Rabea Ashraf

Homicide II: Involuntary Manslaughter

HOMICIDE II:
Involuntary Manslaughter
INTRODUCTION
Andrews v DPP [1937]
Of all crimes manslaughter appears to afford the most difficulties of
definition, for it concerns homicide in so many and so varying condition. From
the early days, when any homicide involved penalty, the law has gradually
evolved through successive differentiations and integrations until it
recognises murder on the one hand based mainly, although not exclusively, on
an intention to kill, and manslaughter on the other hand, based mainly, though
not exclusively on the absence of an intention to kill, but the presence of an
element of unlawfulness; which is the elusive factor (per Lord Atkin)
Involuntary manslaughter are killings where the defendant does not intend to kill
or cause GBH but there is sufficient fault to justify criminal liability. The
difficulty the courts have found is in defining how little fault is sufficient to
justify a manslaughter conviction.
All the types of manslaughter are called manslaughter. This causes considerable
problems of fair labelling and problems in sentencing. Why? Because despite manslaughter covering
a large degree of different conducts, it is all simply called manslaughter.
The label involuntary manslaughter is very misleading. Involuntary
manslaughter has nothing to do with the concept of involuntariness.
Nevertheless this terminology is widely used.
A crime should tell you exactly what has been done wrong and so should not be too broad. Different
types of wrong doing should be called different things.
There are three ways in which Manslaughter can be committed in an involuntary
manner.
1. Reckless killing
2. Killing by an unlawful and dangerous act
3. Killing by gross negligence.

RECKLESS MANSLAUGHTER
Subjective reckless manslaughter: the defendant killed the victim foreseeing a risk of death or serious
injury.
The intention in murder requires either wanting someone to die or wanting to inflict GBH or
foresight of virtual certainty for either; if you foresee something less than a virtual certainty then you
are guilty of manslaughter. If the defendant killed the victim, foreseeing a risk of death or serious
injury, then he can be convicted of subjective reckless manslaughter. It is, in fact, rare for a case
explicitly to rely on subjective reckless manslaughter, because whenever there is subjective reckless

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Homicide II: Involuntary Manslaughter

manslaughter it will be possible to charge constructive or gross negligence manslaughter and these
will be easier to prove. Therefore, although it is generally accepted to exist as a form of
manslaughter, there are no cases which discuss its exact definition.
Reckless manslaughter is the most obvious type of manslaughter but is not the most frequently
indicted.
R v Lidar (1999) (unreported)
The victim was fighting with Lidar through a window. Unfortunately it was a car window and the car
was going down the road, 1/8 of mile, his foot got caught in the wheel; fell through window and got
run over. Led to his death. The judge directed the jury that Lidar had to be reckless as to the risk of
injury to health. Lidar appealed. He said that since the case of Adamarco, which accepted that when
directed in manslaughter, recklessness can be used in a broad sense (say this rather than gross
negligence)
CA rejected this in its entirety. Adamako was a case of manslaughter; there was no intention of
courts to undermine the existence of reckless manslaughter.
Simply saying when charging gross negligence for manslaughter, using recklessness in broad sense
is not right.
Recklessness with the injury to health suffices
Evans LJ, The direction given by the judge might be said to be open to
criticism for failing to specify, first, that there had to be a high probability of
physical harm to Kully, and secondly, that the risk was of serious injury rather
than, as the judge put it injury to health and some physical harm, however
slight. [although it was not raised directly by the defence, the Court decided
to see what force it had]In our judgment, it has none, because in the
circumstances of this case both requirements were undoubtedly satisfied. The
risk of harm to Kully, of which the jury has found that the appellant was aware,
was clearly and unarguably a high degree of risk of serious injury to him. In
the circumstances, therefore, we are satisfied that the verdict could not be
considered unsafe if there was a misdirection in this respect.
Causing death, beign reckless as to death or serious injury first type of manslaughter
CONSTRUCTIVE MANSLAUGHTER
The term constructive manslaughter indicates that the crime is constructed
from liability for a lesser crime. It is based on the theory that if a
person kills in the course of committing a crime then he deserves to be
guilty of manslaughter. This kind of manslaughter is sometimes known
as unlawful act manslaughter.
Constructive manslaughter holds someone responsible for death where they have done something
which is objectively dangerous. For example, suppose the defendant pushes someone in anger and
that person falls over and hits their head and dies. The D did not intend death or serious injury, the D
also did not foresee such results. In some circumstances this could be considered manslaughter.
A crime is constructive where the fault element for a lesser offence will suffice for the more serious
offence. E.g. murder; because its killing, intending to kill or intending serious bodily harm (this
suffices).

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Homicide II: Involuntary Manslaughter

If you intend GBH and someone dies, courts will say it is not really fair because people did not
foresee the actual result. Its unfair because the courts should only be responsible for that which you
foresaw
Proving culpability; if you did not foresee any result, subjective activists say you should not be
criminally liable because you did not have the culpability for it
Does luck come into here?
In some constructive crimes, luck is extrinsic or intrinsic; moral luck?
Attorney-General's Reference (No.3 of 1994) [1997]
B stabbed his girlfriend M, whom he knew was pregnant. Sixteen days after the stabbing M went
into labour. The child, born grossly premature, managed to survive for 121 days in intensive care but
eventually died. B was charged with the murder of the child. The HL held that he could not be
convicted of murder.
Lord Hope said there were three elements of constructive manslaughter.
To be guilty of constructive manslaughter the defendant must be proved to
have performed an act which was:
a) unlawful
b) dangerous; and
c) caused the death of the victim
Powell [1997]
Constructive crime and strict liability
Constructive crimes overlap with strict liability offences. These are crimes to which mens rea does
not have to be proved.
E.g. if you attack a police officer, attack; mens rea is assault does not need to show that the person
realised that the other person was police officer.
Police Act 1996, s.89
Blackburn v Bowering [1994]
Components of constructive manslaughter:
a) Unlawful act
It is necessary to show that there is a criminal act. The prosecution in a case of
constructive manslaughter should make it clear which criminal offence is being
relied upon. It is not enough for the act to be a tort or breach of contract; the
act must be criminal, but not necessarily an act of violence. The defendant
must be shown to have committed both the actus reus and the mens rea and
not have a defence to the crime.
The felony murder rule was abolished in 1957. However, any unlawful dangerous act that led to
manslaughter was not abolished. So if an unlawful or dangerous act lead to death, then that can be
constructive manslaughter.
Goodfellow (1986)

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Homicide II: Involuntary Manslaughter

He wanted to be re-housed by the council so he decided to burn his house down. Unfortunately, his
partner and two kids were in the house and died as a result of the fire. He was convicted of
manslaughter. CA upheld the conviction and set out the conditions for manslaughter.
CA: "The questions which the jury have to decide on the charge of
manslaughter of this nature are:
(1) Was the act intentional?
(2) Was it unlawful?
(3) Was it an act which any reasonable person would realise was bound
to subject some other human being to the risk of physical harm, albeit
not necessarily serious harm?
(4) Was the act the cause of death?" (per Lane L.C.J)
However, this idea was disowned in the case of Franklin (1883)
The defendant picked up a box from a store and threw it over the side of the pier. But a boy
was swimming under pier and the box hit the boy and he subsequently drowned. The
prosecution argued that the simple fact that he committed tort; trespass of goods; a tort
should suffice. Judge Field expressly rejected this.
I am of the opinion that the case must go to the jury on the broad ground of
negligence [i.e. gross negligence manslaughter] and not upon the narrow
ground proposed by the learned counsel, because, it seems to me.that the
ere fact ofa 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. I have a
great abhorrence of constructive crime.
The act HAS to be criminal; a tort alone will not do but even an assault will suffice.
R v Larkin [1943]
An assault can suffice here
A woman was drinking with a man with whom she was having an affair. Larkin left the party to
brood on the matter and decided to scare the other man. He went back to the party and took out an
old fashioned razor. Unfortunately, the girl slipped and slit her throat and died. Was this
manslaughter? Yes intending to assault someone, it was objectively dangerous and sufficed for a
manslaughter conviction.
Lamb [1967]
Lamb pointed a revolver at his best friend. He thought it was a very funny joke and the reason for
this was that there was no bullet in chamber next to the barrel. Lamb pulled the trigger. What Lamb
did not realise was that revolver revolves before the hammer hits. Friend died.
Was this constructive manslaughter? No because neither he nor his friend foresaw or intending an
assault.
Another way of putting it is, that mens rea being now an essential ingredient in
manslaughterthis could not in the present case be established in relation to the
first ground except by proving that element of intent without which there can be
no assault (per Sachs LJ).
Lamb was a fool, but there is no need to punish fools to that degree. There is
no need to punish Lamb at all. He had killed his friend and that was
punishment enough. G. Williams, "Recklessness Redefined" (1982)
Glanville Williams

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Homicide II: Involuntary Manslaughter

Negligence does not suffice. Where negligence is an issue, the relevant offence is gross negligence.
Andrews v DPP [1937]
A driver killed a pedestrian, while overtaking another car. It was accepted that
the defendant was guilty of the offence of dangerous driving. The HL stated
that for constructive manslaughter an act which was intrinsically criminal was
required and not just a lawful act with a degree of carelessness which the
legislature makes criminal. This dictum is hard to interpret, but the generally
accepted view seems to be that a strict liability offence or an offence of
negligence cannot form the basis of constructive manslaughter.
Lord Atkin: There is an obvious difference in the law of manslaughter between
doing an unlawful act and doing a lawful act with a degree of carelessness
which the legislature makes criminal. If it were otherwise a man who, while
driving without due care and attention, killed another, would ex necessitate
commit manslaughter.
What about
deliberately?

committing

an

offence

of

strict

liability,

or

negligence,

Andrews [2003]
The defendant injected the victim with insulin who consented. She was also intoxicated at the time
and as a result, she died. D appealed claiming that because she consented it was not an unlawful act.
CA rejected this, this was an offence of strict liability so the consent was irrelevant. The defendant
intentionally injected the victim. In this circumstance, it suffices to have a conviction on constructive
manslaughter.
Senior (1899)
There is some debate whether constructive manslaughter could arise from a
criminal omission. There is no clear view.
In Senior, the defendant failed to summon medical help for his child, who later
died, and this was accepted as manslaughter.
contrast
Lowe, [1973]
The defendant failed to call for medical assistance for a dying child, but the CA
suggested that constructive manslaughter could not be based on an omission.
S1(1) Children and younger person act; offence of neglecting
In practice if the case does involve an omission the prosecution may choose to
present the case as one of gross negligence manslaughter, which undoubtedly
can be committed by omission.
Section 1(1) of the Children and Young Persons Act of 1933
If I strike a child in a manner likely to cause harm it is right that if that child
dies I may be charged with manslaughter. If, however, I omit to do something
with the result that it suffers injury to its health which results in its death, we
think that a charge of manslaughter should not be an inevitable consequence
even if the omission is deliberate

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Homicide II: Involuntary Manslaughter

b) The Dangerous Act

The unlawful act must be dangerous. This means that the act constitutes a risk
of physical injury. A risk of an emotional harm (e.g. fear or panic) is
insufficient, unless it is likely that that emotional distress will lead to a physical
injury, for example by causing heart attack.
Dangerousness is to be judged objectively. This means that there is no need to
show that the defendant was aware that his act was dangerous; the question is
whether a reasonable person in the defendants shoes would appreciate that it
was dangerous.
In Church [1965]
A man assaulted a woman who taunted him about his sexual performance. Thinking she was already
dead, the man threw her in a river. The woman subsequently drowned. It was said this could amount
to constructive manslaughter.
The reasonable person would have foreseen some harm.
the act must be such as all sober and reasonable people would inevitably
realise must subject the other person to, at least, the risk of some harm
resulting therefore, albeit not serious harm.
Director of Public Prosecutions v Newbury & Jones [1976]
In this case, two boys pushed paving slabs off a bridge on the path of an oncoming train. The slabs
killed the guard. They were convicted of manslaughter and appealed to the HL.
Can a defendant be properly convicted of manslaughter, when his mind is not
affected by drink or drugs, if he did not foresee that his act might cause harm
to another?
The House of Lords held that he could:
This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may
amount to little more than pure inadvertence and sometimes to little less than murd
The test is still the objective test. In judging whether the act was dangerous,
the test was not did the accused recognise that it was dangerous but would all
sober and reasonable people recognise its danger. (per Lord Salmon).
Dawson (1985)
The defendant approached a petrol station which was staffed by a 50 year old man. The defendant
was armed with an imitation gun and the victim suffered a heart attack and died. The jury should
have been asked whether a reasonable person in the defendants shoes would have realised that his
actions were likely to create a risk of physical injury. The test is not quite a straightforward objective
test. The jury should consider whether a reasonable person in the defendants shoes with any special
knowledge that the defendant has would have realized that the victim might suffer a physical injury.
So, if the facts in Dawson had been different, and the defendant had known that the petrol station
attendant had a weak heart, then the court would certainly have found the act dangerous.
Lamb (1967)
The accused and his friend were playing with a loaded gun. The accused checked that there was no
bullet opposite the firing pin, and pulled the trigger. He had not appreciated that the chamber
revolves when shot and so the chamber with a bullet moved to opposite the pin and the gun went off
and his friend was shot. It was confirmed that although the act was dangerous (a reasonable person

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would have known that the gun might go off) there was no unlawful act (he lacked mens rea) and so
he could not be convicted of manslaughter.
Watson [1989]
The defendant burgled the house of a very frail 87 year old man. The victim saw the burglar who
scared him, the man then died of a heart attack.
It was determined that this man was very clearly old and frail. The reasonable person would foresee,
or take into account his frailty.
So it was an intended assault, and it was possible to convict him of constructive manslaughter.
R v Carey, C and F [2006]
In an assault, the victim ran away and in the course of running away she died. Her heart failed as a
result of a heart problem. It was held that the reasonable person would not foresee that a 15 year old
had a congenital heart problem. Interestingly, it was also held that you should only take into account
the violence addressed towards the victim.
Therefore the CA showed concern and worry about constructive liability in these circumstances. Not
going to expand it out any further.
Ball [1989]
B shot and killed a trespasser although he had only intended to frighten the trespasser. He had a
mixture of blank and live cartridges in his pocket. He took one out of his pocket and put it in his shot
gun. He thought it was blank but it ended up killing the trespasser. The courts said that the
reasonable person would not share that belief. It was a dangerous situation to load a bullet without
looking properly.
What if the actual victim is unforseeable, but there is forseeable harm to someone?
AG's Reference (No.3 of 1994) [1997]
... All that is needed, once causation is established, is an act creating a risk to
anyone; and such a risk is obviously established in the case of any violent
assault by the risk to the person of the victim herself (or himself). In a case
such as the present, therefore, responsibility for manslaughter would
automatically be established, once causation had been shown, simply by
proving a violent attack even if (which cannot have been the case here) the
attacker had no idea that the woman was pregnant. On a broader canvas, the
proposition involves that manslaughter can be established against someone
who does any wrongful act leading to death, in circumstances where it was
foreseeable that it might hurt anyone at all; and that this is so even if the
victim does not fall into any category of persons whom a reasonable person in
the position of the defendant might have envisaged as being within the area of
potential risk."
Dalby [1982]
Owing to this decision the CA said supplying drugs didnt directly cause death and that it wasnt
directed at the victim. Constructive manslaughter involves killing therefore all the rules on causation
apply.
Goodfellow (1986)
Killing

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It is necessary to show that the unlawful and dangerous act caused the death
of the victim. The normal rules of causation apply.
At one time it was suggested that the defendants unlawful and dangerous act
had to be aimed at the victim. This was rejected in Attorney-Generals
Reference (No 3 of 1994) who confirmed that as long as there is an unlawful
and dangerous act which causes the victims death it does not matter if the act
was directed towards someone else. So if the defendant pushes one person
who falls over and knocks into someone else who also falls over and dies,
constructive manslaughter is available.
It must be shown that it was the unlawful and dangerous act of the accused
that caused the death of the victim, and not simply that the victim died while
the defendant was committing an unlawful and dangerous act. This appears to
have been overlooked in Cato (1976), where the defendant supplied unlawful
drugs to the victim and then injected the victim with the drugs as a result of
which the victim died. The CA suggested that the unlawful act could be seen as
the possession. With respect, this is hard to support. The possession did not
cause the death. The better basis for a manslaughter conviction, which the CA
suggested as an alternative analysis, was that the injection by the accused was
the offence of poisoning contrary to section 23 of the Offences Against the
Person Act 1861. This unlawful and dangerous act was the act that caused the
death.
R v D [2006]
There was a prolonged period of psychological and physical abuse in the relationship. On the
night of the wifes death, the husband had struck her on the head. This was the last straw and he
committed suicide. The medical evidence was that she had been psychologically affected but it
didnt rise to the level of being recognised as a psychiatric illness. Obiter they said that where
someone is hit and they have a frail and vulnerable personality..
GROSS NEGLIGENCE MANSLAUGHTER
The concepts of constructive manslaughter and gross negligence are not
mutually exclusive. It is possible for a person to be guilty of manslaughter of
both kinds at the same time.
For gross negligence manslaughter it must be shown that:
1. The defendant owed the victim a duty of care;
2. The defendant breached that duty of care;
3. The breach of the duty caused the death of the victim;
4. The breach was so gross as to justify a criminal conviction.
Lord Atkin, The principle to be observed ins that cases of manslaughter in
driving motor cars are but instances of a general rule applicable to all charges
of homicide by negligence. Simple lack of care such as will constitute civil
liability is not enough, For the purpose of the criminal law there are degrees of
negligence and a very high degree of negligence is required to be proved

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before the felony is established. Probably of all epithets that can be applied
reckless most nearly covers the case.but it is probably not all embracing,
for reckless suggests an indifference to risk, whereas the accused may have
appreciated the risk, and intended to avoid it, and yet shown in the means
adopted to avoid the risk such a degree of negligence as would justify a
conviction.
R v Caldwell [1982]
a personis reckless as to whether or not property would be destroyed or
damaged if (1) he does an act which in fact creates an obvious risk that
property will be destroyed or damaged and (2) when he does the act he either
has not given any thought to the possibility of there being any such risk or has
recognised that there was some risk involved and has nonetheless gone on to
do it.
Seymour [1983]
In the period following Caldwell, the courts were trying to reshape the law of recklessness
Adomako [1994] House of Lords
Adomako was an anaesthetist who failed to notice for six minutes that a tube
that supplied oxygen to his patient had become disconnected from the
ventilator. As a result, the patient died. He was convicted of gross negligence
manslaughter, but appealed on the basis that the judge had misdirected the
jury.
The appeal was dismissed.
The question certified for appeal was
In cases of manslaughter by criminal negligence not involving driving but
involving a breach of duty is it a sufficient direction to the jury to adopt the
gross negligence test set out by the Court of Appeal in the present case
following R v Bateman and Andrews v DPP without reference to the test of
recklessness as defined in R v Lawrence or as adopted to the circumstances of
the case?
The House of Lords agreed that indeed, there was no necessity of referring to
the test in Lawrence, and the test set out in Bateman and Andrews was the
correct one to use, for all cases of manslaughter, including those of motor
manslaughter
The test in those cases is the prosecution must prove the matters necessary to
establish civil liability (except pecuniary loss) and, in addition must satisfy the
jury that the negligence or incompetence of the accused went beyond a mere
matter of compensation and showed such disregard for the life and safety of
others as to amount to a crime against the State and conduct deserving
punishment.
In Adomako, Lord Mackay added
In my opinion the law is stated in these two authorities is satisfactory as
providing a proper basis for describing the crime of involuntary
manslaughterin my opinion the ordinary principles of negligence apply to

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ascertain whether or not the defendant has been in breach of a duty of care
towards the victim who has died. If so, the jury must go on to consider whether
that breach of duty should be characterised as gross negligence and therefore
as a crime. This will depend on the seriousness of the breach of duty
committed by the defendant in all the circumstances in which the defendant
was placed when it occurred. The jury will have to consider whether the extent
to which the defendants conduct departed from the proper standard of case
incumbent upon him, involving as it must have done a risk of death to the
patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in
this branch of the law I do not believe that is fatal to it being correct as a test
of how far conduct must depart from accepted standards to be considered
criminal. This is necessarily a question of degree and an attempt to specify the
degree more closely is I think likely only to achieve a spurious precision. The
essence of the matter, which is supremely a jury question, is 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 their judgment to a criminal act or
omission.
The ruling in Adomako was recently challenged before the CA in Misra on two
grounds. First, it was said to be inconsistent with the HL decision in R v G.
Secondly it was argued that it was inconsistent with the European Convention
on Human Rights. The CA rejected both challenges and confirmed that
Adomako represents the current law on gross negligence manslaughter.
Misra and Sristava [2004]
Amit Misra and Rajeev Srivasta appealed to the CA against two convictions for
gross negligence manslaughter of Sean Phillips. Mr Phillips had undergone
surgery at a hospital, but became infected with staphylococcus aureus. Misra
and Srivastava were senior house officers involved in the care of the diseased.
The prosecution alleged that their failure to diagnose and treat the victims
infection caused his death. The essence of the prosecution case was that not
only did the appellants fail to diagnose the condition from which the deceased
was suffering, but that they failed to even appreciate that their patient was
seriously ill.
Before the CA, the appellants developed two main arguments. The first was
that the offence of gross negligence manslaughter was so vague that it
contravened Article 5 of the European Convention of Human Rights. The
second was that following the decision of the HL in R v G, the definition of
gross negligence manslaughter had to be reassessed.
this is not a question of law, but a question of factOn examination, this
represents one example, among many, of problems which juries are expected
to address on a daily basis. They include equally difficult questions, such as
whether a defendant has acted dishonestly, by reference to contemporary
standards, or whether he has acted in reasonable self-defence.These
examples represent the commonplace for juries. Each of the questions could be
said to be vague and uncertain. If he made enquiries in advance, at most an
individual would be told the principle of law which the jury would be directed

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to apply: he could not be advised what a jury would think of the individual
case, and how it would be decided. That involves an element of uncertainty
about the outcome of the decision-making process, but not unacceptable
certainty about the offence itself
Although to a limited extent Lord Mackay accepted that there was an element
of circularity in the process by which the jury would arrive at its verdict, the
element of circularity which he identified did not then an does not now result
in uncertainty which offends against Article 7 nor, if we may say so, any
principle of common law. Gross negligence manslaughter is not incompatible
The defendant owed the victim a duty of care
It must be shown that the defendant owed the victim a duty of care.
R v Willoughby [2004]
Details of Case -> W probably employed the victim to help him burn down his pub. W was in
financial difficulty, so burnt down his unused pub to claim insurance. The victim who was employed
to do this died in the fire. Does the man who employed someone to burn down his pub owe a duty of
care to him? He was convicted and it should have been determined the by judge whether he owed a
duty of care or not. CA said its up to the jury to decide.
Held -> The CA stated: Whether a duty of care exists is a matter for the jury
once the judge has decided that there is evidence capable of establishing a
duty. These are problematic comments. If it is for the jury to decide what the
phrase duty of care means, it is far from clear how the jury are meant to
define it. Maybe the best explanation is that the judge should direct the jury in
terms: if you find the facts to be X then there is a duty of care, while if you
find they are Y there is not.
R v Wacker [2003]
W agreed to bring 60 illegal immigrants to the UK. The van was a sealed off unit and he left open
just a very small vent. He left them for 5 hours, and 58 of them died. He argued on appeal saying he
didnt owe them a duty. No action may lie on the base caused. He said they were all joined in a joint
criminal enterprise to get these people in the UK. The CA said this was out of the scope of the
enterprise. HL said no.
The CA confirmed that the duty of care is usually to be given the meaning it
has in the tort of negligence. It is not possible to provide a complete analysis of
when a duty of care arises under tort law. Much simplified, you owe a duty of
care towards anyone who may foreseeably be harmed by your actions. Hence a
driver owes a duty of care to other road users; a doctor owes a duty of care to
a patient; the captain of a boat owes a duty of care to the crew; and an
electrician owes a duty of care to the homeowner whose question of law for the
judge to decide.
[35-6] Looked at as a matter of pure public policy, we can see no justification for concluding that
the criminal law should decline to hold a person as criminally responsible for the death of another
simply because the two were engaged in some joint unlawful activity at the time or, indeed, because
there may have been some degree of acceptance of a degree of risk by the victim in order to further
the joint unlawful enterprise. Public policy, in our judgment, manifestly points in the other direction.

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The next question that we are bound to ask ourselves is whether in any way we are required by
authority to take a different view[the court referred to Lord Mackays speech in Adomako]in
particular.his reference to the ordinary principles of negligence. R v Adomako was a case [that]
involved no element of unlawful activity on the part of either the anaesthetist or the victim. We
have no doubt that issues raised in this case we are considering would never have crossed the minds
of those deciding that case in the House of Lords. In so far as Lord Mackay referred to ordinary
principles of the law of negligence; we do not accept for a moment that he was intending to decide
that the rules relating to ex turpi causa were part of those ordinary principles.
The defendant breached that duty of care
It must be shown that the defendant breached her duty of care to the victim. In
order to decide whether there is a breach of duty the jury must ask whether
the defendants action fell below the standard expected of the reasonable
person. Where the defendant is purporting to exercise a special skill, the test is
whether the defendant was exercising the skill expected of a reasonable
person possessing that skill.
Adomako
The accused had to act as a reasonable anaesthetist. In that case the accused had raised arguments
that he was exhausted after a long work shift and was inadequately trained. These did not affect the
standard: the jury were not to consider whether it was reasonable for Adomako himself to act as he
did: but to consider whether he fell below the standard expected of a reasonable anaesthetist.
The breach of the duty caused the death of the victim
The breach of the duty must have caused the death of the victim.
The breach was so gross as to justify a criminal conviction
It must be shown that the defendants breach of duty was gross. Lord Mackay in Adomako explained
that the jury should ask themselves whether the defendants actions or omissions were so bad as to
deserve a criminal conviction. The point is that establishing that the defendant was negligent will
mean that the defendant could be required to pay compensation to the victim (or his family). The
jury must ask whether the law should go further and in addition require punishment for the wrong.
Adomako leaves the jury a wide discretion to decide whether to convict the accused. The jury can
take all the facts into account and it is hard to predict how a jury will decide a particular case. It is
likely that the jury will consider questions such as: did the defendant foresee that his actions or
omissions would cause death?; what were the motives influencing the defendants actions or
omissions>; was the defendant indifferent to the well-being of the victim?; were there any good
explanations for why the defendant acted or failed to act as he did? In summary the jury will
consider the badness of the defendants actions.
A-Gs Reference (no 2 of 1999)
This case made it clear that it is not necessary to demonstrate that a defendant foresaw a risk of death
before he can be convicted of gross negligence manslaughter. However, if the defendant did foresee
death it is more likely that the jury will find the negligence to be gross than if he did not.

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Homicide II: Involuntary Manslaughter

A slightly different question is whether it is possible to convict a person of gross negligence

manslaughter if the risk of death was not foreseeable. In Adomako itself it is unclear whether Lord
Mackay required that a risk of death be foreseeable. At one point he talked about how gross
negligence involving consideration of the risk of death involved, however, he also approved dicta
in Stone and Dobinson and ex parte Gray which seemed to suggest that a risk to the heath and safety
of the victim was sufficient, even if death itself was not foreseeable.
Singh (1999)
The CA approved the trial judges direction that a risk of death must have been foreseeable by a
reasonable prudent person. However, there was no real discussion of the issue in that case so it may
still be open to debate. Whatever the position is it would be most unusual case where death was not
foreseeable but the jury decided that the negligence was gross.
MIsra
REFORM OF INVOLUNTARY MANSLAUGHTER
The Law Commission in their Report No 237 (Involuntary Manslaughter)
(1996) suggest:
(1) A category of manslaughter by subjective (Cunningham) recklessness as to
an unreasonable risk of death or serious injury.
(2) Abolition of unlawful act manslaughter in its present form.
(3) Creation of a statutory offence of killing by gross carelessness, where:
(a) D by his conduct causes the death of another;
(b) the circumstances are such that it would be obvious to a reasonable
person in D's position that there is a risk that the conduct may cause
death or serious injury and either
(i) D's conduct falls far below what can reasonably be expected
of him in the circumstances; or
(ii) D intends to cause some injury, or is aware of, an
unreasonably takes, the risk that he may do so and the conduct
causing (or intended to cause) the injury constitutes an offence.
The Home Office (Home Office, Reforming the Law on Involuntary
Manslaughter: The Governments Proposals (2000)) subsequently produced a
paper which claims to be based on Law Com 237, but which differs on a key
issue of principle:
1.7 The Law Commission also took the view that it was wrong in principle that
a person should be convicted for causing death when the offender was only
aware of some injury. The Government is less convinced of the merits of this
argument

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Homicide II: Involuntary Manslaughter

2.10 The Government is concerned that the Law Commissions approach

would mean that behaviour which may be regarded as seriously culpable
because it involves intentional or reckless criminal behaviour which results in
death, would no longer attract an appropriate charge. It might be viewed as
unacceptable if the law permitted only a charge of assault where the assault
had in fact resulted in death. The government considers that there is an
argument that anyone who embarks on a course of illegal violence has to
accept the consequences of his act, even if the final consequences are
unforeseeable
2.11 The Government therefore considers that there may be a need for an
additional homicide offence to cover a situation where:
A person by his or her conduct causes the death of another;
He or she intended to or was reckless as to whether some injury was
caused and

The conduct causing, or intended to cause, the injury constitutes an

offence.
How is this different from the present law?
Is there a need for the offence proposed in para. 2.11?