'In our opinion, the offender's fault falls too far short of the unlucky result - So serious an offence as manslaughter should not be a lottery…' Explain and discuss.

‘In our opinion…[in some cases of unlawful act manslaughter] the offender’s fault falls too far short of the unlucky result. So serious an offence as manslaughter should not be a lottery…’ (Criminal Law Revision Committee, 1980, cited in Clarkson and Keating, Criminal Law: Text and Materials, 1998, P670.)

Explain and discuss.

It has long been debated that the offence classed as unlawful act manslaughter and the sentences that those found guilty of it are given are harshly exaggerated considering the defendant may have only intended a lesser offence. This is what the first part of the question is trying to pose us. Unlawful act manslaughter (UAM) is a controversial law as someone who may not have had the intention to kill or have reasonably had foreseen death can still be charged with constructive manslaughter. The ‘Offenders fault’ may have been to injure the victim, but they had no intention for a death to occur, thus their fault is not as serious as the defendant is tried for. The offender can face a penalty similar to that of murder.

The penalties for unlawful act Manslaughter have been heavily scrutinised over the years. Lawmakers have tried to find a balance between the fact that the defendant did not wish the person to die and the fact that a death has taken place as a result of the defendant’s actions. It could be argued that the actions of the individual are not as important as the outcome of their actions. If someone has died as a direct result of what an individual has done it would be almost impossible to exclude this fact when deciding on a sentence for the defendant. Either way it is difficult to comprehend at this stage that an act that has been a part of the U.K. legislation could be so wrong. To resolve where UAM falls short of justice this essay will start at looking at the act in its present form and scrutinise what measures it has in place to prevent a miss carriage of justice. I will then go further into depth by looking at criticisms of UAM laws and examine ideas for reform.

It is wise to pinpoint the exact outline of the crime. What constitutes manslaughter is summed up by the quote by Lord Parker in Creamer (1996) “a man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence.”

The Actus Reus of UAM clearly sets out that there must be an unlawful act thus the defendant had done more than just acted out of turn. Cases such as Lowe, where the defendants neglect of a child resulted in death, have highlighted that an omission is not enough to convict for unlawful act Manslaughter. “If / I omit to do something with the result that it suffers injury to health which results in death, we think that a charge of manslaughter should not be an inevitable consequence, even if the omission is deliberate.” Negligence is quite clearly ruled out but not unjustly as obviously Negligence manslaughter has jurisdiction in this area of law. It is guidelines such as this that stop UAM from being taken out of context, for instance the unlawful act must be dangerous which prevents someone acting safely where death occurs from being convicted of constructive manslaughter.

There are three main points that need to be laid down as the main constituents of UAM: there must be an unlawful act, the act must cause death, and the act must be dangerous. This seems straightforward but who is the person that decides whether an act is dangerous or even unlawful for that matter? For example if someone is struck and killed in a street brawl they are guilty of UAM or even murder, but where a boxer punches another, within the rules, as part of a boxing match, and he dies, the boxer is not guilty of an ...

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Just like any part of criminal law, it has to be proven that the defendant had the Actus reus to commit an unlawful act, but this does not immediately make the act constructive manslaughter as the defendant has to have the Mens Rea also. Previous cases hold the key to understanding what constitutes the Mens Rea of UAM. In cases such as Lamb this ideal was put into practice. “The jury must consider among other matters the state of his mind, and that includes the question of whether or not he thought that that which he was doing was safe.” In R v Lamb the defendant was not aware that if he pulled the trigger on the revolver that he would kill the victim. Thus it was shown he did not have the Men’s Rea that would constitute the guilt of UAM.

The reasonable man plays its part in UAM. First presented in Church (1966), it prevents the offence itself from being taken out of context by give a stringent benchmark that has to be reached. The “Unlawful act must be such as all sober and reasonable people would inevitably recognise and must subject the person to, at least, the risk of some harm.” In theory if the jury stick to this guideline they will be acting reasonable so, in turn, they will be acting fairly. As this part of UAM is so heavily guiding for the jury and judges when sentencing, it’s importance to the act itself have to be stressed. Being able to prove the criteria asked of by the reasonable man will help secure a conviction. Thus in my opinion to find out if the defendants sentence is a lottery question needs to be asked: is the reasonable man test in UAM good enough?

This is one of the major cracks in the veneer of UAM as the wording, and the importance of the reasonable man, make the whole test confusing and possibly too easy to prove the guilt of the defendant. To be fair to the act the jury would be “credited with the same knowledge as the accused had at the time of the offence”, which supposedly puts them in the shoes of the defendant. This is not the major issue at hand though as the fact that they only have to prove the “risk of some harm” in my opinion is not a fair test but a very low standard to prove considering the maximum sentence for UAM is life imprisonment.

At this stage it is becoming clear as to how the structure of UAM can make the defendants actions a lottery as I have identified potential problems with the reasonable man test and also the double standards in the cases such as Larkin. There is still much more to be discussed within the act that adds further weight to both sides of the argument.

The way in which the sentencing for manslaughter is controlled to insure some fairness in trials for UAM. “The maximum penalty for the crime is life imprisonment enabling the judge to impose any sentence up to a maximum to reflect the appropriate degree of culpability of the defendant.” The power of the judge to have the complete say as to the prison sentence of a convicted perpetrator prohibits the prison sentence from becoming a lottery as it hands the punishment into the hands of someone who is considered as having great legal experience. This cannot be taken at face value however. The judge does have a responsibility to give a sentence that reflects what the jury found the defendant guilty of. So if the jury find the defendant guilty of unlawful act Manslaughter then the judge would have to impose “the appropriate degree of culpability” to the sentence. It would be difficult for the judge to impose a minimal sentence, as the death on an individual has to be considered and not taken lightly. This issue is taken further as the culpability of the defendant is absurd when considering the fact that their offence had no element of fault to it. In fact “the notion that culpability can be established without the fault element corresponding to the prohibited harm is hardly a novel one in English Law”

The death of the victim in UAM to me to is the most obvious place that the defendant’s fault falls too far short as it is the most crucial part of the offence and probably the most widest in its scope. The breadth of offences that manslaughter covers are extremely dense, it is an increasingly complicated area of law “manslaughter ranges from killings just short of murder to killings just above accidental.” The Criminal law committee is aware of this problem and agrees that it is questionable if the defendant’s fault is compatible with the sentence they receive. There comments on UAM such as “…it gives a false idea of the gravity of the defendant’s moral offence and that there is always the possibility that it may receive a punishment going beyond that appropriate to the assault.” Animating the idea of the offenders fault being taken out of context and emphasise how the convicted are prone to a punishment that goes beyond its jurisdiction.

Some have argued that “The lesser blameworthiness is reflected by an avoidance of the label and stigma of murder, and by avoidance of the mandatory penalty of life imprisonment for murder.” I disagree the defendant’s fault can be taken out of context because of this, thus if the defendant has killed someone due to an act just above an accident they are still tried and convicted under the same offence as someone who verged on conviction of murder. This adds gravity to the fault of the defendant as they are being tried under an act that carries a harsh social stigma just short of being branded a murderer. It is unfair that defendants’ that had no intention of causing death should be tried as if they are just short of being a murderer and made to carry out the same sentences.

The “possibility” of receiving a punishment beyond their blameworthiness runs through the very heart of the question posed on constructive manslaughter.

We have a great example when analysing the case of Larkin. Larkin’s mistress died when she fell upon a razor he had possession of but there was no evidence of intention of to cause death or even injure her. Is it fair to convict a man of constructive manslaughter in this situation? I do not think so as “was not his blameworthiness the same, whether she fell against his razor or whether she fell to the ground, missing his razor and not injuring herself.” Cases such as this show how the fact that taking the death is into account can misconstrue the liability of the defendant: “why should he be punished for the more serious crime of manslaughter merely because his actions caused death-if the death was not within his range of contemplation.”

So how relevant should the death be in convicting offenders in these situations? The criminal law committee comment to the extent of the feeling that death should be removed from the equation all together: “where death results from an assault the punishment should pay no regards to the death.” At first this may seem drastic but the examples such as Larkin can only add to the evidence that the death element only confuses the issues.

If this provision was implemented it would turn UAM upon its head as without paying attention to the death most crimes would become nothing more than some form of assault. Thus unlawful act manslaughter would not even be a relevant term to deal with the crime as it would be covered under assault. I can see that it may be unjustifiable in some peoples’ eyes that the death is taken into account when prosecuting for UAM as the defendant was not entirely to blame for an unlucky result of their actions. However I feel it is essential to remember that someone has died, and this cannot be merely overlooked. In many ways the defendants fault does not fall too far short of the unlucky result as their unlawful actions have lead to the death of an individual and they must be punished accordingly. It must not be forgotten that the judge holds the sentencing power so the defendant is less likely to face a harsher sentence.

Courts have tried to limit UAM as they are aware of some of the problems that the controversial act implements and, although full of good intention, this has “lead to serious uncertainty in the law.” This is just more proof that Unlawful act Manslaughter has been branded as a troubled act. There have been successive attempts to alter and to explain its workings but rather than to liberate the act from its problematic roots, it has left others in a state of “disagreement both here and in other common law jurisdictions.” Baring this in mind it would appear that UAM is more of a lottery. Law commentators find the act hard to define “we can at present see no prospect of being able to devise any clear, principled statement of law based on concepts of unlawful act manslaughter.” So how can UAM not be a lottery when those who come to scrutinise such an act cannot define it themselves? The truth is that UAM must be a lottery and it needs to be resolved if the problems within are to be teethed out.

There are many other arguments criticising UAM, most of which come from a report from the criminal law commission. They support many of my opinions and are particularly relevant as they have a direct interest in the law itself. They “consider that it is wrong in principle for the law to hold a person responsible for causing a result that he did not intend or foresee.” This supports the arguments that I have begun to conclude in this essay but it is taken even further as the blameworthiness in UAM would “not even have been foreseeable by a reasonable person observing his conduct.” These quotes are bold but immensely relevant.

CONCLUSION:

In hind sight to all of the facts made present to me it is not too difficult to make up my mind about the standpoint I have on UAM. The act itself is essential in the law as it is known today as without it there would be nothing to breach the gap between murder and other offences where the defendant dies from an assault. UAM does have its strong points for instance the fact that an omission does not constitute manslaughter. It sets out tests that try to be as objective as possible whilst at the same time fair, but I do not believe it succeeds. The Act falls down on a few major points. First and foremost the breadth of the offence has made it ambiguous and difficult to interpret as was discussed. As major commentators and moral actors such as judges find it hard to define then there is a serious lack of foundation to the whole act. The most important issues however is the fact that the act takes into account the death of a victim when it may not be relevant. It cannot be ignored that if the death was discarded in the trial the defendant’s sentence would be immensely reduced as would the social stigma imposed upon him.

So is UAM a lottery and does the offender’s fault fall too far short of the unlucky result? Well I think that the answer can be a resounding yes. The wealth of material against the act has swayed my views to a landslide against the act. It is fair to admit that UAM has tried to implement safeguards and has adapted with the times but this has not flushed out its unstoppable ambiguity that makes it a lottery. I could use numerous examples to prove this such as the use of the reasonable man, which is usually paramount to fairness in a trial, is blurred by poor wording such as “the risk of some harm.” The low standards to pass the reasonable man test are not acceptable alone hence when all of the other misdemeanours are put with this the problems with the act are amplified seven fold.

The law commission has in fact prescribed ideas that could work as an alternative to UAM but these concepts are now over six years old and have been largely ignored. It may be a better proposal to consider what they pledged. “If he (the defendant) was aware of a risk that death would occur if he acted in a certain way and it was unreasonable, having regard to the circumstances known to him, to take the risk in question then his case will be covered by the offence of manslaughter.” As this is not the case and a number of largely unnecessary and confusing tests have to be applied, unlawful act manslaughter will remain an offence that is unfair to those tried for it.