- Created by: Holly
- Created on: 07-06-14 19:31
Unlawful Act Manslaughter
- The defendant must do an unlawful act
- That act must be dangerous on an objective test
- That act must cause the death
- The defendant must have the required mens rea for the unlawful act.
- Must be a criminal offence as held in Franklin and Lamb. An ommission cannot create liability, as seen in the case of Lowe.
- Objective test of 'some harm' decided in Church, the harm need not be serious.
- It does not matter that the defendant did not realise that there was any risk of harm to another person. This was seen in the case of Larkin.
- The act does not have to be aimed at the victim, shown in the case of Mitchell.
- The act can be aimed at property, as seen in Goodfellow
- The 'risk of harm' refers to physical harm, something which causes fear and apprehension is not sufficient, as seen in the case of Dawson. However, where a reasonable person would be aware of the victim's frailty and the risk of physical harm to him, the defendant will be liable.
Unlawful Act Manslaughter 2
Causing the Death
- Normal rules of causation - 'but for' and 'de minimus' tests.
- If there is an intervening act the defendant cannot be liable.
- In Cato D+V injected each other, d was convicted
- Dalby - d supplied, v injected, d's conviction quashed, v's act had been an intervening act.
- If d is held to have 'administered a noxious substance' they defendant could be guilty.
- Kennedy - filling a syringe and handing it to v was not 'administering', self injection was an intervening act. Criminal Law assumes the existance of free will.
- There could be situations where both the d + v adminstered the injection, but did not give any exammples.
- Kennedy - helping v inject witha tourniquet was not 'administering'
- It is possible that in drug cases the defendant could be liable for gross negligence manslaughter, put forward in the case of Dias.
- Must have the mens rea for the unlawful act, but does not have to realise that the act is unlawful/dangerous, as seen in Newbury and Jones.
Gross Negligence Manslaughter
It can be committed by an act or ommission, neither of which has to be unlawful. The leading case is Adomako.
- The existance of a duty of care towards the victim
- A breach of that duty which causes the death
- Gross negligence which the jury considers to be criminal
Duty of Care
- A duty of care has to be held to exist.
- The ordinary principles of negligence in the civil law apply to ascertain whether there was a duty of care and whether it had been breached. The civil law comes from the case of Donoghue and Stevenson.
- In singh aand Litchfield it was held that they had breached a contractual duty.
- In Khan and Khan it was held that a duty of care can exist in other areas. This was recognised in Wacker.
- For criminal law, it is irrelevant whether the victim was a party to an illegal act. This differs from civil law, but its argued that public policy demanded the defendants were liable
- A duty of care can exist where the d has created a state of affairs which they know to be life threatening as in Evans
Gross Negligence Manslaughter 2
Breach of duty causing death
- Must be proved the defendant breached the duty and caused the death.
- Usual rules of causation apply.
- Being negligent is not enough, the negligence has to be 'gross'. This was seen in Bateman
- Adomako held that it was up to the jury to decide whether the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or ommission.
- This may lead to inconsistencies, and there is still little guidance on 'gross'
- It was unclear whether there needed to be a risk of death or only to the 'health and welfare' of the victim. In Stone and Dobinson it was thought to be the latter. In Bateman the former. The case of Adomako approved both. Mirsa and another held that it is risk of death.
- After the decision in Adomko it was believed that Reckless Manslaughter no longer existed. However, in the case of Lidar the judge referred to 'recklessness' rather than 'gross negligence' even though he could have been liable for both.
- Has not been abolished but there have not been very many cases, and all those which could satisfy Reckless manslaughter could also satisfty gross negligence, of which the elements are clearer.
Comment on Manslaughter
Unlawful Act Manslaughter
- Covers a wide range of conduct, as minor as pushing to as major as almost murder. The level of blameworthiness can vary enormously. If there were different levels of offence then this would be fairer on defendants. Any sentance is available which can counteract the blameworthines issue; ther is no help for judges, so sentencing can be inconsistent.
- Death may be an unexpected result of d's conduct as in the case of Mitchell, compared with Cato who injected heroin, it is peverse they were charged with the same offence.
- Law Commission reccommended that unlawful act manslaughter be abolished because its test is objective. Newbury and Jones they may not realise the risk of harm to the victim.
- In 2006 the Law Commission reccomended that there should be a structure of offences. 1st degree murder, 2nd degree murder and manslaughter. Manslaughter would cover 1) killing another through gross negligence 2) killing another person through the commission of a criminal act intended by the d to cause injury or that the d was aware of a serious risk of causing some injury.
- 2) would be known as 'criminal act manslaughter' - it is subjective rather than objective and so it is in lines with the normal rules of recklessness. It would prevent defendants being convicted of manslaughter where they did not intend injury. More serious offences could come under second-degree murder. It allows greater differentiation of blameworthiness.
Comment on Manslaughter 2
Gross Negligence Manslaughter
- The test is circular, the jury have to decide if an act is criminal, by deciding if its criminal?
- The verdicts can be inconsistent as the jury has to decide a question of law. Usually juries just decide on the facts of the case.
- Does the civil law test for negligence apply to criminal law? But criminal law negligence has developed, in cases such as stone and dobinson so now there must be a risk of death.
- It was unclear whether there had to be a risk of death/serious injury, but now it is clear that it is not suffiencent to show a risk of bodily harm or death.
- 1996 the Law Commission proposed that there should be two categories of killing involving gross negligence, reckless killing (the d is aware his conduct will cause serious injury/death + it is unreasonable to take the risk in the circumstances) and killing by gross carelessness (risk of death/serious injury would be obvious to the reasonable person in the position of the d, the d is capabale of appreciating that risk and either their conduct falls well below the levels expected of them or he intends/unreasonably takes the risk as to some injury, and its constitues an offence)
- 2006 - recommended a different type of gross negligence where a person causes a death, where a risk of death would be obvious to a reasonable person, they are capable of appreciating the risk and their conduct falls well below what is expected of them
Comment on Manslaughter 3
- Law Commission recommend the abolition of Reckless Manslaughter
- The cases could fall into second - degree murder or gross neglligence manslaughter