Discussing Homicide - constructive manslaughter.

Have a little read: ... HOMICIDE 3. MANSLAUGHTER - CONSTRUCTIVE Although there is only one offence of manslaughter, it can be committed in two ways: voluntarily and involuntarily Now, when we speak of voluntary manslaughter, in fact the defendant has been charged with murder but he pleads manslaughter because there is a mitigating factor such as provocation or diminished responsibility which will permit a jury to bring in the lesser verdict of manslaughter. This is important because with murder a life sentence is mandatory, whilst a conviction for manslaughter permits a judge to impose any sentence he likes - from life imprisonment to an absolute discharge. On the other hand, involuntary manslaughter is a type of manslaughter with which a defendant may be charged. In other words, it is a crime in its own right; and please take note: throughout this and the next lecture, when I speak of manslaughter, I am referring to involuntary manslaughter. OK, so let's go! There is good news and bad news. The good news is that we can skip over the actus reus of manslaughter because it is the same as for murder. So, the way in which manslaughter differs from murder (and voluntary manslaughter) is in its mens rea. The bad news is that the mens rea aspect is a bit of a monkey. Anyway, the easy bit first: defined in very general terms, the mens rea of manslaughter is anything other than intention to kill or intention to cause grievous bodily harm. In other words, the mens rea for manslaughter is anything other than the mens rea for murder. It is, therefore, possible to identify four states of mind that might give rise to manslaughter: realising a risk and deliberately running that risk - subjective CUNNINGHAM recklessness; failing to consider a risk when a reasonable person would realise that risk - objective CALDWELL recklessness; and a mistaken belief that there is no risk when the reasonable person would realise there is a risk - negligence; and lastly intending to do an unlawful act which the reasonable person would realise is likely to cause immediate bodily harm, however slight. This last state of mind - intending to do an unlawful act et cetera - is the mens rea of what is termed constructive or unlawful act manslaughter. The other states of mind we will deal with in the next lecture. Now, there are two elements to constructive manslaughter: the defendant must intend to do an act which is unlawful and the act must be dangerous to the extent that a reasonable person would realise that it was likely to cause bodily harm, however slight. You may be able to imagine these types of cases in your own mind: people throwing things off bridges onto motor cars; assaults less than section 18 OAPA; but not usually road traffic offences which have their own specific offences under the Road Traffic Act 1988. It is clear, therefore, from the first element that the defendant must commit a crime; an act is only unlawful for the purposes of constructive manslaughter if it is a crime. So, for example, if death results from a civil matter, then we are not talking constructive manslaughter. As Field J said in R v FRANKLIN (1883) 15 Cox CC 163, where a civil trespass had caused a fatality, 'The mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case.' Again, a mistake may not be a crime. In R v LAMB [1967] 2 QB 981 - CA, the defendant pointed a loaded gun at the victim, his friend, in jest. He did not intend to injure or alarm the victim and the victim was not alarmed. Because they did not understand how a revolver works, both thought there was no danger in pulling the trigger; but, when the defendant did so, he shot the victim dead. The defendant was not guilty of a criminal assault or battery because he did not foresee that the victim would be alarmed or injured. As Sachs LJ said, 'It was not unlawful in the criminal sense of the word.' However, whilst Lamb was not guilty of constructive manslaughter because the unlawful act was incomplete, he might have been found guilty of manslaughter on the basis of gross negligence which I shall deal with soon. In the meanwhile, we will turn our attention to the second requirement of constructive manslaughter - that the act must be dangerous to the extent that a reasonable person would realise that it was likely to cause bodily harm, however slight. This was stated to be the case in R v CHURCH [1967] 1 QB 59 - CA, where Edmund Davies said, 'the unlawful act must be 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'; and was confirmed in DPP v NEWBURY AND JONES [1976] 2 All ER 365 - HL. So, CHURCH decided that the unlawful act must not only be dangerous but also that the standard is objective. What I mean by this is that it is not necessary for the defendant himself to realise that his act was dangerous - all that is required is for a reasonable man to consider that the act was dangerous. In other words, the defendant could be completely unaware, oblivious and so on that his illegal act was dangerous and still be guilty of constructive manslaughter. NEWBURY confirmed this and added that it did not matter even if the defendant was unaware that he was committing an unlawful act. Now, we do know from these two cases that the unlawful act must be dangerous. If the unlawful act is not dangerous or is not likely to lead to physical - not emotional - harm according to a reasonable man, then we are not talking constructive manslaughter. Before we look at a case, imagine that the reasonable man is actually there at the scene of the crime, though invisible; that he is watching what is going on. In R v DAWSON [1985] Crim LR 383 - CA, during an attempted robbery of a garage, the defendants had frightened the victim, who suffered from a heart condition, with an imitation pistol. He died. Now, whilst they had caused his death, they were not guilty of constructive manslaughter because the reasonable person would only have foreseen fear and not physical harm to the victim and neither would the reasonable man have been aware of the heart condition. In the next lecture, we will have a look at the situation where a homicide is committed but, for whatever reason, constructive manslaughter does not apply. HOMICIDE 4. INVOLUNTARY MANSLAUGHTER - GROSS NEGLIGENCE If the act causing death does not amount to constructive manslaughter, then the prosecution must prove gross negligence in order to obtain a conviction. There are various reasons why scenarios do not amount to constructive manslaughter: the act may be lawful, for example an operation in hospital; or there may have been an omission rather than an act, for example STONE & DOBSON, a case I referred to in the actus reus lecture. So, the sixty-four thousand dollar question: what is gross negligence? Now, had you been studying this area of law ten years ago, then it would have taken at least a couple of lectures to explain. Luckily, in 1994 the House of Lords helped out enormously in the case of R v ADOMAKO [1995] AC 171 - HL. I will come to ADOMAKO shortly, but first I want you to get the feel of gross negligence and I am going to use an example used by my old university Professor, Brian Hogan, who sadly died some years ago. Forgetting about Road Traffic Acts for a moment, supposing you were driving at 40 m.p.h. through a village at lunchtime where the speed limit was 30 m.p.h. 'Well, that's no big deal,' you would say. I would frown a little and then perhaps agree that it was no big deal. Now, supposing you were driving at 50 m.p.h., your answer might not be quite so sure. Supposing it were 60 m.p.h.? At this stage, you would probably say that you were driving dangerously. Now, were you to have killed a child who ran onto the road at this stage, there would be a pretty certain conviction of causing death by dangerous driving under section 1 Road Traffic Act 1988, as amended by the Road Traffic Act 1991. We'll now jump a little. Supposing you were driving at 100 m.p.h.? Have you gone white? You should have done because at this stage you will have been indicted for gross negligence manslaughter! I hope you can see from this that gross negligence manslaughter involves, as Lord Hewart