1. UNIT 4
HOMICIDE: INVOLUNTARY
MANSLAUGHTER

2. MANSLAUGHTER
The actus reus is as for murder, but there
is insufficient fault for murder.
There are two types of manslaughter:
• Voluntary – Not considered in this module.
• Involuntary – Considered in this Unit.

3. VOLUNTARY MANSLAUGHTER
A defendant who successfully pleads loss of
control (previously provocation), diminished
responsibility or suicide pact will have the actus
reus and mens rea for murder.
Loss of control, diminished responsibility and
suicide pact amount to partial defences to
murder that reduce the crime to manslaughter.

4. INVOLUNTARY MANSLAUGHTER
A defendant charged with unlawful homicide
committed without malice aforethought may be
guilty of involuntary manslaughter:
• constructive manslaughter,
• gross negligence manslaughter and
• Cunningham reckless manslaughter.

5. INVOLUNTARY MANSLAUGHTER
The defendant has unlawfully killed the
victim but does not have the mens rea for
murder.

6. INVOLUNTARY MANSLAUGHTER
1. Constructive manslaughter (unlawful act
manslaughter).
2. Gross negligence manslaughter.
3. Cunningham (subjective) reckless
manslaughter.

7. INVOLUNTARY MANSLAUGHTER
• Larkin [1943] 1 All ER 217
• Stone and Dobinson [1977] QB 354 CA
• Willoughby [2004] EWCA Crim 3365

8. CONSTRUCTIVE MANSLAUGHTER
Causing a death whilst committing an
unlawful and dangerous act.

9. CONSTRUCTIVE MANSLAUGHTER
Actus Reus
As for murder – unlawful killing of a
reasonable creature in being under the
Queen’s peace.

10. CONSTRUCTIVE MANSLAUGHTER
Mens Rea
Intention to do the act and the mens rea
for the crime committed.

11. CONSTRUCTIVE MANSLAUGHTER
Elements to be proved:
• The defendant committed an unlawful act.
• The unlawful act must be dangerous.
• The unlawful act must be the substantial
cause of the death.

12. CONSTRUCTIVE MANSLAUGHTER
POINT OF TECHNIQUE
When dealing with constructive
manslaughter, identify the criminal offence
and prove the actus reus and mens rea of
the offence before going on to establish
the other two essential elements.

13. CONSTRUCTIVE MANSLAUGHTER
Lamb [1967] 2 QB 981
Scarlett [1993] 4 All ER 629 CA
If there is no lawful act there can be no
liability.

14. CONSTRUCTIVE MANSLAUGHTER
Senior [1899] 1 QB 283
Lowe [1973] QB 702 CA
It is doubtful whether an omission will suffice for
constructive manslaughter.
There is a reluctance to establish liability for
omissions.

15. CONSTRUCTIVE MANSLAUGHTER
The unlawful act must be dangerous (an
objective test)
Causing death is not enough; the unlawful act
must be dangerous in the sense that it must
expose the victim to the risk of some bodily
harm.
The test is objective; it is enough if a reasonable
person observing the event would have foreseen
some harm as likely to result.

16. CONSTRUCTIVE MANSLAUGHTER
The objective test was established in
Church [1966] 1 QB 59 CA.
“The unlawful act must be 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”

17. CONSTRUCTIVE MANSLAUGHTER
The unlawful act must be the substantial
cause of death
It must be proved that the unlawful act
caused the death. It must be the
substantial cause but need not be the only
cause.

18. CONSTRUCTIVE MANSLAUGHTER
Goodfellow [1986] 83 Cr App Rep 23 CA
It was not necessary for the act to be directed at
the victim, all that is necessary is that there is no
fresh, intervening cause between the act and the
death.
A-G’s Reference (No 3 of 1994) [1998] AC 245

19. GROSS NEGLIGENCE
MANSLAUGHTER
• Bateman [1925] 19 Cr App Rep 8 CA.
• Seymour [1983] 2 AC 493 HL
• Kong Cheuk Kwan v R [1985] 82 Cr App
R 18 PC
• Adomako [1994] QB 302 HL

20. GROSS NEGLIGENCE
MANSLAUGHTER
The Bateman test of gross negligence:
“In explaining to juries the test which they should apply
to determine whether the negligence in the particular
case amounted to or did not amount to a crime, judges
have used many epithets such as ‘culpable’, ‘criminal’,
‘gross’, ‘wicked’, ‘clear’, ‘complete’. But whatever epithet
be used and whether an epithet be used or not, in order
to establish criminal liability the facts must be such that,
in the opinion of the jury, the negligence of the accused
went beyond a mere matter of compensation between
subjects and showed such disregard for the life and
safety of others, as to amount to a crime against the
State and conduct deserving of punishment.”

21. GROSS NEGLIGENCE
MANSLAUGHTER
The Bateman test was applied in
Andrews v DPP [1937] AC 576.

22. GROSS NEGLIGENCE
MANSLAUGHTER
Prentice, Sulman, Holloway and Adomako
[1993] 4 All ER 935 CA.
Bateman test was applied

23. GROSS NEGLIGENCE
MANSLAUGHTER
There is now a single test of gross
negligence. There must be:
• The existence of a duty owed by the
defendant to the victim.
• A gross breach of that duty.
• The gross breach of duty causes the victim’s
death.

24. GROSS NEGLIGENCE
MANSLAUGHTER
The question to ask is:
“Having regard to the risk of death
involved, [was] the conduct of the
defendant so bad in all the circumstances
as to amount in [the jury’s judgment] to a
criminal act or omission?”

25. GROSS NEGLIGENCE
MANSLAUGHTER
The test is objective – would the risk have been
obvious to the reasonably prudent and skilful
doctor, electrician, motorist etc. as the
circumstances require.
‘The essence of the matter is whether having
regard to the risk of death involved the conduct
of the defendant is so bad in all the
circumstances as to amount in their judgement
to a criminal act or omission.’

26. GROSS NEGLIGENCE
MANSLAUGHTER
Wacker [2002] EWCA Crim 1944
The criminal law would not decline to hold a
person as criminally responsible for the death of
another simply because the two were engaged
in some joint unlawful activity at the time or
because there might have been an element of
acceptance of a degree of risk by the victim in
order to further the joint unlawful enterprise.

27. GROSS NEGLIGENCE
MANSLAUGHTER
Wacker [2002] EWCA Crim 1944
The criminal law should not be disapplied simply
because the civil law was (as a matter of policy)
under the principle of ex turpi causa non oritur
actio.
The defendant was guilty of 58 counts of
manslaughter by gross negligence.

28. GROSS NEGLIGENCE
MANSLAUGHTER
Willoughby [2004] EWCA Crim 3365
• As a matter of law, categories of manslaughter by unlawful act and gross
negligence were not necessarily mutually exclusive, and in some
circumstances a defendant could be guilty by both routes.
• The fact that D was the owner of the premises to be destroyed for his
benefit and that he had enlisted V to help spreading petrol gave rise to a
duty of care to V.
• While there could be exceptional cases where a duty of care obviously
existed, for example where a statutory duty of care was imposed, and a
judge could direct a jury that a duty existed, it was normally a question for
the jury once the judge decided that there was evidence capable of
establishing a duty of care,

29. GROSS NEGLIGENCE
MANSLAUGHTER
• Gross negligence manslaughter can arise from an act or
from an omission.
• Where the allegation is that the death occurred by a
failure to act, it must be remembered that it is not
enough that it was reasonably foreseeable that the
defendant’s negligent failure to act would imperil the
victim.
• There can only be liability if the defendant was legally
obliged to do the act which he is alleged to have failed to
have done. (Refer Unit 1.)

30. GROSS NEGLIGENCE
MANSLAUGHTER
• R v Mick Philpott, Mairead Philpott and
Paul Mosley Nottingham Crown Court,
4 April 2013

31. GROSS NEGLIGENCE
MANSLAUGHTER
Evans (Gemma) [2009] EWCA Crim 650
For the purposes of gross negligence
manslaughter, if a person created or contributed
to the creation of a state of affairs which he
knew, or ought reasonably to have known, had
become life threatening, a consequent duty on
him to act by taking reasonable steps to save
the other's life would normally arise.

32. GROSS NEGLIGENCE
MANSLAUGHTER
Evans (Gemma) [2009] EWCA Crim 650
The existence or otherwise of a duty of care or a duty to act was a question
of law and the question whether the facts established the existence of the
duty was for the jury.
Where the existence of the duty was not in dispute, the judge could properly
direct the jury that a duty of care existed.
If the issue was in dispute, and the judge had found that it would be open to
the jury to find that there was a duty of care or a duty to act, the jury should
be directed that if particular facts were established a duty would arise but if
other facts were present the duty would be negated.

33. GROSS NEGLIGENCE
MANSLAUGHTER
• R. v Winter (Martin) and Winter (Nathan) [2010] EWCA Crim
1474; [2011] 1 Cr. App. R. (S.) 78.
• To whom the duty of care extended depended on the facts of the
individual case and it was reasonably foreseeable that civilian
employees of the fire service in V's position might come on to and
close to the site of a fire in order to film or photograph it.
• The Court rejected the submission that V's failure to comply with
instructions to leave the site had the consequence that no duty of
care was owed to him.
• R v Reeves [2012] EWCA Crim 2613

34. GROSS NEGLIGENCE
MANSLAUGHTER
R v Philips [2013] EWCA Crim 358
The manslaughter charge alleged that the appellant had unlawfully
killed the victim (Jed Little) by gross negligence and was further
particularised as follows:
"i) having supplied Jed Little with a quantity of diarmorphine (heroin), a
controlled drug of Class A, he owed him a duty of care;
ii) in breach of that duty and knowing that the state of affairs had
become life-threatening, he failed to take reasonable steps to ensure
that Jed Little received appropriate medical treatment;
iii) that breach of duty amounted to gross negligence;
iv) that negligence was a substantial cause of the death of Jed Little."

35. GROSS NEGLIGENCE
MANSLAUGHTER
The "gross negligence" alleged therefore was the appellant's
failure to act once he knew that Jed's life was in danger.
In passing sentence the judge noted the following in relation to the
manslaughter offence:
•First, the appellant was an experienced heroin user who knew the
symptoms of a heroin overdose;
•Secondly, he had undergone training in overdose awareness and
harm prevention;
•Thirdly, if the appellant had called the emergency services and
explained the reason, an ambulance would have been at the house
within eight minutes;

36. GROSS NEGLIGENCE
MANSLAUGHTER
• Fourthly, if this had been done then Jed Little's life would most likely
have been saved by the administration of naloxone and the use of
CPR by the ambulance crew;
• Fifthly, at the time of Jed Little's overdose the appellant was in a
state of fear and panic about what would happen if questioned about
how Jed had been administered heroin;
• Sixthly, Jed was not an experienced heroin user and normally
smoked it rather than injected it; and
• Lastly, when the appellant injected his own fix of heroin he
appreciated that the drug was stronger than normal.

37. GROSS NEGLIGENCE
MANSLAUGHTER
In this Philips the court found the important facts to be:
1) The deceased voluntarily took the drug himself.
2) The appellant knew that the deceased was not an habitual injector of
heroin.
3) The appellant knew the signs of an overdose and knew what he
should do and yet he failed to do anything – Jed Little's death was not
inevitable if the appellant had acted.
4) The appellant's gross negligence was that of omission (rather than
commission) by failing to call the emergency services when he must
have known that Jed Little needed them.
The appellant’s appeal against sentence was dismissed.

38. GROSS NEGLIGENCE
MANSLAUGHTER
GROSS BREACH OF DUTY OF CARE
Bateman (1925) 19 Cr App Rep 8 CCA that:
“the negligence of the accused went beyond a
mere matter of compensation between subjects
and showed such disregard for the life and
safety of others, as to amount to a crime against
the State and conduct deserving of punishment.”

39. GROSS NEGLIGENCE
MANSLAUGHTER
• Ds conduct must have involved a
reasonably foreseeable risk of the death
of another.

40. GROSS NEGLIGENCE
MANSLAUGHTER
Singh [1999] Crim LR 582 CA
Yaqoob [2005] EWCA Crim 2169
Circumstances must be such that a
reasonably prudent person would have
foreseen a serious and obvious risk of
death.

41. GROSS NEGLIGENCE
MANSLAUGHTER
Adomako [1995] 1 AC 171
“the jury must … consider whether that breach of duty should be characterised as
gross negligence and therefore as a crime. This will depend on the seriousness of
the breach of duty committed by the defendant in all the circumstances in which the
defendant was placed when it occurred. The jury will have to consider whether the
extent to which the defendant's conduct departed from the proper standard of care
incumbent upon him, involving as it must have done a risk of death …, was such that
it should be judged criminal.”
Lord Mackay LC
R v Reeves [2012] EWCA Crim 2613
A-Gs Reference (No 2 of 1999) [2004] QB 796

42. GROSS NEGLIGENCE
MANSLAUGHTER
THE BREACH OF DUTY MUST CASE THE DEATH
The third limb of gross negligence manslaughter,
according to the ‘ordinary principles of negligence’,
simply involves the application of the rules of causation.

43. GROSS NEGLIGENCE
MANSLAUGHTER
Inner South London Coroner, ex p Douglas-Williams [1999] 1
All ER 344
“[I]t is an essential ingredient that the … negligent act must have
caused the death at least in the manner described [i.e. more than a
minute or negligible contribution]. If there is a situation where, on
examination of the evidence, it cannot be said that the death in
question was caused by an act which was … negligent as I have
described, then a critical link in the chain of causation is not
established.”

44. GROSS NEGLIGENCE
MANSLAUGHTER
There will not be a causal link if the death
would still have occurred even if the D had
not been grossly negligent: Dalloway
(1847) 2 Cox CC 273.

45. GROSS NEGLIGENCE
MANSLAUGHTER
Misra and Srivastava [2005] 1 Cr App R
328
Gross negligence manslaughter does not
offend against provisions of Article 7
ECHR.

46. CUNNINGHAM (SUBJECTIVE)
RECKLESS MANSLAUGHTER
Pike [1961] Crim LR 114
Stone & Dobinson [1977] QB 354 CA
The existence of this type of manslaughter has
been confirmed in Lidar [2000] 4 Archbold
News 3 CA.
The defendant must foresee a risk of serious
injury is highly probably.

47. INVOLUNTARY MANSLAUGHTER:
CONCLUSION
D unlawfully kills V without malice
aforethought.

48. INVOLUNTARY MANSLAUGHTER:
CONCLUSION
Three types of involuntary manslaughter:
• Constructive manslaughter
• Gross negligence manslaughter
• Reckless manslaughter

49. INVOLUNTARY MANSLAUGHTER:
CONCLUSION
CONSTRUCTIVE MANSLAUGHTER
Elements to be proved:
• The defendant committed an unlawful act.
• The unlawful act must be dangerous.
• The unlawful act must be the substantial cause
of the death.

50. INVOLUNTARY MANSLAUGHTER:
CONCLUSION
When dealing with constructive
manslaughter:
• Identify the criminal offence
• Prove the actus reus and mens rea of the
offence
• Then establish the other two essential
elements.

51. INVOLUNTARY MANSLAUGHTER:
CONCLUSION
GROSS NEGLIGENCE MANSLAUGHTER
There is now a single test of gross negligence. There
must be:
• The existence of a duty owed by the defendant to the victim.
• A gross breach of that duty by the defendant.
• The gross breach of duty causes the victim’s death.

52. INVOLUNTARY MANSLAUGHTER:
CONCLUSION
CUNNINGHAM (SUBJECTIVE) RECKLESS MANSLAUGHTER
Lidar [2000] 4 Archbold News 3 CA.
The defendant must foresee a risk of serious injury is highly
probably.