By Law Teacher
3.2.1 Manslaughter – Introduction
Welcome to the second lesson of the third topic in this module guide – Manslaughter! Not all fatal offences against the person are regarded as equally culpable. A partial defence may apply, or there may not be the requisite mens rea necessary to mean that the homicide constitutes murder. The offences of voluntary and involuntary manslaughter act to cover these situations.
At the end of this section, you should be comfortable in defining the different types and applying the various rules of causation related to manslaughter. The section begins by defining the umbrella offence of manslaughter before delineating between voluntary and involuntary manslaughter. The discussion goes deeper with regard to the second, explaining how the offence is split into Unlawful and Dangerous Act Manslaughter and Gross Negligence Manslaughter. The various elements of these offences are discussed at length before the chapter concludes with a discussion of the charging and sentencing of manslaughter.
Goals for this section:
- To be able to define the various types of manslaughter.
- To be able to apply the rules of causation in relation to the offences.
Objectives for this section:
- To understand how non-fatal non-murder offences are defined and delineated between.
- To know how murder may be reduced to voluntary manslaughter under one of three partial defences.
- To define the two main types of involuntary manslaughter, and to be able to state the main elements of each offence.
- To be able to apply a range of rules relating to causation in these circumstances, including understanding how intervening acts may be affect this.
3.2.2 Manslaughter Lecture
What is Manslaughter?
Both murder and manslaughter are fatal offences against the person, known as homicide offences, and carry the same actus reus.
The criminal offence of manslaughter is much broader than murder as it encompasses a range of different variations as to how it can be charged. The first distinction that needs to be made is whether the offence is voluntary manslaughter or involuntary manslaughter.
Voluntary Manslaughter
The defendant in this instance must demonstrate both the actus reus and mens rea for the offence of murder, that is, he intended to kill someone and achieved that aim. However, the defendant successfully employs one of the three special partial defences to murder:
- Diminished responsibility;
- Loss of control or;
- Participation in a suicide pact.
These defences, when successfully argued, have the effect of reducing the charge down to voluntary manslaughter.
Involuntary Manslaughter
The defendant unlawfully killed someone but they didn’t mean to, or in legal terms, they lacked the required mens rea of ‘malice aforethought’, that is the intention to kill or commit really serious bodily harm.
There are many situations that could give rise to this outcome and in reflection of this the offence is further broken down into two more specific offences:
- Unlawful and dangerous act manslaughter:
This offence arises where a defendant has set out to commit a lessor criminal offence but in doing so causes the death of another person.
There are four elements that need to be satisfied in order to establish the actus reus of unlawful and dangerous act manslaughter.
(1) The defendant must carry out an act
As was held in R v Lowe [1973] QB 702 the actus reus for the offence is positive in the sense that the defendant must physically do something. To omit to do something is insufficient in this regard.
(2) The act must be a criminal offence
Any criminal offence will suffice for this purpose but as was established in R v Franklin(1883)15 Cox CC 163, it cannot arise from a civil offence.
(3) The act must be dangerous
R v Church [1966] 1 QB 59 stated that an act will be classed as dangerous if there was some objective risk that harm could result from it. Applying the reasonable person test, the jury must be satisfied that a reasonable person would have realised that doing the act created a risk of harm. There is no subjective element of consideration when applying this test so it does not matter whether the defendant himself actually appreciated that risk.
There is some doubt whether there needs to be an objective risk of some harm or whether the risk needs to be of that specific harm arising. The recent case of R v JM and SM [2012] EWCA Crim 2293 seems to have settled this, establishing that only a risk of general harm needs to be foreseeable. The specific harm actually caused does not need to have been foreseen.
This can be seen as an extension often referred to as the ‘thin skull’ principal, the defendant must take his victim as he finds them. If he is causing a foreseeable risk of some harm, he cannot fairly argue that the specific harm he actually caused was unforeseeable. This can be highlighted through an examination of the case of JM and SM.
R v Watson [1989] 2 All ER 865 establishes that although a reasonable person need not appreciate the specific harm caused, they do need to appreciate the risk at the time the act was committed. That is, where an act is not inherently dangerous, such as a burglary, it becomes dangerous only when the circumstances make it obvious to a reasonable observer that some harm may result.
(4) The act must cause the death of a human being
The first most obvious point to consider is that, as with murder, the death caused must be the death of a human being, in existence. Attorney General’s Reference No.3 of 1994 confirms that an animal or foetus will not suffice for the purposes of this offence.
There must be a clear link between the defendant’s act and the victim’s death. This is known as the chain of causation.
There are two stages to establishing the chain of causation. Both factual and legal causation must be shown. These stages must be considered in more detail.
(i) “But for the defendant’s act would the victim have died as and when they did?”
This is a straight forward application of factual causation as per R v White [1910] 2 KB 124.
(ii) Was the act an ‘operating and substantial’ cause of the death?
The test for legal causation set out in out in R v Smith [1959] 2 QB 35.
The Smith test was given further clarification in R v Kimsey [1996] Crim LR 35 where the Court clarified that the act need only bemore than a slight or trifling cause of the death.
Can it be said the defendant’s act was such or had other acts occurred that rendered the defendant’s actions insignificant? Such acts are known by the latin phrase as a novus actus interveniens, put simply, a new intervening act. For obvious public policy considerations such an act must be substantially severe for a defendant to be absolved of liability for the death.
Such intervening acts can be broadly categorised as follows:
- Medical treatment
In cases where medical treatment does in itself cause the victims death, it is very rare that it will be held to break the chain of causation.
Consider Smith and R v Jordan (1956). Comparing the two cases it can be seen that the level of poor medical treatment required to break the chain of causation is exceptionally high. Smith went as far as establishing that even negligent medical treatment will not cause a break in the chain of causation. Jordan clarified that only medical treatment that could be considered palpably wrong would ever break the chain.
Further to this, R v Malcherek and Steel [1981] 1 WLR 690 asserts that doctors turning off life support will not break the chain of causation.
- Third party acts
A free, deliberate and informed act by a third party will break the chain of causation. A reasonable act of self- defence will not.
The case law often cited here is R v Paggett (1983) 76 Cr App R 279.
- Natural events
There is no case law on this matter but such an act is often referred to in text books as an ‘act of God’. This is a force of nature, extreme and unforeseeable, that renders the defendant’s act insignificant.
- Victim’s own acts
R v Williams [1992]held that where a victim’s own act is entirely unreasonable, unforeseeable, and “daft” it will break the chain of causation. However, this can be contrasted to the case of R v Roberts (1971).
R v Blaue [1975]further established that where a victim’s act results from a religious belief, the defendant is not entitled to claim this belief is unreasonable. This was a clear public policy extension of the thin skull principle whereby a defendant must take his victim as he finds them, from the physical self to the spiritual self. This is the case even where the victim themselves was not aware of the condition as was confirmed in R v Hayward (1908).
The mens rea will be that of the criminal offence committed, R v Lamb [1967]. There is criticism here as it can mean that a very low level of intention can give rise to very serious liability.
- Gross Negligence Manslaughter:
Negligence can be explained as the failure to take proper care of something.
Negligence became a legal concept following Lord Atkin’s ruling in Donoghue v Stevenson [1932]. We, as a society, owe a duty of reasonable care to people that can reasonably be foreseen to be effected by our actions. Where reasonable care is not given, this duty is breached and the person failing to take such care can be said to be negligent.
Negligence is a civil concept and will not usually give rise to criminal liability. At criminal law the courts will only impose liability for gross negligence which can be seen to be the most severe level of negligence.
The concept of gross negligence giving rise to criminal liability stems from the case of R v Adomako [1994].
The actus reus for this offence has two parts:
- A breach of a duty of care.
First, a duty of care must be established.Wacker confirmed that this can be achieved relying on the civil case law or applying the Caparo test from Caparo Industries v Dickman [1990]:
- Is the harm reasonably foreseeable?
- Is there sufficient proximity between the parties?
- Is it fair, just and reasonable to impose a duty of care?
Wacker further confirms that unlike in civil law, the defendant will not be able to exempt himself of a duty where the parties are acting in a joint enterprise, that is collaborating together to perform an unlawful activity.
Once this duty has been satisfied it must be shown that the defendant fell short of the standard of care that a reasonable person would expect.
Applying Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 in cases where there is a skilled professional being assessed that standard of care becomes to act in a practice adopted as proper by a reasonable body of opinion of people skilled in that particular art.
- Causing a death of a human being in rerum natura under the queen’s peace.
As with the above offence of unlawful and dangerous act manslaughter the chain of causation must be clearly established. Even where the accused is grossly negligent and subjects his victim to a serious risk of death, it will be insufficient for the purposes of the offence if the death is not actually caused by the defendant’s acts or omissions.
The principles of causation apply in the same way and the chain will only be broken by a qualifying novus actus interveniens.
In order for ease of understanding and in ignorance of academic debate on the topic, the mens rea for this offence will be considered as the gross negligence.
Once such a duty has been established as breach the next question is to determine the seriousness of the breach. Is it such that the defendant’s negligence can be considered gross negligence, and therefore criminal?
Lord Mackay considered this in Adomako and stated that it will depend on all the circumstances in which the defendant was placed when the breach occurred. The jury must consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involved a risk of death and was such that it should be judged criminal.
R v Bateman (1925) offers further guidance to a jury stating that the negligence must go beyond a mere matter of compensation and show such a disregard for the life and safety of others that it should properly be considered a crime deserving of punishment. This test, however, opens itself up to criticism as negligence can go beyond a mere matter of compensation whilst still falling vastly short of what is required for the very serious offence of manslaughter.
R v Misra and Srivastava [2005]subsequently clarifies the standard further stating that a serious mistake or error of judgement will not suffice for the purposes of the criminal offence. A jury must be sure that the conduct in question fell so far below the standard expected of a reasonably competent and careful person that it was truly, exceptionally bad and showed ‘such indifference’ to an obviously serious risk of life.
What is Manslaughter?
Manslaughter is a common-law offence that is not set out in statue. It is an indictable only offence, meaning that it will be tried and sentenced at the Crown Court.
The maximum sentence for all manslaughter offences is life imprisonment. As discussed above, note the use of the word maximum, meaning up to life imprisonment demonstrating that it is less serious than the offence of murder which carries a mandatory life sentence.
3.2.3 Manslaughter Lecture – Hands on Example
The following scenario aims to test your knowledge of this subject and your ability to apply the law you have learned in a practical context.
Have a read of the following passage and try to identify any material facts and potential legal issues. It might help to highlight these and jot down any ideas or relevant case law that springs to mind as you read. Once you have done this, if you feel confident have a go at putting together an answer.
If you don’t feel confident just yet, don’t worry. This takes a lot of practice and if this is the first time you have had a go it will be hard. A step by step outline answer is provided below which contains pointers as to how you need to go about it. Use this as guidance to produce or to check your own answer.
Referring back to the notes for this section should to help you. There is nothing raised in this answer that we haven’t already covered together so you have all the tools you need to do a really good job!
John is walking home from work one day through the park when he sees his boss Jane across the other side of the path. John is angry at Jane as she did not give him the promotion he recently applied for. Jane’s back is turned and she is distracted talking on the phone. John senses an opportunity to run up behind Jane and push her into the pond so that she will get a bit of a fright and ruin her clothes. John knows he will then be able run off again before she sees.
John takes his chance and Jane is pushed into the pond. Jane struggles to get out and shouts for help. Bill walks past on his way home and decides that if he stops and helps Jane he won’t be back in time for Eastenders so walks quickly past. As a result of this Jane is in the water for some time before Dave eventually walks by and helps her out. Dave is a trained first aider and advises Jane that she needs to go to hospital as she has been exposed to the cold for some time and may have swallowed some of the pond water. Jane ignores Dave as she too is a big Eastenders fan and is keen to get home to catch the last few minutes of that evening’s episode.
Over the next few days Jane becomes very unwell and a week later she finally visits the hospital whereby she is taken in straight away as she is in a critical condition. Unbeknown to Jane she suffers from a deficiency in white blood cells which means her immune system is severely weakened. The bacteria in the dirty pond water would not be particularly harmful to most people but due to Jane’s weak immune system it has made dangerously unwell.
Whilst being treated in hospital Jane’s doctor Samantha gives fails to give Jane a lifesaving antibiotic and instead gives it to Steve the patient in the bed next to her. Steve reacts badly to the drug and falls into cardiac arrest. Samantha fails to realise this as she is busy talking to another patient. Steve dies and a few hours later Jane too passes away as her body is unable to fight off the infection. Medical experts stated that the antibiotics would have saved her life.
Discuss the liability of John for unlawful and dangerous act manslaughter and Samantha’s liability for gross negligence manslaughter.
John
- First identify the base offence, in this case Battery. Does John have the requisite actus reus and mens rea for the offence?
–Actus reus: Unlawful application of force
–Mens rea: Intention to apply such force
- Once this offence has been established you then need to discuss whether the offence would cause a reasonable person to believe at the time of pushing Jane that some harm may arise from this (R v Church [1966] 1 QB 59). Remember the specific type of harm need not be foreseen (R v JM and SM [2012] EWCA Crim 2293). It is likely that this will be answered in the affirmative, however if you feel there is a counter argument, raise it as this shows good critical application of the law, before moving on to the next stage. Do not conclude here though as you need to discuss all elements of the offence. Keep it open ended at this stage.
- You then need to establish whether John caused Jane’s death. To do this, first apply the test for factual causation. But for John pushing Jane would Jane have died as and when she did? (R v White [1910] 2 KB 124).
- Next establish legal causation. Was John’s act an operating and substantial cause of Jane’s death (R v Smith [1959] 2 QB 35)? To answer this, follow the chain of causation and identify any possible novus actus interveniens:
–Bill’s refusal to help Jane get out of the pond: Consider here that only a third party act will break the chain. This is clearly an omission and as the law imposes no Good Samaritan obligation, Bill has done nothing wrong.
–Jane’s medical condition:Apply the thin skull principle using an application ofR v Hayward(1908) 21 Cox 692 or any other suitable case you may come across during your reading. John must take Jane as he finds her and her medical condition will have no bearing on this.
–Failure to provide the lifesaving antibiotics:Use an application of R v Smith [1959] 2 QB 35andR v Jordan (1956) 40 Cr App R 152. Only palpably wrong medical treatment will break the chain. Negligent treatment will not. Critically apply these cases to the facts in the present situation. Draw comparisons between the sets of fact to conclude as to whether the medical treatment will be classed as palpably wrong and thus break the chain.
- Having applied the law to each possible novus actus interveniens conclude as to whether the chain been broken or John’s act remains an operating and substantial cause of Jane’s death? There is no right or wrong answer here. Provided you have followed the steps outlined and reasoned your application of the law clearly you will receive good marks for your answer no matter which conclusion you reach.
Samantha
- Establish a duty of care. A doctor patient duty is well established and as this is not a tort exam you will not need to demonstrate awareness of the presiding authority, R v Adomako [1994] 3 WLR 228 and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 will be suitable. A simple, brief application of the Caparo test will also suffice but keep it concise and do not expend too many words on this as this is not where the marks are.
- Establish a breach of that duty. Apply Bolam, would a reasonable body of opinion of doctors consider that the standard of care exhibited fell short of the standard considered as proper practice? This should be a straight forward, yes. Don’t expend too many words on this. Apply the Bolam test and move on. Keep it concise.
- Apply briefly the tests for factual and legal causation as above using White and Smith. There are no contentious intervening events so there is no need to expand of this further.
- Now assess the level of negligence. State that only gross negligence will suffice for the purposes of a criminal conviction. Was the standard of care demonstrated by Jane during the chain of events that occurred so negligent that it should be classed as criminal? Apply the case law of Adomako, R v Bateman (1925) 19 Cr App R 8 and R v Misra and Srivastava [2005] 1 Cr App R 328 and discuss. Ultimately, answering whether the standard of care exhibited fell so far below the standard expected of a reasonably competent and careful person that it was truly, exceptionally bad and showed ‘such indifference’ to an obviously serious risk of life.
- Conclude as to Samantha’s liability.