As the name implies involuntary manslaughter occurs where the defendant kills a person without 'intention' in the sense of specific intent or oblique intent. There is no malice aforethought. Despite this lack of intention on the part of the defendant, there are circumstances where s/he will be held responsible for the death and incur punishment.

There are at least two situations where a person might face a charge of involuntary manslaughter. The first is called 'constructive manslaughter` (or unlawful act manslaughter); the second is known as 'gross negligence manslaughter`.

The defendant must perform an unlawful and dangerous act. For an act to be unlawful it must be criminal in nature. The actus reus and mens rea of the unlawful act must be identified and proved. The unlawful act must be dangerous. The test developed by the courts is the following: such that "all sober and reasonable people would inevitably recognise [it as an act which] might subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm", (Church). An unlawful and dangerous act might arise as a consequence of an omission (Lowe).

Intoxication does not excuse a defendant (Lipman). The unlawful act does not have to be directed at the victim (Attorney General's Reference (No. 3 of 1994).

Andrews v DPP [1937] AC 576 HL. R v Lamb [1967] 2 QB 981 CA. R v Church [1965] 2 All ER 72 CA. R v Dawson (1985) 81 Cr App R 150 CA. R v Watson [1989] 2 All ER 865. R v Lowe [1973] 1 QB 702 CA. R v Lipman [1970] 1 QB 152 CA. Attorney General's Reference (No 3 of 1994) [1997] 3 All ER 936 HL. See Kennedy [1999] Crim LR (Jan) p.65.

And GOBERT 'THE FORTUITY OF CONSEQUENCES' [1993] 4 CRIMINAL LAW FORUM

(a)  What is the distinction between a criminal act and a tort? Look for the answer in Andrews v DPP [1937] AC 576 HL

(ans)

(b) Jonathan is chased by a group of fascists who threaten to carve him up and feed him to their dogs. One member of the group, Axle, grabs hold of Jonathan and proceeds to kick him. Jonathan (who is a karate black belt) averts the kick and slams Axle in his throat with a karate punch. Axle dies as the result of the blow. Has Jonathan committed an unlawful act?

(ans)

(c) Blaze lives in a home for people with learning difficulties. She has had an argument with one of the residents, Fright, who refuses to allow her to light the fireworks at the fireworks display in the back garden. Blaze manages to steal a firework, light it and throw it at Fright. Fright is set alight, receives extensive burns and dies of his injuries. Under the rule in Church has Blaze committed an unlawful act? Look at the case of Elliot v C (A Minor) [1983] 1 WLR 939. Does the law take account of the disability of Blaze?

(ans)

(d) Rose is about to enter a weight lifting competition with her friend Sandra. The night before the competition Rose invites Sandra to her flat for a pre-competition drink. Rose supplies Sandra with alcohol and they both get very drunk. Sandra falls asleep. Whilst asleep Sandra chokes on her vomit and dies. Applying the Lipman test has Rose committed an unlawful act? Applying the Lamb case has Rose committed an unlawful act?

(ans)

(e) Ragga goes to a sale to pick up some bargains but there is a long queue. He decides to jump the queue. Fuss remonstrates with him and throws a punch. The punch lands on Miss Fortune. Miss Fortune falls and hits her head on the concrete floor and dies. Has Fuss caused the death of Miss Fortune? Answer with reference to Attorney General's Reference (No. 3 of 1994).

(ans)

The definition found in Bateman is the following: "...in order to establish criminal liability the facts must be such that the negligence of the defendant went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment."

"…beyond a mere matter of compensation between subjects"

denotes that the matter should be dealt by the criminal law (rather than or in addition to the civil law). In other words the State is duty bound to deal with the matter and not leave it to be resolved by the perpetrator and the victim in a civil court.

"…disregard for the life and safety of others as to amount to a crime"  

implies that the conduct was so bad as to warrant the criminalisation of that conduct for the purpose of conviction and punishment.

The legal test to ascertain whether the conduct of the accused was so bad as to warrant the charge of gross negligence is

"…whether the defendant has been in breach of a duty of care towards the victim who has died. If such a breach of duty is established, whether that breach of duty caused the death of the victim. If so, whether the breach of duty should be characterised as gross negligence and therefore a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal." Adomako.

Adomako

1. Read Allen pp. 297-299 on Law Reform and summarise the points made by the Law Commission relating to involuntary manslaughter. (For notes on summarising see HelpDisk 2.4 on the law department's home page).

Summary:

(b)Look at the points raised by Allen, in relation to the Law Commission's report (above). Make a note of his points. Do you agree with Allen? Give reasons for your answer.