Where a defendant has committed the actus reus of an unlawful homicide but lacks the mens rea, the law of involuntary manslaughter may operate to ensure that a party isn't unjustly exenorated of unaccountable for his or her acts or ommission which result in the death of another. There are two types of involuntary manslaughter under the common law: unlawful act manslaughter and gross negligence manslaughter.

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Unlawful act manslaughter

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Unlawful act manslaughter arises where the defendant carries out a less serious offence, but in the process of doing so unlawfully kills another. For example, where a defendant plans to rob an off-lincense, but in the process of doing so kills an employee (N.B. this example would only work if D lacked the mens rea for murder). 

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In order for the defendant to satisfy the requirements of unlawful act manslaughter, three requirements must be met: (1) D must do a criminally unlawful act; (b) which is dangerous; and (c) which causes the victim's death.

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Unlawful act

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This means that the defendant must have committed a criminal offence (Andrews v DPP [1937] AC 576), not, as was previously held, committed a transgression which is unlawful, be it against civil law (R v Fenton (1830) 1 Lew CC 179). In R v Lowe [1973] QB 702 it was held that the death must be caused by an act; omissions will not suffice. In R v Lowe, the defendant committed the offence of neglecting his child so as to cause unnecessary suffering or injury to health (under s.1(2) of the Children and Young Persons Act 1933). However, the Court of Appeal held that, for the purposes of constructive manslaughter, there should be a difference between omission and commission.

 

Moreover, even if there is an unlawful act, it must be considered as to whether or not there is a defence to that unlawful act. For example, Mark is attacked by Simon. If Mark were to use reasonable force in defending himself and Simon dies as a result, it cannot be said that Mark is guilty of the offence.  

 

Dangerous act

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In R v Church [1965] 2 WLR 1220 the Court of Appeal held that an act could be considered 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 there from, albeit, not serious harm’. The accused and a woman went to his van to have sexual intercourse, but as he was unable to satisfy her, she became increasingly angry and slapped his face. A fight ensued and the woman was knocked out. The defendant thought the victim was dead and took her out of the van and placed her in a nearby river. As it transpired, however, the victim was alive when she was placed in the river, but drowned as a result.

 

In R v Dawson and others [1985] 81 Cr App R 150 it was held that in applying the objective test enunciated in Church, the phrase ‘sober and reasonable people’ could be assumed to have the same knowledge as the actual defendants. When the defendants had attempted to rob a garage, carrying an imitation firearm, their plan went wrong when the sixty-year-old attendant pressed an alarm button. The robbers fled. Unfortunately, however, the attended had a heart condition and subsequently died of a heart attack. The robbers were found and charged for manslaughter, but the conviction was quashed as they did not have knowledge of their victim’s weak heart and thus their unlawful act was not dangerous.

 

The principles laid out in R v Dawson may be distinguished with R v Watson [1989] 2 AII ER 865 where the accused burgled the house of an 87-year-old man who was extremely frail and died of a heart attack as a result of being startled. The court held that the unlawful act was dangerous as soon as the old man’s frailty and old age who have been obvious to a reasonable observer. However, his conviction was quashed as it could not be established that the burglary was the cause of the heart attack.

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In R. v Carey & Others (2006) EWCA Crim 17, the defendants had been charged with unlawful manslaughter. The unlawful act was, according to the Crown, affray which had occurred when the defendants bullied the fifteen-year-old victim and her friends. When adults approached the scene, the victims ran away and one of them collapsed and died. The cause of her death was ventricular fibrillation. The running away was most likely the precipitating factor leading to her death. The physical injuries she suffered during the attack were slight. The defendants were convicted of unlawful act manslaughter by appealed. Their appeal was allowed.

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Causation

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The unlawful and dangerous act must cause the death. It is not enough to show that the victim has died as a result of an unlawful and dangerous act; a causal link must be demonstrated.

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In R v. Johnstone (2007) EWCA Crim 3133 the victim was involved in an altercation with a group of youths who started shouting abuse and spitting at him, and then throwing stones and pieces of wood at him, with at least one stone hitting him on the temple. The spitting and shouting were not dangerous, but the throwing of wood and stones was dangerous. A short time after the incident, the victim collapsed from a heart attack and died. Medical evidence stated that the death resulted from “coronary heart disease”. The youths had caused the heart attack and therefore the death, but it was not clear whether the irregular heart beat which was caused by the stress of the attack and been precipitated by the spitting and shouting which were held not to be dangerous acts, or whether it was triggered by the later dangerous acts of throwing wood and stones. It could not be proven beyond reasonable doubt that an unlawful and dangerous act had caused the death. The conviction was subsequently quashed by the Court of Appeal.

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In R v Cato [1976] 1 WLR 110, the appellant acquired some heroin and took it home to share with the victim and three others. They injected each other several times. Each individual made up his preferred mixture of powder and water, inserted it into the syringe, and then passed it to his friend to inject. The next day they became very ill and the defendant’s friend died. The defendant survived and was charged with manslaughter. However, the court accepted that his actions were not an offence under the Offences Against the Persons Act 1861. However, it was held to be an unlawful act, i.e. the taking of unlawfully into his possession for the purposes of mixing and injecting. Although injecting itself was not an offence, it was closely linked with the offence of possession that it was treated to be a sufficient part of the actus reus of manslaughter by an unlawful and dangerous act.

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In R v Kennedy [2007] 3 WLR 612 the victim asked the defendant for something to help him sleep. The defendant prepared a syringe filled with heroin and passed it to the victim. The victim had paid the defendant, injected himself then left. He died an hour after the injection. The defendant was convicted of manslaughter and appealed by arguing that he had not committed an unlawful act that caused the death of the victim. The Court of Appeal dismissed the appeal, stating that when the defendant prepared the syringe, and handed it over for use by the deceased, he committed the unlawful act of assisting or encouraging the deceased to inject himself. On the second appeal, however, the conviction for manslaughter was quashed with the House of Lords holding a drug dealer is never responsible for the death of a drug user when that user is fully informed and is a responsible adult who, by his own volition, chose to self-administer the drug.

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Mens Rea for the unlawful act must be present

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The mens rea for unlawful act manslaughter is that of the crime constituting the unlawful act, which may be intention or recklessness, depending on the definition of the offence.

 

In R v Lamb [1967] 2 QB 981, two young boys were playing with a gun but believed that the gun would not fire. One of the boys pointed the gun at the other he fired; however, the gun unexpectedly went off and killed the other boy. The boy was charged with unlawful act manslaughter. However, it was held that the boy was not liable as no assault had been committed as the defendant lacked the mens rea for assault; that is, to cause an apprehension of immediate unlawful personal violence.

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Gross Negligence Manslaughter

 

The second way in which a person may be guilty of involuntary manslaughter is by virtue of gross negligence. The formulation of this offence is found in Lord Hewart’s judgment in Bateman (1925) Cr. App. R. 8, later approved by the House of Lords in Andrews v DPP [1937] A.C. 576. The test required there to be a duty of care owed by the defendant to the victim, there to be a breach of that duty that caused the victim’s death and left it to the jury to decide whether the negligence of the defendant was so gross that punishment as a crime rather than the imposition of civil liability is more appropriate. In Seymour [1983] 2 A.C. 493, the House of Lords held that no longer is it appropriate to refer to negligence and that the test for manslaughter was the same for causing death by dangerous driving pursuant to s.1(1) Road Traffic Act 1972. This involved the Caldwell test of recklessness; that is, a person would be guilty where he created an obvious risk of causing physical harm to another and he was conscious of the risk or gave no thought of the risk.

 

However, the stance was reconsidered in light of the House of Lords’ judgment in R v Adomako [1995] 1 A.C. 171 HL, which approved the majority of the judgment in R v Prentice and others [1993] 4 All ER 935. Lord Mackay LC giving the leading judgment held that Caldwell reckless manslaughter does not exist but stated that gross negligence manslaughter does. Since R v Adomako, therefore, a four-tier test has been established to determine whether or not the defendant is liable. Firstly, the defendant must owe a duty of care to the victim. Secondly, the defendant must be in breach of the duty. Thirdly, the breach of duty must have caused the death. Fourthly, the defendant’s conduct must be so bad in all the circumstances as to amount to a crime in the jury’s opinion.

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Duty of Care

 

A duty of care carries the same meaning as it has in the civil law of negligence. The classic statement of where a duty of care is owed in negligence is provided by Lord Atkin in the famous judgment of Donoghue v Stevenson [1932] UKHL 100 where he laid down the ‘neighbour principle’: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be – 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 in question. Furthermore, following Caparo Industries Plc v Dickman (1990), the court will, on occasion, take into account issues of public policy and whether or not the imposition of a duty would be fair, just and reasonable in the circumstances.

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In R v Wacker (2003) 1 Cr App R 329 the Court of Appeal accepted that the ‘ordinary principles of the law of negligence apply’ but excluded one specific aspect of these rules as being inappropriate in the criminal law context. The appellant was the driver of a lorry carrying sixty illegal immigrants from Holland to England. The appellant shut the vent for over five hours to try and prevent detection during the Channel crossing. However, when the lorry was searched by Customs officials, fifty eight people died from suffocation. The defendant was convicted of manslaughter. The defendant appealed arguing ex turpi causa non oritur action, however, this argument was rejected as the principles of negligence in relation to manslaughter did not extend to ex turpi causa.

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In R v Willoughby [2004] EWCA Crim 3365, the principles established in R v Wacker were confirmed. The defendant and a victim conspired to burn down a pub that he owned on the pretence that he would claim the value of it from his insurers. After pouring petrol over the building, an explosion occurred which blew up the building and killed the victim. The defendant subsequently argued that he should not be liable because under the principles of negligence, ex turpi causa was present. This defence was rejected.

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Breach of duty of care

 

Here, the defendant’s conduct must have deviated from the standard of care owed to the victim.

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Gross Negligence

 

Lord Mackay refused to give a detailed explanation as to what amounts to gross negligence, however, he did proffer the statement made by Lord Heward CJ in R v Bateman (1925):

 

[I]n 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.

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In R v Misra & Srivastava [2005] 1 Cr App R 328, the defendant argued that the law of gross negligence manslaughter was so uncertain as to be in contravention of Article 7 of the European Convention on Human Rights which states that the law needs to be certain, predictable and clear. The defence argued that the jury were required to decide issues as law as well as issues of face. The Court of Appeal rejected this argument, stating that the jury were not required to determine what would be sufficiently gross to amount to a crime (which would be a question of law), instead they were required to decide whether the conduct was grossly negligent (a question of fact). In the words of the Court of Appeal:

On proper analysis. . . the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case.

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The test is, therefore objective, and asks whether a person’s conduct has fallen below the standards of a reasonable person.

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