Criticisms and Reform of Involuntary Manslaughter Unit 4 – Task 3

General criticisms concerning involuntary manslaughter It covers a very wide range of conduct The same offence of involuntary manslaughter covers such a wide range of offences. The distinction between murder and manslaughter The distinction between murder and manslaughter is malice aforethought which has not been precisely defined The confusion between the different types of involuntary manslaughter The lines are blurred.

Specific criticisms relating to unlawful act manslaughter The persistent difficulties of interpreting the ‘act’ as a crime For example the cases of, Ariobeke, Cato Death may be unexpected For example Larkin only meant to assault his victim and it could be argued that he should therefore only be liable for the crime of assault. The fact that someone died was ‘pure chance’ for which Larkin should not have been held responsible

The objective nature of the act A defendant who did not realise there was risk of any injury is still guilty because of the objective nature of the test. The distinction between acts and omissions This may be reasonable when applied to an omission which is simply negligent, but it is difficult to find grounds for excluding liability where an accused deliberately omits to so something and thereby causes death, and especially where that omission is clearly morally wrong

The mens rea Causation issues The mens rea is very easy to satisfy The unlawful act must be the cause of death with no intervening cause to interrupt the chain of causation and particularly whether the act needs to be directed at the victim.

Specific criticisms relating to gross negligence manslaughter The ‘duty’ problem The civil test for negligence should not be used in criminal cases, as the purpose of the two branches of law is quite different A duty of care in negligence law is defined on an objective basis, this is not appropriate in criminal law where the defendant’s state of mind should be a key issue for deciding culpability. Gross negligence The test for gross negligence manslaughter is circular, in that the jury is directed to convict the defendant if they think his action was criminal

The defendant may not have realised there was a risk of harm A defendant is liable even though he did not realise there was a risk of injury, this is inconsistent with non-fatal offences   A lack of congruence between criminal liability and moral guilt Criminal liability and punishment should be linked to moral guilt, i.e. only those who have chosen to cause harm in the sense of intending or knowing that the harm could occur, should be blamed

Vagueness of the law Reform is necessary as the law is not clear.

Proposed Reforms In 1996, the Law Commission produced a report called Legislating the Criminal Code: Involuntary Manslaughter –LCCP No 237

The five homicide offences to replace involuntary manslaughter The proposals were to abolish the existing law on involuntary manslaughter and replace it with five homicide offences The five homicide offences to replace involuntary manslaughter   No Proposed new offence Maximum penalty 1 Reckless killing Life imprisonment 2 Killing by gross negligence 10 years’ imprisonment 3 Killing with the intention to injure or being reckless as to whether injury 7 years’ imprisonment 4 Corporate killing 5 Substantially contributing to a corporate killing

In 2006, another report was commissioned (No In 2006, another report was commissioned (No. 304): Murder, Manslaughter and Infanticide This report suggested that there should be a 3-tier structure for homicide: First Degree Murder, Second Degree Murder and Manslaughter: Manslaughter would be either Killing another person through gross negligence or Killing another person as a result of a criminal act to or that D was aware carried a serious risk of causing injury Note ‘criminal act’ would be easier to understand and apply than ‘unlawful act’ as it would add context

Conclusion Say whether you think the law needs to be reformed and why? Discuss which of the proposals (1996 or 2006, or selected proposals from each) you think would be more effective and why.