The law commission report on involuntary manslaughter: (1) The restoration of a serious crime

Criminal Law Review

Volumn 1996, Issue 8, 1996, Pages 535-544

  Keating, Heather ^a  

^a UNIVERSITY OF SUSSEX   (United Kingdom)

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EID: 3042945499     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (75)

1. Para. 120 of the CLRC 14th Report, Offences Against the Person, Cmnd. 7844 (1980). This article will focus upon the general proposals of the Law Commission; the proposals in relation to corporate manslaughter are considered by Celia Wells, "The Corporate Manslaughter Proposal: Pragmatism, Paradox and Peninsularity", post p.545.
2. Para. 120 of the CLRC 14th Report, Offences Against the Person, Cmnd. 7844 (1980). This article will focus upon the general proposals of the Law Commission; the proposals in relation to corporate manslaughter are considered by Celia Wells, "The Corporate Manslaughter Proposal: Pragmatism, Paradox and Peninsularity", post p.545.
3. The criteria of good law employed by counsel for the defence in Adomako [1995] 1 A.C. 171.
4. [1995] 1 A.C. 171.
5. Most notably the commentary to the decision by J. C. Smith at [1994] Crim.L.R. 757.
6. See, for example, Graham Virgo, "Reconstructing Manslaughter on Defective Foundations" [1995] C.L.J. 14.
7. Law Com., "Legislating the Criminal Code: Involuntary Manslaughter", Law Com. No. 237 (1996), para. 3.9. See also, Simon Gardner, "Manslaughter by Gross Negligence" (1995) 111 L.Q.R. 22 at 23.
8. Law Com., "Legislating the Criminal Code: Involuntary Manslaughter", Law Com. No. 237 (1996), para. 3.9. See also, Simon Gardner, "Manslaughter by Gross Negligence" (1995) 111 L.Q.R. 22 at 23.
9. ibid. paras. 3.10-3.13; Sybil Sharpe, "Grossly negligent Manslaughter after Adomako" (1994) 158 J.P. 725; Graham Virgo, ante n. 5 at p.16.
10. ibid. paras. 3.10-3.13; Sybil Sharpe, "Grossly negligent Manslaughter after Adomako" (1994) 158 J.P. 725; Graham Virgo, ante n. 5 at p.16.
11. ibid. paras. 3.10-3.13; Sybil Sharpe, "Grossly negligent Manslaughter after Adomako" (1994) 158 J.P. 725; Graham Virgo, ante n. 5 at p.16.
12. Para. 3.6.
13. The Law Commission argues that there is a danger that the more serious types of killing described by the term manslaughter could come to be regarded as less serious because they carry the same descriptive label as other less serious forms of killing (para. 3.4).
14. The Law Commission states that experience has shown it that it is best to proceed with reform by slow degrees. Moreover, it takes the view that there would seem little point in reviewing murder at a time when the Government has made it clear that it sees no reasons to change the law relating to it (para. 1.27-1.28).
15. Cunningham [1982] A.C. 566. Under the Draft Criminal Code this would be restricted to where the defendant killed, having intended to cause grievous bodily harm but being aware that death may result (Draft Criminal Code Bill 1989, Law Com. No. 177, clause 54(1)(b)). However, the prospects for this overdue reform seem bleak at this time as the Law Commission acknowledges (para. 1.28).
16. See Moloney [1985] A.C. 950; Hancock and Shankland [1986] A.C. 455; Nedrick [1986] 1 W.L.R. 1025; Walker and Hayles (1990) 90 Cr.App.R. 226.
17. See Moloney [1985] A.C. 950; Hancock and Shankland [1986] A.C. 455; Nedrick [1986] 1 W.L.R. 1025; Walker and Hayles (1990) 90 Cr.App.R. 226.
18. See Moloney [1985] A.C. 950; Hancock and Shankland [1986] A.C. 455; Nedrick [1986] 1 W.L.R. 1025; Walker and Hayles (1990) 90 Cr.App.R. 226.
19. See Moloney [1985] A.C. 950; Hancock and Shankland [1986] A.C. 455; Nedrick [1986] 1 W.L.R. 1025; Walker and Hayles (1990) 90 Cr.App.R. 226.
20. G. Gordon, "The Mental Element in Crime" (1971) 16 J.L.S.S. 282.
21. See, for example, CLRC, Working Paper on Offences Against the Person (1976), paras. 5-7.
22. As recommended, for example, by the House of Lords Select Committee to Murder and Life Imprisonment (1989) H.L. Paper and the report of the Committee on the Penalty for Homicide (1993, Prison Reform Trust). Again, it seems very unlikely that this reform will be implemented.
23. Adopting Michael Moore's phrase: Act and Crime (1993), p.4.
24. Para. 4.10.
25. [1975] A.C. 55.
26. Goodfellow (1986) 83 Cr.App.R. 23.
27. Para. 4.10.
28. J. Horder, "A Critique of the Correspondence Principle in Criminal Law" [1995] Crim.L.R. 759 at 770.
29. Para. 4.19.
30. Ante, n. 21 at p.769.
31. There is an important caveat to this. The foreseeability of the harm may be such (i.e. of death or serious injury) as to render the defendant culpable; post p.542-544.
32. "Force, Injury and Serious Injury" [1990] New L.J. 1127. On the question of the definition of serious injury, see further, C. M. V. Clarkson, "Violence and the Law Commission" [1994] Crim.L.R. 324 at 327-328.
33. "Force, Injury and Serious Injury" [1990] New L.J. 1127. On the question of the definition of serious injury, see further, C. M. V. Clarkson, "Violence and the Law Commission" [1994] Crim.L.R. 324 at 327-328.
34. Para. 4.2. As the Law Commission notes, this theory has been evident in many of its reports, from The Mental Element in Crime, Law Com. No. 89 (1978) through to Legislating the Criminal Code: Offences against the Person and General Principles, Law Com. No. 218 (1993). In Legislating the Criminal Code: Intoxication and Criminal Liability, Law Com. No. 229 (1995) its approach was modified somewhat in response to consultation by its final recommendation that a person may be deemed to have acted recklessly if failure to form the required awareness of risk was due to self-induced intoxication. See also, Consent in the Criminal Law (1995), Consultation Paper No. 139.
35. Para. 4.2. As the Law Commission notes, this theory has been evident in many of its reports, from The Mental Element in Crime, Law Com. No. 89 (1978) through to Legislating the Criminal Code: Offences against the Person and General Principles, Law Com. No. 218 (1993). In Legislating the Criminal Code: Intoxication and Criminal Liability, Law Com. No. 229 (1995) its approach was modified somewhat in response to consultation by its final recommendation that a person may be deemed to have acted recklessly if failure to form the required awareness of risk was due to self-induced intoxication. See also, Consent in the Criminal Law (1995), Consultation Paper No. 139.
36. Para. 4.2. As the Law Commission notes, this theory has been evident in many of its reports, from The Mental Element in Crime, Law Com. No. 89 (1978) through to Legislating the Criminal Code: Offences against the Person and General Principles, Law Com. No. 218 (1993). In Legislating the Criminal Code: Intoxication and Criminal Liability, Law Com. No. 229 (1995) its approach was modified somewhat in response to consultation by its final recommendation that a person may be deemed to have acted recklessly if failure to form the required awareness of risk was due to self-induced intoxication. See also, Consent in the Criminal Law (1995), Consultation Paper No. 139.
37. Para. 4.2. As the Law Commission notes, this theory has been evident in many of its reports, from The Mental Element in Crime, Law Com. No. 89 (1978) through to Legislating the Criminal Code: Offences against the Person and General Principles, Law Com. No. 218 (1993). In Legislating the Criminal Code: Intoxication and Criminal Liability, Law Com. No. 229 (1995) its approach was modified somewhat in response to consultation by its final recommendation that a person may be deemed to have acted recklessly if failure to form the required awareness of risk was due to self-induced intoxication. See also, Consent in the Criminal Law (1995), Consultation Paper No. 139.
38. Legislating the Criminal Code: Offences Against the Person and General Principles, Law Com. No. 218 (1993). The three offences proposed form a hierarchy of seriousness from intentionally causing serious injury, to recklessly causing serious injury, to intentionally or recklessly causing injury. A person is defined as behaving recklessly if "he is aware of a risk that it will occur, and it is unreasonable, having regard to all the circumstances known to him, to take that risk". (Criminal Law Bill, cl. 1). See further Clarkson, ante n.25.
39. Para. 4.4.
40. Para. 4.5. See J. Horder, ante n.21.
41. See further, Bernard Williams, Moral Luck (1981); T. Honoré, "Responsibility and Luck" (1988) 104 L.Q.R. 530.
42. See further, Bernard Williams, Moral Luck (1981); T. Honoré, "Responsibility and Luck" (1988) 104 L.Q.R. 530.
43. J. Horder, ante n. 21 at p.764.
44. See further, R. A. Duff, Intention, Agency and Criminal Liability (1990).
45. Horder, ante n.21 at p.764.
46. ibid. at pp.764-765.
47. The question of capacity must also be considered. See post p.542-543.
48. H. L. A. Hart, Punishment and Responsibility (1968); R. A. Duff, Intention, Agency and Criminal Liability (1990) as well as, of course Lord Diplock in Caldwell [1982] A.C. 341 at 252.
49. H. L. A. Hart, Punishment and Responsibility (1968); R. A. Duff, Intention, Agency and Criminal Liability (1990) as well as, of course Lord Diplock in Caldwell [1982] A.C. 341 at 252.
50. H. L. A. Hart, Punishment and Responsibility (1968); R. A. Duff, Intention, Agency and Criminal Liability (1990) as well as, of course Lord Diplock in Caldwell [1982] A.C. 341 at 252.
51. Para. 4.17. The Law Commission does not indicate which of the commentators' views it found most persuasive.
52. Clarkson, ante n. 25 at p.330.
53. (1983) 77 Cr.App.R. 103.
54. [1992] 1 W.L.R. 791.
55. See further, L. H. Leigh, "Liability for Inadvertence: A Lordly Legacy" (1995) 58 M.L.R. 457 at 461.
56. Clarkson, ante n. 25 at p.330. It is also suggested that to restrict liability to those who foresee the consequences may be "unrealistic and impractical" given that much violence "happens fast when tempers are flared, often (influenced by) alcohol" (p.331). This argument can be applied to manslaughter as well as to non-fatal offences.
57. Para. 5.7.
58. CLRC, Offences Against the Person, 14th Report, Cmnd. 7844 (1980), paras. 119-124.
59. ibid. para. 120.
60. The Law Society took this view; see para. 4.36.
61. Para. 4.39.
62. The analogy is, of course, not completely accurate since (thankfully) burning dinner is not yet criminal!
63. Para. 4.18.
64. Para. 4.20.
65. H. L. A. Hart, Punishment and Responsibility (1968), pp.152 et seq.
66. The recommendation would enable either permanent or temporary incapacity to be taken into account (para. 5.29) and thus would resolve any residual doubt concerning the impact of Reid, ante n. 40.
67. This offence, which is not considered in this article, would remain unchanged by the reforms. However, it rightly recommends that it should, in appropriate circumstances, be possible to charge a driver who kills with either of the new forms of manslaughter (para. 5.69).
68. Para. 5.34.
69. Para. 5.27.
70. Ante, p.535.
71. Para. 5.32.
72. Para. 5.33.
73. Nicola Padfield, "Manslaughter: The Dilemma Facing the Law Reformer" (1995) J.Crim.L. 291 at 296.
74. The Report noted, for example, that the proposed offence of reckless killing won almost uniform support; para. 5.7.
75. See further, Padfield, ante n. 59.