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Basics to Basics—Reconstructing Manslaughter
Published online by Cambridge University Press: 16 January 2009
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Manslaughter continues to be difficult to define and apply, so much so that in two recent decisions the Court of Appeal demanded that the state of involuntary manslaughter be reviewed and reforms be suggested. The greatest conceptual difficulties concerning this offence relate to ascertaining what its ambit actually is and how wide it should be. For the most serious kinds of homicide the crucial distinction concerns where the boundary between murder and manslaughter should be drawn. After much confusion, murder now requires proof of an intention either to kill or to cause serious injury. Much more difficulty arises in identifying the boundary between manslaughter and mere accident. This raises complex issues as to the relationship between criminal and civil liability.
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References
1 Andrews v.D.P.P. [1937] A.C. 576, 581 (Lord Atkin).
2 Scarlet [1993] 4 All E.R. 629 and Prentice [1993] 3 W.L.R. 927.
3 As opposed to voluntary manslaughter, where the defendant committed murder but pleads a defence of provocation, diminished responsibility or suicide pact to reduce murder to manslaughter and so avoid the mandatory life sentence. These defences raise complex issues of policy and definition in their own right.
4 This is being undertaken by the Law Commission.
5 Whether direct (purpose) or oblique (inferred from foresight of a virtually certain consequence).
6 Up to a maximum of life imprisonment.
7 Five, if the complexities relating to corporate manslaughter are included.
8 Church [1966] 1 Q.B. 59.
9 [1983] 2 A.C. 493.
10 [1982] A.C. 510.
11 InReid [1992] 1 W.L.R. 793 the House of Lords accepted the continued validity of this test but stressed that it was not always necessary for the trial judge to direct the jury in the exact terms of Lord Diplock's definition.
12 (1925) 19 Cr.App.R. 8. Approved in Andrews v.D.P.P. [1937] A.C. 576.
13 (1925) 19 Cr.App.R. 8, 11 (Lord Hewart C.J.).
14 Andrews v.D.P.P. [1937] A.C. 576, 583.
15 See Seymour (1983) 76 Cr.App.R. 211, 216 (Watkins L.J.) and Kong Cheuk Kwan (1985) 82 Cr.App.R. 18.
16 Road Traffic Act 1988, s. 1, as inserted by section 1 of the Road Traffic Act 1991.
17 [1993] 3 W.L.R. 927.
18 Mere inadvertence cannot constitute gross negligence.
19 In Bateman (1925) 19 Cr.App.R. 8, 13 it was stated that “the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man”.
20 At 937.
21 As defined in Cunningham [1957] 2 Q.B. 396.
22 See Chief Constable of Avon and Somerset Constabulary v. Shimmen (1986) 84 Cr. App. R. 7.
23 The reliance by Lord Taylor (at 937) on “historical reasons flowing from the co-existence of the common law and statutory offences” is unconvincing.
24 Assuming that a duty of care is owed in such circumstances.
25 There is nothing in Prentice to suggest that reckless manslaughter has been abolished. Although Lord Taylor did say, at 937, that reference to recklessness should be avoided when the trial judge was directing the jury, this only applies where the direction relates to manslaughter by breach of duty.
26 Smith, and Hogan, , Criminal Law (7th ed., 1992), PP. 45–52.Google Scholar
27 Different policy considerations apply to liability for omissions, where the policy of the law is to punish failure to act only in limited cases. Nevertheless, a similar test of breach of duty applies for omission as for gross negligence, so these cases may prove to be a useful guide, especially if it is thought necessary to prevent manslaughter getting out of control. Many of the omission cases involved manslaughter anyway, but they could be applied to manslaughter generally, even where the defendant acted negligently.
28 Stone and Dobinson [1977] Q.B. 354, a case of grossly negligent manslaughter.
29 Pittwood (1902) 19 T.L.R. 37. This could be particularly important for grossly negligent manslaughter where professionals are required to comply with reasonable standards of care arising from their employment. In such cases the duty is not only owed to the parties to the contract. See Bateman (1925) 19 Cr.App.R. 8, 12 where Lord Hewart C.J. said that “[n]o contractual relation is necessary, nor is it necessary that the service be rendered for reward”.
30 Miller [1983] 2 A.C. 161.
31 Ibid.
32 The case of the electrician in Prentice could be analysed both in terms of breach of duty of care arising from his employment as a qualified electrician or in terms of recklessness where he created the risk of death by failing to wire the central heating system properly.
33 Such a doctor is surely not accepting responsibility in such a case by holding him or herself out as possessing special skill and knowledge to which the patient submits, factors which were highlighted as important in Bateman (1925) 19 Cr.App.R. 8, 12 in identifying a duty of care.
34 At 937.
35 This principle is a prime reason why duress is not a defence to murder. See Howe [1987] A.C. 417.
36 Offences against the Person Act 1861, s. 18.
37 Offences against the Person Act 1861, s. 20, as interpreted in Mowatt [1968] 1 Q.B. 421.
38 Though other, more regulatory, offences may have been committed e.g. contrary to the Health and Safety at Work Act 1974.
39 As was recommended by the Criminal Law Revision Committee, 14th Report (Cmnd. 7844) in 1980.
40 Homicide Act 1957, s. 1.
41 This was recommended by the Law Commission in their draft criminal code, clause 55(c) (Law Commission No. 177).
42 Road Traffic Act 1988, s. 1, as inserted by the Road Traffic Act 1991.
43 Although this has recently been recommended by the House of Lords Select Committee on Murder and Life Imprisonment (1989) and has not received government support, there remains a pressing need for reform of the law of homicide generally, including murder.