problems with involutary manslaughter

problems with involutary manslaughter

HideShow resource information
  • Created by: Nicola
  • Created on: 24-06-10 00:44
Preview of problems with involutary manslaughter

First 637 words of the document:

Involuntary Manslaughter Essay
In order to discuss the suggestion that the law in relation to involuntary manslaughter is satisfactory
and not in need of reform it is necessary to critically analyse the law.
The Law Commission in it's report, Legislating the Criminal Code: Involuntary manslaughter
highlighted three major problems relating to the wide range of conduct covered by involuntary
manslaughter.
Firstly, the offence includes cases which fall just short of murder, where the defendant was aware of
a risk of causing death or serious injury although they did not intend to cause either and, secondly,
cases where the accused is a professional person that makes a very serious mistake which results in
death, as in RvAdamako. Lastly, cases where a relatively minor assault ends in death.
These contradictions lead to problems in sentencing and individuals, on occasions, being harshly
labelled. The fundamental issue is that many cases currently amounting unlawful act manslaughter
only involve minor fault on part of the defendant and, therefore, should not be described as
manslaughter at all.
In unlawful act manslaughter the responsibility of the defendant is `constructed' from their fault in a
quite unconnected, possibly minor unlawful act. It seems unfair that the act needn't be violent against
a person.
The Law Commission held it is wrong in principle for an individual to be liable for a death which he did
not intend or foresee and, further, which would not have been foreseeable by a reasonable person
observing the conduct.
Additionally, it is unprincipled that only a foreseeable risk of some harm is required as evidenced by
the test in Church, Larkin and Dawson. The offence is vast, ranging in gravity from cases that fall just
short of murder, e.g. arson that results in death, to cases a little more serious that accidental death,
e.g. where a person with an `egg shell skull' is subjected to a minor assault.
The case of Adamako reintroduced gross negligence manslaughter. Previous cases had preferred
the law of manslaughter to be based on objective recklessness, as seen in Lawrence, Seymour and
Kong Chuck Kwan, these were subsequently overruled. It is clear a person can be liable for an
omission, overcoming Lowe.
In Adamako civil concepts of `negligence' and `duty of care' were mixed with criminal liability. The
Law Commission stated that considerable confusion was created by the terminology used in gross
negligence manslaughter. They concluded that the language of tort is best avoided.
The test in Adamako is circular, the mens rea, whether the defendant's conduct was so grossly
negligent it warrants criminal sanction is decided by the jury. Leaving the question of law to the jury,
who do not give reasons for their decisions leads to inconsistent and unpredictable application of the
law.
The test does not take into account subjective characteristics. In Stone and Dobinson the victim was
anorexic. Stone was 67, partially deaf, nearly blind, and of low intelligence. Dobinson was described
as ineffectual and inadequate. Neither were able to use the telephone yet both were held to be
grossly negligent when Stone's sister died.
Further, there are contradictory statements as to the conduct that amounts gross negligence. In
Adamako, Lord Mackay referred to the defendant disregarding `a risk of death` of the patient and
also approved Stone and Dobinson in which a risk was defined as the `health and welfare' of the
deceased. In Bateman, Lord Hewitt CJ referred to the `life and safety'. The statement was narrowed
by the Court of Appeal, in Singh, which referred to a risk of death.

Other pages in this set

Page 2

Preview of page 2

Here's a taster:

There is further confusion as to whether a person can be released from a duty of care to a person
whom it was owed. In Smith, the defendant's wife suffered a miscarriage at home and refused to
allow him to call a Doctor, as she did not like Doctors or medical treatment. By the time she finally
gave permission she died before the Doctor arrived. The jury could not decide on a conviction of
manslaughter against the defendant and were discharged.…read more

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all resources »