Manslaughter is homicide without premeditation.
There are two types of manslaughter: voluntary and involuntary.
“The unjustifiable, inexcusable, and intentional killing of a human being without deliberation, premeditation, and malice. Or, the unlawful killing of a human being without any deliberation, which may be involuntary, in the commission of a lawful act without due caution and circumspection.”
Voluntary manslaughter requires the intent to kill or to cause serious bodily harm. This conviction can only be made if the defendant pleads either of two partial defences against murder: loss of self-control or abnormality of mental function. Without one of these, it’s full-blown murder.
It is essential to be aware that the Coroners and Justice Act 2009 (CJA) reformed the law on loss of control and diminished responsibility, abolishing the law of provocation. This area offers a prime opportunity for essay questions that require critical evaluation of the new act, or perhaps comparison to the superseded common law defence of provocation. So make sure you read up on both the old and the new.
In order to make a case for voluntary manslaughter you must first consider:
Do they have the Actus Reus and Mens Rea for murder?
In short, is there the evidence and a motive to convict them for murder? If no, then this is a different case and you should consider involuntary manslaughter. If yes, you should ask the following questions…
- Did the accused suffer from abnormal mental functioning?
This plea for diminshed responsibility is only valid if this arises from a recognised medical condition that substantially impaired the defence’s ability to understand the nature of their conduct, form rational judgement and exercise self-control. If not, you should consider the next things.
- Did they lose control?
This concerns the clause that was amended by the CJA 2009. According to 54(2) ‘it does not matter whether or not the loss of control was sudden’. The defence of provocation (the old common law which has been replaced) stated that the loss of control must be ‘sudden and temporary’. The law was reformed primarily because it was seen to discriminate against abuse victims with ‘battered woman syndrome’, but these reforms have already been criticised by academics despite being recent.
- Was there a qualifying trigger? (Excluding the desire for revenge)
In order for there to be a loss of self-control there must be a trigger. There are two triggers that qualify under section 55(3) in the CJA 2009: the ‘fear trigger’ and the ‘anger trigger’. The ‘anger trigger’ is ‘attributable to things done or said (or both) which (a) constituted circumstances of an extremely grave character or (b) caused the defence a justifiable sense of being seriously wronged.
- Is it possible that someone of the same age and sex, of normal temperament, placed in the same situation, might act in a similar or the same way?
If yes, then you have a case for voluntary manslaughter. If not, it’s murder.
To make a case for involuntary manslaughter it is essential that the defence has the Actus Reus for murder, but no Mens Rea for murder. In other words, evidentially they are responsible, but had no motive that can be established.
Involuntary manslaughter is divisible into four categories:
Unlawful Act Manslaughter
There must be an intentional and unlawful act. That act must be objectively dangerous and the cause of death.
R v Larkin (1942) 29 Cr App R 18: the appellant brandished a razor, intending to frighten his mistress's lover. His mistress, who was drunk at the time, stumbled against the razor. It cut her throat and she later died. An unlawful act had been committed by the assault against the mistress's lover. This act is objectively dangerous to a sober and reasonable person.
Check out these cases:
- R v Mitchell (1983) 2 WLR 938
- R v Goodfellow (1986) 83 Cr App R 23
- R v Watson (1989) 1 WLR 684.
Gross Negligence Manslaughter
There must have been a duty of care towards the deceased. This must have been breached by gross negligence, causing death.
R v. Adomako (1994): an anaesthetist who was in charge of a patient during an eye operation was charged with gross negligence manslaughter. The appellant had failed to notice that the oxygen pipe was disconnected and the patient died. The decision was upheld. It was deemed that there was a breach of ‘duty of care’ toward the patient.
This superseded the precedent set in R v Seymour (1983) 2 A.C. 493.
Subjectively Reckless Manslaughter
A subjectively reckless act which causes death.
The organisation of activities by senior management, which involves a gross breach of the duty of care that results in death.
You must know all about the Corporate Manslaughter and Corporate Homicide Act 2007.
Gross negligence manslaughter can now only be applied to individuals; this act created a new charge for homicide that can only be committed by corporations. It is likely that you will need to analyse the effectiveness of the act. This act took over 10 years to complete. In 1996, a report was published by the Law Commission recommending the creation of an offence for ‘corporate killing’. The CMCHT 2007 has been largely criticised as insufficient.