [1986] 83 Cr App Rep 23 CA

It was not necessary for the act to be directed at the victim, all that is necessary is that there is no fresh, intervening cause between the act and the death.

A-G’s Reference (No 3 of 1994) [1998] AC 245

GROSS NEGLIGENCE MANSLAUGHTER

• Bateman [1925] 19 Cr App Rep 8 CA.

• Seymour [1983] 2 AC 493 HL

• Kong Cheuk Kwan v R [1985] 82 Cr App R 18 PC

• Adomako [1994] QB 302 HL


The Bateman test of gross negligence:

“In explaining to juries the test which they should apply to determine whether the negligence in the particular case amounted to or did not amount to a crime, judges have used many epithets such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving of punishment.”


The Bateman test was applied in Andrews v DPP [1937] AC 576.


Prentice, Sulman, Holloway and Adomako [1993] 4 All ER 935 CA.

Bateman test was applied


There is now a single test of gross negligence. There must be:

• The existence of a duty owed by the defendant to the victim.

• A gross breach of that duty.• The gross breach of duty causes the victim’s

death.


The question to ask is:

“Having regard to the risk of death involved, [was] the conduct of the defendant so bad in all the circumstances as to amount in [the jury’s judgment] to a criminal act or omission?”


The test is objective – would the risk have been obvious to the reasonably prudent and skilful doctor, electrician, motorist etc. as the circumstances require.

‘The essence of the matter is whether having regard to the risk of death involved the conduct of the defendant is so bad in all the circumstances as to amount in their judgement to a criminal act or omission.’


Wacker [2002] EWCA Crim 1944

The criminal law would not decline to hold a person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity at the time or because there might have been an element of acceptance of a degree of risk by the victim in order to further the joint unlawful enterprise.


Wacker [2002] EWCA Crim 1944

The criminal law should not be disapplied simply because the civil law was (as a matter of policy) under the principle of ex turpi causa non oritur actio.

The defendant was guilty of 58 counts of manslaughter by gross negligence.


Willoughby [2004] EWCA Crim 3365

• As a matter of law, categories of manslaughter by unlawful act and gross negligence were not necessarily mutually exclusive, and in some circumstances a defendant could be guilty by both routes.

• The fact that D was the owner of the premises to be destroyed for his benefit and that he had enlisted V to help spreading petrol gave rise to a duty of care to V.

• While there could be exceptional cases where a duty of care obviously existed, for example where a statutory duty of care was imposed, and a judge could direct a jury that a duty existed, it was normally a question for the jury once the judge decided that there was evidence capable of establishing a duty of care,


• Gross negligence manslaughter can arise from an act or from an omission.

• Where the allegation is that the death occurred by a failure to act, it must be remembered that it is not enough that it was reasonably foreseeable that the defendant’s negligent failure to act would imperil the victim.

• There can only be liability if the defendant was legally obliged to do the act which he is alleged to have failed to have done. (Refer Unit 1.)


• R v Mick Philpott, Mairead Philpott and Paul Mosley Nottingham Crown Court, 4 April 2013


Evans (Gemma) [2009] EWCA Crim 650

For the purposes of gross negligence manslaughter, if a person created or contributed to the creation of a state of affairs which he knew, or ought reasonably to have known, had become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life would normally arise.


Evans (Gemma) [2009] EWCA Crim 650

The existence or otherwise of a duty of care or a duty to act was a question of law and the question whether the facts established the existence of the duty was for the jury.

Where the existence of the duty was not in dispute, the judge could properly direct the jury that a duty of care existed.

If the issue was in dispute, and the judge had found that it would be open to the jury to find that there was a duty of care or a duty to act, the jury should be directed that if particular facts were established a duty would arise but if other facts were present the duty would be negated.


• R. v Winter (Martin) and Winter (Nathan) [2010] EWCA Crim 1474; [2011] 1 Cr. App. R. (S.) 78.

• To whom the duty of care extended depended on the facts of the individual case and it was reasonably foreseeable that civilian employees of the fire service in V's position might come on to and close to the site of a fire in order to film or photograph it.

• The Court rejected the submission that V's failure to comply with instructions to leave the site had the consequence that no duty of care was owed to him.

• R v Reeves [2012] EWCA Crim 2613


R v Philips [2013] EWCA Crim 358

The manslaughter charge alleged that the appellant had unlawfully killed the victim (Jed Little) by gross negligence and was further particularised as follows:

"i) having supplied Jed Little with a quantity of diarmorphine (heroin), a controlled drug of Class A, he owed him a duty of care;

ii) in breach of that duty and knowing that the state of affairs had become life-threatening, he failed to take reasonable steps to ensure that Jed Little received appropriate medical treatment;

iii) that breach of duty amounted to gross negligence;

iv) that negligence was a substantial cause of the death of Jed Little."


The "gross negligence" alleged therefore was the appellant's failure to act once he knew that Jed's life was in danger.

In passing sentence the judge noted the following in relation to the manslaughter offence:

•First, the appellant was an experienced heroin user who knew the symptoms of a heroin overdose; •Secondly, he had undergone training in overdose awareness and harm prevention; •Thirdly, if the appellant had called the emergency services and explained the reason, an ambulance would have been at the house within eight minutes;


• Fourthly, if this had been done then Jed Little's life would most likely have been saved by the administration of naloxone and the use of CPR by the ambulance crew;

• Fifthly, at the time of Jed Little's overdose the appellant was in a state of fear and panic about what would happen if questioned about how Jed had been administered heroin;

• Sixthly, Jed was not an experienced heroin user and normally smoked it rather than injected it; and

• Lastly, when the appellant injected his own fix of heroin he appreciated that the drug was stronger than normal.


In this Philips the court found the important facts to be:

1) The deceased voluntarily took the drug himself.

2) The appellant knew that the deceased was not an habitual injector of heroin.

3) The appellant knew the signs of an overdose and knew what he should do and yet he failed to do anything – Jed Little's death was not inevitable if the appellant had acted.

4) The appellant's gross negligence was that of omission (rather than commission) by failing to call the emergency services when he must have known that Jed Little needed them.

The appellant’s appeal against sentence was dismissed.


GROSS BREACH OF DUTY OF CARE

Bateman (1925) 19 Cr App Rep 8 CCA that:

“the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving of punishment.”


• Ds conduct must have involved a reasonably foreseeable risk of the death of another.


Singh [1999] Crim LR 582 CA

Yaqoob [2005] EWCA Crim 2169

Circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk of death.


Adomako [1995] 1 AC 171

“the jury must … consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death …, was such that it should be judged criminal.”

Lord Mackay LC

R v Reeves [2012] EWCA Crim 2613

A-Gs Reference (No 2 of 1999) [2004] QB 796


THE BREACH OF DUTY MUST CASE THE DEATH

The third limb of gross negligence manslaughter, according to the ‘ordinary principles of negligence’, simply involves the application of the rules of causation.


Inner South London Coroner, ex p Douglas-Williams [1999] 1 All ER 344

“[I]t is an essential ingredient that the … negligent act must have caused the death at least in the manner described [i.e. more than a minute or negligible contribution]. If there is a situation where, on examination of the evidence, it cannot be said that the death in question was caused by an act which was … negligent as I have described, then a critical link in the chain of causation is not established.”


There will not be a causal link if the death would still have occurred even if the D had not been grossly negligent: Dalloway (1847) 2 Cox CC 273.


Misra and Srivastava [2005] 1 Cr App R 328

Gross negligence manslaughter does not offend against provisions of Article 7 ECHR.

CUNNINGHAM (SUBJECTIVE) RECKLESS MANSLAUGHTER

Pike [1961] Crim LR 114

Stone & Dobinson [1977] QB 354 CA

The existence of this type of manslaughter has been confirmed in Lidar [2000] 4 Archbold News 3 CA.

The defendant must foresee a risk of serious injury is highly probably.

INVOLUNTARY MANSLAUGHTER: CONCLUSION

D unlawfully kills V without malice aforethought.


Three types of involuntary manslaughter:

• Constructive manslaughter• Gross negligence manslaughter• Reckless manslaughter



Elements to be proved:

• The defendant committed an unlawful act.• The unlawful act must be dangerous.• The unlawful act must be the substantial cause

of the death.


When dealing with constructive manslaughter:

• Identify the criminal offence• Prove the actus reus and mens rea of the

offence • Then establish the other two essential

elements.



There is now a single test of gross negligence. There must be:

• The existence of a duty owed by the defendant to the victim.• A gross breach of that duty by the defendant.• The gross breach of duty causes the victim’s death.


CUNNINGHAM (SUBJECTIVE) RECKLESS MANSLAUGHTER

Lidar [2000] 4 Archbold News 3 CA.

The defendant must foresee a risk of serious injury is highly probably.

Taster day power point presentation on iv manslaughter 2nd july 2015

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