manslaughter evaluation and rules


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  • manslaughter
    • unlawful act manslaughter
      • ACTUS REUS
        • 1. unlawful act
          • no unlawful act- LAMB
          • criminal not civil- FRANKLIN
        • 2. act must be "dangerous"
          • objective- is there risk of some harm?- must come from the act CHURCH
          • act can be aimed at property GOODFELLOW
          • risk of harm must be physical DAWSON
        • 3. act must cause death
          • apply causation
            • self injecting drugs will break the chain DALBY
            • where def helps with injection, link is established ROGERS
      • MENS REA
        • def must have the mens rea for the unlawful act
      • EVALUATION
        • wide range of conduct
          • defs level of blameworthiness can vary enormously
            • if there were different levels of offence, then the def could be charged with a more appropriate offence
              • this helps a judge with sentencing, as if there was more categories of offence each would have a narrower band of sentencing available
        • death an unexpected result
          • in many cases the death is unexpected
            • for example, MITCHELL, the victims death was an unexpected result of the defs conduct of punching another man in the face
              • if the victim had not died then MITCHELL would have been charged with a less serious offence
        • the objective test
          • a def who did not realise there was a risk of injury to the victim is still guilty of manslaughter because of the objective test
            • in 1994 the law commission in their consultation paper recommended the abolition of unlawful act manslaughter
              • they pointed out that it is inappropriate to convict the def of this offence where all that can be said is that he should have realised the risk of some harm to another form his unlawful act
                • the objective test conflicts with other offences where recklessness is required for mens rea
                  • it seems inconsistent that this serious offence should require a different form of mens rea from all other offences requiring recklessness
        • suggested reforms
          • law commission 2006 report "murder, manslaughter and infanticide"
            • recommended a 3 tier structure
              • 1. 1st degree murder
              • 2. 2nd degree murder
              • 3. mansuaghter
              • the second category would be known as "criminal act manslaughter"
                • the def could only be convicted using a subjective test
                  • "must either intend to cause injury or be aware that the act involved a serious risk of causing someone injury"
                    • this would prevent def being convicted where they did not intend any injury and were unaware of the risk
              • more serious situation of manslaughter could be classed as second degree murder
                • this allows greater differentiation of blameworthiness of defendants
          • 1994 consultation paper- law commission
            • recommedned the abolition of unlawful acty manslaughter
              • it is inappropriate to convict a def if they didn't realise the risk of some harm from the unlawful act
    • gross negligent manslaughter
      • 1. duty of care owed to the victim
        • must owe a duty of care ADOMAKO
          • the civil concept of negligence applies DONOGHUE V STEPHENSON
        • omissions
          • duty owed on a landlord to tenant SINGH
          • duty to seek medical assistance KHAN & KHAN
          • duty under public policy WACKER
          • relationship STONE & DOBINSON
      • definition- where the def has kissed the victim, but did not have the sufficient mens rea for murder
      • 2. breach of duty
        • this can be an act or an omission
      • 3. breach must be "gross"
        • showing such disregard for the life and safety of others as to amount to a crime BATEMAN
        • conduct so bad in all the circumstances as to amount to a criminal act or omission ADOMAKO
      • EVALUATION
        • circular test
          • jury has to decide whether his conduct was criminal
          • there is no sequencing of reasoning
            • the argument just goes round in a circle
              • but it is a crime because its criminal
        • inconsistency of verdicts
          • jury to decide a question of the law
          • the law would be fairer if the judge made the decisions as to whether the def was capable of amounting to gross negligent manslaughter
        • civil negligence
          • test of negligences appears to say that the tests for negligence in civil law apply to criminal law
            • yet civil law is more developed in negligence than criminal
        • risk of death
          • used to be a criticism that it is unclear whether the risk of death has to be death or if serious injury was enough
            • point was clarified as the court of appeal held that the test involves consideration of risk of death. it is not sufficient to show risk of bodily injury or injury to health
        • suggested reforms
          • in the law commissions report in 2006 it did not continue its previous recommendation of 2 categories
            • in 1996 the law commission proposed two categories of killing involving gross negligence
              • "reckless killing"
                • although the gov issued a paper on reform in 2000- no other action was taken on the proposal
                  • "killing by gross carelessness"
                  • however, the gov did later ask for the whole law of homicide to be reviewed
              • "killing by gross carelessness"
            • instead there was a new recommendation which makes it clear that the risk must cause death and risk of serious injury is not enough
          • in 1996 the law commission proposed two categories of killing involving gross negligence
            • "reckless killing"
              • although the gov issued a paper on reform in 2000- no other action was taken on the proposal
                • however, the gov did later ask for the whole law of homicide to be reviewed
  • 4. risk of death
    • there must be a risk of death from the breach ADOMAKO
    • gross negligent manslaughter
      • 1. duty of care owed to the victim
        • must owe a duty of care ADOMAKO
          • the civil concept of negligence applies DONOGHUE V STEPHENSON
        • omissions
          • duty owed on a landlord to tenant SINGH
          • duty to seek medical assistance KHAN & KHAN
          • duty under public policy WACKER
          • relationship STONE & DOBINSON
      • definition- where the def has kissed the victim, but did not have the sufficient mens rea for murder
      • 2. breach of duty
        • this can be an act or an omission
      • 3. breach must be "gross"
        • showing such disregard for the life and safety of others as to amount to a crime BATEMAN
        • conduct so bad in all the circumstances as to amount to a criminal act or omission ADOMAKO
      • EVALUATION
        • circular test
          • jury has to decide whether his conduct was criminal
          • there is no sequencing of reasoning
            • the argument just goes round in a circle
              • but it is a crime because its criminal
        • inconsistency of verdicts
          • jury to decide a question of the law
          • the law would be fairer if the judge made the decisions as to whether the def was capable of amounting to gross negligent manslaughter
        • civil negligence
          • test of negligences appears to say that the tests for negligence in civil law apply to criminal law
            • yet civil law is more developed in negligence than criminal
        • risk of death
          • used to be a criticism that it is unclear whether the risk of death has to be death or if serious injury was enough
            • point was clarified as the court of appeal held that the test involves consideration of risk of death. it is not sufficient to show risk of bodily injury or injury to health
        • suggested reforms
          • in the law commissions report in 2006 it did not continue its previous recommendation of 2 categories
            • instead there was a new recommendation which makes it clear that the risk must cause death and risk of serious injury is not enough
  • law commision in report on manslughter 1996 pointed out that some areas of the law are uncertain
    • for example, STONE & DOBINSON, it is probable that such a situation would not give rise to liability in civil negligence
      • so would this mean that the def is not guilty if civil negligence applies to criminal?

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