Scope of Manslaughter
Manslaughter is an unlawful homicide that is not murder. Manslaughter covers a very wide range of circumstances. Historically the longstanding mandatory punishment for murder (which formerly included the death penalty) had tended towards a preference on the part of juries for a verdict of manslaughter in more difficult cases.
Manslaughter may be committed in a variety of ways. Death may arise out of a criminal and dangerous act. The death may arise out of a lawful act, involving gross negligence. There is be no specific intention to cause death or a serious injury.
There are no degrees of murder and manslaughter unlike the case in certain common law jurisdictions. Manslaughter covers the full range of possibilities, short of murder. There are two additional special offences created by statute which may overlap with manslaughter, namely infanticide and causing death by dangerous driving. They are treated separately.
A verdict of manslaughter may be returned as an alternative on a charge of murder. The significance of a reduction from the charge of murder to manslaughter is that the judge has discretion as to sentence.
Importantly and unlike murder, there is no mandatory sentence for manslaughter. The sentence may reflect the circumstances and they range from a substantial term of imprisonment to a suspended sentence or less.
Provocation may reduce what is otherwise murder to manslaughter. Self-defence, where the use of force is excessive, reduces what would otherwise constitute murder to manslaughter. Where the use of force is not excessive, there will be neither murder nor manslaughter will have been committed.
Provocation may reduce a charge of murder to manslaughter. Provocation must be recent and serious. It must overwhelm the will of the accused. If there is any chance for the accused to have cooled down and reflected, the legal defence of provocation will not be available.
Provocation must be some act, or a series of acts done by the deceased to the accused which would cause any reasonable person and actually caused the accused a sudden and temporary loss of self-control rendering him for a moment not the master of his mind. Provocation may reduce murder to manslaughter even if the defendant had the requisite intention at the time he acted.
The test for provocation focuses on the accused state of mind. It must be shown that the accused was actually provoked. In order to negate a defence of provocation, the prosecution must show that the accused was not provoked to such an extent as having regard to his temperament character and circumstances he lost self-control at the time of the relevant unlawful act and that the force was unreasonable and excessive having regard to the provocation.
Where the provocation was sufficient in the circumstances is a matter with the jury to determine as a matter of fact. It is a matter for the judge to determine whether there is sufficient evidence from which it might be might reasonably conclude that there was provocation, so as to leave the matter for decision by the jury.
Provocation is dealt with as a matter of fact. Unlike insanity, psychiatric and psychological evidence is not generally appropriate.
Following 2006 reforms, a successful plea of diminished responsibility will lead to a verdict of manslaughter. The 2006 Criminal Law Insanity Act introduced the defence of diminished responsibility.
Where a person is tried for murder and the jury or court finds that the person did the act alleged but was at the time suffering from a mental disorder and the mental disorder was not such to justify finding him or her not guilty by reason of insanity but was such to diminish substantially his or her responsibility the jury may find the person not guilty of murder but of manslaughter on the ground of diminished responsibility.
A broadly similar definition of diminished responsibility was provided in England and Wales under the Homicide Act 1957.
A plea of diminished responsibility will generally be supported by medical evidence. There must generally be some medically diagnosable condition, circumstance condition or disorder which has the effect of diminishing responsibility.
Arising from Unlawful Act
Manslaughter may be committed where there is an unlawful and dangerous act which results in death but without an intention to kill or cause serious injury. The unlawful act is done with the intention of causing physical harm or without the intention to cause death or serious bodily harm. The accused is at fault although the consequences are unintended.
The circumstances may arise from an assault. The accused must cause death in the same sense as applies to murder. This type of manslaughter is sometimes referred to as constructive manslaughter in the sense that the accused is deemed responsible by reason of the underlying unlawful act.
The unlawful act must be criminal. A civil tort does not suffice. Liability for the underlying offence from which death arises must be established. If it requires intention, this must be shown.
The unlawful act need not be directed at the ultimate victim. If the act was unlawful and intentional and was such that a reasonable person would subject a person to a risk of harm though not necessarily serious harm, this will be manslaughter where it causes death to a third party.
The unlawful act must be a positive act rather than an omission. Where, however, there is a particular relationship between the accused and the victim, there may be a duty to act so that gross negligence coupled with the breach of duty is sufficient for manslaughter. A number of cases have concerned assisting persons in injecting drugs which ultimately proved fatal. Other cases have involved arson which causes death.
The unlawful act must be dangerous. The test of whether an act is dangerous is objective. It doesn’t matter that the accused did not think the act to be dangerous.
Gross negligence manslaughter does not require an unlawful act or even an intention or awareness that death may ensue.
Where a person has a legal duty and fails to the extent of gross negligence, causing death, manslaughter may arise. Where a person has a pre-existing duty for example due to a relationship of dependency and intentional or grossly negligent omission to perform the duty– may constitute manslaughter, notwithstanding the absence of any intention or indeed knowledge.
Gross negligence may be established without any imputation as to the person’s intentions. A very high degree of negligence is required. It may be higher than the degree of negligence, required for conviction under the Road Traffic Act for causing death by dangerous driving.
The jury must be told that something substantially more than negligence is required. Gross negligence to a high degree such as to amount to a reckless disregard for the life and safety of others is required. The degree of negligence and care must be related to the likelihood of substantial personal injury.
Manslaughter by gross negligence may arise in the case of death by a motor vehicle. If the degree of negligence is very high and is of such a nature that an ordinary driver with common road-sense and in full possession of his faculties would realise that in driving in the manner concerned without lawful excuse there is a risk of substantial personal injury such as the cause of the risk of substantial personal injury, there may be manslaughter. The negligence must cause death.
A person organising an activity may be guilty of manslaughter even though he is not personally involved in the incident concerned. In the same manner, a company responsible for a particular activity may be guilty of manslaughter where there is gross negligence in the organisation of the activity.
Manslaughter Where Duty
A duty of care may arise between persons due to a relationship. This may arise out of a person’s office or employment. It may arise out of a person’s role such as a carer or parent. Such relationships impose special duties.
A person is expected to take all reasonable precautions for his or her children so that neglect and want of care causing death would generally be inherently gross. Where a child or a person under the care of a parent or carer dies due to gross negligence, this would constitute manslaughter. The gross or aggravated element arises from the to the risk and the nature of the duty.
A person may assume the duty of care to others such that neglect and failure to obtain food or medical treatment may constitute gross negligence so as to sustain a conviction for manslaughter.
A person may be imprisoned or sentenced to imprisonment for up to life and/or an unlimited fine, the punishment is of the discretion of the court. The court may fit the punishment to the crime.