criminal law Lecture Notes

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Analysis of Involuntary Manslaughter


The Law Commission in its report, Legislating the Criminal Code: Involuntary Manslaughter (1996), identified two major problems relating to the wide range of conduct covered by involuntary manslaughter:

1. The offence includes (a) cases involving conduct that falls only just short of murder, where the accused was aware of a risk of causing death or serious injury, although he did not intend to cause either; (b) cases where the accused is a professional person who makes a very serious mistake that results in death; and (c) cases where a relatively minor assault ends in death.

2. This leads to problems in sentencing and labelling, including the fundamental problem that many cases currently amounting to unlawful act manslaughter involve only minor fault on the part of the defendant, and therefore should not be described as manslaughter at all.


It is wrong in principle, according to the Law Commission, for a person to be liable for a death which he did not intend or foresee, and which would not even have been foreseeable by a reasonable person observing his conduct. It is unprincipled because it requires only a foreseeable risk of causing some harm inherent in the accused's conduct.

Proposal for Reform

The abolition of constructive manslaughter would not allow many defendants to escape liability: they would be liable for the newly proposed offence of Reckless Killing.


R v Adomako (1994) reintroduced gross negligence manslaughter but left constructive manslaughter untouched. Previous cases had preferred manslaughter based on objective recklessness, eg, Lawrence, Seymour and Kong Chuek Kwan.

Gross negligence manslaughter depends on the defendant owing a duty of care to the victim and the seriousness of the breach of that duty.

A person can be liable for omissions as well as acts.


Adomako mixes the civil concepts of "negligence" and "duty of care" with that of criminal liability. According to the Law Commission, there is uncertainty in the current law arising from the terminology used in gross negligence manslaughter. It concluded that the language of tort is best avoided.

The test in Adomako is circular - the jury is to convict the defendant of a crime if they believe the conduct was "criminal". This leaves a question of law to be decided by the jury who do not give reasons for their decisions.

According to the Law Commission there is a lack of any clear definition of the extent of liability for omissions. Adomako may have restricted the scope of duty to act in criminal cases by equating it with that of tort where liability does not flow if a defendant abandons an effort to care for someone (unless he causes harm through his own incompetence). For example, the defendants in Stone and Dobinson might not have been liable in tort.

Lord Mackay stated that the word "reckless" may be used by judges but in the ordinary sense of the word. However, he did not give an actual definition. Lord Mackay approved the cases of Stone and Dobinson where the risk was defined in terms of health and welfare and ex parte Gray where a risk of injury sufficed.

Proposal for Reform

The Law Commission proposes a new offence of Killing by Gross Carelessness.


The position of Subjective Reckless Manslaughter after Adomako is uncertain. Its reappearance was debated by academics although the Court of Appeal confirmed its existence in R v Lidar (1999).