Criminal Litigation

Involuntary Manslaughter | Criminal Law – SQE1 & SQE2 Examinations –

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Involuntary Manslaughter
• Murder = malice aforethought (intention to kill / cause GBH)
• Voluntary manslaughter = successful loss of control / DR defence
• Involuntary manslaughter = all other homicide
Unlawful act (constructive) manslaughter
No MR for murder, but kills someone in course of committing an unlawful act
DPP v Newbury and Jones
1. D intentionally (voluntarily) did an act
2. Act was unlawful (criminal)
3. Unlawful act was dangerous
4. Unlawful act caused the death of V
#1 D’s Act = Intentional
• Intention with regard to doing the act, not to the consequences which
flow from it
#2 D’s Act Unlawful
Criminal Offence
• Must be criminal offence (not civil) (R v Franklin)
• Must be act that is criminal, independent of causing death
• Must have AR + MR of this offence (R v Lamb)
o Accidental shooting, without intention to commit assault (MR =
intention at this time), therefore no assault and no unlawful
• Defences for offence also apply (R v Scarlett)
o D believed deceased was going to hit him, removed him from pub
using reasonable force, but V fell and died = no unlawful assault
Intrinsically unlawful
• Unlawful act cannot be based on a lawful act, which becomes unlawful
because of the negligent or reckless manner in which it is performed (e.g.
driving without due care) (Andrews v Director of Public Prosecutions)
Act NOT omission
• Failure to act when under a duty to do so = Gross Negligence
Manslaughter (R v Lowe)
© Liam Porritt 2020 2
#3 D’s Act must be dangerous
• R v Church – ‘the unlawful act must be such as all sober and reasonable
people would inevitably recognise must subject the other person to, at
least, the risk of some harm resulting therefrom, albeit not serious
• Objective test taking into account the subjective circumstances of D = D’s
actual appreciation of likely harm irrelevant
a) Type of harm likely to result must be physical OR shock, not emotional
(R v Dawson)
Ø Type of harm foreseen need not be the harm actually caused (R v
JM & SM)
b) Circumstances to be taken into account – reasonable man with
knowledge of circumstances as in accused’s shoes at time of offence
Ø Reasonable man has same knowledge as D, and no more (R v
§ Here, robbers have no knowledge of heart condition of V
who dies during robbery, so reasonable person is also
taken to have no such knowledge
Ø Account for knowledge gained by D during commission of offence
(R v Watson)
§ Burglars unaware of presence of elderly man when
entered house, but gained knowledge of his presence and
this existed during unlawful act lasting for whole
Ø Reasonable man will consider risk of some harm to old, frail man
(R v Watson)
Ø Reasonable man will have any special knowledge which D has /
ought to have known (R v Ball)
§ Here, special knowledge re: weights of live and blank
cartridges which were mixed in D’s pockets ~ reasonable
man in D’s position would have known which was which
c) Unreasonable mistakes by D would not have been made by the reasonable
man so are discounted
#4 Unlawful act causes death of V
• Factual causation
• Legal causation
© Liam Porritt 2020 3
Causing death by supplying drugs
R v Cato
• Direct administration to V by D = R v Cato: V asked Cato to inject him with
heroin; Cato argued V had consented, so no unlawful act; CoA:
administering of noxious substance (s 23, OAPA 1861) + V’s death caused
by this unlawful act = manslaughter
R v Kennedy
• Supply of drugs / assisting in taking of drugs by filling syringe, with the
deceased voluntarily taking the drugs in the knowledge of what he is
taking (being a responsible adult) = mere supply of controlled drug not
available as the base for an offence of unlawful act manslaughter
o NB where administration is a joint activity (as in R v Rogers –
tourniquet used to make vein in arm visible for injection), this
may be s23 OAPA offence of administering = unlawful act
© Liam Porritt 2020 4
Manslaughter by gross negligence
• Breach of a duty of care owed to victim through positive act or by an
• Gross negligence and not recklessness = test for this (Andrews v DPP),
although Andrews notes these are similar ~ difference is that negligence
may include intention to avoid risk, but high degree of negligence in
means of avoiding
R v Admako
• Tube dislodged during operation and patient died of cardiac arrest due to
lack of oxygen
1. Existence of DoC
2. Breach of duty
3. Breach causes death
4. There was a risk of death
5. Breach of DoC so bad as to amount to ‘gross negligence’
#1 Duty of Care
• Very similar to tort
• Some harm caused by acts is reasonably foreseeable + proximity
• Duty to act can arise in the case of omissions:
o Statutory
o Contract
o Special relationship between V + D
o D’s voluntary assumption of DoC (see Omission notes)
o D creates dangerous situation (R v Miller) (see Omission notes)
• R v Singh – death by carbon monoxide poisoning; maintenance man
(Singh) was in charge of lodging house while his father away = close
relationship + main person to deal with enquiries / complaints = DoC
• R v Ruffell – supplier of drugs takes some care of V but leaves him outside
his house in cold = voluntary assumption of DoC / creation of dangerous
situation = DoC imposed
• D may still have criminal DoC, even if no such liability in tort!
o R v Wacker – lorry driver convicted of GNM; 58 illegal immigrants
suffocated while transported in his lorry
o Law of negligence has no DoC when parties to criminal enterprise
o In criminal action, ex turpi does not apply
© Liam Porritt 2020 5
#2 Breach of Duty of care
• Do D’s acts fall below the standard expected of a reasonable person
carrying out the specified act? (Adomako = reasonable anaesthetist)
# 3 Breach caused V’s death
• Factual causation
• Legal causation
#4 There was a risk of death
• Singh: must be an obvious and serious risk not merely of injury or even
serious injury, but of death
• R v Rose – optic examination not carried out as a reasonable optometrist
would have done, TEST = would a reasonable and competent optometrist
have seen an obvious and serious risk of death at the time of the
examination, without knowing the results of the examination?
o I.e. here it was not obvious that failure to carry out the
examination risked death of the patient
#5 Breach sufficiently serious to constitute gross negligence
• Adomako: having regard to the risk of death involved, the conduct of D
was so bad in all the circumstances as to amount to a criminal act or
• R v Litchfield: ‘so bad, so obviously wrong, that it can be properly
condemned as criminal […] in the ordinary language of men and women’
• A-G’s Ref (No 2 of 1999) – no requirement to prove particular state of


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