Essay question

“Unlawful act manslaughter is unfair because a defendant does not have to foresee any harm to the victim.”

Discuss the validity of this statement.

Sample answer

Unlawful homicide is where, by the act of a human being, another human being is unlawfully killed. It is murder where D causes the death of a human being with malice aforethought. Malice aforethought is an unfortunate phrase because it means neither premeditation nor wickedness, so means intention to kill or cause GBH (Moloney). Cases of murder include Woollin, Hancock and Shankland and Re A.

Voluntary manslaughter means where the prosecution can prove D formed the mens rea for murder, but D is convicted of voluntary manslaughter because he falls within one of the three partial defences; diminished responsibility (s. 2 of the Homicide Act 1957 as amended), loss of self-control (this used to be provocation but is now governed by the Coroners and Justice Act 2009) and suicide pact. In light of the mandatory sentence for murder, these partial defences are very important. They take D outside the mandatory sentence, but do not result in an acquittal. The maximum sentence for voluntary manslaughter is a discretionary life sentence.

Where there is an unlawful killing but the mens rea for murder is not present, that is an unlawful act manslaughter.

This crime consists of an act done by the defendant, which is a crime and is dangerous and which causes death. In Newbury, the House of Lords held that a defendant can be convicted of this crime even where he does not foresee harm. In this case, two boys threw stones at a train and killed the train driver.

The test of dangerousness in this crime came from the case of Church. In this case a man hit a woman (a crime) and thinking she was dead, threw her in a river, where she died from drowning. He argued that the act was not dangerous because, if he had been right, throwing a dead body in a river would not be dangerous and because of his mistake, he did not foresee any further harm. However, the test laid down by the court was this:
“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 (physical) harm resulting therefrom, albeit not serious harm.”

Gross negligence manslaughter is a crime where D owes V a duty of care, D breaches that duty, the breach involves an obvious risk of death, the breach causes death, and the jury finds the breach serious enough to be a crime. In Adomako, D was an anaesthetist who failed to notice when a patient’s tube became disconnected from a ventilator. The patient suffered a cardiac arrest and died. In Mark, D was the managing director of a company that had a contract to clean a large storage tank. Acetone was used to clean the tank and, following an explosion, an employee suffered severe burns and subsequently died. D contended that he had been ignorant of the risk of using acetone. However, his appeal was dismissed. Actual foresight of a risk was not essential for gross negligence manslaughter.

Therefore, D can be convicted of involuntary manslaughter without an awareness of the risk of death or even harm.

Feedback

The answer reveals some accurate knowledge of the law governing involuntary manslaughter but the student has some problems with their exam technique. For example:

• The introduction is too long, too simplistic (for example, the way malice aforethought is considered, the list of cases meant to ‘represent’ murder; not all of which are cases of murder at all of course) and contains too many irrelevancies in respect of the title set.
• Voluntary manslaughter could safely have been omitted in respect of this title; the detail provided was unwarranted. In exam conditions, it could be that the student had revised voluntary manslaughter and hoped that telling the assessor all about it would improve their marks; or simply that the student is unable to select relevant, and deselect irrelevant material. Either way, it is a sign of poor examination technique.
• The introduction to involuntary manslaughter is misleading; not all manslaughters are unlawful act manslaughters (what of reckless or gross negligence manslaughter? The student returns to the latter later in the essay, but does not introduce involuntary manslaughter at all well).
• The statement “Where there is an unlawful killing but the mens rea for murder is not present, that is an unlawful act manslaughter” is not accurate, or at least imprecise. It must be shown the killing involved a dangerous criminal act which caused the death of the victim.
• The answer then deals with Newbury (very briefly and in an undeveloped way) and Church (reasonably well), but the answer does not draw out sufficiently well the main criticisms of the offence, in that D does not have to be proved to have foreseen any harm to V. The cases of Dawson and Watson would have helped in respect of the dangerousness test.
• The answer’s conclusion is correct but is short and is not really supported by the explanations which precede it. The student might have improved their mark if, instead of analysing gross negligence manslaughter (which is irrelevant to this title), they had considered the Law Commission’s 1996 Report (LC237), which recommended the abolition of the offence of constructive manslaughter because of the nature of constructive liability and also because of the lack of a requirement of foresight of harm.
• Overall, this was a very short answer for a 45-minute examination question.