Involuntary Manslaughter:
The concept of involuntary manslaughter
The two main forms: Unlawful Act (‘constructive’) Manslaughter,
and Gross Negligence Manslaughter
Constructive manslaughter – problems of constructive crimes
The ‘unlawful act’ element and mens rea crimes
Unlawful acts and defences
Unlawful act manslaughter and omissions
Unlawful act cannot be a crime of negligence
Unlawful act and strict liability crimes
What is a ‘dangerous’ act, and to whom must it pose a danger?
Linking the unlawful act to the death
Reform of UAM
Structure of Homicide Offences:
Murder? No homicide
No offence has been
Actus Reus: Has D unlawfully killed a person? committed.
Yes
Murder? Mens Rea: Did D act with the intention to kill or cause GBH?
Yes No
Voluntary manslaughter? Involuntary manslaughter?
D satisfies the actus reus and mens rea of D satisfies the actus reus but not the mens rea
murder. of murder.
Does D satisfy the elements of a partial Does D satisfy the elements of an involuntary
defence? manslaughter offence?
No Yes Yes No
D is liable for murder D is not liable for
D is liable for
(unless she satisfies one murder or manslaughter.
manslaughter.
of the general defences). Consider other offences.
The Concept of Involuntary Manslaughter:
Involuntary manslaughter describes homicides where D does not have the
mens rea for murder. It does not really have much to do with “voluntary”
conduct. Rather, it is distinguishing those killings where D has the MR for
murder from those where D does not.
“Involuntary manslaughter … means the form in which there is (or
need be) no intention (voluntas) to kill or to do grievous bodily harm
(a strange meaning of ‘Involuntary’). There are two subspecies,
both of them … exhibiting the common law at its worst…” Baker,
Glanville Williams Textbook of Criminal Law at 383.
, “Manslaughter [is] based mainly …on the absence of an intention to
kill, but the presence of an element of unlawfulness which is the
elusive factor” Lord Atkin in Andrews v DPP [1937].
There are four ‘types’ of involuntary manslaughter:
Unlawful act (constructive) manslaughter (UAM): D commits a
criminal act in dangerous circumstances, and this causes the death
of V.
Gross negligence manslaughter (GNM): D causes V’s death through
criminal negligence.
Reckless manslaughter: D causes V’s death, reckless as to that
result.
Corporate manslaughter: death caused by general culpability in the
management or organization of the company.
Two main ‘subspecies’ are UAM and GNM:
“[One is] called ‘gross negligence manslaughter’, though the
concept of ‘gross negligence’ will give us trouble. The other
subspecies is constructive manslaughter.” (Baker, ibid.)
“It is well-established and not in any way controversial that a
charge of manslaughter may be founded either on the unlawful act
of the defendant ("unlawful act manslaughter") or on the gross
negligence of the defendant.” (Kennedy (2) [2007] UKHL 38 at [7]
A third possibility, that of manslaughter by (subjective) recklessness, is
occasionally relied on.
UAM and GNM compared:
Unlawful Act Manslaughter: Gross Negligence Manslaughter:
D causes death (causation D causes death (causation
matters) matters)
By an unlawful (criminal) act – UAM By an act or omission when under
does not permit an omission a duty to act (e.g., medical cases)
Accompanied by mens rea; In breach of a duty of care to V
intentional recklessness
Which is also dangerous: it carries There was a serious and obvious
a risk, obvious to the reasonable risk of death – far higher than the
person (objective test, reasonable ‘of some injury’ risk under UAM.
bystander), of some injury – not
necessarily serious injury or even
risk of death as with GNM.
Reasonably foreseeable at the time
of breach; was death reasonably
foreseeable at the time?
Jury considers the breach to be
‘grossly’ negligent
Prosecuting manslaughter:
A verdict of manslaughter (of either UAM or GNM, or of reckless
manslaughter) can be the outcome of a charge of murder where the
2
, prosecution fails to prove intention. Or it can be charged as such – the
indictment will state that D ‘unlawfully killed’ V. The prosecution can seek
to establish either or both species, or reckless manslaughter, in the same
case (R v Goodfellow (1986)).
For a problem question, could look at murder first, with causation and
intention. Lack of intention leads down the involuntary manslaughter
route.
The Constructive Manslaughter ‘subspecies’ – recap of
constructive crime:
A constructive crime is one where the mens rea of a lesser/ ‘base’ offence
suffices for liability where a more serious result ensues:
“[offences] that also include additional actus reus elements, usually
in the form of result elements, that construct upon the base offence
to make a more serious crime”: Essentials at p. 134
In this sense, murder is still ‘constructive’ where D intends GBH (despite
the abolition of constructive/felony murder by the HA 1957). So are many
non-fatal offences e.g., the offence under s.47 OAPA 1861 of assault
occasioning actual bodily harm – the additional ‘ABH’ element is
‘constructed’ upon the base crime of assault.
Criticism of the general concept of constructive crime:
Criticism 1: Correspondence Principle - MR should have to be proved
in relation to all elements of AR (as in basic criminal damage under
CDA 1971). Applied to manslaughter this would limit the crime to
reckless killings (too narrow?).
Criticism 2: Fair Labelling - conviction should fairly reflect the
wrongdoing of the offender. Making the outcome an aggravating
feature distorts D’s wrong. R v Nica [2021] saw an immigration
offence the unlawful act which caused 39 deaths of immigrants,
should this not be the labelling, the conspiracy to breach an
immigration offence?
Fair labelling and correspondence are linked, but a lack of correspondence
does not always lead to unfair labelling. Much depends on the ‘gap’
between D’s culpability for the ‘base’ crime and the consequence for
which he is held responsible.
Unlawful Act Manslaughter:
3
The concept of involuntary manslaughter
The two main forms: Unlawful Act (‘constructive’) Manslaughter,
and Gross Negligence Manslaughter
Constructive manslaughter – problems of constructive crimes
The ‘unlawful act’ element and mens rea crimes
Unlawful acts and defences
Unlawful act manslaughter and omissions
Unlawful act cannot be a crime of negligence
Unlawful act and strict liability crimes
What is a ‘dangerous’ act, and to whom must it pose a danger?
Linking the unlawful act to the death
Reform of UAM
Structure of Homicide Offences:
Murder? No homicide
No offence has been
Actus Reus: Has D unlawfully killed a person? committed.
Yes
Murder? Mens Rea: Did D act with the intention to kill or cause GBH?
Yes No
Voluntary manslaughter? Involuntary manslaughter?
D satisfies the actus reus and mens rea of D satisfies the actus reus but not the mens rea
murder. of murder.
Does D satisfy the elements of a partial Does D satisfy the elements of an involuntary
defence? manslaughter offence?
No Yes Yes No
D is liable for murder D is not liable for
D is liable for
(unless she satisfies one murder or manslaughter.
manslaughter.
of the general defences). Consider other offences.
The Concept of Involuntary Manslaughter:
Involuntary manslaughter describes homicides where D does not have the
mens rea for murder. It does not really have much to do with “voluntary”
conduct. Rather, it is distinguishing those killings where D has the MR for
murder from those where D does not.
“Involuntary manslaughter … means the form in which there is (or
need be) no intention (voluntas) to kill or to do grievous bodily harm
(a strange meaning of ‘Involuntary’). There are two subspecies,
both of them … exhibiting the common law at its worst…” Baker,
Glanville Williams Textbook of Criminal Law at 383.
, “Manslaughter [is] based mainly …on the absence of an intention to
kill, but the presence of an element of unlawfulness which is the
elusive factor” Lord Atkin in Andrews v DPP [1937].
There are four ‘types’ of involuntary manslaughter:
Unlawful act (constructive) manslaughter (UAM): D commits a
criminal act in dangerous circumstances, and this causes the death
of V.
Gross negligence manslaughter (GNM): D causes V’s death through
criminal negligence.
Reckless manslaughter: D causes V’s death, reckless as to that
result.
Corporate manslaughter: death caused by general culpability in the
management or organization of the company.
Two main ‘subspecies’ are UAM and GNM:
“[One is] called ‘gross negligence manslaughter’, though the
concept of ‘gross negligence’ will give us trouble. The other
subspecies is constructive manslaughter.” (Baker, ibid.)
“It is well-established and not in any way controversial that a
charge of manslaughter may be founded either on the unlawful act
of the defendant ("unlawful act manslaughter") or on the gross
negligence of the defendant.” (Kennedy (2) [2007] UKHL 38 at [7]
A third possibility, that of manslaughter by (subjective) recklessness, is
occasionally relied on.
UAM and GNM compared:
Unlawful Act Manslaughter: Gross Negligence Manslaughter:
D causes death (causation D causes death (causation
matters) matters)
By an unlawful (criminal) act – UAM By an act or omission when under
does not permit an omission a duty to act (e.g., medical cases)
Accompanied by mens rea; In breach of a duty of care to V
intentional recklessness
Which is also dangerous: it carries There was a serious and obvious
a risk, obvious to the reasonable risk of death – far higher than the
person (objective test, reasonable ‘of some injury’ risk under UAM.
bystander), of some injury – not
necessarily serious injury or even
risk of death as with GNM.
Reasonably foreseeable at the time
of breach; was death reasonably
foreseeable at the time?
Jury considers the breach to be
‘grossly’ negligent
Prosecuting manslaughter:
A verdict of manslaughter (of either UAM or GNM, or of reckless
manslaughter) can be the outcome of a charge of murder where the
2
, prosecution fails to prove intention. Or it can be charged as such – the
indictment will state that D ‘unlawfully killed’ V. The prosecution can seek
to establish either or both species, or reckless manslaughter, in the same
case (R v Goodfellow (1986)).
For a problem question, could look at murder first, with causation and
intention. Lack of intention leads down the involuntary manslaughter
route.
The Constructive Manslaughter ‘subspecies’ – recap of
constructive crime:
A constructive crime is one where the mens rea of a lesser/ ‘base’ offence
suffices for liability where a more serious result ensues:
“[offences] that also include additional actus reus elements, usually
in the form of result elements, that construct upon the base offence
to make a more serious crime”: Essentials at p. 134
In this sense, murder is still ‘constructive’ where D intends GBH (despite
the abolition of constructive/felony murder by the HA 1957). So are many
non-fatal offences e.g., the offence under s.47 OAPA 1861 of assault
occasioning actual bodily harm – the additional ‘ABH’ element is
‘constructed’ upon the base crime of assault.
Criticism of the general concept of constructive crime:
Criticism 1: Correspondence Principle - MR should have to be proved
in relation to all elements of AR (as in basic criminal damage under
CDA 1971). Applied to manslaughter this would limit the crime to
reckless killings (too narrow?).
Criticism 2: Fair Labelling - conviction should fairly reflect the
wrongdoing of the offender. Making the outcome an aggravating
feature distorts D’s wrong. R v Nica [2021] saw an immigration
offence the unlawful act which caused 39 deaths of immigrants,
should this not be the labelling, the conspiracy to breach an
immigration offence?
Fair labelling and correspondence are linked, but a lack of correspondence
does not always lead to unfair labelling. Much depends on the ‘gap’
between D’s culpability for the ‘base’ crime and the consequence for
which he is held responsible.
Unlawful Act Manslaughter:
3
