Homicides: Manslaughter

1.0    Introduction

2.0    Objectives

• Main Content
• Definition
• Classification
• Unlawful at manslaughter
• Standard of dangerousness
• Act Of Omission
• Mens rea of manslaughter
• Killing based on recklessness
• Civil and criminal negligence

4.0    Conclusion

5.0    Summary

6.0    Tutor-Marked Assignment

7.0    References

Introduction

Unlawful homicides includes murder, manslaughter and infanticide. In the last unit, you learned about murder. In this unit, you will learn another kind of unlawful homicides-manslaughter (voluntary and involuntary).

Objectives

When you have studied this unit, you should be able to

1. Define or describe
2. Distinguish between murder and
3. Identify the actus reus in manslaughter 4, identify the mens rea in manslaughter
4. Critique the law on the crime of manslaughter

Main Content

There may be need for you to read over the preceding unit. The reason is that the acts that constitute murder may also constitute manaslaughter. For example, both crimes have the following common features:

• The fact of death
• Period of one year and a day between the cause of death and death
• The act or omission on the part of the assailant, which results in the killing.

Differences lie between murder and manslaughter in the degree of blame worthiness. For murder, there must be intention to:

1. Kill;
2. do grievous bodily harm;
3. do an act and make an omission likely to endanger human life in the pursuit of an unlawful purpose

 

A wicked intention which falls short of the above murderous malice would suffice for voluntary manslaughter. Involuntary manslaughter need not have any intention to kill or do grievous harm. In fact, the

accused will probably not have contemplated the killing of the deceased.

Definition of manslaughter:

Manslaughter man be defined as an unlawful killing of a human being without malice aforethought (Blacks Law Dictionary)or an unlawful killing of another in such circumstances as not to constitute murder.

You already know that any killing is unlawful which is not authorized (i.e excusable or justified). As any unlawful killing which does not amount to murder is manslaughter, you have first to know murder before you can know what is not murder or what is manslaughter. It is wise that you revise your manual on murder.

Classification of manslaughter:

- Manslaughter may be voluntary or involuntary

Involuntary Manslaughter:

In voluntary manslaughter means: an unlawful killing in which death is unintentionally caused.

Unlawful killing of another without any intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during  the commission of a crime not within the felony – murder range.

The terms “involuntary manslaughter’ and “negligence manslaughter’ are used sometimes interchangeably.

Perkins and Bryce have described ‘involuntary manslaughter as a ‘catch all’ concept, covering all manslaughter not characterized as ‘voluntary’

Alan White (1985) writes:

‘The only difference between the legal use and the everyday use of ‘voluntary’ not voluntary’ and ‘involuntary’ seem to be:

1. a more   frequent   use  of   ‘involuntary’   as   a  synonym   of  ‘   not voluntary’ and
2. a technological use of ‘involuntary’ in the crime of ‘involuntary manslaughter’ that it seems to have the meaning of ‘unintentional’.

In contrast with ‘voluntary manslaughter’ there is no suggestion here that death, as contrasted with harm, was intended  or foreseen.

It is often confined to cases of assault and battery where death results.

Example Death arising either from the withholding of food or from excessive chastisement of a child,

Some jurists maintain that it can also be due to any unlawful and dangerous action causing death.

Thus,   as   unlawful    killing   without    murderous   malice,   involuntary manslaughter may be caused as follows:

• By an unlawful act, not involving an obvious risk of some bodily harm eg criminal abortion, excessive chastisement of a

B is a guest who would not go. ‘A’ kicks him out, which kick result in B’s death.

R v.Wild kicking B is an unlawful act with no intention to kill or cause bodily harm,

• By the failure to perform some legal duty, such failure involving an obvious risk of some bodily harm e.g neglect to provide food or other necessaries for a child or infirm person .

Thus a In R v. Bonnyman,  A doctor whose  wife died in consequence  of omission to treat her is responsible for killing her, should she die.

• Course of doing a lawful act with wicked

A man drives a motor car recklessly and thereby kills a pedestrian. or

Another    pointing    a    firearm   at    someone    in    gest,    with    utter recklessness. See Andrew v. DPP.

Unlawful Act Manslaughter.

It is instructive to identify three forms of involuntary manslaughter.

• Those based on unlawful act (re constructive manslaughter)
• Those based on recklessness
• Those based on gross negligence

The term “unlawful act” has been subject of judicial interpretations for the purpose of manslaughter. Let us consider some of them and see  if  we can find answers to the following troublesome questions that do arise.

• What is an unlawful Act ?
  • Is the unlawful act confined to offences against person or does It embrace all offences ?
  • Must the unlawful act be “aimed” or “directed” at the deceased or any other person or object?

• Must it always cause death?
• If is also can result in harm, what type of harm will the law accept

– physical or emotional or both?

• Is there any suggestion of foreseability      If yes, it is subjective or objective?

Go over the questions once again, remember them as we proceed with  the unit or revie cases.

R V Fenton (1830)

F threw stones down a mine shaft causing a corp carrying miners to overturn, killing them. The unlawful act was a tort of trespass to property. F was convicted of manslaughter, signifying that the unlawful may either be civil (tort) or criminal.

R V Franklin (1993)

Expressing great abhorrence of constrictive manslaughter, the court held that there can be no liability for unlawful act manslaughter unless the prosecution can establish a criminal act on the part of the accused. 

Do you observe any difference in the decisions of the court in this two cases just cited?

Molan has asked:

As unlawful act manslaughter is a serious offence against the person, must the criminal act upon which it is based also be an offence against the person, or will any criminal offence suffice so long as it is provided it as the cause of death?.

R V Cato (1976)

D and V agreed to inject each other with heroin. The next morning  V  was found dead from the effect of drug taking. D was convicted of manslaughtered either on the basis that his unlawful act had caused V’s death or on the basis that he had recklessly caused V’s death.  D appealed on the ground that there was no unlawful act and that V had consented to the injection of heroin.

Dismissing the appeal, Lord Widgery C.J., expressed the following views;

1. that heroin was a noxious substance and was likely to injure in common use
2. that D had administered it knowing of its noxious qualities
3. that V’s consent to suffer harm of the nature caused never relieves D of his liability or destroy the unlawfulness of D’s act

Their Lordship also expressed their willingness to convict on the basis of V’s unlawful

possession of heroin at the time D injected V.

Should the unlawful act be aimed or be directed at the deceased?

One of the criticisms levied against the decision in R V Cato was that, the unlawful possession of heroin was “ not directed” at the deceased, and illegal possession of heroin was no more grievous than illegal possession of firearm.

R V Dalby (1982).

D supplied controlled drug to V who died from overdose, having consumed alarge quantity of the drug. D was convicted  for manslaughter and he appealed on the ground that :

• His supply of controlled drug was not dangerous
• V’s death was due to his act in consuming a large dose of the drugs

Allowing the appeal, the appellate court held:

D’s act was not the direct cause of death, but merely made it possible for V to kill himself.

The court affirmed that where manslaughter was based on an unlawful and dangerous act, it had to be an act directed at the victim which was likely to cause immediate injury, albeit slight.

R V Goodfellow (1986)

G Deliberately bombed his own Council house in the hope that the Council would rehouse him. His wife and children who were in  the  house died in the ensuring fire. His defence was that the arosn was not directed at the deceased was rejected. His conviction was confirmed.

 Attorney – General’s Reference (No 3)

Lord Hope confirmed that it is not a requirement of the criminal  law that the unlawful and dangerous act should be directed at the deceased.

R V Mitchell (1983)

M pushed an elderly man on a queue following an altercation. From this push, the elderly man fell on an elderly woman who subsequently died at the hospital from the injury she sustained. Held. M’s intentional act caused the deceased’s death and the act of the elderly man did not break the chain of causation.

 The test of dangerousness of the unlawful act .

The unlawful act upon which manslaughter is based must be dangerous. That is to say:

• one which is likely to injure another : R V Larkin (1943).
• Such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm: R V Church (1966).
• Possibility of physical harm as opposed to merely emotional disturbance R V Dawson (1985

Test:

That test is objective and “can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of the crime and watched the unlawful act being performed”

Activity

Examine these cause cited by Molan:

• D dressed as a ghost, jumps out in front of P who suffers heart attack and dies
• B loads a sawn-off shot gun, aims at P’s head, crooks his finger around the trigger; P dies of heart attack flowing from his fear of dying

3. W burgled a house occupied by K an Octogenarian, who suffers from hearth condition. W disturbed K, abused him verbally, and left. He did nor steal. Police were drawn in; a local Council  workman came in and repaired the window, broken by W to gain ingress. For hours later, K suffered heart attack and died.

Write a judgment on each of the cases:

Assessment of dangerousness of an act or omission.

This is by looking at the whole of the defendants’ actions

Test of dangerousness is satisfied, even though the eventual victim was not a being in rerum at the time the unlawful act taken place.

Let us consider the case of R V Ball (1989) B and G are neighbours. Between them is a long running dispute over a car park, B, accompanied by K and J called on G to investigate the disappearance of her car. There was an altercation, culminating in B grabbing a handful of cartridges, loading his short gun and firing at some 12 yards away. G was killed in the attack. In his statement to the police, B said he acted under a reasonable and honest but mistaken belief that the cartridges were blanks.

Standard of proof of dangerousness

This is best explained in the words of Lord Hope.

“It is sufficient that at the time of the stabbing, the defendant had the mens rea, which was needed to convict him of an assault. That was an unlawful act, and It was also an act which was dangerous.

“Dangerousness in this context is not a high standard. All it requires is that it is an act, which was likely to injure another person. As “injury” in this sense means “ harm” , the other person must also be a living person.

It is enough that the original unlawful and dangerous part, to which the required mental state is related, and the eventual death of the victim are both art of the same sequence of events’ (Att. Gen’s Reference) (No 3 of 1944)

Self Assessment Exercise

X stabs a pregnant woman, injures the foetus, and dies as a result of the attack after being born. Discuss X’s criminal liability.

Act of Omission

Some doubt has been expressed as to whether or not unlawful act manslaughter can be based on omission.

R V Arobieke (1988)

A was convicted of manslaughter on the ground that his presence at the railway station had caused the victim, whom he knew to be terrified of him, to attempt an escape by crossing the railway tracks with the result that he was electrocuted.

Quashing the conviction, the appellate court held that there had been no criminal act by the defendant, as the evidence did not show that the defendant had physically threatened or chased the deceased.

See also RVRvans(1992), RVLowe (1973)

Perhaps manslaughter arising from acts of omission may be more appropriating considered as killing by gross negligence as we shall see later.

Mens rea of Unlawful Act Manslaughter

The criminal code in sections 24 and 316 defines the mens rea required for murder. In manslaughter, ‘ the accuse must be proved to have intended to do what he did, it is not necessary to prove that he know that this act was unlawful or dangerous. So it must follow that it is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that needs to be proved is that he intentionally did what he did”

(Attorney Generals Reference No 3 of 1994.

As Lord Salmond put it, manslaughter is one of those crimes in which only what is called a basic intention need to be proved – that is, an intention to do the act which constitutes the crime “ DPP v. Newbury (1976).

Killing based on Recklessness:

Recklessness means :

1. Gross negligence

2       Not mere inadvertence

Recklessness is the degree of fault required in killing by gross negligence

Lord Hewart CJ in R. v. Bateman (1925) held that, to secure a conviction for killing by gross negligence, it must be proved that:

1. Accused owed the deceased a duty of care;

2       Accused breached that duty of care;

3. The breach had caused the killing;
4. The Accused negligence was gross in that it went beyond a mere matter of compensation between

Civil and criminal negligence

The degree of negligence required for civil liability and that required for manslaughter are different and must be  distinguished. Recognising that a very high degree of negligence is necessary to secure a conviction, Lord Atkin said:

“  of all the epithets that can be applied “ reckless” most nearly covers  the case ….but it is probably not all embracing for “reckless” suggests an indifference to risk, whereas the accused may have appreciated the risk, and intended to avoid the risk , and yet shown in the means adopted to avoid the risk, such a degree of negligence as would justify a conviction” Andrew v. DPP(1937).

One is liable for reckless manslaughter if one by his/her conduct creates obvious and serious risks of physical harm, and either gives no though to it or is aware of it and determines to take it.

CONCLUSION

manslaughter has been described as an unlawful homicide in circumstances short of murder, whatever that might mean. there ae a number of defences to criminal liability which have the effect of reducing a murder to manslaughter. An example is provocation

SUMMARY

You have learned about manslaughter – voluntary and involuntary, its mens rea and actus reus. You also have attempted to distinguish murder and manslaaughter

TUTOR MARKED ASSIGNMENT

Define murder and manslaughter and distinguish the two Name the requirements for a conviction of manslaughter

REFERENCES/FURTHER READINGS

Jefferson , M G (2003), Criminal law 6^th Ed. Longman, London

Butler  T.  and Garsia M:     (1969),    Archbold, Pleading, Evidence and Practice, Sweet and Maxwell, London.

Madarikan C and Agada T, (1974) Brett and Mclean’s: The Criminal Law and Procedure of the Six Southern States of Nigeria, Sweet and Maxwell.

Ormord D (2005), Smith and Hogan Criminal Law.     11^th Ed .    Oxford University , Press, London

Molan M (2003) Criminal law 4^th Ed. Old Bailey Press, London.