Manslaughter Lecture

1.0 What is Manslaughter?

Both murder and manslaughter are fatal offences against the person, known as homicide offences, and carry the same actus reus. This is not set out formally in statute and instead is taken from the Sir Edward Coke definition and identified as ‘the unlawful killing of a human being in rerum natura under the King’s peace’.

The criminal offence of manslaughter is much broader than murder as it encompasses a range of different variations as to how it can be charged. The first distinction that needs to be made is whether the offence is voluntary manslaughter or involuntary manslaughter.

2.0 Voluntary Manslaughter

Voluntary manslaughter arises where the prosecution establishes both the actus reus and mens rea for the offence of murder, including an intention to kill or cause really serious bodily harm, but one of the three special partial defences to murder applies:

• Diminished responsibility;
• Loss of control or;
• Participation in a suicide pact.

These defences, when successfully argued, do not absolve the defendant completely of liability in the same way that a plea of automatism would, but instead have the effect of reducing the charge down to voluntary manslaughter. This offence carries the same maximum penalty as murder but differs in that the life sentence is discretionary, and thus is clearly preferable for a defendant.

3.0 Involuntary Manslaughter

Involuntary manslaughter is what lay people more traditionally perceive manslaughter to be. The defendant unlawfully killed someone but they didn’t mean to, or in legal terms, they lacked the required mens rea of ‘malice aforethought’, that is the intention to kill or commit really serious bodily harm.

There are many situations that could give rise to this outcome and in reflection of this there are two main forms of involuntary manslaughter. Whether reckless manslaughter survives as a separate category is disputed. The two main forms are:

• Unlawful and dangerous act manslaughter, and;
• Gross negligence manslaughter

3.1 Unlawful and Dangerous Act Manslaughter

This offence arises where a defendant commits a dangerous criminal act which causes the death of another person.

This offence is also referred to as constructive manslaughter as liability is constructed from liability for the underlying offence. The elements that need to be present in order for the court to construct such liability are set out below.

3.1.1 Actus Reus

There are four elements that need to be satisfied in order to establish the actus reus of unlawful and dangerous act manslaughter.

(1) The defendant must carry out an act

As was held in R v Lowe [1973] QB 702 the actus reus for the offence is positive in the sense that the defendant must physically do something. To omit to do something is insufficient in this regard. For example, if you are walking home one day through the park and you see a person drowning in the lake shouting for help you are, for the purposes of this offence, perfectly entitled to walk by. The offence does not impose a Good Samaritan obligation.

(2) The act must be a criminal offence

The prosecution must identify and prove a criminal offence. As was established in R v Franklin (1883)15 Cox CC 163, a civil wrong alone will not suffice. For example, a breach of contract or a trespass which amounts only to a tort will be insufficient. Nor is an otherwise lawful act which is criminal only because it is performed negligently enough (Andrews v DPP [1937] AC 576).

(3) The act must be dangerous

R v Church [1966] 1 QB 59 stated that an act will be classed as dangerous if there was an objective risk of some physical harm to another person, even if the harm need not be serious. Applying the reasonable person test, the jury must be satisfied that a reasonable person would have realised that doing the act created a risk of harm. There is no subjective element of consideration when applying this test so it does not matter whether the defendant himself actually appreciated that risk.

In Church the defendant had gone with a woman for sexual intercourse in the back of his van. Dissatisfied with his sexual performance the woman slapped him and a fight between them broke out which resulted in the woman being knocked unconscious. Believing her to be dead the defendant panicked and disposed of her unconscious body in the river. She subsequently drowned. The Court of Appeal applied the objective standard stating the act was to be considered dangerous if all sober and reasonable people would recognise the risk of some harm resulting from it. The trial judge was wrong to tell the jury that it made no difference whether the defendant believed her to be dead when he threw her in. The conviction was nevertheless upheld because on the evidence a properly directed jury would inevitably have convicted.

In R v JM and SM [2012] EWCA Crim 2293 the Court of Appeal confirmed that only a risk of some physical harm needs to be foreseeable. The specific harm actually caused does not need to have been foreseen.

This can be seen as illustrating the ‘thin skull’ principle, the defendant must take his victim as he finds them. If he is causing a foreseeable risk of some harm, he cannot fairly argue that the specific harm he actually caused was unforeseeable.

This can be highlighted through an examination of the case of JM and SM. A fight broke out outside a nightclub between the defendants and the doorman amounting to an affray. One doorman was present at the scene and although it is unclear whether he was subjected to physical violence, he made himself present to assist his colleagues. Immediately after the fight had broken up the doorman walked back to the club and suddenly collapsed and died. Unbeknown to him he had been suffering from an aneurysm and the prosecution alleged that the adrenalin rush brought on by the fight caused the aneurysm to burst with the severe internal bleeding proving fatal. The Court of Appeal held that there was evidence on which a jury could find an obvious risk of some physical harm to the doormen. It was unnecessary to foresee a ruptured aneurysm. Whether the affray caused his death remained a matter for trial.

Having applied this seemingly harsh principle on defendants, the law does offer some remittance. R v Watson [1989] 2 All ER 865 establishes that although a reasonable person need not appreciate the specific harm caused, they do need to appreciate the risk at the time the act was committed. That is, where an act is not inherently dangerous, such as a burglary, it becomes dangerous only when the circumstances make it obvious to a reasonable observer that some physical harm may result. This includes circumstances that become apparent while the unlawful act is continuing.

Consider Scenario A: An opportunistic defendant burgles a house during the day in a quiet street. Objectively this is not likely to give rise to harm. However, it transpires the house belongs to a very frail old widowed lady. She is likely at least to suffer severe shock from the burglary but in fact the burglary triggers a fatal heart attack.

Where the nature of the proprietor only becomes obvious after the act of the burglary then it will be insufficient to make the act dangerous.

However, now consider Scenario B: the burglar preys on a small bungalow on a retirement estate. The address alone does not establish that an occupant is frail. If the burglar encounters the visibly frail owner and continues the burglary, the jury may find that the risk of some physical harm was then obvious. The prosecution must still prove that the dangerous act caused the death.

(4) The act must cause the death of a human being

The first most obvious point to consider is that, as with murder, the death caused must be the death of a human being, in existence. Attorney General’s Reference No.3 of 1994 confirms that an animal or foetus will not suffice for the purposes of this offence. An injury inflicted before birth can, however, found manslaughter if the child is subsequently born alive and dies as a result.

There must be a clear link between the defendant’s act and the victim’s death. This is known as the chain of causation. Where a victim is hit and immediately collapses, there is usually a clear evidential chain linking the blow to the victim’s death. Medical evidence can be adduced as to the nature of the injury and how that injury caused the death. However, this is not always the case.  The longer the time lapse between the unlawful act and the death, the greater the hurdle created for the prosecution in establishing the link between the act and the death. Where there are multiple events or where the victim is already suffering from an underlying medical condition, proving causation may be challenging.

There are two stages to establishing the chain of causation. Both factual and legal causation must be shown. These stages must be considered in more detail.

(i) “But for the defendant’s act would the victim have died as and when they did?”

This is a straight forward application of factual causation as per R v White [1910] 2 KB 124.

In White the defendant put poison in his mother’s drink, intending to kill her. The medical evidence was that she died of heart failure, independently of the poison. It can be seen that the defendant intended his mother to die and took steps to make this happen, and got the consequence that he desired. Even if he had not put the poison in the drink she would have died as and when she did, from heart failure, so the defendant’s actions did not cause her death. Accordingly, he could not be found guilty of his mother’s murder. He was convicted of attempted murder.

The words ‘as and when’ are key here as all human beings will at some point come to their death. It cannot be said that but for the defendant’s act the victim would not have died as this is scientifically impossible!

(ii) Was the act an ‘operating and substantial’ cause of the death?

Having established that the defendant was the factual cause of death it must be established whether he can be considered the legal cause. This is done by applying the test set out in R v Smith [1959] 2 QB 35: ’was the defendant’s act an operating and substantial cause of the victim’s death?’

The Smith test was given further clarification in R v Kimsey [1996] Crim LR 35 where the Court clarified that the act need only be more than a slight or trifling cause of the death. Can it be said the defendant’s act was such or had other acts occurred that rendered the defendant’s actions insignificant? Such acts are known by the latin phrase as a novus actus interveniens, put simply, a new intervening act. The question is whether the intervening event leaves the defendant’s act no more than part of the background to the death.

Such intervening acts can be broadly categorised as follows:

• Medical treatment
• Third party acts
• Natural events
• Victim’s own acts

Medical Treatment

The courts offer very strong protection to medical provision occurring as a result of the defendant’s act. In cases where medical treatment does in itself cause the victims death, it is very rare that it will be held to break the chain of causation.

Consider the two cases below:

In Smith a soldier was stabbed in his barracks and dropped twice on the route to the hospital where he was then given the wrong medical treatment, including attempting artificial respiration despite a pierced lung and failing to give a blood transfusion. The treatment was described by the judge as ‘thoroughly bad’ and it was testified that had the correct medical treatment been given the victim would have had a high chance of survival. Nonetheless, this was held not to break the chain of causation as the stab wounds were held to be an ‘operating and substantial cause of death’.

In contrast, in R v Jordan (1956) 40 Cr App R 152 the defendant stabbed the victim who was admitted to hospital. He had virtually recovered from the stab wound when he was given a round of antibiotics which he had previously shown severe intolerance to. It was held that this palpably wrong treatment was so bad that it rendered the defendant’s actions insignificant, and thus broke the chain of causation. 

Comparing the two cases it can be seen that the level of poor medical treatment required to break the chain of causation is exceptionally high. As Smith shows, even negligent treatment will not normally break the chain. In Jordan the wound had largely healed and the evidence identified the treatment as the cause of death. The question is whether the treatment was so independent of the defendant’s acts, and so powerful a cause of death, that the contribution made by those acts was insignificant (R v Cheshire [1991] 1 WLR 844).

Further to this, R v Malcherek and Steel [1981] 1 WLR 690 asserts that doctors properly withdrawing life support after diagnosing brain-stem death do not break the chain of causation.

Malcherek and Steel involved two separate attacks where the victims had been kept on life support following the sustainment of injuries caused by the defendants. The doctors diagnosed brain-stem death and the doctors switched off the life support. The defendants contended at trial that this broke the chain but it was unsurprisingly held that the original injuries were still very much the operative and substantial cause of the death.

Third Party Acts

A free, deliberate and informed act by a third party can break the chain of causation if it renders the defendant’s contribution insignificant.  A reasonable act of self- defence will not.

The case law often cited here is R v Pagett (1983) 76 Cr App R 279 where during a shootout between the defendant and the police, the defendant grabbed the victim and used her as a human shield. She was hit by the police bullets and killed. At trial he attempted to argue that it was the act of the police shooting that caused her death and not his decision to use the victim as a shield. The Court of Appeal held that reasonable action taken in self-defence or in the execution of a legal duty did not break the chain. The police could reasonably return fire to defend themselves.

This concept can be difficult to grasp from the above example so it helps to explain it using a fictitious scenario. Consider the following.

A defendant pushes his victim over in a quiet street committing a battery and a car passing by on the other side of the road sees the victim and decides to accelerate, swerve across and run them over. This act is one of free will as the driver decided by himself to carry it out. The act was deliberate, as the driver intended to do it and the act was informed. He appreciated the nature of what he was doing at the time he did it. Such an act would break the chain of causation. It can no longer be said that the defendant pushing the victim was the cause of the death.

Now conversely, consider a fight breaks out at the side of a busy motorway at night. The defendant pushes the victim into the middle of the carriageway committing a battery and just as he does so a lorry travelling within its speed limit drives straight into the victim. This act is not free, the lorry did not of his own free will hit the victim, he was driving sensibly and was unable to stop in time. It was not deliberate, as he did not intend to do it, and it was not informed as he did not expect someone to be pushed in front of his lorry and he did not have time to think about what was happening. This act would, therefore, not break the chain of causation.

Natural events

Such an event is often referred to in text books as an ‘act of God’. This is an extraordinary or unforeseeable natural event that renders the defendant’s act insignificant.

To provide a theoretical example, consider the victim from the above scenarios being pushed into a quiet road. It is a clear sunny day and suddenly lightening appears in the sky and the victim is struck and killed. This unforeseeable natural event would break the chain of causation. Conversely, the victim is pushed down by the sea and knocked unconscious. The tide coming in and drowning the victim would not break the chain of causation as it is an entirely foreseeable natural event. 

Victim’s own acts

R v Williams and Davis [1992] 2 All ER 183 held that, where the victim tries to escape a threat, the jury must consider whether the response fell within the range that might reasonably be expected from a victim in that situation. A response outside that range may break the chain.

In R v Roberts (1971) 56 Cr App R 95 the defendant gave a lift to a girl late at night and proceeded en route to make unwanted sexual advances towards her. It was held in this instance that her jumping from a moving car in fear of him and to escape his advances was neither unreasonable nor unforeseeable, and therefore did not break the chain of causation. In Williams and Davis the Court of Appeal quashed the convictions. It did not decide that jumping from a moving car necessarily broke the chain: there was insufficient evidence of what had occurred in the car and the jury had not been properly directed.

R v Blaue [1975] 1 WLR 1411 further established that where a victim’s act results from a religious belief, the defendant is not entitled to claim this belief is unreasonable. In this case a Jehovahs Witness refusing a lifesaving blood transfusion did not break the chain of causation. This was a clear public policy extension of the thin skull principle whereby a defendant must take his victim as he finds them, from the physical self to the spiritual self.

The name explains the principle clearly. If you punch someone and they crack their skull, not from the force of the punch but because they have an unusually thin skull, then you are not entitled to claim that their un-apparent medical condition should absolve you of liability. In the modern age where society have strong religious tolerance, it is not for the court to decide whose beliefs are reasonable and whose are not. If that belief is held and the victim acts accordingly then the defendant will not be able to claim that act breaks the chain of causation. A pre-existing physical vulnerability need not have been known to the defendant, as was confirmed in R v Hayward (1908) 21 Cox 692.

In both essay and problem questions liability for unlawful and dangerous act manslaughter in relation to drugs dealers where the substance consumed causes a death is a hot topic for examiners. How far should the courts impose liability on the person providing the drugs to the victim?

The most authoritative case on this issue is R v Kennedy (No2) [2007] 3 WLR 612. In this case the victim had asked the defendant for something to help him sleep. The defendant prepared a syringe with heroin and passed it to the victim, thus completing the unlawful act of supplying a class A drug. The victim injected himself and returned the empty syringe to the defendant, who left the room. The victim was taken to hospital and pronounced dead. The House of Lords held that the defendant’s act did not cause the death of the victim, it was the victim injecting himself that caused his death. The House stated that supply alone will not make the supplier liable for unlawful act manslaughter where the user is a fully informed and responsible adult who voluntarily chooses to administer the drug.

R v Cato [1976] 1 WLR 110 provides a caveat to this establishing that where the defendant actually injects the victim with the substance then they can be liable. A separate duty to take reasonable steps to get help can arise where the supplier has contributed to a situation which they know, or ought reasonably to know, has become life-threatening. A grossly negligent failure to act which causes death can amount to gross negligence manslaughter (R v Evans [2009] EWCA Crim 650).

3.1.2 Mens Rea

The mens rea will be the mens rea for the criminal offence committed.

This requirement for the mens rea for the base offence to be met can be demonstrated by the case of R v Lamb [1967]2 QB 981.The defendant and his friend were messing around with a revolver containing two rounds. In jest, the defendant pointed the gun at his friend and pulled the trigger, believing the gun would not fire because the chamber opposite the barrel was empty. The unlawful act in this case would have been assault. An assault requires the victim to apprehend immediate unlawful violence, and the defendant to intend that result or be reckless as to it. Neither man realised that pulling the trigger would bring a loaded chamber into line. The victim did not apprehend immediate violence and the defendant neither intended nor foresaw that he would. He, therefore, lacked the mens rea and no assault was committed. Resultantly he also lacked the mens rea for the unlawful and dangerous act manslaughter and could not be liable.

Despite the example above, there is criticism here as it can mean that a very low level of intention can give rise to very serious liability. Consider the Lamb case study above and change the facts so that the defendant intended to play a cruel prank on his friend and cause him to fear immediate harm. When the prank takes a turn for the worse due to an honest mistake by the defendant, the intention to cause fear of harm is sufficient to satisfy the mens rea for unlawful and dangerous act manslaughter, a much more serious offence.

3.2 Gross Negligence Manslaughter

What is negligence?

In simple terms, negligence can be explained as the failure to take proper care of something.

Lord Atkin set out the neighbour principle in Donoghue v Stevenson [1932] UKHL 100. It requires reasonable care towards people so closely and directly affected by our actions that we ought reasonably to have them in contemplation. For example, road users owe a duty of care to other road users, teachers owe a duty of care to their students, bosses owe a duty of care to their employees and doctors owe a duty of care to their patients. The categories of duty are not closed. Where reasonable care is not given this duty is breached and the person failing to take such care can be said to be negligent.

Negligence is a civil concept and will not usually give rise to criminal liability. The earlier example of the poor treatment given to the wounded soldier in Smith is testament to that.

Why is this?

English law does not generally impose criminal liability for omissions unless there is a legal duty to act.

Think back to the example of the person drowning in the lake above, whatever moral implications leaving them to die has, it will usually not give rise to liability in criminal law. A bystander who is under a legal duty to act, such as a parent of the drowning child, is in a different position. To subject an individual to criminal prosecution in cases where they have not carried out a physical act would be an infringement on their human autonomy by compelling them to do something they may not otherwise wish to do.

When will negligence give rise to criminal liability?

For civil purposes simple negligence is as much as needs to be established. A pilot is distracted talking to his co-pilot and does not notice upcoming turbulence and delays alerting the crew. He realises just in time but the failure to give ample warning means that one passenger was still walking in the aisle back to their seat as the turbulence hit and they fall over and hurt themselves. This is negligent of the pilot. He owed a standard of care to the passengers and he fell short of that.

It can be seen though that there are different degrees of negligence. Say for example the pilot is busy chatting and the plane experiences severe turbulence which they do not notice until it is too late to give prior warning. Annoyed at themselves for becoming distracted, they panic and do not engage in the proper procedures causing them to lose control of the plane which result in it diving towards the ground. Passengers fall all over the place and are seriously injured. This is clearly more negligent than they had been in the previous scenario.

For manslaughter the courts require gross negligence which can be seen to be the most severe level of negligence.

The modern test for gross negligence manslaughter was restated in R v Adomako [1994] 3 WLR 288.

In Adomako, an anaesthetist who was assisting in a routine surgery failed to notice that the tube supplying oxygen to the patient had become disconnected. An alarm sounded several minutes later. His patient was turning blue and Mr Adomako failed to realise why this was before it was too late. The patient subsequently died from a lack of oxygen. The House of Lords upheld his conviction. The jury was entitled to find that the care he provided fell so far short of the standard required of an anaesthetist that his breach was criminal.

3.2.1 Elements of Gross Negligence Manslaughter

3.2.1.1 Actus Reus

The actus reus for this offence has two parts:

1. A breach of an existing duty of care which gives rise to a reasonably foreseeable, serious and obvious risk of death
2. Causing a death of a human being in rerum natura under the King’s peace

Duty of Care

First of all, a duty of care must be established. Wacker ([2002] EWCA Crim 1944) confirms that the ordinary principles of negligence are the starting point. Where there is an established duty, it is unnecessary to apply a new test. In a novel case the court reasons by analogy with established duties (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4). The considerations commonly associated with the Caparo test from Caparo Industries v Dickman [1990] UKHL 2 are:

1. Is harm reasonably foreseeable?
2. Is there sufficient proximity between the parties?
3. Is it fair, just and reasonable to impose a duty of care?

Wacker further confirms that the defendant is not exempt from a duty merely because the parties are acting in a joint enterprise, that is collaborating together to perform an unlawful activity.

In Wacker the defendant agreed to carry 60 people into England unlawfully by hiding them in the back of his lorry. The lorry in question was designated to carry refrigerated goods, and therefore was designed to be airtight. There was a vent that could be opened to allow air into the lorry but the defendant sealed this in order to avoid detection when going over the Channel crossing. The lorry was stopped and searched by customs officials and 58 of his immigrant passengers were found dead having suffocated from the lack of oxygen. The defendant was convicted of gross negligence manslaughter finding that he did indeed owe a duty of care to his passengers despite the fact they were conspiring together in a joint enterprise.

Breach of Duty

Once this duty has been established it must be shown that the defendant fell short of the standard of a reasonable person in the defendant’s position.

Applying Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 in a case involving clinical diagnosis or treatment, the court considers whether the defendant acted in accordance with a practice accepted as proper by a responsible body of practitioners skilled in that field. The opinion must be capable of withstanding logical analysis (Bolitho v City and Hackney Health Authority [1998] AC 232).

(2) Causing the death of a human being in rerum natura under the King’s peace

As with the above offence of unlawful and dangerous act manslaughter the chain of causation must be clearly established. Even where the accused is grossly negligent and subjects his victim to a serious risk of death, it will be insufficient for the purposes of the offence if the death is not actually caused by the defendant’s acts or omissions. Where the breach was a failure to obtain medical help, proof that earlier treatment offered a chance of survival is insufficient. The jury must be sure that the omission caused or significantly contributed to death (R v Broughton [2020] EWCA Crim 1093).

The principles of causation apply in the same way and the chain will only be broken by a qualifying novus actus interveniens.

3.2.1.2 Mens Rea

The fault required for this offence is gross negligence. The defendant need not personally have foreseen the risk of death.

Gross Negligence

Once such a duty has been established as breach the next question is to determine the seriousness of the breach. Is it such that the defendant’s negligence can be considered gross negligence, and therefore criminal?

Lord Mackay considered this in Adomako and stated that it will depend on all the circumstances in which the defendant was placed when the breach occurred. The jury must consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involved a risk of death and was such that it should be judged criminal. The risk must be a serious and obvious risk of death, judged at the time of breach on the facts then available. A risk of injury, even serious injury, is insufficient. The defendant is not credited with knowledge which would only have been acquired by performing the omitted duty (R v Rose [2017] EWCA Crim 1168).

R v Bateman (1925) 19 Cr App R 8 offers further guidance to a jury stating that the negligence must go beyond a mere matter of compensation and show such a disregard for the life and safety of others that it should properly be considered a crime deserving of punishment. This test, however, opens itself up to criticism as negligence can go beyond a mere matter of compensation whilst still falling vastly short of what is required for the very serious offence of manslaughter.

R v Misra and Srivastava [2005] 1 Cr App R 328 subsequently clarifies the standard further stating that a serious mistake or error of judgement will not suffice for the purposes of the criminal offence. A jury must be sure that the conduct in question fell so far below the standard expected of a reasonably competent and careful person that it was truly, exceptionally bad and showed ‘such indifference’ to an obvious and serious risk of death.

3.3 Charging and Sentencing

Manslaughter by an individual is a common law offence. It is an indictable only offence, meaning that it will be tried and sentenced at the Crown Court.

The maximum sentence for manslaughter by an individual is life imprisonment (Offences Against the Person Act 1861, section 5). As discussed above, this is a maximum, whereas murder carries a mandatory life sentence. Corporate manslaughter is a separate offence under section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007, for which the organisation may receive an unlimited fine.

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