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 substantialcause 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:

  1. 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]:

  1. Is the harm reasonably foreseeable?
  2. Is there sufficient proximity between the parties?
  3. 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.

  1. 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.

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