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Grade: A-C | £0.00.
The present law relating to involuntary manslaughter serves neither the defendant nor the criminal justice system. Discuss the accuracy of this statement.
Involuntary manslaughter can be distinguished from voluntary manslaughter by the absence of intention to kill or cause GBH. Involuntary manslaughter can be divided into three categories:
Unlawful act/constructive manslaughter; gross negligence manslaughter/medical manslaughter and reckless manslaughter.
From this we can see that involuntary manslaughter covers a wide range of situations and this is reflected in the sentences handed out.
In the case of unlawful act/constructive manslaughter the death must be caused by an unlawful act, it is not enough to be a civil wrong (Franklin (1883)). The unlawful act must be dangerous by the standards of a reasonable man i.e. the test is objective and not subjective (Church (1966)). There must be an act, an omission can not create liability (Lowe (1973)). The unlawful act must cause death as in (Rogers (2003)) and (Kennedy (2005)).
Difficult decisions have been made surrounding the deaths of a human being from the injection of a drug. As a result of these cases the courts have had reason to scrutinise what amounts to unlawful act/constructive manslaughter in some detail. Currently the law appears to be that:
If the defendant has supplied the drug but does nothing towards administering the drug, he has not caused the death (Dalby (1982))
If the defendant helps in any way in administering the drug and this act is the cause of death, he is guilty of manslaughter (Rogers (2003))
If the defendant prepares the injection but the victim has the syringe and injects himself with the lethal dose, the defendant is guilty of unlawful act manslaughter as he has committed the unlawful act of administering a noxious substance under Sec 23 of the Offences Against the Person Act 1861: (Kennedy v R (2005).
The test for unlawful act manslaughter is objective but the act can be aimed at property (Goodfellow (1986)). The risk of harm must be a physical harm, it is not enough for there to be fear or concern even if this leads the victim to have a heart attack (Dawson (1985)). Should a defendant know of the victim's weakness and the risk he could be in, then the defendant is liable (Watson (1989)). There must be proof that the defendant had the mens rea for the unlawful act, not necessarily that he realised that the act was unlawful or dangerous (Newbury and Jones (1977)), Attorney General's Reference No.2 CA of 1999.(2000).
Gross negligence manslaughter/medical manslaughter arises where there is a duty of care owed to the victim and there is a breach of that duty causing death.
In R v Singh (1999) the Court of Appeal upheld Mr Singh's conviction of manslaughter for gross negligence as the result of the death of his tenant, even though he had left his son in charge of the tenanted property. In R v Wacker (2003) a number of immigrants suffocated whilst in the care of the defendant who was the driver of a lorry carrying 60 Chinese illegal immigrants from Rotterdam to England. There was found to be a duty of care to the victims in these cases.
The actus reus must be so ‘gross’ in the eyes of the jury as to be criminal in the true sense of the word and there must be a risk of death. In R v Adomako (1994) an anaesthetist did not notice that a tube inserted in the patient's mouth had become detached during an eye operation. This resulted in the patient suffering a cardiac arrest and dying. Lord Mackay was very clear in his approach stating 'Whether the defendant's breach of duty amounted to gross negligence depended on the seriousness of the breach of duty committed by the defendant in all the circumstances in which he was placed when it occurred and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury's judgment to a criminal act or omission'.' A duty of care existed between a doctor and his patient as it did in the relationship between the owner of a ship and its crew as in R v Litchfield (1997).
In R v Stone and Dobinson (1977) the defendants allowed a vulnerable sister to stay with them and live in their house. The sister became ill and the pair failed to call a doctor. The court found that a duty of care existed and, that being the case, their attitude of indifference was sufficient to give rise to a charge of gross negligence manslaughter.
Reckless manslaughter is not so easily defined. Prior to Adomako (1994) it was thought that manslaughter could be committed by recklessness using an objective test. After Adomako it was thought that this was not the correct test but that recklessness could give rise to manslaughter of the kind found in R v Stone and Dobinson (1977).
It is now thought that reckless manslaughter is only likely to be found in motoring cases which result in manslaughter. In R v Lidar (1999) The defendant argued with the victim,who was half leaning into the defendants car. The defendant drove off and the victim was crushed by the rear wheel. The defendant was convicted of manslaughter. The Court of Appeal held that in order to be liable, the defendant must have (a) foreseen a risk of serious injury or death occurring, and (b) assessed that risk as at least highly likely to happen. Reckless manslaughter nowadays is probably best defined by refernce to the test laid down in Lidar (1999).
At this point it might be useful to mention corporate manslaughter. Since the introduction of The Corporate Manslaughter and Corporate Homicide Act 2007 in April 2008, there have been an ever increasing number of prosecutions. The introduction of this Act means that companies and organisations can be found guilty of corporate manslaughter as a consequence of failing to carry out their responsibilities correctly. If there is a gross breach of duty of care leading to a fatality and a company can be found to have failed in managing health and safety procedures they can be found guilty of corporate manslaughter.
As regards the accuracy of the statement whether the present law relating to involuntary manslaughter serves neither the defendant nor the criminal justice system, it must be said that the wide range of situations embraced by the law of involuntary manslaughter makes it unwieldy. This is because the situations are very broad and this may cause a problem for legal professionals in advising their clients on the likely outcome of such cases. It may also be difficult for members of the jury to deal with conduct or omissions which may be so different and contrasting in each case. An alternative solution could be that each case should be dealt with on its merits, but at the end of the day this does not necessarily help those that need to deal with predictability.
In unlawful act manslaughter, liability may arise even though death was unexpected and the objective test (the test of what a reasonable man would have done) triggers liability even though this may not have been foreseen by the defendant. This may cause difficulties depending upon the nature of the case but provided there is a conviction the circumstances can be reflected at the sentencing stage. Having said that, if there is no conviction in what amounts to an unlawful situation, the victim's family may feel that justice has not been achieved if a verdict of not guilty is returned where the defendant caused the death of the victim.
As long ago as 1996 the Law Commission carried out a review in this area of the law and recommended doing away with involuntary manslaughter in its present form and proposed a new form of criminal manslaughter but this has not been acted upon. The Commission's report 'Murder, Manslaughter and Infanticide 2006' proposed a tiered system of offences, namely first degree, second degree and manslaughter. A further debate is probably necessary in order that we can properly consider the effect of such proposals on the problems as they are perceived at present.
The rather subjective definition of gross negligent manslaughter probably does not help at the moment in that it rather suggests that whether this offence exists at all depends upon the situation and what happened. This even raises the question of whether the offence of gross negligent manslaughter exists at all. This must be very difficult for the jury but the authorities are clear and robust about the gross negligence manslaughter. The issue may not be helped by any suggestion that culpability can be dealt with by the civil law where a form of negligence has existed for many years. It may be that for this reason the Law Commission prefer to use the term criminal manslaughter.
Judges do, of course, need to deal with the law for the benefit of the jury so that they know what verdict they are entitled to consider in their deliberations. Anything that can be done to make the work of the jury easier is probably a good thing. A judge may not have a problem with a reform suggesting abolishing reckless manslaughter which probably only exists in motoring manslaughter cases any way. That does not necessarily mean that a jury would find the concept of second degree murder any easier to understand, or gross negligence manslaughter for that matter.
The term second degree murder seems fraught with difficulties, not least being that members of a jury may have heard of its use in America. One could argue that it is more important to ensure that victims are able to find justice by having a diverse and wide ranging offence which catches the wrongdoers, rather than any niceties as to the drafting.
The work of the Law Commission is valuable and should not be disregarded, but at the same time Parliament needs to ensure that it is in step with the needs of society and that the reforms meet the public's expectations and needs. At the moment this may be an unwieldy part of the law but it could be argued that this is because it needs to meet the requirements of society including the families of victims. There have been concerns that offences concerning the death of someone as a result of dangerous driving do not properly reflect the loss of a valuable life and considerable care needs to be taken to ensure that any reform of reckless manslaughter is not received as a watering down of the law with the result that mixed signals are sent out.
(Word count 1768)
With descriptions of the categories that come under the heading of involuntary manslaughter and how it effects the victims,the perpetrators, the judges and the jury, this will be a valuable aid for your own essay.
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