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Criminal Law Directions

Criminal Law Directions (7th edn)

Nicola Monaghan
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date: 30 January 2023

p. 1356. Involuntary manslaughterfree

p. 1356. Involuntary manslaughterfree

  • Nicola MonaghanNicola MonaghanPrincipal Lecturer in Law, University of Worcester

Abstract

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This chapter explores the main types of involuntary manslaughter: unlawful act manslaughter, gross negligence manslaughter, and reckless manslaughter, as well as the offence of corporate manslaughter. Unlawful act manslaughter arises where the defendant intentionally commits an unlawful act which a reasonable person would recognise exposes the victim to the risk of some harm and the victim dies as a result. Gross negligence manslaughter arises where the defendant causes the death of the victim through the breach of a duty of care owed to that victim.

Learning Objectives

By the end of this chapter, you should be able to:

define unlawful act manslaughter and explain the elements of the offence;

explain the development of the law relating to the ‘drugs cases’;

define gross negligence manslaughter and explain the elements of the offence;

understand the offence of subjectively reckless manslaughter; and

understand the offence of corporate manslaughter.

Introduction

This chapter deals predominantly with situations where a defendant kills the victim but does not have the requisite mens rea for murder (see chapter 5). Imagine that a defendant punches the victim once in the chest, causing the victim to fall back and strike his head, and resulting in his death (such a defendant is known colloquially as a ‘one-punch killer’). One punch to the chest is unlikely to be sufficient to prove an intention to kill or cause GBH, so the defendant will not be guilty of murder, but surely this cannot mean that the defendant escapes liability? What about a defendant who takes drugs together with the victim, injecting the victim with a dose of heroin that kills him? If the object of the injection was not to kill or cause GBH, the defendant will not be guilty of murder, but having injected the heroin into the victim’s body, surely the defendant must be held criminally liable for the death of the victim? In fact, the defendant in each of these examples is likely to be convicted of unlawful act manslaughter, a form of involuntary manslaughter.

This chapter explores the main types of involuntary manslaughter and the offence of corporate manslaughter. A defendant will be guilty of involuntary manslaughter where he unlawfully causes the death of the victim but has no intention to kill or cause GBH (i.e., the defendant does not have the requisite mens rea for murder). The three main types of involuntary manslaughter are unlawful act manslaughter, gross negligence manslaughter, and reckless manslaughter. These will be discussed in detail in this chapter. The final section of this chapter will then cover two further offences of involuntary manslaughter: the offence of corporate manslaughter under s.1 of the p. 136Corporate Manslaughter and Corporate Homicide Act 2007 and the offence of causing or allowing the death of or serious harm to a child or vulnerable adult under s.5 of the Domestic Violence, Crime and Victims Act 2004.

6.1 Unlawful act manslaughter

Unlawful act manslaughter arises where the defendant intentionally commits an unlawful act which a reasonable person would recognise exposes the victim to the risk of some harm and the victim dies as a result. Unlawful act manslaughter is also known as ‘constructive manslaughter’ because the defendant’s liability for manslaughter is constructed out of his liability for a lesser offence. The offence of unlawful act manslaughter was defined by the Court of Criminal Appeal in the case of Larkin (1944) 29 Cr App R 18. The defendant in this case killed his girlfriend when she fell on a razor he was holding. When he saw her at a party with another man, the defendant brandished a razor to scare the man. However, the victim drunkenly swayed towards him and fell on the razor, which cut her throat and killed her. The defendant was convicted of manslaughter. The Court of Criminal Appeal dismissed the appeal. Humphreys J explained how liability for manslaughter arises through an unlawful act:

Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.

This type of manslaughter was also defined in the House of Lords’ authority of DPP v Newbury and Jones [1977] AC 500.

Case Close-Up

DPP v Newbury and Jones [1977] AC 500

The defendants in this case were two 15-year-old boys who were on a railway bridge. They pushed a paving stone over the bridge onto an oncoming train. The stone went through the glass window of the driver’s cab, killing the guard. The defendants were convicted of manslaughter. Their appeals to the Court of Appeal and House of Lords were dismissed. Lord Salmon defined unlawful act manslaughter:

[A]n accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death … [I]t is unnecessary to prove that the accused knew that the act was unlawful or dangerous.

However, the House did not specify what the unlawful act was in this case. Lord Salmon identified four ingredients of unlawful act manslaughter which must be proved by the prosecution in order to secure a conviction:

1)

the defendant must intentionally do an act;

2)

the act must be unlawful;

3)

the act must be dangerous;

4)

the act must cause death.

Thinking Point

What do you think the unlawful act was in DPP v Newbury and Jones (1977)?

p. 137Unlawful act manslaughter involves the commission of an unlawful act which inadvertently causes death. The defendant need not intend to kill (as this would amount to murder); in fact, he need not even foresee the death of the victim. There is no requirement that the defendant knows that the act is unlawful and dangerous. The offence is objectively assessed in this regard—the reasonable person must merely recognise the risk of some harm (see 6.1.3). The only elements of subjectivity in the offence lie in the intentional commission of an act (see 6.1.1) and the mens rea of the unlawful act which must be proved (see 6.1.2). As such, the offence of unlawful act manslaughter punishes an offender for the consequences of their conduct, even though there is no corresponding mens rea.

These four elements will be explored in 6.1.16.1.4.

6.1.1 Intentional act

The first element that the prosecution must prove is that the defendant intentionally did an act. The intention in this element relates to the act committed by the defendant and not the resultant death. Where the death is intentionally caused, the defendant is guilty of murder, not manslaughter.

It appears that in order to be guilty of unlawful act manslaughter, the defendant must intentionally engage in a positive act. A negligent omission will not suffice. In the case of Lowe [1973] QB 702, the defendant wilfully neglected his child, contrary to s.1(1) of the Children and Young Persons Act 1933, resulting in the child’s death. This was not sufficient for a conviction for unlawful act manslaughter. It remains unclear whether a defendant might be convicted of unlawful act manslaughter on the basis of an intentional or deliberate omission. It is difficult to identify any rationale for distinguishing between deliberate acts and deliberate omissions which both lead to the same result, the death of a person.

6.1.2 Unlawful act

The second requirement is that the act be unlawful. This means that it must be a criminal offence. The prosecution must prove both the actus reus and the mens rea of the offence. Historically, a civil wrong was held to be sufficient as the unlawful act. In the case of Fenton (1830) 1 Lewin 179, it was held that liability for manslaughter could be constructed out of the tort of trespass to the person. However, Fenton (1830) was rejected in Franklin (1883) 15 Cox CC 163. The defendant in this case took a box from a refreshment stall on Brighton Pier and threw it into the sea. The box struck a swimmer in the sea, killing him. It was held that the tort of trespass to the property of the stall keeper was not sufficient for constructive manslaughter. Field J stated that a civil tort should not form the basis of liability for a criminal offence. The unlawful act must be a criminal offence. Thus, the defendant was convicted of gross negligence manslaughter, rather than unlawful act manslaughter.

The unlawful act must amount to a criminal offence in law. The prosecution must prove both the actus reus and mens rea of the crime and the absence of a defence. If these basic elements of criminal liability cannot be established, there is no unlawful act and, thus, there can be no liability for unlawful act manslaughter.p. 138

Case Close-Up

Lamb [1967] 2 QB 981

The case of Lamb involved an unfortunate accident which occurred during a practical joke. The defendant pointed a loaded revolver at his friend, the victim. Although the defendant and victim knew that there were bullets in the cylinder of the revolver, there was no bullet opposite the barrel of the gun, and they did not realise that the cylinder rotated when the trigger was pulled. Thus, both the defendant and the victim believed that no bullet would be fired from the gun if the defendant pulled the trigger. Unfortunately, they were wrong. The defendant did pull the trigger and killed his friend. The defendant was charged with manslaughter. He argued that the killing was an accident.

The trial judge directed the jury that the defendant pointing the gun at the victim could be an unlawful act for the purposes of unlawful act manslaughter. The defendant was accordingly convicted of unlawful act manslaughter and appealed.

The Court of Appeal allowed the appeal and quashed the defendant’s conviction. The Court held that unlawful act manslaughter required proof of a criminal offence. In this case, there was no criminal offence. There was no assault because the mens rea of assault was not present. The defendant did not intend to cause the victim to apprehend immediate and unlawful violence because the killing was an accident. He could not intend to cause such apprehension when neither he nor the victim thought that a bullet would be fired from the gun. The Court held that the trial judge had misdirected the jury, effectively withdrawing the defence of accident from their consideration.

Thinking Point

The Court of Appeal in Lamb (1967) focused on the absence of the mens rea of assault. Was the actus reus present?

Was there any other offence of which the defendant could have been convicted?

Why would this not be sufficient as a basis for a conviction for unlawful act manslaughter?

It should also be noted that recklessness is sufficient mens rea for an assault. It is enough that the defendant recognised the risk that the victim would apprehend immediate and unlawful violence and went on to take that risk. However, it is clear that the defendant in this case did not recognise such a risk as he did not believe that a bullet would be fired from the gun if he pulled the trigger. Similarly, it could be argued that the actus reus of assault is also absent in this case. As the unfortunate events of this case originated as a practical joke, it is most unlikely that the victim apprehended immediate and unlawful violence. It was not necessary for the court to consider whether the actus reus of assault was present or not because the trial judge had clearly misdirected the jury and the mens rea of assault was absent.

There will be no liability for unlawful act manslaughter where the defendant has a defence to the unlawful act, such as where he is lawfully using self-defence in applying force to the victim: ‘if the application of force is committed in lawful self-defence, it does not constitute p. 139an assault and it is not unlawful. Accordingly … there will be no conviction for manslaughter’ (see Webster v Crown Prosecution Service [2014] EWHC 2516 (Admin) at [21]).

Cross Reference

Refer to 7.1 to ascertain the elements of an assault.

The cases discussed in this paragraph and those discussed in 6.1.3 and 6.1.4 illustrate that the criminal offence which constitutes the unlawful act may vary. An assault may amount to an unlawful act for the purposes of unlawful act manslaughter (e.g., see Lewis [2010] EWCA Crim 151), as may robbery under s.8 of the Theft Act 1968, burglary under s.9(1) of the Theft Act 1968, or maliciously administering poison or a noxious thing so as to endanger life or inflict grievous bodily harm under s.23 of the Offences Against the Person Act 1861. In the case of Carey [2006] EWCA Crim 17, it was held that the minor affray committed in this case did not amount to an unlawful act for the purposes of unlawful act manslaughter because there was no evidence that the affray was objectively dangerous. Nevertheless, the Court acknowledged that there could be circumstances in which an affray could constitute an unlawful act for the purposes of unlawful act manslaughter, and in the case of M [2013] 1 WLR 1083, the Court of Appeal confirmed that an affray could constitute an unlawful act for the purposes of unlawful act manslaughter. The victim in this case was a nightclub doorman who, unbeknown to anyone, suffered from a heart condition. He became involved in a verbal altercation with the defendants outside the nightclub and the altercation resulted in the death of the doorman after he suffered shock and collapsed. The Court held that affray can constitute the unlawful act, ‘whether it takes the form of fear created in or direct violence suffered during the course of the affray’ [at 14]. It has even been held that the offence of interference with a motor vehicle under s.22A(1)(b) of the Road Traffic Act 1988 could constitute an unlawful act for the purposes of unlawful act manslaughter. In Meeking [2012] 1 WLR 3349, the Court of Appeal upheld the defendant’s conviction for unlawful act manslaughter. The defendant was the passenger in a car which her husband was driving. She pulled on the handbrake when the car was moving and without warning. The car spun across the road and collided with another car, killing her husband. The act of pulling on the handbrake constituted an offence of interference with a motor vehicle and this was sufficient to found a conviction of unlawful act manslaughter. The Court commented obiter that it might have been easier for the prosecution to rely on gross negligence manslaughter instead of unlawful act manslaughter.

Cross Reference

The case of Church (1966) was also discussed at 3.7.1 in relation to the coincidence of actus reus and mens rea.

6.1.3 Dangerous act

The third ingredient of the offence requires that the act be dangerous. In the case of Larkin (1944), Humphreys J held that ‘a dangerous act’ is ‘an act which is likely to injure another person’. The act is dangerous if it presents a risk of physical injury to another person. The question of dangerousness is one of fact for the jury to determine: M [2013] 1 WLR 1083. An objective test is applied to the meaning of ‘dangerous’: the act must be dangerous from the point of view of the reasonable man. It is not necessary for the prosecution to show that the defendant himself realised that the act was dangerous.

The objective test for dangerousness is derived from the case of Church [1966] 1 QB 59.

Case Close-Up

Church [1966] 1 QB 59

The victim in this case mocked the defendant for failing to satisfy her sexually. A fight ensued and the defendant struck the woman, knocking her unconscious. Believing her to be dead, the defendant then threw her in the river. She died from drowning. The p. 140defendant was convicted of manslaughter and appealed. The Court of Appeal held that the trial judge had misdirected the jury in relation to unlawful act manslaughter. Edmund Davies J held that:

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 …

The reasonable person does not need to recognise a risk of serious injury or death resulting from the unlawful act; he/she must merely recognise the risk of some harm. The test is clearly objective. Thus, it does not matter that the defendant in this case did not recognise a risk of harm to the victim when he threw her body into the river, because he believed her to be dead. What is relevant is whether or not the reasonable person would have recognised a risk of some harm.

The objective test from Church [1966] 1 QB 59 was also applied in M [2013] 1 WLR 1083, in which the Court of Appeal held that the reasonable and sober bystander need not realise the risk of the type of physical harm that did result, but rather the test is whether a reasonable and sober bystander would recognise that the defendant’s act would inevitably subject the victim to the risk of some harm. Lord Judge stated: ‘it has never been a requirement that the defendant personally should foresee any specific harm at all, or that the reasonable bystander should recognise the precise form or “sort” of harm which did ensue. What matters is whether reasonable and sober people would recognise that the unlawful activities of the defendant inevitably subjected the deceased to the risk of some harm resulting from them’ [at 20].

The objective nature of the test can be criticised because it fails to reflect the moral culpability of the defendant to convict him in the absence of proof that he foresaw a risk of some harm. This is best illustrated by the famous example of the ‘one-punch killer’ in which a drunk defendant punches the victim, who falls over and sustains a fatal head injury. Such a defendant could be convicted of unlawful act manslaughter even if he did not foresee the risk of death, or even harm to the victim (see Mitchell 2008 and Mitchell 2009).

The objective nature of the test was confirmed in the case of DPP v Newbury and Jones (1977). Lord Salmon approved the test from Church (1966) and stated that:

[t]he test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger.

More recently, the objective nature of the test was confirmed in the case of JF and NE [2015] EWCA Crim 351, in which the appellants argued that the objective test should be adapted to take into account the ages and mental capacity of the appellants (in a similar vein to the subjective test of recklessness restored by the House of Lords in R v G and another [2003] UKHL 50). However, this argument was rejected by the Court of Appeal on the basis that the law on dangerousness in unlawful act manslaughter is ‘clear and well established’, and while the Law Commission has recommended a subjective test of foresight of the risk causing some injury (Law Commission Reports, Legislating the Criminal Code: Involuntary Manslaughter (Law Com. No. 237, 1996) and Murder, Manslaughter and Infanticide (Law Com. No. 304, 2006)), Parliament has not sought to carry this recommendation forward (at [32]). Thus, the test remains objective for now.

p. 141In determining whether the reasonable man would have recognised a risk of some harm, the reasonable man is deemed to have the knowledge that the defendant had, or should have had, at the time of the offence. An authority for this principle is the case of Dawson (1985) 81 Cr App R 150. The defendants in this case attempted to rob an attendant at a petrol station. Two defendants entered the kiosk at the petrol station. They covered their faces with a balaclava and a stocking and were carrying pickaxe handles and imitation firearms. The attendant at the petrol station was a 60-year-old man who had a severe heart condition. When the men entered the kiosk, the attendant suffered a heart attack and died. The three men were convicted of unlawful act manslaughter. The Court of Appeal quashed their convictions and held that the defendants could not be guilty of manslaughter because the victim’s heart condition would not have been obvious to the reasonable person if he were present at the scene. The defendants did not know that the victim had a heart condition and they could not be expected to know this. Watkins LJ stated that:

[t]his test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of and watched the unlawful act being performed and who knows that, as in the present case, an unloaded replica gun was in use, but that the victim may have thought it was a loaded gun in working order. In other words, he has the same knowledge as the man attempting to rob and no more. It was never suggested that any of these appellants knew that their victim had a bad heart. They knew nothing about him.

It is apparent from this decision that an act creating shock may amount to a dangerous act: ‘injury to the person through the operation of shock emanating from fright’ is sufficient for the purposes of unlawful act manslaughter.

The reasonable man is attributed with the same knowledge as the defendant at the scene of the crime. Where the risk of harm becomes obvious to the reasonable person present at the scene of the crime, the defendant’s unlawful act becomes dangerous. Thus, in the case of Watson [1989] 1 WLR 684, the risk of harm to the victim would have become obvious to the reasonable man when he saw the victim, who was elderly and frail.

Case Close-Up

Watson [1989] 1 WLR 684

In this case, the defendant and another man burgled the house of an 87-year-old man who had a serious heart condition. They threw a brick and entered the house. When they confronted the victim, they verbally abused him and then left the house, without stealing anything. The victim suffered a heart attack and died an hour-and-a-half later. The defendant pleaded guilty to burglary, contrary to s.9(1)(a) of the Theft Act 1968, but was tried for manslaughter. The defence argued that the defendant was not the cause of the victim’s death because any adverse effect of the burglary would have ceased long before the death, which occurred an hour-and-a-half later. The defence further suggested that the victim’s heart condition meant that he could have died at any time, and that two events after the burglary might have caused the heart attack: (a) the arrival of the police; and (b) the arrival of council workmen to fix the broken window.

p. 142The trial judge directed the jury that the reasonable man would have the knowledge which the defendant gained whilst in the house. The defendant was convicted of manslaughter and appealed. The Court of Appeal held that the trial judge’s direction to the jury was correct. The sober and reasonable person is attributed with the knowledge of the defendant as gained in the house. Lord Lane CJ agreed with the view of the trial judge that:

the jury were entitled to ascribe to the bystander the knowledge which the appellant gained during the whole of his stay in the house …

Thus, the act will be dangerous if the sober and reasonable person, sharing the knowledge the defendant gained during the commission of the unlawful act, would have recognised a risk of some harm to the victim. Nevertheless, the Court of Appeal allowed the appeal and quashed the defendant’s conviction because the prosecution had failed to prove that the shock from the burglary caused the death of the victim.

In the case of Ball [1989] Crim LR 730, the Court of Appeal held that the dangerousness of the act is assessed by the appreciation of the sober and reasonable man. The defendant’s mistaken belief that the act was not dangerous could not be attributed to the reasonable man. The defendant in this case shot and killed the victim. He mistakenly believed that he had loaded the gun with blank cartridges. The defendant appealed against his conviction, arguing that the test for dangerousness must be based on the act which the defendant believed himself to be committing. However, the Court of Appeal dismissed the appeal and held that the sober and reasonable man is not to be judged by the defendant’s appreciation of the mistaken belief. Instead, the sober and reasonable man did not have knowledge of the defendant’s mistaken belief that his act was not dangerous.

In the case of Bristow [2013] EWCA Crim 1540, the Court of Appeal held that a burglary could constitute an unlawful act for the purposes of unlawful act manslaughter because the burglary was objectively dangerous. The defendants in this case were convicted of unlawful act manslaughter after they executed a burglary of a vehicle-repair business and then ran over the victim in vehicles that they were using to get away. The Court held that the burglary was objectively dangerous for several reasons, including the fact that there was a risk of someone intervening to prevent the defendants’ escape, they were using vehicles to escape, and due to the nature and geography of the site, which was in a remote location on a farm and the only escape route from the scene was a single track. The unlawful act was objectively dangerous from the outset because the burglary was capable of being an unlawful act which a reasonable and sober person would inevitably recognise must subject a person intervening to the risk of some harm; it did not only become dangerous at the point where the burglars were disturbed by the victim (as in Dawson and Watson). Bristow was considered in Long, Bowers and Cole v R [2020] EWCA Crim 1729, in which the Court of Appeal held that conspiracy to steal could constitute the unlawful act for the purposes of unlawful act manslaughter. The facts of the case involved the defendants conspiring to steal a quad bike. The defendants attached the quad bike to a car and towed it away. They were approached by a police car and decided to abandon the quad bike and use the car to make an escape. However, as they drove away, PC Harper, the victim, got tangled in the strap that had been used to tow the quad bike and he was dragged along the road for a long distance. He suffered fatal injuries and the defendants were convicted of manslaughter. Dismissing their appeals against conviction, the Court of Appeal held that the escape and the dangerous manner in which it was carried out were part and parcel of the conspiracy to steal. This was similar to the position in Bristow. So, while the p. 143offences of conspiracy to steal and theft are not offences of violence, the terms of the agreement made by the defendants in this case rendered the theft of the quad bike dangerous.

Summary

Church (1966): ‘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.’

M (2013): the reasonable bystander need not foresee the precise form or sort of harm which did ensue.

Dawson (1985): the reasonable man is deemed to have the knowledge that the defendant had, or should have had, at the time of the offence.

Watson (1989): where the risk of harm becomes obvious to the reasonable person present at the scene of the crime, the defendant’s unlawful act becomes dangerous.

Ball (1989): the defendant’s mistaken belief that the act was not dangerous could not be attributed to the reasonable man.

6.1.4 Causes death

The final requirement of unlawful act manslaughter is that the unlawful act causes the death of the victim. The usual rules of causation apply. This means that the prosecution must prove that the defendant was both the factual and legal cause of the victim’s death. There will be no liability for manslaughter where there is an intervening act which breaks the chain of causation.

Cross Reference

Refer to 2.5 to remind yourself of the rules of causation.

It was once thought that the unlawful act must be aimed at the victim: Dalby [1982] 1 WLR 425. However, although the defendant’s unlawful act must cause the death of the victim, the act does not need to be directed towards the victim: Goodfellow (1986) 83 Cr App R 23. The defendant in Goodfellow set fire to his council house in order to be rehoused. He set fire to the house while his wife, three children, and his girlfriend were in the house. He intended that the adults would rescue the children once the fire had started. However, the fire became too intense and the defendant’s wife, girlfriend, and one child died. The defendant was convicted of three counts of manslaughter, as well as counts of arson, and appealed. The Court of Appeal held that the unlawful act did not have to be aimed at the victim.

6.1.5 The ‘drugs cases’

Thinking Point

Consider whether the defendants are liable for unlawful act manslaughter in the following scenarios:

1)

Marcus asks Chris to prepare a syringe with heroin and to inject him with it. Chris does so and Marcus dies as a result.

2)

Yasmin supplies Nadia with a syringe of heroin. Nadia injects herself with the drug and dies as a result.

p. 144The element of causation has attracted much judicial attention over the past ten years. In particular, there have been a number of ‘drugs cases’ involving defendants who inject the victim with a Class A drug or supply such drugs to the victim, who self-injects and then dies. The difficulty lies in identifying the unlawful act which causes the death of the victim.

6.1.5.1 Defendant injects the victim

Where the defendant injects the victim, the unlawful act may be the malicious administration of a poison or noxious thing so as to endanger life or inflict grievous bodily harm, contrary to s.23 of the Offences Against the Person Act 1861. This act is certainly unlawful, objectively dangerous, and causes the death of the victim.

In the case of Cato [1976] 1 WLR 110, the defendant and the victim were both heroin addicts. They each prepared their own syringes with a mixture of heroin and water, which they then handed to each other. They then injected each other with heroin. The victim died and the defendant was convicted of unlawful act manslaughter and maliciously administering poison or a noxious thing so as to endanger life or inflict grievous bodily harm, contrary to s.23 of the Offences Against the Person Act 1861. He appealed against his convictions. The Court of Appeal dismissed the appeal and upheld the convictions. The Court held that the administration of heroin to the victim by the defendant was a criminal offence under s.23 of the Offences Against the Person Act 1861, which could amount to an unlawful act for the purposes of unlawful act manslaughter. Lord Widgery CJ stated:

[W]e think that the unlawful act here would be described as injecting the deceased … with a mixture of heroin and water which at the time of the injection and for the purposes of the injection the accused had unlawfully taken into his possession.

For a conviction of unlawful act manslaughter to succeed, the prosecution must prove that the injection was a cause of death, and not merely de minimis. The fact that the victim consented to the injection is no defence to manslaughter.

Cross Reference

Further reference to Cato (1976) and the offence under s.23 of the Offences Against the Person Act 1861 is made in 7.6.1.2.

6.1.5.2 Defendant supplies the drugs, victim self-injects

However, where the defendant does not inject the victim but merely supplies the drugs, proving the unlawful act element of unlawful act manslaughter becomes problematic. Although both the possession of controlled drugs and the act of supplying a controlled drug to another person are offences under the Misuse of Drugs Act 1971, the courts have struggled to justify convictions for unlawful act manslaughter because of the difficulty of proving that the supply of the drug caused the death of the victim.

The current law

The law was clarified by the House of Lords in the leading case of Kennedy (No. 2) [2007] UKHL 38, in which it was held that the supplier of the drug is not guilty of unlawful act manslaughter because the free and voluntary act of self-administration breaks the chain of causation. Before discussing this case further, it is prudent to explore the authorities which preceded the House of Lords’ decision in Kennedy (No. 2) in 2007.

The current law: Kennedy (No. 2) [2007] UKHL 38

According to the House of Lords in Kennedy (No. 2), where a person charged with unlawful act manslaughter has supplied the victim with an illicit drug which the victim has self-injected, the defendant is not guilty of manslaughter because the free and voluntary act of self-administration by the victim breaks the chain of causation. Kennedy (No. 2) will be discussed further in 6.1.5.3.

p. 145The development of the law

In the case of Dalby [1982] 1 WLR 425, the defendant supplied the victim with a prescription drug in tablet form. The victim then made up a solution with which he injected himself. The defendant was not present on two occasions when the victim self-injected. The victim died and the defendant was convicted of unlawful act manslaughter. The Court of Appeal held that the act of supplying a controlled drug to the victim was not a sufficient basis for a conviction for unlawful act manslaughter and quashed the defendant’s conviction. This conclusion is in line with the conclusion reached by the House of Lords in Kennedy (No. 2). However, the Court of Appeal in Dalby (1982) reached this conclusion in a different way from the House of Lords in Kennedy (No. 2). The Court of Appeal reasoned that the unlawful act must be directed at the victim (a point now disapproved in Goodfellow (1986), see 6.1.4) and the act of supplying a controlled drug did not cause direct harm. Waller LJ stated that:

[i]n this case, the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quality which was dangerous.

However, the Court did not then go on to discuss the possibility of the victim’s voluntary act of self-injection breaking the chain of causation.

The leading case of Kennedy has been mentioned earlier. There are three different reports relating to the case of Kennedy. The first was the Court of Appeal decision in Kennedy in 1999 (reported as Kennedy [1999] Crim LR 65). In 2005, the Criminal Cases Review Commission referred the case back to the Court of Appeal. This case report is referred to as Kennedy (No. 2) [2005] EWCA Crim 685. Then, in 2007, the case came before the House of Lords. All of these case reports refer to the same case. The facts of Kennedy are discussed at 7.6.1.1 but are also worth setting out briefly here.

The victim asked the defendant for something to make him sleep. The defendant prepared a syringe of heroin and the victim injected himself with it. The victim died within an hour. The defendant was convicted of both supplying a Class A drug and manslaughter. Kennedy [1999] Crim LR 65 involved the defendant’s initial appeal to the Court of Appeal against the manslaughter conviction. The defendant argued that the case of Dalby was authority for the proposition that the supply of drugs cannot amount to the unlawful act for the purposes of unlawful act manslaughter. The Court of Appeal dismissed the appeal and held that the unlawful act of the defendant was not limited to supply of the drugs. Rather confusingly, the Court held that the unlawful act committed by the defendant could have been one of two offences: (a) causing the administration of a poison or noxious thing under s.23 of the Offences Against the Person Act 1861; or (b) assisting and wilfully encouraging the unlawful self-injection of the victim (as a secondary party).

Thinking Point

Consider whether the judgment in Kennedy [1999] Crim LR 65 was a satisfactory one. Is it against the law to self-inject drugs?

The Court of Appeal considered the act of the victim in injecting himself to be an unlawful act. Thus, by preparing and handing the syringe to the victim, the defendant was an accomplice to the victim’s unlawful act.

p. 146The flaw with this judgment was that self-injection is not in fact unlawful. Whilst it is unlawful to be in possession of or to supply a controlled drug and to inject a drug into another person, it is not unlawful to take drugs yourself. If self-injection is not a criminal offence, then the defendant cannot be an accomplice to it. It is also the case that liability for manslaughter could not be constructed out of the offences of possession and supply because these offences do not cause death. This decision faced strong criticism from academics and the case was referred back to the Court of Appeal by the Criminal Cases Review Commission in 2005 (discussed in 6.1.5.3).

With similar facts to Kennedy, in the case of Dias [2001] EWCA Crim 2986, the trial judge ruled that the victim’s self-injection was unlawful; thus, by aiding and abetting the self-injection of the victim, the defendant was liable as secondary party to that offence. The defendant was convicted of manslaughter and appealed. However, the Court of Appeal held that neither statute nor the common law provided for an offence of injecting oneself with a controlled drug and thus the defendant could not be a secondary party to this. The Court held that ‘[n]o one could be charged with injecting himself with heroin, only with possession of it’.

Thinking Point

Could the offence of possession of a controlled drug amount to the unlawful act for the purposes of unlawful act manslaughter?

However, the Court also dismissed the offence of possession of the drugs because ‘[t]he causative act (the act causing death) was essentially the injection of the heroin rather than the possession of it’.

In Rogers [2003] EWCA Crim 945, the Court of Appeal also agreed that self-injection did not amount to an offence. Thus, the defendant could not be liable as a secondary party to that injection. However, the Court held that the defendant could be guilty of manslaughter where he played a part in the mechanics of the injection which caused the victim’s death by applying and holding a tourniquet for the victim. The defendant in this case did exactly that and was charged with the offence of administering a poison or noxious thing under s.23 of the Offences Against the Person Act 1861 and manslaughter. The trial judge ruled that the defendant’s application of the tourniquet to the victim’s arm was part of the unlawful act of administering a noxious thing. The defendant changed his plea to guilty and appealed against the ruling of the trial judge. The Court of Appeal confirmed that self-injection did not amount to a criminal offence; thus, the defendant could not be liable as a secondary party to it. However, the Court dismissed the appeal because the defendant had played a part in the injection by holding the tourniquet for the victim. Rose LJ stated that:

[t]he purpose and effect of the tourniquet, plainly, was to raise a vein in which the deceased could insert the syringe. Accordingly, by applying and holding the tourniquet, the defendant was playing a part in the mechanics of the injection which caused death.

Rogers was overruled by the House of Lords in Kennedy (No. 2) and is no longer good law.

The next case to address self-injection was that of Finlay [2003] EWCA Crim 3868. It was unclear in this case whether the defendant had injected the victim or simply prepared the syringe and handed it to the victim for self-injection. Nevertheless, the Court p. 147of Appeal took the view that the defendant could have caused the death of the victim, even if the victim had self-injected because such self-injection was foreseeable. In doing so, the Court applied the House of Lords’ decision in Empress Car Co. (Abertillery) Ltd v National River Authority [1999] 2 AC 22, a case which concerned an offence relating to causing pollution to a river under the Water Resources Act 1991. However, this approach was rejected by the House of Lords in Kennedy (No. 2) and the case of Empress was restricted to its context. The case of Finlay returned to the Court of Appeal in 2009 after the House of Lords’ decision in Kennedy (No. 2), and the defendant’s conviction was quashed posthumously.

6.1.5.3 The House of Lords’ decision in Kennedy (No. 2)

The case of Kennedy was referred back to the Court of Appeal by the Criminal Cases Review Commission. The Court of Appeal certified a point of law for the House of Lords to decide in a further appeal.

Certified question in Kennedy (No. 2) [2007] UKHL 38:

When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a Class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied and the administration of the drug then causes his death?

The House of Lords restored clarity to the law by responding: ‘In the case of a fully informed and responsible adult, never.’ The House took a different approach from that in Rogers and focused on the free and voluntary decision of the victim to inject. The House held that where the defendant supplies a drug to a fully informed and responsible adult victim of sound mind who injects himself and dies, the defendant may not be convicted of manslaughter. The House of Lords held that supplying controlled drugs to the victim will not amount to an unlawful act for the purposes of unlawful act manslaughter. The unlawful supply of the drugs does not cause the death of the victim where the victim made a voluntary and informed decision to inject himself with the drugs. In such a situation, the self-injection by the victim breaks the chain of causation and the defendant will not be liable for manslaughter. The defendant’s conviction was quashed. Lord Bingham stated that:

[t]he criminal law generally assumes the existence of free will…. [I]nformed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act … Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.

This decision from the House of Lords has added much clarity to a somewhat confused string of prior authorities and is expected to be the final word on the matter. Kennedy (No. 2) (2007) has since been applied by the Court of Appeal in Burgess; Byram [2008] EWCA Crim 516; Keen [2008] EWCA Crim 1000; and Craven; McGovern [2008] EWCA Crim 1742.

In R v Rebelo [2021] EWCA Crim 306, the defendant could not be convicted of unlawful act manslaughter where the victim died after buying slimming pills, which were not safe for consumption, from the defendant, and taking them. The Court of Appeal drew an analogy with Kennedy (No. 2) and held that ‘placing unsafe food on the market, of itself, was not a dangerous act’ sufficient for unlawful act manslaughter (at [7]).

p. 148One further obiter point was made by Lord Bingham in Kennedy (No. 2) about joint administration of an injection. Lord Bingham suggested that where the defendant and victim acted together to administer an injection so that the drug was jointly administered, the defendant could be convicted of unlawful act manslaughter: ‘it is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection’ (at [24]). This was later considered in Burgess; Byram [2008] EWCA Crim 516, in which the Court of Appeal stated that it followed that a defendant who laid the tip of the needle against the skin of the deceased over the vein is not automatically entitled to an acquittal if the deceased ultimately physically pressed the plunger on the syringe and caused the drug to enter his body (at [12]).

6.1.6 Reform

In a Report in 1996 (Legislating the Criminal Code: Involuntary Manslaughter, Law Com. No. 237), the Law Commission recommended the abolition of the current law on involuntary manslaughter. The Commission proposed that involuntary manslaughter should be replaced by two offences of reckless killing and killing by gross carelessness.

The 2006 Law Commission Report, Murder, Manslaughter and Infanticide (Law Com. No. 304) proposed major reforms to the law relating to homicide.

Cross Reference

Refer to 5.2.4.3 to see the proposed offences.

The proposed offence of manslaughter would incorporate forms of unlawful act manslaughter. This offence requires the killing to take place through an unlawful act which was either intended to cause injury, or where the defendant was aware that the act involved a serious risk of injury. Thus, unlike the current offence of unlawful act manslaughter, the proposed offence is subjectively assessed.

6.2 Gross negligence manslaughter

If the defendant negligently causes the death of a person, he may be prosecuted for the criminal offence of gross negligence manslaughter and be subject to punishment if convicted. Negligence is a tort (a civil wrong) and an objective concept, judged against the standard of the reasonable man. A defendant is negligent if his conduct falls below that expected of a reasonable person. In Attorney General’s Reference (No. 2 of 1999) [2000] 2 Cr App R 207, the Court of Appeal held that evidence of the defendant’s state of mind was not necessary in order to secure a conviction for gross negligence manslaughter. Thus, there is no need to prove that the defendant was aware of the risk that his conduct might fall below the standard of the reasonable person, merely that it did.

As gross negligence manslaughter is a criminal offence which carries a maximum sentence of life imprisonment, it requires a much higher degree of negligence than is sufficient for the tort of negligence.

Gross negligence manslaughter arises where the defendant causes the death of the victim through the breach of a duty of care owed to that victim. The prosecution must establish that p. 149a reasonably prudent person would have foreseen that the defendant’s breach exposed the deceased to an obvious and serious risk of death: R v Zaman [2017] EWCA Crim 1783. The defendant’s act or omission must be grossly negligent in order for the elements of the offence to be satisfied. This means that the conduct of the defendant must be sufficiently bad as to warrant criminal sanction.

Gross negligence manslaughter

The Court of Appeal in R v Rose [2017] EWCA Crim 1168 held that the prosecution must prove that:

1)

the defendant owed an existing duty of care to the victim;

2)

the defendant negligently breached that duty of care;

3)

it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;

4)

the breach of that duty caused the death of the victim;

5)

the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.

The leading authority on gross negligence manslaughter is the House of Lords’ decision in Adomako [1995] 1 AC 171, and the elements of gross negligence manslaughter have been summarised by the Court of Appeal in a string of recent cases, including R v Rose [2017] EWCA Crim 1168 and R v Zaman [2017] EWCA Crim 1783. There are five elements of gross negligence manslaughter (Figure 6.1). These elements will be explored in 6.2.16.2.5.

Figure 6.1 The elements of gross negligence manslaughter as expressed in R v Rose [2017]

6.2.1p. 150 Duty of care

The first element that the prosecution must prove is that the defendant owed the victim a duty of care. The case of Evans [2009] EWCA Crim 650 has confirmed that duty of care is a question of law to be decided by the judge.

However, this has not always been clear. In the case of Willoughby [2004] EWCA Crim 3365, the Court of Appeal stated that where a duty of care is already well established or provided for by statute (e.g., in a doctor–patient relationship), the trial judge can direct the jury that a duty of care exists (suggesting that duty of care is a question of law), but the Court also stated that it is for the jury to decide whether the defendant owed the victim a duty of care. It was held that the issue should be left to the jury once the judge has decided that there is evidence capable of establishing such a duty. This, rather confusingly, suggested that duty of care is a question of fact, not law, and that the general principles of negligence do not apply.

The Court of Appeal clarified the law in the case of Evans [2009] EWCA Crim 650. An enlarged bench of five Lords Justices in the Court of Appeal confirmed that duty of care is a question of law. Thus, the trial judge should direct the jury as to the law and explain to them that a duty would exist if they find certain facts to be established, but that a duty would not exist if they find certain other facts to be established. The Court of Appeal drew support from s.2(5) of the Corporate Manslaughter and Corporate Homicide Act 2007, which provides that, in the context of corporate manslaughter, the question of whether a duty of care exists is a matter of law. It is for the judge to direct the jury on the law and it is for the jury to find certain facts established in accordance with the judge’s direction before they find a legal duty of care.

6.2.1.1 The civil meaning

‘Duty of care’ is traditionally a civil concept; however, it is not clear whether or not the civil meaning is applied for the purposes of gross negligence manslaughter. In the leading House of Lords decision of Adomako (1995), Lord Mackay held that ‘the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty’. If this statement accurately reflects the approach adopted by the criminal law, it is necessary to consider briefly the meaning of duty of care in the law of tort. The modern approach to establishing a duty of care is the incremental approach. Under this approach, the court will look at established categories of recognised duty situations in order to determine whether there is an existing precedent governing the particular case in question. For example, a duty exists between doctor and patient, occupier and visitor, employer and employee, driver and passenger, and driver and other road users. Where there is no such precedent, the court will consider three main factors:

1)

the reasonable foreseeability that the claimant would be harmed;

2)

the proximity of the relationship; and

3)

whether it would be fair, just, and reasonable to impose a duty (see Caparo Industries plc v Dickman and others [1990] 2 AC 605).

In the case of Wacker [2002] EWCA Crim 1944, the Court of Appeal held that the defendant owed the victims a duty of care because it was reasonably foreseeable that they would be injured by his breach. However, the Court refused to allow the defendant to rely upon the tortious defence of ex turpi causa non oritur actio (illegality). The defendant in Wacker drove a lorry from Rotterdam to Dover. Hiding on the lorry were 60 illegal immigrants. The container was sealed but for a small air vent. The vent was closed while the lorry was on the ferry to Dover and 58 of the immigrants suffocated to death. The defendant was charged with 58 counts of manslaughter. The trial judge ruled that the principles of negligence applied to the offence of gross negligence manslaughter in order to determine whether the defendant owed p. 151the victims a duty of care. The defendant was convicted and appealed. The Court of Appeal held that the defence of illegality (expressed by the Latin maxim ex turpi causa non oritur actio) would not preclude a finding that the defendant owed a duty of care to the victims for the purposes of gross negligence manslaughter. The defendant’s convictions for manslaughter were upheld.

The Court of Appeal in Wacker gave ‘duty of care’ the civil meaning by applying the ‘reasonable foreseeability’ test—the first of these three factors from Caparo. However, the Court gave no consideration to the other factors from Caparo. Kay LJ held that Lord Mackay in Adomako had not intended all of the complexities of the tort of negligence to be applicable. It remains unclear to what degree the principles of negligence are followed in respect of gross negligence manslaughter. However, it is evident from Wacker that the tortious defence of illegality may not be relied upon to negate a duty of care.

6.2.1.2 Omissions

Unlike unlawful act manslaughter, gross negligence manslaughter can be committed by omission, as well as by a positive act. The subject of omissions was discussed in detail in chapter 2. It was explained at 2.4.1 that there is generally no liability for an omission to act. However, there are a number of exceptions to this rule, where a duty to act is imposed upon the defendant by law (e.g., where there is a special relationship, a voluntary assumption of responsibility, a contractual duty or public duty, a statutory duty, or a duty to avert a danger created by the defendant).

Cross Reference

Refer to 2.4.2 to remind yourself of the instances when a duty to act is imposed upon a defendant.

In Evans [2009] EWCA Crim 650, the Court of Appeal acknowledged that previous authorities were inconsistent and the Court expressed an intention to clarify the law. The defendant supplied the 16-year-old victim, a drug addict, with some heroin. The victim took the heroin and began to display symptoms of overdose. The defendant and her mother were afraid of getting into trouble and so did not call an ambulance. The victim died. At trial, it was accepted that the defendant and her mother believed that they were responsible for looking after the victim after she had taken the heroin. The issue in the case was whether the defendant owed the victim a duty of care when their relationship was not one which imposed a familial duty or responsibility. The defendant was convicted of manslaughter by gross negligence and appealed. The Court of Appeal dismissed the appeal and held that even though there was no familial relationship between the defendant and victim, the defendant was ‘under a duty to take reasonable steps for the safety of the deceased once she appreciated that the heroin she procured for her was having a potentially fatal impact on her health’. Lord Judge CJ held that:

[t]he duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased … [F]or the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other’s life will normally arise.

Thus, the Court of Appeal applied the ‘Miller’ principle: where a defendant becomes liable when he realises the danger that he has created and he then fails to take reasonable steps to avert that danger.

Cross Reference

Refer to 2.4.2.3 for a more detailed discussion of the ‘Miller’ principle.

There was a duty of care in this case due to the combined effect of three factors: (a) the defendant’s act of supplying heroin to the victim; (b) the fact that there was a reasonably foreseeable danger to the life of the victim; and (c) the fact that the defendant knew that the victim was reliant upon her and her mother taking care of her.

p. 152The Court stated that the judge may direct the jury that there is a duty to act where the existence of such a duty is not in dispute, such as in a doctor–patient relationship. However, if the facts of the case did not fall into a pre-existing duty situation or where the issue of whether a duty of care exists is otherwise in dispute, the judge may direct the jury:

that if facts a + b and/or c or d are established, then in law a duty will arise, but if facts x or y or z were present, the duty would be negatived. In this sense, of course, the jury is deciding whether the duty situation has been established. In our judgment this is the way in which Willoughby should be understood …

The Court further held that there was no violation of Article 6 (right to a fair trial) and Article 7 (no punishment without law) of the European Convention on Human Rights (ECHR).

6.2.2 Breach of duty

The prosecution must also prove that the defendant breached his duty of care towards the victim. According to Lord Mackay in Adomako (1995), ‘the ordinary principles of negligence apply to ascertain whether or not the defendant has been in breach of a duty’. A defendant will breach his duty of care to the victim where his conduct falls below that expected of a reasonable person. Where the defendant has special knowledge or expertise, he will be expected to meet the standard of care expected of a reasonable person with that knowledge or expertise: Adomako.

The defendant might breach his duty of care by the performance of a positive act or by an omission to act. Contrast this with the offence of unlawful act manslaughter which cannot be committed by omission (see 6.1.1 and the case of Lowe (1973)).

6.2.3 Serious and obvious risk of death

The third element of gross negligence manslaughter requires proof that it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death: R v Rose [2017] EWCA Crim 1168. This is where the criminal offence of gross negligence manslaughter ‘parts company from the civil law of negligence’ because ‘proof of a foreseeable risk of death is not required to establish a tortious cause of action’: R v Kuddus [2019] EWCA Crim 837.

While this element can be traced back to Adomako [1995] 1 AC 171, several recent decisions in the Court of Appeal have emphasised the existence of this element. In R v Rudling [2016] EWCA Crim 741, the Court of Appeal emphasised that at the time of the breach of duty, ‘there must be a risk of death, not merely serious illness’ and ‘the risk must be serious; and the risk must be obvious’ [at 39]. In R v Rose [2017] EWCA Crim 1168, the Court of Appeal also reiterated the fact that the risk must be one of death, not merely a risk of something serious [at 77], and in R v Zaman [2017] EWCA Crim 1783, the Court of Appeal stated that ‘the relevant risk to be reasonably foreseen is nothing less than the risk of death’ [at 24]. In R v Kuddus [2019] EWCA Crim 837, it was held that:

a reasonably prudent person possessed of the information known to the defendant would have foreseen that the defendant’s actions or omissions constituting the breach of duty had exposed the deceased to an ‘obvious and serious’ risk of death.

In R v Rose [2017] EWCA Crim 1168, the Court also held that whether it is foreseeable that there is a serious and obvious risk of death must be assessed with respect to the information available to the defendant at the time of the breach of duty: ‘[a] mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death’; what is required is a p. 153‘present risk which is clear and unambiguous, not one which might become apparent on further investigation’ [at 77]. Thus, the test is prospective—the court is not entitled to take into account information which would, could, or should have been available after the breach [at 78]. The defendant’s conduct is judged according to the standard of the reasonable man, so there is no need to prove that the defendant himself was aware of such a risk of death, or that his conduct was negligent, but rather that there was a breach of duty which it was reasonably foreseeable gave rise to a serious and obvious risk of death (R v Rose [at 77]).

In R v Winterton [2018] EWCA Crim 2435, the defendant was a construction site manager who was convicted of gross negligence manslaughter in respect of a labourer who died after a trench which had been dug to lay drainage pipes collapsed. The Court of Appeal held that the ‘factual matrix’ was such that it was a question of ‘when’ rather than ‘if’ the trench would collapse, and that this was or should have been apparent to anybody. Thus, it was reasonably foreseeable that there was a serious and obvious risk of death to anyone in or near the trench. The Court held that the warning signs were there for the defendant to see and he either did see them but ignored them, or failed to see them when he should have done.

In R v Broughton [2020] EWCA Crim 1093, the Court of Appeal emphasised that there needs to be a clear focus on when the condition of the deceased reached the point of ‘serious and obvious risk of death’. In this case, the defendant supplied his girlfriend with a cocktail of drugs while they were at a music festival. When she fell ill, he failed to get her medical assistance and filmed her dying on a mobile phone. Medical evidence showed that she would have had a 90 per cent chance of survival if she had received medical assistance. The defendant was convicted of gross negligence manslaughter on the basis that he owed her a duty to secure her timely medical assistance. However, the Court of Appeal held that in order to establish that the defendant was guilty of gross negligence manslaughter, the prosecution had to prove that, at the time when his girlfriend’s condition was such that there was a serious and obvious risk of death, the defendant was grossly negligent in failing to obtain medical assistance, and that such assistance would have saved her life. There needed to be a clear focus on the time at which the deceased reached the threshold of serious and obvious risk of death. In this case, the prosecution had not fixed on a time at which the victim’s condition posed an obvious and serious risk of death. The Court held that the expert evidence was all that the jury had to assist them in establishing causation, and that evidence was not capable of establishing causation to the criminal standard because the description of a 90 per cent chance of survival, were medical help to have been available, left a realistic possibility that she would not have lived even with medical assistance.

6.2.4 Causation

It must be shown that the defendant’s breach of duty caused the death of the victim. The usual rules of causation will apply here. These have been discussed in detail in chapter 2.

Cross Reference

Refer to 2.5 to remind yourself of the rules of causation.

6.2.5 Gross negligence

The final element that the prosecution must prove is that the defendant’s breach of duty was grossly negligent. In Andrews v DPP [1937] AC 576, the House of Lords held that a very high degree of negligence is required for the offence of manslaughter. The standard of negligence required for liability in the law of tort would not be sufficient. In the case of Bateman [1925] All ER 25, Lord Hewart CJ stated that:

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 p. 154subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.

The leading case on gross negligence manslaughter is the House of Lords’ decision in Adomako (1995).

Case Close-Up

Adomako [1995] 1 AC 171

The defendant in this case was an anaesthetist in charge of a patient who was undergoing an eye operation. The patient died after a tube which supplied oxygen to the patient became disconnected from the ventilator. The defendant failed to check the tube when an alarm sounded on a machine which monitored the patient’s blood pressure. He was convicted of manslaughter by gross negligence and appealed. The House of Lords dismissed the appeal and confirmed gross negligence as a head of involuntary manslaughter. The House set out the four elements which need to be established for a conviction for gross negligence manslaughter: that the defendant owed the patient a duty of care; that he breached that duty of care; that the breach caused the death of the victim; and that the breach was grossly negligent and therefore a crime. In relation to the question of whether the defendant’s breach was grossly negligent, Lord Mackay stated that the jury should consider:

whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.

In R v Rose [2017] EWCA Crim 1168, the Court of Appeal held that the prosecution must prove that the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction. In deciding whether the defendant’s conduct was so bad as to warrant criminal sanction, the jury will take into account the risk of death involved. Thus, the extent to which the risk of death was obvious is relevant in two contexts: the first is whether the risk would be foreseen by a prudent person possessed of the information known to the defendant (see 6.2.3), and the second is where the jury consider whether the defendant’s breach was so serious that it should be regarded as criminal (R v Kuddus [2019] EWCA Crim 837).

Expert evidence may be called as to the degree of negligence on the defendant’s part, but the question of whether the defendant’s negligence was ‘gross’ is one for the jury to decide: R v Sellu [2016] EWCA Crim 1716. In directing the jury on this issue, there is no mandatory form of words that a trial judge must use, but the jury must be assisted to understand how to separate ‘serious or very serious mistakes or lapses’ from ‘conduct which … was truly exceptionally bad and was such a departure from that standard [of a reasonably competent doctor] that it consequently amounted to being criminal’ [at 152].

The test from Adomako may be criticised for being circular. Lord Mackay himself acknowledged that the test involved ‘an element of circularity’. The jury are asked to decide whether the defendant’s conduct was ‘so bad’ that it warrants criminal sanction, that is, whether the defendant’s conduct constitutes a crime. Thus, the jury are left to decide what constitutes gross negligence manslaughter. The compatibility of the test from Adomako with Article 7 of p. 155the ECHR (no punishment without law) was challenged in the case of Misra and Srivastava [2003] EWCA Crim 2375. Article 7 of the ECHR provides that a person may not be punished for an act that was not a criminal offence at the time of its commission. The Court of Appeal held that there was no violation of Article 7. This case involved two doctors who were convicted of gross negligence manslaughter after a patient in their care died from toxic shock syndrome. The prosecution case was that the doctors had failed to treat the victim as they failed to appreciate how seriously ill he was. The defendants appealed against conviction, arguing that the circularity and uncertainty of the test in Adomako violated Article 7 because the jury were left to decide upon a matter of law, namely the criminality of the defendant’s conduct. The Court of Appeal dismissed the appeal and held that there was no breach of Article 7. The Court reasoned that the test in Adomako clearly identified the ingredients of manslaughter by gross negligence and that the degree of negligence required for a conviction was a question of fact, not law. Lord Judge CJ explained the test in Adomako:

The decision whether the conduct was criminal is described not as ‘the’ test, but as ‘a’ test as to how far the conduct in question must depart from accepted standards to be ‘characterised as criminal’. On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case. [author’s emphasis]

It must be remembered that gross negligence manslaughter is a serious offence which carries a discretionary sentence of life imprisonment. The law must be accessible and the offence must be clearly defined so that an individual may ensure that his conduct conforms to the law. The extent to which the explanation proffered by Lord Judge CJ satisfies the criticisms of circularity (which was, in fact, conceded by Lord Mackay himself in the House of Lords) and clarity must be questioned. It must be accepted that the role of the jury in the criminalisation of a defendant’s behaviour is a highly significant one. It is submitted that gross negligence manslaughter is essentially a jury-prescribed offence.

6.2.6 Reform

As stated at 6.1.6, in 1996 the Law Commission proposed the abolition of the current law on involuntary manslaughter and the creation of two new offences of reckless killing and killing by gross carelessness. The 2006 Report of the Law Commission incorporates killing through gross negligence as to a risk of causing death into the proposed offence of manslaughter.

6.3 Subjectively reckless manslaughter

The third head of involuntary manslaughter is subjectively reckless manslaughter. For many years, it was accepted that there were only two heads of involuntary manslaughter. The first was unlawful act manslaughter, but it was unclear whether the second head of involuntary manslaughter could be committed by gross negligence or whether recklessness was required. In the case of Lidar (unreported, 11 November 1999), the Court of Appeal held that p. 156a defendant could be convicted of reckless manslaughter if he foresaw death or serious harm as highly probable. The defendant in this case ran over the victim in his car. The victim had been clinging onto the defendant’s car as they fought, but he fell off and was run over. The defendant appealed against his conviction for manslaughter. The Court of Appeal dismissed the appeal and held that subjective reckless manslaughter was a valid head of involuntary manslaughter. While this is the only authority on reckless manslaughter, the case does provide precedent for the possibility that reckless manslaughter may be preferred as a charge where unlawful act manslaughter or gross negligence manslaughter are unavailable. Thus, a defendant could be convicted of reckless manslaughter where he recognises that death or serious injury is highly probable to occur, but he goes ahead and takes that risk.

6.3.1 Reform

Reckless manslaughter is also incorporated into the proposed reforms in the 2006 Report of the Law Commission. This type of liability may fall under the head of second degree murder, which requires the defendant to kill with an intention to cause some injury or a fear of injury or a risk of injury, plus an awareness that there was a serious risk of causing death.

6.4 Corporate manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 abolished the common law liability of organisations for gross negligence manslaughter and created an offence of corporate manslaughter in England and Wales. The Act came into force on 6 April 2008. The long overdue Act was enacted after a series of public disasters which failed to result in successful prosecutions for gross negligence manslaughter:

In 1987, the Herald of Free Enterprise capsized, killing 193 people.

In the same year, 31 people died in the King’s Cross Fire.

In 1988, 167 people died in the Piper Alpha oil rig fire.

In the same year, the Clapham train crash killed 35 people.

In 1989, the Marchioness pleasure boat sank, killing 51 people.

In 1997, six people were killed in the Southall rail disaster.

In 1999, 31 people were killed in the Ladbroke Grove (Paddington) rail disaster.

In 2000, the Hatfield rail disaster killed four people.

In 2002, seven people died in the Potters Bar rail disaster.

The failure of these prosecutions was largely due to the identification doctrine, which requires proof of liability of an individual who was part of the ‘brains’ of the company in order for there to be a conviction of gross negligence manslaughter against the company.

6.4.1 The offence

The offence of corporate manslaughter is found under s.1(1) of the Corporate Manslaughter and Corporate Homicide Act 2007. An organisation may be convicted of corporate manslaughter if the management or organisation of its activities by senior management causes the death of a person and amounts to a gross breach of a duty of care owed to the victim.p. 157

Cross Reference

Refer to 4.3 for a brief discussion on corporate liability and the identification doctrine.

Statute

Section 1, Corporate Manslaughter and Corporate Homicide Act 2007

(1)

An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—

(a)

causes a person’s death, and

(b)

amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

(2)

The organisations to which this section applies are—

(a)

a corporation;

(b)

a department or other body listed in Schedule 1;

(c)

a police force;

(d)

a partnership, or a trade union or employers’ association, that is an employer.

(3)

An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).

(4)

For the purposes of this Act—

(a)

‘relevant duty of care’ has the meaning given by section 2, read with sections 3 to 7;

(b)

a breach of a duty of care by an organisation is a ‘gross’ breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances;

(c)

‘senior management’, in relation to an organisation, means the persons who play significant roles in—

(i)

the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or

(ii)

the actual managing or organising of the whole or a substantial part of those activities.

Section 1(2) details the organisations to which this offence applies. Section 1(3) provides that the liability of an organisation is dependent upon a substantial element of the breach of duty being due to the way in which the activities of the organisation are managed or organised by senior management. As such, the liability of the company is not dependent upon proof of liability of an individual on the board of directors or senior management. Thus, the identification doctrine has no application. The Crown is not required to identify the individuals in the organisation who failed to carry out their management functions properly as such a requirement would be ‘unnecessarily onerous’ on the Crown and ‘would be a return to precisely the difficulties of identifying the “controlling mind” which bedevilled the common law position before the 2007 Act’: R v Cornish and Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 2967 (QB) [33]. Rather, the Crown should be required to identify the lowest tier of senior management that is culpable of the offence [at 37].

The Act is aimed at ‘senior management’, that is, those persons who play a significant role in deciding how activities are to be managed or organised or actually manage or organise those activities: s.1(4)(c).

p. 158The organisation must owe a ‘relevant duty of care’ to the victim. These duties of care are set out under s.2(1) of the Act and encompass any of the following duties owed under the law of negligence.

Statute

Section 2(1), Corporate Manslaughter and Corporate Homicide Act 2007

(a)

a duty owed to its employees or to other persons working for the organisation or performing services for it;

(b)

a duty owed as occupier of premises;

(c)

a duty owed in connection with—

(i)

the supply by the organisation of goods or services (whether for consideration or not),

(ii)

the carrying on by the organisation of any construction or maintenance operations,

(iii)

the carrying on by the organisation of any other activity on a commercial basis, or

(iv)

the use or keeping by the organisation of any plant, vehicle or other thing;

(d)

a duty owed to a person who, by reason of being a person within subsection (2), is someone for whose safety the organisation is responsible.

Section 2(5) of the Act provides that duty of care is a question of law.

The definition of a ‘gross’ breach is given in s.1(4)(b) and requires the conduct of the organisation to fall ‘far below’ what is reasonably expected of an organisation in the circumstances. There are a number of factors for the jury to consider in deciding whether the conduct of the defendant organisation amounts to a gross breach of duty. These are set out under s.8 of the Act and include whether the evidence shows that the organisation failed to comply with any health and safety legislation that relates to the alleged breach and, if so, how serious that failure was and how much of a risk of death it posed. The jury may also consider the extent to which attitudes, policies, systems, or accepted practices within the organisation encouraged the failure or produced tolerance of it, and may have regard to any health and safety guidance that relates to the alleged breach. Under s.8(4), the jury may have regard to any other matters they consider relevant.

The Act does not apply retrospectively, so any events which occurred before the Act came into force (on 6 April 2008) may not found a charge of corporate manslaughter under the Act. However, this does not mean that such events are not relevant to a prosecution, thus a prosecution should not be dropped merely because the Crown’s case refers to events which occurred before the Act came into force: R v Cornish and Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 2967.

6.4.2 Convictions

There have been several convictions for corporate manslaughter since the Corporate Manslaughter and Corporate Homicide Act 2007 came into force. However, to date these cases seem to involve prosecutions against small business which are owner-managed, thus the Act p. 159has not been tested against a large company which has several complex layers of management. Even though there is the potential for an unlimited fine upon conviction, all of the sentences handed down to date have been relatively low fines, although this is probably due to the nature and size of the companies prosecuted.

The first conviction for corporate manslaughter under the Act occurred in February 2011. In R v Cotswold Geotechnical Holdings Ltd [2012] 1 Cr App R (S) 26, Cotswold Geotechnical Holdings Ltd became the first company to be convicted of corporate manslaughter in relation to the death of Alexander Wright who was a geologist working for the company. Mr Wright had been left working alone in a deep trench when the trench collapsed and Mr Wright died. The company was sentenced to a fine of £385,000.

In July 2012, Lion Steel Equipment Ltd pleaded guilty to a charge of corporate manslaughter after an employee of the defendant company died at the company premises (R v Lion Steel Equipment Ltd (Manchester Crown Court, unreported, 20 July 2012) (T20117,411)). The employee climbed a roof to repair a leak and he fell 13 metres through a skylight in the roof. The defendant company was sentenced to a fine of £480,000 and a costs order of £84,000 was imposed.

In December 2014, Peter Mawson Ltd was convicted of corporate manslaughter after an employee fell through a skylight onto a concrete floor and died (R v Peter Mawson Ltd (Preston Crown Court, unreported, December 2014)). The company had failed to ensure that the employee was safe while working on the roof by providing equipment such as scaffolding or netting. The defendant company was fined £200,000 for the offence of corporate manslaughter and its owner, Peter Mawson, was personally convicted of a health and safety breach and sentenced to eight months’ imprisonment suspended for two years, 200 hours of unpaid work, a publicity order, and a costs order of £31,504.77.

In February 2016, Sherwood Rise Limited, a care home company, was convicted of corporate manslaughter in respect of the death of Ivy Atkin, a vulnerable resident at Autumn Grange Residential Home. This is thought to be the first conviction of a care home company for corporate manslaughter. Mrs Atkin, the victim, was dependent upon the defendant company to care for her. She died from pneumonia caused by neglect. The company was fined £30,000 upon conviction (R v Sherwood Rise Limited (Nottingham Crown Court, unreported, February 2016)) and the director of the company, Yousaf Khan, also pleaded guilty to gross negligence manslaughter, for which he was sentenced to three years and two months’ imprisonment.

In September 2016, Koseoglu Metalworks Limited pleaded guilty to corporate manslaughter and other health and safety offences (R v Koseoglu Metalworks Limited (Chelmsford Crown Court, unreported, September 2016)), and in February 2017, Ozdil Investments Limited was convicted of corporate manslaughter and other health and safety offences (R v Ozdil Investments Limited (Chelmsford Crown Court, unreported, February 2017)). These cases arose after the death of Nikolai Valkov, a man who fell through the roof of a warehouse that he was working at. Ozdil Investments Limited owned the warehouse and the company had been warned about the safety precautions which needed to be taken when undertaking the repair work. The directors of the company paid a friend’s company, Koseoglu Metalworks Limited, which had no experience of roof work, to carry out the repairs, and the work was undertaken without safety procedures being followed. Koseoglu Metalworks Limited was fined £300,000 in respect of the corporate manslaughter conviction and ordered to pay costs totalling £21,236. Ozdil Investments Limited was fined £500,000 in respect of the corporate manslaughter conviction and ordered to pay costs totalling £53,115.34.

6.5p. 160 Causing or allowing the death of or serious harm to a child or vulnerable adult

The offence of causing or allowing the death of or serious harm to a child or vulnerable adult is found under s.5 of the Domestic Violence, Crime and Victims Act 2004 (as amended by the Domestic Violence, Crime and Victims (Amendment) Act 2012). This offence is committed where two or more people share a household and have frequent contact with a child or vulnerable adult who dies or suffers serious injury as a result of an unlawful act by one member of the household. The defendant will be guilty of this offence if he was the person who caused the death or serious injury, or if he did not cause the death or serious injury but he ought to have been aware of the significant risk of serious harm being caused to the victim by another person in the household and he failed to take reasonable steps to protect the victim from the risk. This offence was intended to avoid situations such as that which occurred in Lane and Lane (1985) 82 Cr App R 50, where the defendants could not be convicted of the manslaughter of their baby as the prosecution were unable to prove who caused the injuries which led to the death of the baby.

Summary

Involuntary manslaughter arises when a defendant unlawfully causes the death of the victim but has no intention to kill or cause GBH (i.e., he does not have the requisite mens rea for murder).

The three main types of involuntary manslaughter are unlawful act manslaughter, gross negligence manslaughter, and subjectively reckless manslaughter. Unlawful act manslaughter requires proof of four ingredients (DPP v Newbury and Jones (1977)):

1)

the defendant intentionally did an act;

2)

the act was unlawful;

3)

the act was objectively dangerous;

4)

the act caused the death of the victim.

The act must amount to a criminal offence: Franklin (1883); Lamb (1967).

The act must be objectively dangerous, such that ‘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’: Church (1966). The reasonable and sober bystander need not foresee the risk of the type of physical harm that did result: M (2013).

The reasonable man is deemed to have the knowledge that the defendant had, or should have had, at the time of the offence: Dawson (1985). Where the risk of harm becomes obvious to the reasonable person present at the scene of the crime, the defendant’s unlawful act becomes dangerous: Watson (1989).

p. 161 Gross negligence manslaughter requires proof of five ingredients: R v Rose [2017] EWCA Crim 1168:

1)

the defendant owed an existing duty of care to the victim;

2)

the defendant negligently breached that duty of care;

3)

it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death;

4)

the breach of that duty caused the death of the victim;

5)

the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.

The bigger picture

For detail about the reforms on involuntary manslaughter proposed by the Law Commission, see the Law Commission Report, Legislating the Criminal Code: Involuntary Manslaughter (Law Com. No. 237, 1996).

For a more detailed discussion about the liability of one-punch killers for unlawful act manslaughter and moral culpability, see Mitchell (2008 and 2009).

For more information about corporate manslaughter, you might wish to consider the following cases:

Cotswold Geotechnical Holdings Ltd [2012] 1 Cr App R (S) 26

JMW Farms Ltd (Belfast Crown Court, unreported, May 2012)

Lion Steel Equipment Ltd (Manchester Crown Court, unreported, July 2012) (T20117,411)

J Murray & Sons (Belfast Crown Court, unreported, October 2013)

Cavendish Masonry Ltd (Oxford Crown Court, unreported, May 2014)

Peter Mawson Ltd (Preston Crown Court, unreported, December 2014)

Pyranha Mouldings Ltd (Liverpool Crown Court, unreported, January 2015)

Sherwood Rise Limited (Nottingham Crown Court, unreported, February 2016)

Koseoglu Metalworks Limited (Chelmsford Crown Court, unreported, September 2016)

Ozdil Investments Limited (Chelmsford Crown Court, unreported, February 2017)

Questions

Self-test questions

1.

Explain the difference between involuntary manslaughter, murder, and voluntary manslaughter.

2.

Name the four ingredients of unlawful act manslaughter. Cite an authority to support this.

3.

p. 162 What is the test for dangerousness? Cite an authority to support this.

4.

What constitutes an unlawful act for the purposes of unlawful act manslaughter?

5.

Will an omission be sufficient as a basis of liability for: (a) unlawful act manslaughter; (b) gross negligence manslaughter?

6.

Will a defendant be guilty of unlawful act manslaughter if he supplies drugs to the victim who then consumes the drugs and dies? Cite an authority to support this.

7.

Name the ingredients of gross negligence manslaughter. Cite an authority to support this.

8.

Define gross negligence.

9.

Does reckless manslaughter exist? Explain your answer.

10.

Explain how a corporation might be liable for manslaughter.

Suggested approaches to answering these self-test questions can be found here.

Exam questions

1.

At a showbiz party, John and Carol, two famous actors, ask Richard to supply them with some heroin. Richard prepares two syringes of heroin which he hands to John and Carol. John injects himself with one syringe. Carol asks Richard to hold a tourniquet around her arm while she injects herself with the other syringe. Unfortunately, the dose of heroin which Richard has prepared proves too strong for John and Carol, and they both die from a drug overdose.

Afraid of getting into trouble, Richard attempts to leave the party. He goes to the cloakroom in order to retrieve his expensive, designer jacket. However, he is unable to find his cloakroom ticket. Jacqui, the cloakroom attendant and a senior citizen, refuses to give Richard his jacket unless he produces his ticket. Richard becomes very angry and shouts at Jacqui whilst punching the desk. Jacqui, who suffers from a serious heart condition, has a heart attack and dies.

Discuss Richard’s liability for the deaths of John, Carol, and Jacqui.

2.

To what extent is the law relating to gross negligence manslaughter uncertain and circular? Refer to case law in your answer.

Suggested approaches to answering these exam questions can be found here.

Test your understanding

Test yourself on this chapter using our multiple-choice questions.

p. 163Further reading

Books
  • Matthews, R. Blackstone’s Guide to the Corporate Manslaughter and Corporate Homicide Act 2007 (2008), Oxford: Oxford University Press
  • Journal articles
  • Freer, E. ‘“Causing or Allowing the Death of a Child”: Challenges to Working Out “Which of You Did it?”’ [2016] Crim LR 618
  • Freer, E. ‘We Need to Talk about Charlie: Putting the Brakes on Unlawful Act Manslaughter’ [2018] Crim LR 612
  • Herring, J. and Palser, E. ‘The Duty of Care in Gross Negligence Manslaughter’ [2007] Crim LR 24
  • Leigh, G. ‘Deconstructing Unlawful Act Manslaughter’ (2017) 81(2) JCL 112
  • Lodge, A. ‘Gross Negligence Manslaughter on the Cusp: The Unprincipled Privileging of Harm over Culpability’ (2017) 81(2) JCL 125
  • Mitchell, B. ‘Minding the Gap in Unlawful and Dangerous Act Manslaughter: A Moral Defence for One-Punch Killers’ (2008) 72 JCL 537
  • Mitchell, B. ‘More Thoughts about Unlawful and Dangerous Act Manslaughter and the One-Punch Killer’ [2009] Crim LR 502
  • Quick, O. ‘Medicine, Mistakes and Manslaughter: A Criminal Combination?’ (2010) 69 Cambridge Law Journal 186
  • Stark, F. ‘Reckless Manslaughter’ [2017] Crim LR 763
  • Taylor, R. ‘The Contours of Involuntary Manslaughter—A Place for Unlawful Act by Omission’ [2019] Crim LR 205
  • Williams, G. ‘Gross Negligence Manslaughter and Duty of Care in “Drugs” Cases: R v Evans’ [2009] Crim LR 631
  • Reports
  • Law Commission Report, Legislating the Criminal Code: Involuntary Manslaughter (Law Com. No. 237, 1996)
  • Law Commission Report, Murder, Manslaughter and Infanticide (Law Com. No. 304, 2006)
  • © Oxford University Press 2022