A trained nanny was charged with manslaughter after forcing a child in her care to digest a large amount of salt. Although the child began to have convulsive reactions, the nanny did not seek medical assistance, nor did the parents after they returned. The child subsequently died as a result of the overdose of salt. The nanny had intended her act to be a punishment for the child’s refusal to eat properly. The parents had instructed the nanny that she could exercise whatever disciplinary measures that she thought were proper if the child misbehaved. (There are two parts of questions, answer both of them)
A. discusses the criminal liability of the nanny and the parents for manslaughter under the existing law. If additional information is needed to determine whether a conviction would be warranted, please indicate what information is needed and why?
B. Does the law need to be reformed to better handle the above situation (either better to protect the nanny and parents against a conviction or to make it less difficult for the Crown to secure a conviction)? Give reasons for your answer, citing relevant legal sources as appropriate?
The criminal act of manslaughter
A. The criminal act of manslaughter occurs when a person commits the actus reus of homicide but does not have the necessary mens rea to afford them liability for murder. So manslaughter basically covers all unlawful killings that are not murder. Although manslaughter is classed as a singular offence it is usually broken down into two categories and then further sub-categorised. These categories are merely to be used as a convenient label to describe unlawful killings which are not catered for by the law. The two categories are voluntary manslaughter and involuntary manslaughter. With the present situation with both the nanny and the parents we are dealing with involuntary manslaughter, which is further sub-categorised into constructive manslaughter and gross negligence manslaughter. There are certain unclear criteria which must be met in each sub-category , involuntary manslaughter is in fact a very unclear area of law which has ambiguously defined boundaries which covers the wide and varied middle ground between murder and accidental death so it is uncertain whether or not we will be able to clarify with some degree of certainty what if any criminal liability the nanny and parent’s may or may not be charged with. It is clear and obvious that the offence of manslaughter needs to continue to exist but calls for reform have been wide and varied and in great multitude as such a crime should not be privy to uncertainty .
Manslaughter is one charge as described above but is categorised into voluntary and involuntary manslaughter. Voluntary manslaughter includes in it’s ambit diminished responsibility crimes, provocation and suicide pacts so we can put this aside as it is clearly not relevant here. We are to first decide the culpability of the nanny, as it was her first commission of an act which started this sorry chain of events started. The two sub-categories of involved are constructive manslaughter and gross negligence manslaughter . The two concepts overlap considerably due to the similarity of the crimes they govern but it is gross negligence which is of a wider ambit and covers a wider range of conduct. In constructive manslaughter it’s criteria which includes the necessity of committing an unlawful act so we question was the nanny forcing the child to consume salt “unlawful” in these terms? Some cases straddle both concepts of involuntary manslaughter but a verdict of manslaughter is available o0n either ground so we only need to determine which sub-category is relevant here to determine the criteria we must prove to be able to get a conviction for manslaughter. Was this nanny’s forcing the child to consume salt an assault with the sufficient mens rea to make it an “unlawful” act? It is said that there will be no unlawful act if the accused had a lawful excuse or justification for committing the act he did e.g. when reprimanding a child with moderate and reasonable force and the child subsequently dies the person will not be guilty of an unlawful act. It would seem this act would be determined as being perhaps a little extreme but not illegal per se as the force does not seem to be excessive and the accused did not know it to be excessive so we are to look at the rules appertaining to gross negligence for the commission of the nanny’s act. Are we to assume the same criteria for the nanny’s failure to act and the parent’s failure to act? Gross negligence manslaughter indeed includes the omission to act so yes initially we shall presume the rules that will be used will be that of gross negligence
Gross negligence was recognised as a test for manslaughter in Bateman approved by Andrews .Adomako is now the authority on gross negligence manslaughter there are subsequently three conditions to be satisfied- (i) the defendant must owe a duty of care to the victim; (ii) The defendant must breach that duty; (iii) The breach must amount to gross negligence. The first requirement that there be a duty of care has been quite ambiguous in cases especially as we owe a duty of care to everyone not to kill them but surely it is quite obvious here there is a duty of care and even without this fact the most important thing to prove is that a gross negligence has taken place. The test of gross negligence is to determine how far the standard of behaviour of the defendant departs from accepted standards but is supremely a jury issue. This woman is a trained nanny but even so are we to expect her to know the dangers of salt? In a paper called What is a poison? it is shown that salt is not widely known to be so dangerous as to cause death if taken in large amount but it is for the jury to decide so we cannot determine her culpability but merely speculate.
We are now to look at the culpability of the parents did the nanny’s initial act and failure to act thereafter break causation? It seems not as when we have such a list of things in causation we are to count as causes those things or events that are a deviation from normal or required behaviour “when man made normal conditions are established, deviation from them will be regarded as exceptional and so rank as the cause of harm” . If we are to judge the parent’s failure to act in the realms of gross negligence then the same standards as the nanny apply it is for the jury to decide but it would seem a jury would be more likely to find culpability with the parents as they are the primary carers and have obviously parental love for their child so the fact that their child had a fit should “hit home” much more with them and surely it would be a reasonable parents instinct to call for medical help. The parents may even be judged under constructive manslaughter as an omission of such gravity can be seen to be a positive act and taking into account there position their failure to act should be seen as greater than the nanny’s and great in general. After all this supposition of the rules of a crime of this level of seriousness we cannot say one way or the other whether these people would be convicted due to the fact it is for a jury to decide the terms on which they are convicted despite the severe moral gravity the loss of life fills all of us with.
Reform for involuntary manslaughter
B. Reform for involuntary manslaughter has been called for and demanded on many occasions but contention is divided. Some people feel that a situation such as the above should not be given such gravity as the intention to kill was not present. However, my thoughts follow the strain of thought that would more readily convict this nanny an parents with life sentence, the ambit of involuntary manslaughter is much too wide and should be more specific so as to ensure proper convictions occur. There act it seems was not one of necessity or self-defence there’s was recklessness to the nth degree as any reasonable person faced with a child who had a fit would call on medical advice if they knew of the previous intake of salt or not. Such a crime involving an innocent child should not be allowed to go through her cracks of legislation, to place it along side other crimes in inv mans wide remit is morally a disaster and change is neccessary.
Some contentions exist which state if a person has acted with gross negligence or has committed an unlawful act why should they not be simply punished for that gross negligence or that unlawful act? . I support this contention as far as crimes which are literally out of the realms of your contention to think death would be a result of your actions i.e. if you punch a person through self-defence using reasonable force and they die culpability should not be yours however there are other theorists who state that weight should be attached to the resulting harm in deciding the extent of criminal liability therefore the fact that death has been caused in this view is crucial in justifying increased liability and punishment . The government proposals of 2000 state that “We accept that an offence resulting from a failure to appreciate the consequences of an action is less culpable than acting in full knowledge of a risk”.
There is contention which states that only persons who choose to harm another should be imprisoned. This would be ridiculous to assume as killings such as the present one where such ineptitude and probable disregard for the welfare of a child have occurred would lead to insignificant punishment. The Law Commission advise that gross negligence have two criteria insisted upon it. First that the harm has to be foreseeable and secondly that the accused must have been capable of perceiving that risk which is most apt to the current situation. It states that: “Since the fault of the accused lie in her failure to consider a risk, …(not punished)if the risk in question would never have been apparent to her…” . This would indeed help the jury to come to an altogether fairer decision as it would be unfair to be charged with the same gravity for something you could not foresee in totality whereas it is clear that someone having a fit would be a clear indication of some harm and possibly death occurring to that person. The Law Commission also state that while reckless killing warrants a maximum penalty of life imprisonment, no recommendation is made about the maximum sentence for the crime of killing by gross carelessness except that it should be less. They ask is this truly fair labelling? It would seem not as obviously this areas are still going to cover a wide range of killings and so the maximum penalty should be life on all “types” of, manslaughter so that when a killing such as the one at present occurs which is at the extreme end of the scale life imprisonment and the label it causes to bring about would be available.
- Textbook on Criminal Law, 7th edition, Oxford University Press, By Michael Allen.
- Criminal Law and Theory and Doctrine, 2nd edition (revised 2004), Hart publishing, By GR Sullivan and AP Simester.
- Criminal Law Text and Materials, 5th edition 2003, Sweet and Maxwell, By CMV Clarkson and HM Keating.
- Reforming the Law on Involuntary Manslaughter: The Government’s Proposals, published 23rd May 2000, By Rt. Hon Jack Straw MP.
- The Law Commission Report on Involuntary Manslaughter, Criminal Law Report (1996), 535-544.
- Bateman (1925) 19 Cr App R 8.
- Andrews v DPP  AC 576.
- Adomako  1 AC 171.
- What is a poison?, By A Working Party of the RSC Environment, Health and Safety Committee (EHSC), www. rsc. org.
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