Medical staff for example aestheticians can be convicted of manslaughter if they are found to be grossly negligent in their work and if their negligence has led to the death of a patient.
In R v Adomako (1994) the accused was an aesthetician who was in charge of administering anesthetics during an operation. While in surgery an oxygen pipe got disconnected and the patient died from the resulting complications. The accused was charged and convicted for manslaughter. The accused appealed.
The Court of Appeal dismissed the conviction but the House of Lords upheld the conviction on the grounds that the cause of death was not recklessness but gross negligence in breach of a duty.
R v OLL Ltd (1994) (also known as the Lime Bay canoe disaster) (Corporate Manslaughter) the company sent a group of students into the sea, during rough weather, when conditions were harsher than normal, and as a result the canoe capsized and four of the students drowned. The defendant, the managing director of the company was charged and convicted of constructive manslaughter.
In this instance it was possible to narrow down the “controlling mind” and the mishap would not have taken place had it not been for the actions or the inactions of the controlling mind and it implies that the person in charge or the controlling mind could have prevented the mishap if he or she so desired.
It is easier to narrow down the controlling mind in smaller companies where the decision is made by a single person as opposed to large corporations where more than one person is involved in the decision making process.
In R v Henderson (1995) (Corporate Manslaughter), two boats, the Marchioness and the Bowbelle collided on the River Thames and the collision resulted in substantial loss of life.
An inquiry was held after the accident and the cause of the accident was determined to be a failure by the boat crews to keep an adequate lookout. Upon further examination the prosecution decided that there was sufficient evidence to bring a charge of manslaughter.
The case went to trial and two juries failed to reach a verdict or find sufficient grounds to convict the defendant.
- It might be worth, for the sake of argument, in order to narrow down the controlling mind, to ask the question who among all those that were implicated could have stopped or prevented the accident and then ask:-
- If that person had sufficient authority to prevent the accident and
- If the accident would have occurred regardless of whether that person took the necessary steps to prevent the accident or otherwise.
Earlier on under constructive manslaughter or unlawful act manslaughter we had established that a defendant cannot be convicted for constructive manslaughter or unlawful act manslaughter if the death that occurred was the result of an omission i.e. a failure to comply with a duty imposed by either common law or statute. That however does not mean that the defendant would not be guilty of reckless manslaughter or involuntary manslaughter.
In Harris & Harris, R v (1993) the defendants, the parents, refused to allow doctors to treat their daughter with insulin. The child suffered from diabetes and the child died as a result. The parents were found guilty of manslaughter.
Parents have a duty to act responsibly when it comes to making decisions with regards to their children and a failure to do so or to act in accordance with the duties imposed by either common law or statute may compel the courts to impose some form of sanctions on the parents.
A failure to act in the manner that most people would under the circumstances or the manner in which a reasonable man would in the given circumstances may also compel a court or a jury to find the defendant(s) guilty.
In R v Khan (1993) the defendants were drug dealers who supplied a girl with a class A drug (heroin). It soon became apparent that the girl needed medical attention but the defendants left her by herself and her body was found the next day dumped in a waste disposal ground.
As per the decision in R v Dias (2002) the defendants could not be found guilty of constructive manslaughter or unlawful act manslaughter and this includes situations where the dealer has prepared the solution and handed in to the victim in a syringe if the victim is “a fully informed and responsible adult”.
Here the victim was a minor (15 years old) and did not fall into the category of or cannot be classed as a fully informed and responsible adult.
The defendants were not convicted for constructive manslaughter or unlawful act manslaughter but were found guilty instead, of involuntary manslaughter or reckless manslaughter by way of omission i.e. for failing to comply with a duty imposed by either common law or statute or for failing to act in the manner a reasonable man would have in the given circumstances.
Under manslaughter the prosecution has some discretion to go for the types of manslaughter that are available to obtain a conviction but it is important that the prosecution gets it right the first time because the courts might not allow or might be reluctant to allow a retrial.
In R v P & O European Ferries (Dover) (1991) (Corporate Manslaughter) we look into the possibility of holding a company responsible for the reckless act(s) of its employee(s) which subsequently leads to the death of those who have entrusted the company with their lives (corporate manslaughter). The captain of a ferry and five of his crew members failed to close the main loading doors on a cross-channel ferry and as a result a few hundred passengers lost their lives.
The first question we need to ask was why an action was brought in criminal law and not in tort (civil law), where the chances are higher that compensation would be paid out for example see Ward v Tesco Stores Ltd (1976) (physical injury) or Barrett v Ministry of Defense (1995) (loss of life)?
Secondly, does vicarious liability (a legal doctrine that imposes a liability on another by virtue of a legal relationship or a special relationship with the tortfeasor (the person who committed the tort)) extend to criminal law? The general rule is that vicarious liability does not extend to criminal law.
In order to obtain a conviction for corporate manslaughter: –
- We need to identify the “controlling mind” of the company which is easier when company decisions are made by one person as opposed to a group of people. In the latter (where there is more than one person involved in making the day to day decisions of running the company it becomes more difficult to narrow down the “controlling mind”)
- Once we have identified the “controlling mind”, we need to establish that the “controlling mind” was reckless in the legal sense of the word.
The company was found to be not guilty of manslaughter. That however does not mean that companies cannot be liable or cannot be found guilty of manslaughter see R v OLL Ltd (1994)
In R v Reid (1992) the defendant was driving on a dual carriageway and overtook another car on the left or the nearside and hit a hut that was close to the road as a result of which a passenger who was in the car with him was killed.
The defendant was found to be guilty of manslaughter. The test for recklessness cannot be limited to the subjective test and it includes failing to appreciate an obvious risk.
In R v Seymour (1983) the accused had a heated argument with his girlfriend and subsequently, according to him, tried to push or force her car out of the way with his eleven-ton lorry. The victim got out of the car but was crushed between the car and the lorry. The accused was charged and convicted of manslaughter.
It was held that, with regards to death that is caused by reckless driving, the test that is to be applied is the test in R v Lawrence (1981) i.e. the question that was to be asked was whether the defendant was driving in a manner that gave rise to an obvious and serious risk and whether the defendant gave any thought to the risk or having given it some thought dismissed it. However, the risk that is caused by the manner in which the defendant is driving must be very high.
In Kong Cheuk Kwan v The Queen (1985) (Privy Council) the appellants were drivers of two hydrofoils that collided in perfect weather and resulted in the loss of lives. It was decided that the test that was to be applied was the test in in R v Lawrence (1981) and the appellants were found to be guilty.
In R v Goodfellow (1986) the accused who’d been repeatedly harassed by a couple of men set fire to his own home and his wife, son and his son’s girlfriend, who were in the house at the time, died in the fire. The accused was tried and convicted for manslaughter. The accused appealed but the conviction was upheld.
With regards to the mental element or mens rea that needs to be satisfied in order to establish or obtain a conviction for constructive manslaughter or unlawful act manslaughter all the prosecution needs to do is to establish that there was an intention to commit an unlawful act i.e. that the defendant intended to commit the unlawful act.
There is no requirement for the defendant to foresee that some harm may result from his or her actions. Let’s revert back to the example of throwing stones through the shop window we gave earlier. It is sufficient that the defendant intended to throw stones through the shop window.
If one of the stones goes through the glass window, knocks over a lit oil lamp and subsequently starts a fire and two workers that are sleeping in the shop at the time die as a result, the defendant has satisfied the mental element or mens rea required to establish or convict for constructive manslaughter or unlawful act manslaughter regardless of the fact that the defendant could not have foreseen the result or the consequences of his or her actions.
In DPP v Newbury (1977) two teenage boys pushed a stone slab off a bridge onto an oncoming train. The stone slab went through a glass window and killed a guard. The boys were convicted of manslaughter and the defense appealed.
The appeal was dismissed. An unlawful act can form the basis for a conviction of manslaughter regardless of the fact that the defendants did not foresee death or the extent of the harm. The defendants also: –
- Need not be aware that the act was unlawful i.e. ignorance of the law in general is no excuse though in limited circumstances it may provide a defense on a criminal charge
- There need not be an intention to cause some form or type of physical injury.
Thus far we have looked at the actus reus (or the guilty act) to successfully obtain a conviction for constructive manslaughter. The act has to be unlawful and the unlawful act must satisfy the following criteria:-
- The unlawful act must be unlawful in criminal law and not just civil law
- The act must be an overt act and an omission or a failure to do something when there is a duty imposed by either common law or statute to do so will not suffice see R v Lowe (1973)
- The act must not merely result in physical injury but must be an act that the reasonable man would view as serious and an act that as far as the reasonable man is concerned would lead to dire consequences. Even if there is an assault it may not be sufficient to give rise to a conviction of constructive manslaughter see R v Arobekieke (1988).
The test that that is used to determine if the act may lead to serious consequences or could be fatal is the objective test (or the reasonable man’s test)
- The unlawful act need not be directed at the victim see R v Larkin (1942) and R v Mitchell (1983) and
- The act must result in the death of the victim but the death must not be due to an inherent illness or a preexisting medical condition see R v Dawson (1985) and R v Carey & Ors (2006)
Let us now look at the mens rea or the mental element that is needed or required to obtain a conviction for constructive manslaughter or unlawful act manslaughter.
The question of whether injecting oneself with heroin, or any other drug that is listed as a class A drug under the Misuse of Drugs Act 1971, is in itself an unlawful act, arose is the case of R v Dias (2002).
In R v Dias (2002) the appellant and the victim jointly purchased some heroin. Like in R v Kennedy (1999) the appellant helped prepare the solution and handed it to the victim in a syringe. The victim then injected himself and died as a result.
The trial judge directed the jury in accordance with the decision in R v Kennedy (1999) and the jury returned a verdict of constructive manslaughter. The defense appealed.
The appeal was allowed and the conviction was quashed. The question that was raised was whether it was illegal to do or commit an act that results or eventuates in one’s own death?
In order to find the answer we have to look at the act itself. In this instance it was injecting oneself with heroin. The question that needs to be asked is whether injecting oneself with heroin is illegal? If the answer is no then the defendant cannot be jointly responsible for bringing about the death of the victim because the act in itself i.e. the act that led to the death of the victim was not illegal.
Can the facts in R v Dias (2002) be distinguished (i.e. can the facts be differentiated) from the facts in R v Kennedy (1999)? Possibly; in the earlier case, R v Kennedy (1999), the defendant supplied the drugs and the courts most likely adopt a sterner view when the defendant is also the supplier.
In R v Dias (2002) the defendant and the victim jointly purchased the drugs i.e. the defendant was not the supplier. No doubt the defendant has committed a felony; under the Misuse of Drugs Act 1971 it is an offence to be in possession of class A drugs but whether the defendant is guilty of anything more is in fact a matter for the courts to decide.
- The law was later clarified by the House of Lords in that it is not appropriate to convict a person of constructive manslaughter when he supplies a class A drug to a fully informed and responsible adult.
- The term fully informed and responsible adult is important because the situation may be different if the drugs were supplied to a minor or someone whose reasoning abilities and capabilities are below that of the average person.
The classification of the drug may be crucial in determining if whether a defendant is convicted for constructive manslaughter or otherwise. Judges may be more lenient when the drugs that are the cause of the death do not fall into the category of class A drugs.
In R v Kennedy (1999) the defendant supplied the drug, prepared the solution and handed it to the victim in a syringe. The victim injected himself with the solution and later died as a result. The drug that was involved was a class A drug (heroin). The defendant was tried and convicted for constructive manslaughter or unlawful act manslaughter and the defense appealed on the grounds that the defendant supplied and prepared the solution but did not administer it.
The appeal was dismissed and the conviction was upheld. The decision is in line with the decision in R v Cato (1976) and the class of drug that is concerned plays an important role in determining if the conviction remains or otherwise.
With regards to causing the death of the victim, where the defendant’s act plays a significant role in bringing about the death, in this instance the defendant prepared the syringe and handed it to the victim, he may be held to be jointly responsible for the death.
Copyright © 2018 by Dyarne Ward
With reference to the decision in R v Cato (1976) it is important to note that the supply of drugs by itself may not lead to a conviction of constructive manslaughter or unlawful act manslaughter even if there is a very high possibility or a real likelihood that the drug may be abused or misused.
The Misuse of Drugs Act 1971 divides drugs into three categories – Class A, Class B and Class C. Drugs listed under class A are the most dangerous and it is a felony to possess, sell or supply these drugs. Therefore, when dealing with drug related offences it is worth taking into account the classification of the drug as per the Misuse of Drugs Act 1971.
In R v Dalby (1982), the defendant supplied the victim with diaconal tablets. They defendant and the victim then parted company and the victim went off clubbing with some friends and during the course of the night the victim injected himself twice with the drugs with the help of his friends. He returned home and fell asleep and died in his sleep. All attempts to wake him up the following morning were unsuccessful. The defendant was tried and convicted for manslaughter and the defense appealed.
The conviction for manslaughter was quashed because it was not the supply of the drugs that had caused the death. It was injecting the drug into one’s body with or without the help of friends that was the cause of death.
Diaconal and its generic equivalents can still be purchased online with a prescription. If anything, the defendant would have been guilty of a felony.
It is possible to distinguish the decision in R v Cato (1976) with the decision R v Dalby (1982) in the following manner: –
- Heroin is a class A drug which is highly dangerous and diaconal tablets may not fall under the category of a Class A drug.
- In R v Cato (1976) the defendant not only supplied the drug but he also administered it or helped administer it. In R v Dalby (1982) the defendant merely supplied the drug.
Copyright © 2018 by Dyarne Ward
The unlawful act must cause death or the victim must have died as a result of the unlawful act. In all the cases that we have looked at thus far the victim died as the result of the defendant’s unlawful actions.
In R v Cato (1976) the defendant injected the victim with drugs (heroin), with the consent of the victim; both the victim and defendant were drug addicts. The victim was found dead in the morning and the defendant was arrested and tried for administering a noxious item as per s.23 of the OAPA (Offences Against the Person Act) 1861. The section reads as follows:
23. Maliciously administering poison so as to endanger life or inflict grievous bodily harm.
-Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for any term not exceeding ten years . . .
The defense appealed on the grounds that heroin, the drug that the victim was injected with, was not noxious and the act of injecting the victim was not malicious because there was an element of consent involved or the victim consented to being injected. The appeal was dismissed and the conviction was upheld.
- Any drug even drugs that are commonly prescribed by doctors can be lethal. Aspirin for example can be fatal if administered or taken in access.
- Consent in not a defense to manslaughter. Even if the victim consents, if the act results in death than the element of consent can be negated.
Copyright © 2018 by Dyarne Ward