Criminal Liability for Non-Aggressive Death

Sally Cunningham, C.M.V. Clarkson

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317157861
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

The crime of manslaughter exists as a 'catch-all offence' to punish those who are blameworthy in causing the death of another but whose culpability falls short of that required for murder. Manslaughter is an extremely broad offence and it has a difficult task in ensuring that all those who warrant punishment for 'non-aggressive' deaths are convicted. Simultaneously, it should not be too broad in covering those who do not warrant punishment for such deaths. There is little consistency in whether a particular dangerous activity leads to liability for a specific offence or for the generic offence of manslaughter when death is caused. This book examines the current law and includes a variety of perspectives on the subject with chapters on specific modes of killing as well as issues that permeate all areas. The first half of the book deals with issues such as how any special offences for non-aggressive death should relate to a hierarchy of homicide offences. The second half deals with issues specific to different activities, which may or may not justify the creation of specific homicide offences. The book includes a comparative chapter on Australian law.

Chapter 1

Introduction

C.M.V. Clarkson and Sally Cunningham

I The Subject-matter of this Book

Beyond the core offences of murder and manslaughter, English law has, until recently, only made specific provision for a few other separate homicide offences: causing death by dangerous driving (and its previous incarnations); causing death by careless driving while under the influence of drink or drugs; causing death by aggravated vehicle-taking; infanticide and aiding and abetting suicide. Since 2004, however, yet further such offences have been created: causing or allowing the death of a child or vulnerable adult; causing death by careless driving; causing death by unlicensed, disqualified or uninsured driving and corporate manslaughter. These developments occurred at the same time as the Law Commission was embarking on ambitious proposals for the restructuring of the whole common law of homicide. This prompts an obvious question: are such specific homicide offences needed and justifiable or should such killings be embraced within the general law of homicide (in particular, manslaughter)?

To address such issues a two-day conference was held at the University of Leicester in April 2007.1 The papers delivered at this conference, with some significant revisions, form the bulk of this book. Jeremy Horder of the Law Commission was unable to attend the conference but we are fortunate that he has produced a significant chapter in this book. The title of the conference and this book is ‘Criminal Liability for Non-Aggressive Death’. Most of the specific offences referred to above involve non-aggressive, non-intentional killings. Some of these could sometimes be prosecuted as manslaughter (for example, when death results from dangerous driving). For the remainder, the only charge (prior to the introduction of the new offences) was for an endangerment offence (for example, careless driving). Other chapters address further dangerous activities, which currently can result in manslaughter charges where death results, and where there might be scope for creating new specific offences along the lines of those referred to above.

We are not concerned with those killings that arise from an act intended to cause death or grievous bodily harm. Accordingly, murder and voluntary manslaughter (along with infanticide which has much in common with voluntary manslaughter) have been excluded from consideration. Similarly, while euthanasia and mercy killings can be described as ‘non-aggressive’ deaths, they involve deaths being intentionally caused and, particularly given the highly politically-charged and emotive feelings aroused by suggested reforms, are best largely left aside2 – although they are briefly addressed by Tadros. But neither are we concerned with criminal liability for all unintentional deaths. The term ‘non-aggressive’ is designed to omit killings which take place in the course of an attack, where the defendant has chosen to engage in violence against another person. However, in establishing justifications for drawing lines between different species of homicide, it is necessary to explore what might fall on either side of the line, and attacks are discussed, in particular by Duff, in attempting to establish the role that luck ought to play in the imposition of criminal liability for those who case death. A death falling within the offence discussed by Herring under section 5 of the Domestic Violence, Crime and Victims Act 2004 might be one that is both intentional and aggressive, but in practice the offence is likely to encompass someone other than the aggressor.

II Specific Homicide Offences

So, the focus of this book is whether killings in specific contexts, where a person is engaged in non-aggressive conduct with no intention to cause harm, should be treated as specific or nominate offences or whether they should fall within the general offence of manslaughter. Five areas of law have been chosen from which to explore this issue. Three of these deal with killings in specific contexts which are, under current law, subject to special treatment with the creation of specific offences.

The first of these is the newly-created offence of corporate manslaughter. Clarkson argues that it is inadequate to prosecute merely for a breach of health and safety offence when someone has been killed by a corporation’s dangerous activities. The fact of death needs to be reflected in the offence definition. Rather than simply utilising the general law of manslaughter, he argues that a special offence was needed for two reasons. First, it has proved extremely problematic to adapt the law of manslaughter to cover corporate entities. Secondly, he argues that the context of such killings with deaths occurring within the regulatory setting of health and safety are so far removed from paradigmatic manslaughter that they should be marked by the existence of a special offence.

The second area, examined by Cunningham, concerns the causing of death by dangerous or other bad or prohibited driving. The offence of causing death by dangerous driving was created in 1956 when it was considered that juries were reluctant to convict drivers of manslaughter. Bad drivers who cause death can now face liability for a number of offences, depending on the degree of negligence they display and the way in which prosecutors exercise their discretion in selecting an appropriate charge. These range from manslaughter down to the newly-created offence of causing death by careless driving. Drivers involved in fatal collisions after driving carelessly, when they should not have been driving at all because they were drunk, had stolen the vehicle involved, or were driving without a licence or insurance or whilst disqualified, have also had homicide offences tailor-made for them. Cunningham argues that neither theoretical nor pragmatic justifications for special vehicular homicide offences stand up to scrutiny, and that death caused by driving should either be prosecuted as manslaughter or the underlying endangerment offence.

The third specific homicide offence, discussed by Herring, is the crime of causing or allowing the death of a child or vulnerable adult under section 5 of the Domestic Violence, Crime and Victims Act 2004. He explains that this offence was created mainly because of evidential problems that arose when a child or vulnerable adult was killed by a carer in the same household, but it could not be proved which carer actually caused the death. After discussing the numerous interpretative problems associated with the offence and the apparently arbitrary distinctions drawn, he suggests that the law could have responded to the problem by simply increasing the maximum penalty for the underlying endangerment offence of child neglect. He concludes that the offence is likely to lead to the prosecution of women who are themselves the victims of domestic violence. Such women might deserve some degree of moral censure, but it is not clear, given their vulnerability and lack of ill-will towards their victims, that they deserve liability for homicide. Instead of prosecuting such women for a homicide offence, the state should recognise its responsibility for providing effective and adequate protection of women and children from violence.

Beyond corporate killings, vehicular killings and killings of children and vulnerable adults, are there any other contexts of killing that might deserve special treatment in the absence of mens rea for murder? A doctor or other medical professional whose negligence causes the death of a patient may face liability for gross negligence manslaughter. If it were thought necessary to create an offence of causing death by dangerous driving to apply to drivers who might otherwise be upstanding, law-abiding members of society, why not create a similar offence for professionals who, it could be argued, deserve to be considered separately from other killers because of the fact that their very reason for acting is to help others? This is the subject of Quick’s chapter, which in fact takes the opposite view that most medical professionals do not deserve to fall within the scope of the criminal law on homicide at all, and argues that the mens rea for manslaughter is in need of reform in order to exclude them. He argues that gross negligence manslaughter, which can currently be used to prosecute medical professionals who cause death, should ideally be abolished and reliance placed on the alternative form of subjective recklessness manslaughter. This would, he argues, allow prosecutions to focus on those doctors who deserve condemnation for the choices they have made, rather than leaving prosecutors with the discretion to bring prosecutions in cases which have resulted from momentary slips and lapses in concentration.

Finally, an issue that has attracted considerable attention is whether a drug-supplier who supplies drugs to another who then dies after consuming the drugs, should be guilty of manslaughter – or whether a new specific offence should be created as has occurred in some states in the USA. Wilson suggests in his chapter that such persons should not be liable for either manslaughter or for a special offence but should be treated more as victims of their addiction than criminal killers.

In evaluating the proliferation of specific homicide offences in England and Wales, it is useful to explore how this issue has been treated elsewhere. Yeo outlines the position adopted in the various Australian jurisdictions. Australia was chosen as a comparator for several reasons. First, while most Australian jurisdictions have rejected calls for the introduction of a special offence of corporate manslaughter (preferring to increase the penalties under occupational health and safety legislation), nevertheless two territories have introduced a special offence with the Australian Capital Territory providing a particularly interesting model that was borrowed, in one respect at least (the corporate culture notion), for the formulation of the new English offence of corporate manslaughter. Also of interest is the fact that the offence there, unlike its English counterpart, only extends to the killing of ‘workers’. Secondly, South Australia has enacted legislation not dissimilar to the Domestic Violence, Crime and Victims Act 2004 – although the offence extends to the causing of serious harm while the English equivalent is limited to the causing of death. Thirdly, there has been an increasing questioning in Australia by both judges and law reform commissions of the need to have separate vehicular homicide offences. Also of interest in this context is the position in Victoria where the offence of culpable driving causing death requires the same degree of negligence as is required for manslaughter and carries the same penalty as manslaughter.

III Relationship of Specific Offences to Manslaughter

It is impossible to address these issues without first questioning the construction of the general offence of manslaughter itself and exploring how it, and any nominate offences, ought to fit within a hierarchy (or ladder) of criminal offences generally. Tadros argues that the present law of manslaughter is too broad and that there should be a separate category of ‘culpable killing’ to capture the least serious homicide cases. Yeo cites the Model Criminal Code Officers Committee which proposes the introduction of a new offence (alongside manslaughter) of dangerous conduct causing death which would cover existing corporate, medical and dangerous driving cases where death results.

Leaving aside these more far-reaching proposals, a strong objection to the creation of specific homicide offences is that they usually only require a lesser threshold of culpability than common law manslaughter. For example, as pointed out by both Ashworth and Cunningham, causing death by dangerous driving only requires ‘danger either of injury to any person or of serious damage to property’ whereas for manslaughter there has to be gross negligence as to the risk of causing death. Horder argues that ‘such an extrinsic definition of danger renders the link with causing death opaque, and hence makes questionable the moral basis for the offence’. Similarly, as demonstrated by Herring, for the offence of causing or allowing the death of a child or vulnerable adult mere negligence suffices. This lowering of the standard of required culpability is seen most dramatically in the new vehicular homicide offences where, for example, for the offence of causing death by careless driving all that is needed is simple careless driving. Ashworth argues that the minimum fault requirement in relation to death should be the same across all homicide offences. Cunningham uses a numerical analysis of the fault ingredients of homicide offences proposed by the Law Commission to make a similar point, suggesting that there should be a cut-off point of blameworthiness below which liability for death should not be attributed to a negligent actor.

Ashworth highlights the principle of equal treatment of offences of equal seriousness as being necessary in informing offence structures. Tadros similarly argues that for reasons of equality homicide law should be coherent – which means cases should be ‘treated comparatively’. If some context-specific killings are picked out for the creation of special offences, then any other context-specific killings which share the characteristics justifying the special treatment should likewise give rise to specific offences. The implication is that we should either rely on one catch-all offence of homicide in cases of non-aggressive death, or ensure that each context deserving special treatment is catered for by a special offence. Quick, in considering the desirability of a special offence in the context of medical killing, notes that single theories of responsibility which attempt to cater for different forms of behaviour under one umbrella often fail in their objective, and considers whether a context-specific appreciation of responsibility would lead to greater fairness. However, his conclusion is to reject the option of a context-specific offence of medical killing below manslaughter in a hierarchy of homicide offences on the basis that the criminal law should be used as a last resort to achieve some positive benefit and in the context of increased safety in the healthcare environment there is no indication that such an offence would be effective.

The above analysis questions the fact that the specific offences generally employ a lower fault threshold than gross negligence manslaughter. There is, of course, another route to a manslaughter conviction, namely, constructive (or unlawful act) manslaughter. Many of the specific homicide offences implicitly draw on this model. Driving carelessly or dangerously is an unlawful and dangerous act. When the danger materialises and death is caused, the fact of death is marked in the offence classification. The offence of causing or allowing the death of a child or vulnerable adult requires the commission of an ‘unlawful act’. Although not a formal prerequisite to the imposition of liability, the offence of corporate manslaughter requires the jury to consider whether there has been a dangerous breach of health and safety laws.

Of course, the fact that these offences are similar to constructive manslaughter begs the highly controversial question: is constructive manslaughter itself justifiable? Should people be liable for a resultant death (whatever the underlying endangerment offence) which could be the result of pure luck? Clarkson argues that for fair labelling and communicative reasons a resultant harm should be taken into account provided the harm flows directly from an unlawful, dangerous activity. A company that operates in a dangerous manner can be regarded as having made its own (bad) luck and should be liable for a resultant death and not merely liable for an endangerment offence (breach of health and safety). Wilson accepts the offence of constructive manslaughter in its paradigmatic form where what is required is danger in a specific context rather than danger ‘as a more general social phenomenon’. In its paradigmatic form, constructive manslaughter is a crime of violence involving an attack which disqualifies an offender from saying any consequential harm suffered by the victim is pure bad luck. In contrast, with regard to drug-supply ‘where the victim chooses to subject himself to risks and indeed may be the dominant partner in a commercial transaction or exchange of services there is no call for luck to redound to the supplier’s discredit’. Tadros also accepts that constructive manslaughter can be justified. Where an actor is engaged in a dangerous criminal action there is ‘prospective responsibility’ for ensuring that there is no risk of death as a consequence of the criminal act; ‘unlawful act manslaughter provides one way of showing that the defendant was reckless in killing’. (However, he concludes that this degree of fault is too trivial to justify a manslaughter conviction and should fall within a new offence of culpable killing.)

Duff argues that our moral response to outcome luck is context-dependent. In the case of attacks which are ‘structured by the prospective harm’ and where success is the core or paradigm case, not causing the harm (as in cases of attempt) will be seen by the actor as a failure; there will be no remorse, only regret. The issue is then whether that failure makes a penal discount (whether at the substantive or sentencing level) appropriate. In the context of endangerments, on the other hand, where the nonoccurrence of harm is the paradigm, the actor can be presumed to be relieved that she has caused no harm or that she will be distressed if she does cause harm. The question is now, not whether there should be a penal discount, but whether the causing of harm should aggravate the seriousness of the offence (again, whether at the substantive or sentencing stage). Because we can assume that the agent will already be distressed by the harm caused the law need not ‘induce a forceful attempt to induce such distress in her’. Nevertheless, increased punishment is appropriate to endorse the agent’s regret. But, because the agent is already appropriately distressed by the harm she has caused, the increase in sentence should be ‘only modest’. Following from this, he argues that the very significant increases in maximum sentence provided by the present English vehicular homicide laws are not justified.

Ashworth rejects all these offences based on the commission of an ‘originating wrong that can be connected to the death’ on the basis that the ‘fatal result lies outside the scope of the foreseeable risk created by the offence D was committing’. Rejecting the familiar argument that a defendant who commits an assault or othe...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• Notes on Contributors
• 1 Introduction
• 2 Homicide Reform and the Changing Character of Legal Thought
• 3 The Limits of Manslaughter
• 4 Whose Luck Is It Anyway?
• 5 Corporate Manslaughter: Need for a Special Offence?
• 6 Vehicular Homicide: Need for a Special Offence?
• 7 Mum’s Not the Word: An Analysis of Section 5, Domestic Violence, Crime and Victims Act 2004
• 8 Medical Killing: Need for a Specific Offence?
• 9 Dealing with Drug-induced Homicide
• 10 Manslaughter Versus Special Homicide Offences: An Australian Perspective
• 11 ‘Manslaughter’: Generic or Nominate Offences?
• Index