A Critique of Involuntary Manslaughter

' ...of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions. From the early days, when any homicide involved penalty, the law has gradually evolved 'through successive differentiations and integrations' until it recognises murder on the one hand, based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intention to kill.'¹

Lord Atkin qualifies the absence of intention to kill as 'mainly, though not exclusively'. This may be because manslaughter is generally divided by lawyers into two categories, voluntary and involuntary manslaughter. The former concerns instances when the intention to kill is found, but the defendant successfully raises partial defences such as provocation, diminished responsibility or killing in pursuance of a suicide pact. The later concerns 'homicide in so many and varying conditions'. Generally speaking however there are three categories of involuntary manslaughter which will be the focus of this essay. These three categories will be critically evaluated on a principled basis by starting with an analysis of gross negligence manslaughter, followed by a brief evaluation of subjective reckless manslaughter, to end with a critique of unlawful act manslaughter.

Although gross negligent manslaughter mainly concerns professionals who are grossly negligent in the performance of their duties, the principles of tort are normally employed to determine the existence of a duty of care. Therefore:

The neighbour definition in Donoghue v. Stevenson [1932] A.C. 562 of duty of care is undoubtedly too wide. It is accepted and established that a parent has duties towards their children, doctors towards their patients, police officers towards the arrested. However, the courts may recognise new categories of duty relationships which could lead to retrospective law decision making, such as in Stone and Dobinson [1977] 2 All ER 341 which concerned blood relatives.³ Moreover, the different policy objectives of the criminal law lead to further confusion regarding the importation of the duty principle as applied in tort. In Wacker [2003] 4 All ER 295 for example the court refused to apply the ex turpi causa doctrine which in civil law restricts the duty of care in cases of voluntary involvement in an illegal endeavour, stating that only 'ordinary principles' of negligence' are to determine the existence of a duty of care. The lack of certainty as to which of these ordinary principles of negligence is the criminal law willing to import and which to disregard, which relationships and situations give rise to a duty of care in criminal law as opposed to civil, seems to have created needless complexity and by association uncertainty and unpredictability.

Yet, the more perplexing aspect of gross negligence is not the duty of care principle, but the degree of grossness required for negligence to amount to a crime. In civil law it suffices to establish that the defendant was negligent. In criminal law however such negligence needs to go: '...beyond a mere matter of compensation between subjects and show such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.'⁴

The jury therefore needs to decide not only that the defendant is negligent, but whether this negligence amounts to a crime, which is a question of law. Lord Mackay LC states that: 'This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision'.⁵ This is most unsatisfactory as the law is made so very unpredictable as the jury may decide alike cases differently in absence of any guidance as to what constitutes 'gross' negligence. As the law currently stands such uncertainty may amount to an infringement of Art 7 of the European Convention of Human Rights and Fundamental Freedoms which has been interpreted as suggesting that an offence needs to be defined: '...with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee to a degree that is reasonable in the circumstances, the consequences which any given action may entail'.⁶ The European Court however seems to be satisfied 'with offences [which] depend on jury evaluation of conduct by reference to its consequences'⁷ - the consequence reference being a risk of death.

It may be suggested that the degree of negligence required for the conduct to be considered criminal is reckless in the ordinary meaning of the word.⁸ Their Lordships are perhaps trying to emphasise the fact that negligence alone is not enough, it needs to be a high degree of negligence, amounting to perhaps reckless in the ordinary meaning of the word, rather than the level required in civil tort which is very low. In this regard therefore it may not be surprising that the European courts do not consider the uncertainty in this offence to be of such a level as to declare it illegal. However the wordings in their Lordship's judgments, such as negligence to such a level as to amount to a crime, is rather circular and may leave the jury without direction which results in uncertainty and unpredictability. The law commission has recommend an objective test whereby the defendant will be found guilty of gross negligence manslaughter if his conduct falls 'far below what could reasonably be expected of him in the circumstances'. The defendant is of course to be given any special skill and knowledge and be judged by the standards of his peers, which would alleviate some of the uncertainty regarding gross negligence manslaughter. The law commission's recommendation may also be more desirable as to label gross negligence manslaughter as reckless may lead to further confusion with subjective reckless manslaughter. The former requires a duty of care and a level of negligence so gross as to fall far below the level of standards expected. The later on the other hand takes us to the boundaries between murder and manslaughter.

For someone to be convicted of murder, there needs to be an intention to kill. If therefore someone intends to claim insurance on the house or just to frighten someone, there is no intention to kill, as such they may be convicted of subjective reckless manslaughter. This is subjective as the defendant must be virtually certain that his action will cause death or grievous bodily harm, rather than a reasonable man, to be convicted of murder, see Nedrick (1986) 83 Cr App R 267. Otherwise, if the defendant could not care less or appreciates the risk yet is reasonable in undertaking it, D may be found guilty of subjective reckless manslaughter, see Moloney [1985] AC 905. The test for this variety of manslaughter seems to be too lenient as it is questionable whether the defendant has not in principle murdered someone when death is probable, but not virtually certain. The law commission warns us against an objective or more rigid test as it may lead to the conviction of someone who does not have a reasonable level of intelligence, suggesting therefore that they are being punished for having a lower level of intelligence or maturity.⁹ If a child does not have enough experience of the world to understand that gasoline is highly inflammable, therefore is not virtually certain that death will ensue, it might not be fair labeling to convict him of murder. Yet equally an adult who could not care less if someone is killed, or thinks it highly probable but unlikely, may not be labeled fairly as a manslaughterer rather than a murderer

Where to draw the line between manslaughter and accidental death also raises principled questions of fairness. The unlawful act manslaughter doctrine requires an intention to cause an act, that the act is unlawful and dangerous, and that the act caused the victim's death, see DPP v Newbury [1976] 2 All ER 365. The intention to cause an act, say to punch, is mostly unproblematic. The minimal requirement however of only an unlawful act with a risk of 'some harm resulting... albeit not serious harm'¹⁰ may lead to illogical outcomes. For example, if the defendant is driving carelessly without an MOT and runs over someone, he is found guilty of unlawful act manslaughter. If he had the MOT however, he would not be charged with involuntary manslaughter, albeit that the MOT per se has nothing to do with the act or consequence. It is not only the irrelevance of the unlawful act itself, but also the lack of correspondence between the intention and the resulting consequence which may suggest that this variety of manslaughter is highly unprincipled.

However, it may be argued that because someone has passed a moral threshold in commit a crime against the state, however minor, and the end result is the most heinous, as a matter of policy and distributive justice, so as to send a strong signal to prevent any crime whatever, 'unlawful act manslaughter' might be justified. Furthermore, in situations where death is close to being accidental, D might be 'skating on thin ice'. It might therefore be too much of a nicety and create much complexity and uncertainty if the judiciary adhered to fair labeling strictly. It may also be suggested that there is a level of 'luck' in our daily actions and consequences. Therefore one needs to take responsibility for 'moral luck' outcomes.¹¹ It is artificial to expect D not to feel any moral responsibility for the death of V when he pushes someone in a fight and V 'loses his balance and falls to the floor, knocking his head on the pavement and thereby sustaining fatal brain injuries',¹² although such outcome would hardly be foreseeable. However, it is this element of luck, compounded with the absence of intention, which seems to ignore completely the autonomy principle and the subjective positivist theory which suggests that we should be punished only for the choices we make. If the choice was to cause perhaps actual bodily harm rather than death, the fact that death ensues might be beyond our control and choice, therefore perhaps simply an accident, and as such be punished accordingly.

The unlawful act doctrine seems to also ignore the proportionality principle as an individual who intends to only assault someone, but 'in the agony of the moment [the victim] acts without thought or deliberation' and runs to the road where s/he is hit by a car, may be punished out of proportion for manslaughter when this was not intended and only marginally possibly foreseeable.

To conclude therefore, it is no secret that the offence of manslaughter is so wide as to range from almost virtually certain death to almost an accident. It is therefore no wonder that in practically applying the law it may often seem uncertain, unpredictable, unproportional, unjust and unfair. It is often a tall order to determine the line between different categories and degrees - at times perhaps to such extend that it manages to escape our comprehension and resists the mastery of the powers of our intellect. It may therefore perhaps be suggested that the recommendations of the law commission to classify homicide into three degrees is adopted so that the principle of fair labeling is upheld and the law is simplified. Yet one can not refrain but think that the complexities of homicide resist the imposition of such rigidities, demanding instead the allocation of our logical capabilities to the practical circumstances at hand, so that we may best understand the beast we are riding and how to handle it, progressing in such process 'through successive differentiations and integrations'.

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