Involuntary manslaughter is the name given to an unlawful homicide where the actus reus of murder has taken place. But without the mens rea for that offence. This area of the law has undergone significant case law development in recent years leaving a considerable amount of uncertainty.
It appears that now there are two kinds of involuntary manslaughter under common law: manslaughter by an unlawful and dangerous act (sometimes known as constructive manslaughter), and gross negligence manslaughter.
TABLE OF CONTENT
- Unlawful and dangerous act in Involuntary Manslaughter
- Gross negligence manslaughter in Involuntary Manslaughter
Unlawful and dangerous act in Involuntary Manslaughter
Unlawful and dangerous act manslaughter arises where a criminal has set out to commit a less serious offence but has, in the process, killed a person. A classic example would be where the planned offence was a bank robbery, but a bank employee was killed. For public policy reasons, the law imposes liability for manslaughter on such criminals, even where they had no specific mens rea for the killing, only mens rea as to the lesser offence (in our example, robbery).
An Unlawful Act Involuntary manslaughter
Unlike other unlawful homicides death must be caused by an act; an omission is not sufficient. In R v Lowe (1973), the accused committed the offence of neglecting his child so as to cause unnecessary suffering or injury to health (under s. 1(1) of the Children and Young Persons Act 1933).
This neglect caused the child’s death. The Court of Appeal held that, for the purposes of constructive manslaughter, there should be a difference between omission and commission, and that neglecting to do something should not be grounds for constructive manslaughter, even if the omission is deliberate.
The act which causes the death must be a criminal offence, unlawfulness in the sense of a tort or a breach of contract (both civil wrongs) would not be sufficient. At one time it was thought that an act could be considered unlawful for this purpose if it was a tort, but the case of R v Franklin (1883) established that this was incorrect.
The defendant was on the West Pier at Brighton. He picked up a large box from a refreshment stall and threw it into the sea. The box hit someone who was swimming underneath and caused their death. The prosecution argued that throwing the box into the sea comprised the tort of trespass to the stallkeeper’s property and so therefore an unlawful act, making the defendant liable for manslaughter.
However, the trial judge concluded that a mere tort was not sufficient to give rise to liability for constructive manslaughter, the unlawful act had to be a crime. The accused was in fact convicted of gross negligence manslaughter.
In R v D (2006) the Crown Prosecution Service brought a test prosecution for manslaughter following the suicide of a woman after a lengthy period of domestic abuse. Mrs D committed suicide by hanging herself.
There was clear evidence that, over a number of years, she had been the victim of serious domestic abuse at the hands of her husband. On the evening of the suicide, he had struck her on the forehead, causing a cut from the bracelet which he was wearing. He was subsequently prosecuted for constructive manslaughter with the unlawful act identified by the prosecution being grievous bodily harm, in breach of s. 20 of the Offences Against the Person Act 1861.
The Court of Appeal rejected an appeal to proceed with the trial as it considered that there was insufficient evidence to support the existence of a s. 20 offence that had caused the death of the victim.
A Dangerous Act in Involuntary manslaughter
The defendant must have been behaving dangerously.
Key Case of involuntary manslaughter
R v Church (1996)
In this case the Court of Appeal held that an act could be considered dangerous if there was an objective risk of some harm resulting from it. The accused and a woman went to his van to have sexual intercourse, but he was unable to satisfy her and she became angry and slapp n ed his face. During the ensuing fight, the woman was knocked unconscious. Thinking she was dead, the accused panicked. dragged her out of the van and dumped her in a nearby river. In fact she was alive at the time, but then drowned in the river.
The Court of Appeal said that an act was dangerous if it was 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. As this is a purely objective test, it did not matter that the accused himself had not realised that there was a risk of harm from throwing the woman in the river (because he thought she was already dead), as sober and reasonable people would have realised there was such a risk. Though there had been a misdirection on unlawful and dangerous act manslaughter by
the court of first instance, conviction for gross negligence manslaughter was upheld.
(Legal Principle) : An act is dangerous if a reasonable person would realise it creates a risk of some harm.
In order to be considered dangerous in this context, the unlawful act must be sufficient to cause actual physical harm. Emotional or mental fear or distress are not enough on their own, though shock leading to physical harm (such as a heart attack) will be sufficient. This point was made in R v JM and SM (2012). That Court of Appeal judgment appears to have significantly extended the meaning of ‘dangerous’ in this context, throwing doubt on some of the earlier case law.
It acknowledged that the term ‘dangerous’ was actually quite misleading because all that is required following Church (1966) is that a reasonable person would recognise that the defendant’s acts posed a risk of some harm. It is not necessary that a reasonable person would have recognised there was a risk of that sort of harm (which caused the death), just that there was a risk of some harm.
In practice this means that conduct is dangerous if a reasonable bystander would have appreciated the risk of shock to the victim, as this is some harm and it does not matter that it was actually a different sort of harm that ultimately killed the victim (for example, a heart attack).
In R v JM and SM two brothers were in a nightclub when they had lit a cigarette. Smoking in the club was banned and they were thrown out of the club but then returned and a fight ensued between them and the nightclub doormen. The brothers’ behaviour amounted to a public order offence, known as an affray. The victim worked as a doorman at the club. It was unclear from the evidence whether the victim was subjected to direct physical violence, but he made himself available to offer assistance to his colleagues in dealing with the two men and was present during the violence.
Immediately after the incident, when the victim walked back into the club, he collapsed and died shortly afterwards. The victim had not known he was suffering from an aneurysm (a balloon-like bulge in a blood vessel). The shock of the affray had caused a rush of adrenalin raising the victim’s blood pressure, and leading the aneurysm to burst either while the affray was in progress or in its immediate aftermath.
The victim had died from internal bleeding. The trial judge had halted the trial and directed the jury that the defendants had to be acquitted. He stated that the jury could only have convicted if the defendants’ conduct had been dangerous and it would have been dangerous if ‘ the victim died as a result of the sort of physical harm that any reasonable and sober person would inevitably realise the unlawful act in question risked
causing.’ He concluded that the jury could not be sure:
…that any sober and reasonable person, having the knowledge that the defendants had during the incident, would inevitably realise that there was a risk that [the victim] – an apparently fit, 40-year-old experienced doorman – would suffer an increase in blood pressure leading to a fracture of an aneurysm as a result of anything that occurred on that night. This is a completely different form of physical harm than that harm of which there was a recognisable danger, such as the danger of his being hit or suffering injuries from a fall in attempting to deal with the defendants.
The burst aneurysm was a type of harm different from being hit or suffering injury from a fall which would have been foreseen. The prosecution successfully appealed against this direction.
The Court of Appeal stated that the trial judge was wrong 10 require that a reasonable person should have foreseen a risk of that sort of harm occurring: Church only refers to a risk of ‘some harm’, not a risk of that ‘sort of harm’. The defendant did not need to foresee the specific harm or the sort of harm that might arise from the unlawful act.
It is simply necessary that a reasonable bystander would have foreseen the inevitable risk of some physical harm being caused. On the facts of the case, a reasonable bystander would readily have recognised that all the doormen were at risk of some harm. For an act to be dangerous, there does not need to be a link between the type of harm capable of being objectively identified and the type of harm which actually caused the death of the deceased. There is a separate issue of whether the dangerous act caused the death (discussed below).
The Court of Appeal in R v JM and SM distinguished the earlier case of R v Carey (2006) where the defendants had been acquitted of manslaughter. In that case the defendants had started to make fun of the victim’s group of friends. The victim’s group tried to get away, but the defendants followed them.
The first defendant hit one of the victim’s group and the second defendant stood on another’s shoe. The second defendant attacked the victim by pulling her head back and punching her in the face, causing her to cower on the ground. The attack on the group lasted about one minute, until some boys came over and told them to stop. The victim ran 109 metres to get away, collapsed and died later that evening.
The immediate cause of her death was a ventricular fibrillation (quivering heart muscle) and she had been unaware of her physical vulnerability. The injuries she suffered during the attack itself were relatively minor and she would probably not have died if she had not run so far: the most likely precipitating fact leading to her death was her running.
The defendants were convicted of constructive manslaughter and appealed. Their appeal was allowed. The only dangerous act committed by the second defendant on the victim was the punch, but this had not caused her death. The defendants’ other acts were not considered dangerous by the Court of Appeal.
The Court of Appeal in R. v JM and SM distinguished Carey on the basis that it was factually different and the unlawful act in Carey consisted of only a minor affray so there was no dangerous act by the defendant Following Rv JM and SM, a person can be liable for constructive manslaughter when a reasonable person would have foreseen the risk of one type of harm (such as cuts) and the actual harm caused was of a different kind (such as shock triggering a heart attack).
As long as some harm is foreseeable, it does not matter what form that harm actually takes. The reasonable bystander need not be aware of the victim’s particular characteristics that will lead to the shock having severe consequences. The Court of Appeal stated that in a ‘shock’ case it is enough if a reasonable bystander, viewing the affray, would inevitably recognise the risk of harm going beyond concern and fear and distress to physical harm in the form of shock.
Thus the foreseeable harm can simply be the shock, the consequences of the shock do not have to be foreseeable, though the prosecution will still need to prove causation – that the unlawful and dangerous act was the cause of death (causation is discussed below). This development in the law can be criticised in that a defendant may be liable despite having only a very low level of culpability. Some of the old case law which had taken a more restrictive view of the concept of dangerousness will now have to be reconsidered in the light of this judgment.
In R v Dawson (1985) the judge stated that when applying the objective test laid down in Church, ‘sober and reasonable people’ could be assumed to have the same knowledge as the actual defendant and no more. The defendants had attempted to rob a garage, wearing masks and carrying an imitation firearm and a pickaxe handle.
Their plan went wrong when the 60-year-old garage attendant pressed an alarm button, and the robbers fled. Unfortunately the attendant had a severe heart condition and, shortly after the police arrived, he died of a heart attack. The robbers were found and charged with his manslaughter, but the conviction was quashed on the grounds they did not know about their victim’s weak heart, and therefore their unlawful act was not dangerous within the meaning of Church.
However, following R v JM and SM, if a reasonable person could have foreseen the shock then this will be sufficient, a reasonable person does not need to foresee that the shock would lead to the heart attack.
In R v Watson (1989) the accused burgled the house of a frail 87-year-old man, who died of a heart attack as a result. The courts held the accused’s unlawful act became a dangerous one for the purposes of the Church test as soon as the old man’s frailty and old age would have been obvious to a reasonable observer; at that point the unlawful act was one which a reasonable person would recognise as likely to carry some risk of harm.
The result of Watson is that where there are peculiarities of the victim which make an act dangerous when it might otherwise not be (such as the old man’s frailty), they will only be treated as dangerous for the purpose of the actus reus of constructive manslaughter if they would have been apparent to a reasonable observer. In the event Watson’s conviction was quashed because it was not proven that the shock of the burglary caused the heart
attack and the old man’s death.
In R v Ball (1989), it was confirmed that whether an act was dangerous or not should be decided on a reasonable person’s assessment of the facts, and not on what the defendant knew. Therefore a defendant who makes an unreasonable mistake is not entitled to be judged on the facts as he or she believes them to be. Ball had argued with some neighbours, who then came over to his house. Ball owned a gun, and frequently kept live and blank cartridges together in a pocket of his overall.
He testified he had been frightened by the arrival of the neighbours, and, intending to scare them, had grabbed a handful of cartridges from his pocket and, thinking one was a blank cartridge, loaded it into the gun. In fact the cartridge was a live one, and just as one of the neighbours was climbing over a wall, he shot and killed her. He was acquitted of murder but convicted of manslaughter by an unlawful and dangerous act.
In R v Bristow (2013) the Court of Appeal stated that burglaries were not automatically dangerous. On the facts of the actual case, the burglary was dangerous because it was carried out at night near neighbouring residential properties, with a single track to enter and exit the property providing the only escape route and powerful vehicles being used. There was therefore always a risk the burglars would be interrupted and an ensuing danger to anyone who arrived on the scene.
Gross Negligence Manslaughter in Involuntary Manslaughter
In civil law, an individual who fails to take the care a reasonable person would exercise in any given situation is described as negligent. Clearly there are degrees of negligence- if it is negligent for a nurse to leave a very sick patient alone for ten minutes, for example, it will be even more negligent to leave that patient alone for an hour. Where the death of a person is caused by another’s negligence which is so severe as to deserve punishment under the criminal law, this is described as gross negligence and can give rise to lability for gross negligence manslaughter in involuntary manslaughter.
Until the summer of 1993 it was generally accepted that two forms of involuntary manslaughter existed constructive manslaughter, described above, and Caldwell reckless manslaughter. However, that stance had to be reconsidered in the light of the House of Lords’ decision in R v Adomako (1994) approving most of the Court of Appeal’s judgment on the case in R v Prentice (1994).
Key Case of involuntary manslaughter
Rv Adomako (1994)
Lord Mackay LC gave the leading judgment in R v Adomako (1994), with which all the other Law Lords agreed. He stated that Caldwell reckless manslaughter does not exist but that instead there is gross negligence manslaughter. At the Court of Appeal level, several appeals had been heard together as they raised the same legal issues, one concerned Drs Prentice and Sulman, a second concerned Mr Adomako, and the third, Mr Holloway Prentice and Sulman had injected a 16-year-old leukaemia patient in the base of her spine, unaware that the substance injected should have been administered intravenously, and that injecting it into the spine made it a virtual certainty that the patient would die.
She did in fact die shortly afterwards Adomako was an anaesthetist whose patient had died from lack of oxygen when the tube inserted into their mouth became detached from the ventilator, Adomako had not realised quickly enough why his patient was turning blue. Holloway was an electrician who had accidentally wired up a customer’s mains supply to the kitchen sink, causing the death by electrocution of a can who touched the sink. All were convicted at first instance of manslaughter.
The appeals by Sulman, Prentice and Holloway were allowed by the Court of Appeal, but not that of Adomako. He, therefore, was the only one to appeal to the House of Lords, which is why the Court of Appeal judgment is known as R v Prentice and the House of Lords’ judgment as R v Adomako.
Adomako’s appeal was dismissed and Lord Mackay gave the following analysis of the law in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died if such breach of duty is established the next question is 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 to the patient, was such that it should be judged criminal.
The House of Lords stated that in order for liability for gross negligence manslaughter to arise there must be the common ingredients of all homicide offences, plus a risk of death, a duty of care, breach of that duty and gross negligence as regards that breach.
Legal Principle : A person’s conduct is grossly negligent if it falls below the standards of reasonable people to the extent that criminal liability should be imposed.
In R v Watts (1998), the appellant’s daughter was born severely disabled. An operation was performed to assist the child with her breathing, and a tube was placed in her throat and held in place with tape. When the child was 14 months old she was admitted to hospital for a few days. Her mother spent the last night before the child was due to be discharged at the hospital. The following morning she took a suitcase to her car and was away from her child’s bedside for three-and-a-half minutes.
When the mother returned the breathing tube was out of her child’s neck and she was still and grey. She shouted for help but very shortly thereafter the child died. The mother was charged with murder, with the prosecution alleging that she had removed the tube before she had gone to the car.
She was convicted of manslaughter and appealed against her conviction on the grounds that the judge’s direction on manslaughter was inadequate as it had indirectly referred to the possibility of a conviction for gross negligence manslaughter, but had failed to mention the ingredients of this offence.
The Court of Appeal allowed the appeal. It ruled that where gross negligence manslaughter
might have been committed, the trial judge had to direct the jury in accordance with the passage from Adomako cited above. He had failed to do this, and therefore the conviction was quashed.
In R v Willoughby (2004) the Court of Appeal specified that the existence of a duty, breach and gross negligence was usually a matter to be decided by the jury. Once the judge had accepted that some evidence existed to support their existence, the jury then had to decide whether they actually did exist.