Involuntary Manslaughter

1. Involuntary Manslaughter Gross Negligence Manslaughter

2. Involuntary manslaughter Actus reus Involuntary manslaughter has the same actus reus as murder (unlawful killing) but a different mens rea. Murder requires an intention to kill or to cause grievous bodily harm, whereas involuntary manslaughter does not state what the required mens rea is, just that it is something other than the intention to kill or to cause grievous bodily harm.

3. Involuntary manslaughter Voluntary and involuntary manslaughter In cases of voluntary manslaughter, the defendant commits murder but has one of the three partial defences contained in the Homicide Act 1957. Involuntary manslaughter is a separate crime.

4. Involuntary manslaughter Types of involuntary manslaughter • There are two types of involuntary manslaughter: • constructive manslaughter (unlawful and dangerous act) • gross negligence manslaughter

5. Involuntary manslaughter Comparing types of involuntary manslaughter • Constructive manslaughter is also known as unlawful and dangerous act manslaughter. • Gross negligence manslaughter is based on the rules of civil negligence, with the extra requirement of risk of death. It was established in the case of R v Adomako (1994).

6. Involuntary manslaughter: gross negligence Gross negligence manslaughter

7. Gross negligence manslaughter is when a person dies as a result of the negligence of another, and the degree of negligence by the defendant is sufficiently serious as to make him criminally liable for the death. Bateman (1925) – gross negligence by the defendant can be the basis for criminal liability – the test was “does the conduct of the accused show such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment?”

8. Andrews (1937) – must be a very high level of negligence for crime of gross negligence manslaughter to be established – Lord Atkin Who had 5 years earlier laid out the test for negligence in civil cases in Donoghue v Stevenson (1932) – “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”

9. Involuntary manslaughter: gross negligence Actus reus • Gross negligence manslaughter was defined in the case of R v Adomako (1995). It requires: • a duty of care • a breach of that duty that caused death • a risk of death

10. The rules

11. Involuntary manslaughter: gross negligence Duty of care A duty of care is established using the civil neighbour principle from Donoghue v Stevenson (1932). You owe a duty of care to ‘persons so closely and directly affected by …my acts or omissions’. It is a question of law as to whether the defendant owes a duty of care, and therefore it is an issue for the judge to decide. Since Caparo Industries v Dickman (1990), the judge can establish the existence of a duty of care incrementally and does not have to establish one if it is against public policy to do so.

12. Involuntary manslaughter: gross negligence Breach of duty In gross negligence manslaughter, there must also be a breach of duty, which means that the defendant has fallen below the standard of care expected of the ordinary ‘reasonable man’. The breach must also be serious. It is up to the jury 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 to the victim, was such as it should be judged criminal’ (Lord MacKay in R v Adomako, 1995).

13. Involuntary manslaughter: gross negligence Risk of death In R v Litchfield (1998), the Court of Appeal favoured the subjective test stating that the defendant ‘must have appreciated the risk he was taking’. A breach can also occur where there is a contractual situation. In R v Singh (1999), the trial judge directed the jury that: ‘The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury or even serious injury but of death.’ This suggests that the ‘risk of death’ requirement of gross negligence manslaughter is now regarded as an objective test. Duty of care owed by landlord towards tenant.

14. Wacker (2002) – duty owed to one with whom the defendant is complicit in crime.

15. Gross Negligence • Bateman (1925) and Andrews (1937) both stated that the degree of negligence amounting to manslaughter must be far greater than in a civil case. • The jury must take into account all evidence and decide whether the breach of duty was serious enough to amount to gross negligence. They also have to decide with regard to the risk of death whether it amounted to a criminal act or omission. If so then a verdict of gross negligence manslaughter can be given.

16. Gross negligence • What happened in Finlay (2001) and Edwards (2001) and Misra (2004)?

17. Involuntary manslaughter: gross negligence Mens rea The mens rea of gross negligence manslaughter is gross negligence. Lord MacKay referred to the earlier case of R v Bateman (1925), in which Lord Hewart CJ said: ‘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 punishment.’ This is a subjective test.