10 HOMICIDE
‘Killing no murder’
Involuntary manslaughter is the term given to unlawful killing where the mens rea for murder is not present. It is obvious, therefore, that the defendant will not have intended to kill the victim or even to cause grievous bodily harm. How exactly do the courts view the crime?
Many writers seem to agree that there are three broad categories of involuntary manslaughter. Firstly, there is manslaughter by an unlawful or dangerous act (also known as constructive manslaughter). Secondly, we have manslaughter by gross negligence. The final category is manslaughter with subjective recklessness as to the risk of death or bodily harm. On conviction for involuntary manslaughter, the sentence is at the discretion of the judge and can range from an unconditional discharge to life imprisonment.
Let’s look at the case law for each type of manslaughter. Agood example of constructive manslaughter can be found in R v Franklin (1883), where the defendant threw into the sea ‘a good-sized box’ which he picked up on a pier. The box hit a swimmer and killed him. The defendant was guilty of manslaughter, as death resulted from the unlawful act of taking another’s property and throwing it into the sea. This case appears to demonstrate that this type of manslaughter must involve a criminal act, which must be a ‘substantial cause of death’.
In R v Bateman (1925), the Court of Appeal established that in manslaughter by gross negligence, there must be ‘such a disregard for life and the safety of others to amount to a crime’. This was followed in R v Adomako [1995], where a hospital anaesthetist was found guilty of the manslaughter of a patient.
R v Seymour [1983] laid down the test for manslaughter with subjective recklessness. The defendant tried to push his girlfriend’s car out of the way with his lorry. She was crushed between the vehicles and later died. The House of Lords defined mens rea for recklessness as ‘an obvious and serious risk of some harm’ where ‘a) the defendant must have realised that risk and decided to take it or b) the defendant gave no thought to what was an obvious or serious risk of some harm.’ Prior to this, there was authority that manslaughter was killing with the appropriate degree of recklessness. Card et al. (1995) refer to Gray v Barr [1971] and R v Stone and Dobinson
[1977] where the court ruled that ‘indifference to an obvious risk’ constituted recklessness (p. 227).
In recent years, many writers have claimed that the unlawful act must expose the victim to bodily harm, and must be aimed at the victim. Smith and Hogan (2002) refer to R v Dalby [1982]. It is worth noting that this introduces another element to the mens rea: it requires the defendant to direct his action against the victim. However, subsequent cases R v Goodfellow [1986], R vWatson [1989], R v Mitchell [1995] have reduced the significance of Dalby. According to these cases, the issue now is causation. Did one person’s action directly or indirectly cause the death of another person? There is no need to show that the defendant realized the risk, only that a reasonable person in those circumstances would have realized. Clearly, if the evidence does not support the mens rea for the unlawful act, the defendant will not be liable.
Writers often cite the Appeal Court decision in DPP v Newbury and DPP v Jones [1977] when identifying the test for mens rea in involuntary manslaughter. In this case, two teenage boys threw a paving stone from a bridge that hit the guard of a train passing underneath. The guard died as a result of his injuries. The defendants were found guilty of manslaughter because they intentionally committed an unlawful and dangerous act which caused death. Whether the defendants knew that the act in question was unlawful or dangerous was not relevant.
In 2007, the Corporate Manslaughter and Corporate Homicide Act in the UK extended manslaughter to apply to organizations. This legislation followed a number of fatal accidents caused by management failures to maintain safety standards. As Alex Dobson states in an article in The Times (5th April 2008):
The pressure for reform began to grow after the death of 187 people caused by the capsizing of The Herald of Free Enterprise (a cross-channel ferry) in 1987.
Adetailed introduction to the Act appears on the UK Ministry of Justice website. Those interested in the background and development of the crime should read Professor Gary Slapper’s article on corporate manslaughter in the Asia-Pacific Review (2002, pp. 161–170).
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