Q: It should not be possible to convict a person for any homicide in the absence of proof of foresight of any harm to the victim.

Critically evaluate the offences of involuntary manslaughter in light of the above statement.

Essay outline answer

Your introduction can be very straightforward. Simply explain that involuntary manslaughter is where there is an unlawful homicide without the mens rea of murder.

It does not matter which type of manslaughter you deal with first because for each type, you have to explain the definitional elements and illustrate with authority, ensuring you link the cases to the issues of:

1. whether a conviction for manslaughter is dependent on the prosecution being able to prove the defendant actually foresaw harm, and if not
2. if that is a problem.

For example, you might explain that for unlawful act manslaughter there is no need for the defendant to foresee any harm, never mind death (and this is true for both the ‘act’ requirement and the dangerous test, Church [1966]). Similarly, for gross negligence manslaughter there is no need for D to foresee any harm (Mark [2004]), never mind death, provided his conduct involves a risk of death (Misra [2005]). This time, however, you might assert that this is less ‘embarrassing’ for the criminal law than in the constructive form because only the most serious forms of carelessness, often (although not exclusively) by experts, are culpable. Perhaps, you might argue that it is more acceptable to have a purely objective test where the liability does not arise unless D’s behaviour falls far below the standard that can reasonably be expected, and is so bad it is a crime.

If you wish to include a debate on (subjective) reckless manslaughter, you must point out this type does require foresight of harm to the victim, but how much harm is not at all clear (Stone & Dobinson [1977] – health and welfare; Lidar (1999) – serious harm).