Criminal Law: Involuntary Manslaughter – IPSA LOQUITUR

The actus reus of constructive manslaughter is causing the death of a human being by committing an unlawful act which was dangerous: Webster v CPS [2014] EWHC 2516.

There is no mens rea for constructive manslaughter, beyond establishing the mens rea of the relevant unlawful act: DPP v Newbury [1977] AC 500.

Constructive manslaughter is sometimes referred to as ‘unlawful act manslaughter’.

The following principles apply to determining whether there is a relevant unlawful act:

The unlawful act must be unlawful under the criminal law: R v Franklin (1883) 15 Cox CC 163. Offences involving ordinary acts done negligently probably do not suffice – they should be charged as gross negligence manslaughter instead: Andrews v DPP [1937] AC 576.

It must be a crime involving an action, not an crime of omission: R v Lowe [1973] QB 702.

The prosecution must prove all elements of the unlawful act, including mens rea: R v Scarlett [1993] 98 Cr App 290; R v Lamb [1967] 2 QB 981. There must be no defence: R v Slingsby [1995] Crim LR 570.

There is no need for the unlawful act to be directed at the victim: R v Larkin (1942) 29 Cr App R 18.

In fact, the crime does not need to be directed at a person at all: R v Goodfellow (1986) 83 Cr App R 23.

However, the reasonable person must foresee physical harm, not merely property damage: R v Carey [2006] EWCA Crim 17.

An unlawful act is dangerous if a reasonable and sober person would appreciate that the act subjects any person to the risk of some harm (regardless of severity): R v Church [1965] 2 WLR 1220. The harm foreseen must be physical or amount to a recognised psychiatric injury: R v Dhaliwal [2006] EWCA Crim 1139.

Because the test is objective, there is no need to show that the defendant foresaw death or any danger: DPP v Newbury [1977] AC 500. The fact that the defendant could not foresee the harm, for example because of his age or mental disability, is irrelevant: R v JF [2015] EWCA 351.

The reasonable person is only aware of circumstances which are objectively apparent from the scene: R v Dawson [1985] 81 Cr App R 150. This is true even if the defendant believes something to be the case (mistakenly or otherwise): R v Ball [1989] Crim LR 730.

An unlawful act is not dangerous if the victim or a third-party must make a voluntary, fully-informed action in order to make the defendant’s contribution dangerous: R v Kennedy (No 2) [2007] 3 WLR 612.

For example, handing a person a syringe saying it is full of poison is not dangerous. This is because it will not harm anyone unless the victim voluntarily injects it.

This principle could also be viewed as a matter of establishing proper causation. For this reason, if the victim’s actions are a reasonably foreseeable response to the defendant’s unlawful act, the defendant might still be guilty of manslaughter even if the cause of death is suicide: R v Wallace [2018] EWCA Crim 690.

The actus reus of gross negligence manslaughter is established if the defendant breaches a duty of care in a manner which gives rise to an obvious and serious risk of death, is grossly negligent and which caused the death of a human being: R v Rose [2017] EWCA Crim 1168.

There is no subjective mens rea for gross negligence manslaughter: the offence is established purely on the basis of the defendant’s negligence. There is no need for the defendant to personally foresee or intend any harm: R v Singh [1999] Crim LR 582.

Any duty of care under the criminal law or tort law will suffice: R v Adomako [1994] 3 WLR 288. The question of breach also seems to be determined by reference to the principles of tort law. Whether there is a duty of care is a question for the jury to decide: R v Yaqoob [2005] Crim LR 383. Examples of common situations where duties exist include:

Where the defendant has a position of power or responsibility over a person, for example because they are vulnerable or a family member: R v Reeves [2012] EWCA Crim 2613.

Where the defendant is engaging in a hazardous activity or has contributed to the existence of a dangerous situation that they are aware of: R v Evans [2009] EWCA Crim 650. This duty can arise even if the victim is also responsible for being in danger, such as where they take drugs supplied by the defendant.

Where the defendant has control over a dangerous object: R v S [2015] EWCA Crim 558.

Defences which might negate the existence of a duty in tort may also negate the existence of a duty in this context, such as the defence of illegality.

The relevant duty must give rise to an obvious and serious risk of death if breached: R v Rose [2017] EWCA Crim 1168. It is not sufficient that there was an obvious risk of mere harm (even if serious) – death must be foreseeable: R v Misra & Srivastava [2005] 1 Cr App R 328.

The breach is grossly negligence if it was so bad and shows such disregard for life and safety as to move beyond the realm of civil compensation and into the realm of actions which ought to be criminally punished: R v Bateman (1925) 19 Cr App R 8. This is a high standard, and a question for the jury to decide by reference to all the circumstances. Relevant considerations include:

Whether the defendant subjectively foresaw the risk: Attorney General’s Reference (No 2 of 1999) [2000] Crim LR 475.

The defendant’s experience in fulfilling the duty and level of responsibility in the circumstances: R v Singh [1999] Crim LR 582.

Whether the defendant was subject to any external pressures. Systemic issues with the defendant’s environment are often not considered relevant, however: Bawa-Garba v General Medical Council [2018] EWCA Civ 1879.