Constructive manslaughter requires proof that D intentionally committed a dangerous criminal act, which resulted in the death of the victim. In the case of R v Watson, it was aff. Furthermore, in the case of R v Goodfellow, it was affirmed that the jury should be presented with all the information leading up to the point of the crime, in order to ensure a carefully considered decision. In this regard, it would seem that the dividing lines between the offences of murder and involuntary manslaughter are carefully outlined.
The leading case on gross negligence is R v Adomako where this form of manslaughter was established. In these cases, the prosecution must prove duty of care, breach and gross negligence. In the 1994 case re Adomako, the earlier decision was overruled in R v Seymour and held that gross negligence was the proper mens rea for the offence of motoring manslaughter. Lord Mackay stated these charges should be reserved “not only for the most culpable instances of negligence but also where the breach of duty brought with it a risk of injury and damage leading to death”. In cases of motoring manslaughter where D has been drinking, D must be “so far below that of a reasonable driver as to be not only dangerous but inherently life threatening“. Some would argue that this is not acceptable and tantamount to murder.
It has been suggested that the laws regarding manslaughter are built “upon shaky foundations”. For example, some of these laws have remained unaltered since the 17th Century, despite the constant call for reform. Other rules are of uncertain content, often because they have been “constantly changed to the point that they can no longer be stated with any certainty or clarity”. The current definitions of these offences of manslaughter (and, for the most part, of the provocation defence) are largely the product of judicial law making in individual cases over hundreds of years; they are “not the products of legislation enacted after wide consultation and research into alternative possibilities”. However, from time to time, the courts have updated or changed the definitions. New cases have then generated further case law to resolve ambiguities or avenues for argument left behind by the last case; for example Woollin regarding murder, Adomako and Smith (Morgan) regarding manslaughter.
The mens rea of murder is defined as “malice afterthought”, express or implied. This sometimes means that a person is considered guilty of murder even though D did not intend to kill (R v Vickers), confirmed in R v Cunningham. However in the Attorney General’s reference the House of Lord’s described implied malice as a ‘conspicuous anomaly’, which perhaps broadens the definition somewhat. Moreover, in Woolin it was stated that the jury should feel sure that the consequences were a “virtual certainty” as a result of the defendant’s actions and that the defendant appreciated that such was the case.
Also under the current law, D is liable for murder if he or she kills intentionally or if he or she kills while intentionally inflicting harm, which the jury considers to have been serious. Some argue that the offence of murder is too wide in this respect, as someone who reasonably believed that no one would be killed by their conduct (and that the harm they were intentionally inflicting was not serious), could find himself or herself “placed in the same offence category as the contract or serial killer”. So whilst it is clear to most that a person who kills in circumstances such as ‘a punch’ is guilty of a serious homicide offence, it is equally clear to the great majority that the offence should not occupy the top tier or highest category offence. In 1957, Parliament passed the Homicide Act; it did not intend a killing such at this to amount to murder (which was, at that time, a capital offence) unless (amongst other criteria) the defendant was aware that his or her conduct might lead to death. The widening of the law of murder beyond such cases came about through an “unexpected judicial development of the law immediately following the enactment of the 1957 legislation”.
The inclusion of all these intent to do harm cases within the murder bracket distorts the sentencing process. The fact that an offender only intended to do serious harm, rather than kill, is currently regarded only as a “mitigating factor that justifies the setting of a shorter initial custodial period as part of the mandatory life sentence”. Whilst this might seem perfectly fair, there is a strong case for saying that “when an offence carries a mandatory sentence, there should be no scope for finding mitigation in the way in which the basic or essential fault elements come to be fulfilled”. Professor Barry Mitchell carried out important research into public opinion and their perception of what constitutes murder. It was found that a substantial amount of members of the public regarded deaths caused by intentionally inflicted harm that was not inherently life threatening as being, in some sense, “accidental”. Killing through an intention to do serious injury should not, however, be regarded as manslaughter, as manslaughter is an inadequate label for a killing committed with that degree of culpability. In any event, “to expand the law of manslaughter still further would be wrong because manslaughter is already an over-broad offence”.
In particular, the law is often said to be too generous to some who kill by ‘reckless’ conduct; i.e. those who do not intend to cause serious harm but nevertheless realise that their conduct involves an unjustified risk of causing death. The law is too generous in treating all those who realise that their conduct poses a risk of causing death but press on regardless as guilty only of manslaughter. Again, the problems have arisen from the way that “the periodic judicial development of the law in individual cases, albeit well-intentioned, has changed the boundaries of homicide offences”.
The sentencing guidelines that Parliament has implemented for murder cases take the position that “murder has a rational structure that properly reflects degrees of fault and provides appropriate defences”. Some argue however that the law does not have such a straightforward structure and that creating one would be an important step in reforming criminal law. Some suggest replacing the two-tier structure with a three-tier structure. Such a structure would, according to the Law Reform Commission, be “much better equipped to deal with the stresses and strains on the law and with the issues of appropriate labelling and sentencing”. The three tiers suggested, in descending order of seriousness would be first-degree murder, second-degree murder and manslaughter.
Almost since its conception, the definition of manslaughter and murder have remains largely the same. Over the centuries, the “two categories of murder and manslaughter have had to bear the strain of accommodating changes and deepening understandings of the nature and degree of criminal fault and the emergence of new partial defences”. They have also had to satisfy demands that labelling and sentencing should be based on rational and just principles. The Criminal Justice Act 2003, one of the most important pieces of legislation in the history of criminal justice reform, brought in a new sentencing regime for murder. However the radical reforms effected by the 2003 Act stand upon “shaky foundations”, because the offence of murder, and the partial defences to it, does not have defensible definitions or a rational structure. Unfortunately, whilst twentieth century legislation on murder brought about many valuable reforms, the definitions of murder and the partial defences remain “misleading, out-of-date, unfit for purpose, or all of these”. Quite simply, “they are not up to the task of providing the kind of robust legal support upon which the viability of the 2003 Act depends”.
Word Count: 1,870
Bibliography and References:
Cases:
- R v Vickers [1957] 2 QB 664
- R v Hancock and Shankland [1986] 2 WLR 257
- R v Nedrick [1986] 3 All ER 1, CA
- R v Woollin [1999] 1 AC 82
- DPP v Newbury and Jones [1976] AC 500
- R v Watson [1989] 1 WLR 684
- R v Goodfellow (1986) 83 Cr App R 23
- R v Adomako [1995] 1 AC 171
- Smith (Morgan) [2001] 1 AC 146
- R. v. Seymour [1996] 2 SCR 252
- R v Cunningham [1957] 2 QB 39C
References:
-Homicide Act 1957
-The Criminal Justice Act 2003
-Attorney General’s reference (No 3 of 1994) (1997)
-The Law Commission (LAW COM No 304) Murder, Manslaughter and Infanticide
Books:
-Sir Edward Coke (Institutes of the Laws of England, 1797)
-Criminal Law, Smith & Hogan, 12th ed., 2008, (OUP)
-Criminal Law, D Roe,2005, (Hodder & Stoughton)
-Criminal Law Theory and Doctrine, A Simester &G Sullivan, 3rd ed., 2007, (Hart Publishing)
-Cases and Materials on Criminal Law, Michael Molan, 4th ed., 2008, (Taylor and Francis Ltd)
-Criminal law, Law Card Series, 6th ed., 2009, (Routledge-Cavendish)
-Key Facts Criminal Law, Jacqueline Martin and Chris Turner, 2nd ed., 2004, (Hodder & Stoughton)
Websites:
www.lawcom.gov.uk/docs/lc304.pdf
http://www.lawcom.gov.uk
Cases and Materials on Criminal Law, Michael Molan , 2008, p 182
Sir Edward Coke (Institutes of the Laws of England, 1797)
R v Vickers [1957] 2 QB 664
R v Hancock and Shankland [1986] 2 WLR 257
Criminal law, Law Card Series, 6th ed., 2009, (Routledge-Cavendish), p55
DPP v Newbury and Jones [1976] AC 500
R v Adomako [1995] 1 AC 171,per Lord Mackay
The Law Commission (LAW COM No 304) Murder, Manslaughter and Infanticide, 1.14
The Law Commission (LAW COM No 304) Murder, Manslaughter and Infanticide, 1.17
R v Vickers [1957] 2 QB 664
Criminal Justice Act 2003, s 269 and sch 21
The Law Commission (LAW COM No 304) Murder, Manslaughter and Infanticide, 1.20