Criminal | Offences Against The Person
Involuntary Manslaughter: Liability
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Discuss liability for gross negligence manslaughter
Involuntary manslaughter is an unlawful killing where the defendant does not have the intention to kill or cause serious bodily harm. The sentence is discretionary with a maximum sentence of life imprisonment.
Gross negligence manslaughter is when a person dies as a result of the negligence of another.
The degree of negligence must be sufficiently serious as to make the defendant criminally liable for the death. An anaesthetist’s failure to notice a disconnected pipe during an operation was described as
abysmal and was sufficient (Adomako (1994)).
Four elements are required for gross negligence manslaughter: existence of a duty of care, breach of that duty which causes death, gross negligence which jury considers justifies criminal liability and was a substantial cause of the death (Adomako (1994)).
Duty of care
Defendant’s duty of care to victim must be established, using
ordinary principles of negligence (Adomako (1994)).
Duty of care defined in civil case law. The neighbour principle means
.. you must take care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour... (Donoghue v Stevenson (1932)).
Criminal law recognises liability can be imposed for omissions in limited situations. For example through, duty voluntarily taken on (Stone and Dobinson (1977)), contractual terms (Litchfield (1998)) and complicity in a crime (Wacker (2002)).
Whether duty arises may partly determined by public policy (Willoughby (2005)) and can be imposed where defendant has contributed to a life threatening state of affairs (Evans (2009)).
Defendant’s negligence must be gross (Bateman (1925)). Lord Atkin noted
.. a very high degree of negligence is required to be proved before the felony is established... (Andrews (1937)).
Whether breach of duty was serious enough to amount to gross negligence is s a jury decision. This leads to some inconsistency such as finding of not guilty in Finlay (2001) compared to conviction in Edwards (2001).
Risk of death
A risk of death caused by defendant’s conduct was referred to in Adomako (1994) by Lord Mackay.
There is lack of clarity on this point, although logical such a test is applied. It has been suggested sufficient for there to be a risk to the
health and welfare of the victim (Stone and Dobinson (1977)) and previous test was
disregard for the life and safety of others (Bateman (1925)).
However, not so uncertain as to breach of Article 7 European Convention Human Rights (Misra and Srivastava (2004) ).
Involuntary manslaughter is based on the fact defendant does not have the intention to kill or cause serious harm.
Subjective approach means defendant either intended injury or realised there was a risk of injury and took that risk.
Under unlawful act manslaughter, the act must be objectively dangerous (Newbury and Jones (1976)) but for non fatal assaults the test can be subjective (Cunningham (1957)).
Lord Evans said nothing in the Adomako to exclude reckless manslaughter (Lidar (1999)).
It appears both subjective recklessness manslaughter and gross negligence manslaughter exist in parallel.
It seems the defendant in Lidar (1999) who was convicted of subjective recklessness manslaughter could have been convicted of gross negligence manslaughter. As a driver he owed victim a duty of care and by driving away with the victim half in the car it could be argued he breached that duty. It would be for jury to decide if this was sufficient for gross negligence.
If subjective test applied to manslaughter means defendant only guilty, if at the time of the act, he intended injury and realised that there was a risk of death or serious injury and he took that risk anyway.