~ .- ” a .. ,, .rl (I ‘I .. i The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Jack Beatson Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, Q.C. The Secretary of the Law Commission is Mr Michael Collon and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1 N 2BQ. This Consultation Paper, completed for publication on 25 February 1994, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 31 October 1994. All correspondence should be addressed to: Ms C Haslet1 Law Commission Conquest House 37-38 John Street Theobalds Road London WC1 N 2BQ Tel: 071-41 1 1214 Fax: 071-41 1 1297 It may be helpful for the Law Commission, either in discussion with others concerned or I in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. ! i i i. ~__ The Law Commission Consultation Paper No 135 Criminal Law Involuntary Manslaughter A Consultation Paper, HMSO 0 Crown copyright 1994 Applications for reproduction should be made to HMSO ISBN 0 1 I 7302 19 8 17-122-01 CONTENTS Paragraphs Page PART I: SCOPE AND BACKGROUND OF THE PROJECT A. THE FRAMEWORK IN WHICH THE PROJECT IS SET 1.1-1.21 1 B. THE PROBLEMS OF THE PRESENT LAW 1.22-1.24 8 C. MANSLAUGHTER AS PART OF THE LAW OF HOMICIDE 1.25-1.26 9 PART 11: UNLAWFUL ACT MANSLAUGHTER A. INTRODUCTION 2.1-2.4 10 B. AN UNLAWFUL ACT 2.5-2.20 11 C. DANGEROUSNESS 2.2 1-2.26 19 D. THE NATURE OF THE REQUIRED CAUSAL LINK 2.27-2.38 21 E. THE REQUIREMENT THAT THE ACT MUST HAVE BEEN "DIRECTED AT" THE DECEASED 2.39-2.42 26 F. RvSCARLETT 2.43-2.47 27 G. THE POSITION IN OTHER COMMON LAW JURISDICTIONS 2.48-2.51 30 H. PROPOSALS FOR REFORM 2.52-2 ..56 32 PART 111: GROSS NEGLIGENCE MANSLAUGHTER A. INTRODUCTION 3.1-3.3 35 B. R v BATEMAN 3.4-3.5 35 C. NEGLIGENCE AND THE DUTY TO TAKE CARE 3.6-3.10 36 The duty to act: liability for omissions 3.1 1-3.18 37 The duty owed by experts 3.19-3.21 40 Other instances of the duty to take care 3.22 40 The "duty of care" as "standard of care" 3.23-3.25 40 Breach of the duty: the standard of care 3.26-3.30 41 Gross negligence 3.3 1-3.41 43 Gross negligence in other jurisdictions 3.42-3.58 46 D. THE MEANING OF "RECKLESSNESS" BEFORE SEYMOUR 3.59-3.60 51 "Recklessness" as a degree of "negligence" 3.61-3.68 51 The meaning of "recklessness": indifference 3.69-3.76 53 Subjective recklessness 3.77-3.82 56 The meaning of "recklessness" in the law of manslaughter of some overseas jurisdictions 3.83-3.90 59 A distinction between recklessness and / negligence based on the seriousness of the ,' harm risked 3.9 1-3.98 61 E. CALDWLL RECKLESSNESS: R v SEYMOUR 3.99-3.104 65 A comparison between Seymour and Andrews 3.105-3.109 67 Kong Cheuk Kwan 3.110-3.112 68 The case-law between Kong Cheuk Kwan and Reid 3.113-3.1 18 69 R v Reid 3.119-3.120 71 ... 111 Paragraphs Page F. R v PREWCE 71 The judgment of the Court of Appeal 3.121-3.133 71 "Breach of duty" in Prentice 3.134-3.139 75 Prentice: a summation 3.140 77 Prentice and the general law of manslaughter 3.141 -3.144 78 The practical application of the new law 3.145-3.155 79 G. MOTOR MANSLAUGHTER 3.156-3.167 82 H. RECKLESSNESS AS A FORMER ELEMENT OF THE LAW OF MURDER 3.168-3.170 87 PART IV: THE LIABILITY OF CORPORATIONS A. INTRODUCTION 4.1-4.4 89 B. THE GENERAL LAW OF CORPORATE LIABILITY 90 Background 4.5-4.6 90 The early development of corporate liability 4.7-4.10 91 The principle of identification 4.11-4.15 93 The controlling officers 4.16-4.20 95 C. CORPORATE LIABILITY FOR MANSLAUGHTER 97 The general theory 4.2 1-4.30 97 The rejection of the principle of aggregation and the requirement that an individual "controlling officer" should be guilty 4.3 1-4.37 101 The "obviousness" of the risk in the prosecution of P&O European Ferries (Dover) Ltd 4.38-4.45 104 PART V: OPTIONS FOR REFORM A. UNLAWFUL ACT MANSLAUGHTER 5.1-5.15 108 B. MANSLAUGHTER BY SUBJECTIVE RECKLESSNESS 5.16-5.21 112 C. MOTOR MANSLAUGHTER 114 Introduction 5.22-5.24 114 The disapplication of manslaughter to killings by use of motor vehicles 5.25-5.26 114 The reversal of Seymour 5.27-5.29 115 D. A GENERAL LAW OF MANSLAUGHTER 116 Introduction 5.30 116 Should there be a law of manslaughter at all? 5.31-5.32 116 The special position of homicide 5.33-5.35 116 Accidental and non-accidental death 5.36-5.37 117 The function of the criminal law 5.38-5.43 117 E. ANEWSTART 119 The nature of the offence 5.44-5.48 119 Manslaughter: a crime about death 5.49-5.56 121 The standard of culpability 5.57-5.64 123 Some specific considerations 5.65-5.69 125 F. PUNISHMENT 5.70-5.7 1 127 G. CORPORATE LIABILITY FOR MANSLAUGHTER 127 Introduction 5.72-5.73 127 iv Paragraphs Page The difficulties of corporate liability 5.74-5.76 128 Corporate liability and manslaughter 5.77-5.78 129 The corporation should have been aware of the risk 5.79-5.84 129 The corporation’s conduct fell seriously and significantly below what could reasonably have been demanded of it in dealing with that risk 5.85-5.90 131 H. THE PUNISHMENT OF CORPORATIONS 5.91-5.92 133 PART VI: SUMMARY OF OUR PROVISIONAL PROPOSALS A. UNLAWFUL ACT MANSLAUGHTER 6.2-6.3 134 B. MANSLAUGHTER BY SUBJECTIVE RECKLESSNESS 6.4 134 C. MOTOR MANSLAUGHTER 6.5-6.7 135 D. THE GENERAL LAW OF MANSLAUGHTER 6.8-6.19 135 E. PUNISHMENT 6.20 136 F. CORPORATE LIABILITY FOR MANSLAUGHTER 6.21-6.22 136 V INVOLUNTARY MANSLAUGHTER PART I SCOPE AND BACKGROUND OF THE PROJECT A. The framework in which the project is set 1.1 This Consultation Paper is concerned with that part of our criminal law which is called, perhaps not entirely happily, "involuntary" manslaughter. The law of involuntary manslaughter today has two, separate, main branches:' causing death in the course of doing an unlawful act and causing death by an act of recklessness or by "gross negligence". 1.2 The Paper is not concerned with those parts of the law of manslaughter (sometimes collectively called the law of voluntary manslaughter) which depend on the presence of the necessary mens rea for murder, and are therefore most easily regarded as partial defences to a charge of murder. The law of killing whilst under diminished responsibility,' the law of killing whilst under provocation3 and killing by a survivor of a suicide pact4 are therefore not discussed in the Paper. 1.3 We believe we should explain the reasons why we have decided to limit the scope of this new law reform project in this way. In 1989 we published our report on a Criminal Code for England and Wales.' This represented the culmination of eight years of work which had the central purpose of making the criminal law more accessible, comprehensible, consistent and certain. The Code was not in itself an exercise in law reform, although it included among its provisions certain unimplemented recommendations for law reform made in recent years by official bodies, including ourselves, or by ad hoc committees whose recommendations carried weight. 1.4 We are now embarked on the next part of this major exercise, which is to take different areas of the criminal law and to subject them to critical scrutiny with a view to producing a series of discrete law reform Bills, each complete in themselves, and ready for immediate implementation. These will also serve, once they have passed into law, as the material for consolidation into the complete Criminal Code which this country so badly ' A third topic, killing by an act of subjective recklessness, has recently fallen into this area, and is considered at paras 5.16-5.21 below. Homicide Act 1957, s 2. Bid, s 3. Bid, s 4. Criminal Law: A Criminal Code for England and Wales, (1989) Law Corn No 177. 1 needs.6 In November 1993 we published a report, on non-fatal Offences against the Person and General Principles, which formed the first stage of this part of our work.7 This report received support on its publication' which was just as enthusiastic as the support we received at its consultation stage,9 and it is now available to be enacted as soon as Parliament can find the time for such an essential and much-needed piece of criminal law reform.