The Law Commission (LAW COM No 237) Legislating the Criminal Code INVOLUNTARY MANSLAUGHTER Item 11 of the Sixth Programme of Law Reform: Criminal Law Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965 Ordered by The House of Commons to be printed 4 March 1996 LONDON: The Stationery Office £ HC 171 THE LAW COMMISSION LEGISLATING THE CRIMINAL CODE: INVOLUNTARY MANSLAUGHTER CONTENTS Paragraphs Page PART I: INTRODUCTION The scope and structure of this report 1.1 – 1.9 1 Corporate manslaughter 1.10 – 1.21 4 The context in which this project is set 1.22 – 1.31 9 PART II: THE DIFFERENT WAYS OF COMMITTING “INVOLUNTARY MANSLAUGHTER” UNDER THE PRESENT LAW Introduction 2.1 – 2.2 12 Unlawful act manslaughter 2.3 – 2.7 12 Gross negligence manslaughter 2.8 – 2.16 14 Special cases of gross negligence manslaughter Motor manslaughter 2.17 – 2.21 17 Liability for omissions 2.22 – 2.25 19 “Subjective” recklessness 2.26 – 2.27 20 PART III: WHAT IS WRONG WITH THE PRESENT LAW? Introduction 3.1 22 The breadth of the offence 3.2 – 3.4 22 Unlawful act manslaughter 3.5 – 3.6 23 Gross negligence manslaughter after Adomako 3.7 – 3.13 23 Liability for omissions 3.14 – 3.16 26 Conclusion 3.17 27 PART IV: THE MORAL BASIS OF CRIMINAL LIABILITY FOR UNINTENTIONALLY CAUSING DEATH Introduction 4.1 – 4.3 28 Orthodox subjectivist theory 4.4 – 4.6 28 Subjectivist principles applied in the Law Commission’s recent work on offences against the person 4.7 – 4.9 30 Recklessly causing death 4.10 – 4.11 31 Criticisms of the subjectivist mens rea principle: can criminal liability based on inadvertence ever be justified? 4.12 – 4.16 31 What makes inadvertence culpable? 4.17 – 4.29 33 i Paragraphs Page What makes conduct culpable? The conduct led to harmful consequences: “moral luck” 4.30 – 4.33 36 The accused’s conduct was criminal in some way independent of the causing of death 4.34 38 The accused intended to cause some harm, or was aware of the risk of doing so, and/or it was foreseeable that her conduct created the risk of causing some harm 4.35 – 4.42 38 Conclusion 4.43 – 4.44 40 PART V: OUR PROPOSALS FOR REFORM Introduction 5.1 42 One broad or several narrow offences? 5.2 – 5.5 42 Reckless killing 5.6 43 The response on consultation 5.7 – 5.9 43 The details of our recommendation 5.10 – 5.13 44 Unlawful act manslaughter 5.14 – 5.16 46 Killing by gross carelessness 5.17 47 Our provisional proposal 5.18 – 5.19 47 The response on consultation 5.20 – 5.23 47 Our final recommendation 5.24 – 5.34 48 Some examples 5.35 – 5.37 53 A single offence to cover all types of activity 5.38 – 5.41 54 Omissions causing death 5.42 – 5.45 55 The maximum sentence 5.46 – 5.52 56 Alternative verdicts The new offences as alternatives to murder 5.53 – 5.56 58 Alternatives to the new offences 5.57 – 5.61 60 Motor manslaughter 5.62 – 5.69 61 The Forfeiture Act 1982 5.70 – 5.76 64 PART VI: CORPORATE MANSLAUGHTER: THE PRESENT LAW Introduction 6.1 – 6.4 67 Procedure 6.5 – 6.6 67 Interpretation provisions 6.7 68 Vicarious liability 6.8 – 6.26 69 The principle of “identification” The nature of the principle 6.27 – 6.34 74 Who are the controlling officers? 6.35 – 6.39 77 ii Paragraphs Page Corporate liability for manslaughter An indictment for manslaughter now lies against a corporation 6.40 – 6.48 79 The application to corporations of the substantive law of manslaughter 6.49 – 6.56 83 PART VII: OUR PROVISIONAL PROPOSAL IN CONSULTATION PAPER NO 135, AND OUR PRESENT VIEW The proposal 7.1 – 7.6 87 The response on consultation 7.7 88 Reasons adduced on consultation in favour of extending corporate liability for manslaughter 7.8 89 The need to give practical effect to the recently established principle that an indictment lies against a corporation for manslaughter 7.9 – 7.11 89 Public confidence 7.12 89 Causation 7.13 90 Deterrence 7.14 90 The availability of new kinds of sentence 7.15 – 7.16 90 The inadequacy of the regulatory offences in the Health and Safety at Work etc Act 1974 7.17 90 Reasons adduced on consultation against our provisional proposal 7.18 – 7.25 91 The British Steel case 7.26 – 7.27 94 Options for extending corporate liability 7.28 – 7.37 94 PART VIII: A NEW OFFENCE OF CORPORATE KILLING Introduction 8.1 – 8.2 99 Foreseeability of the risk 8.3 – 8.4 99 Seriousness of the defendant’s conduct 8.5 – 8.7 100 Conduct of the defendant that causes death 8.8 101 Conduct of the defendant 8.9 – 8.35 102 Causation of death 8.36 – 8.39 110 iii Paragraphs Page Independent contractors The issue 8.40 112 The offence under section 3(1) of the Health and Safety at Work etc Act 1974 8.41 – 8.43 113 Independent contractors and the proposed corporate offence 8.44 114 An illustration 8.45 – 8.50 114 Potential defendants Corporations 8.51 – 8.53 116 Unincorporated bodies 8.54 – 8.55 117 Secondary parties 8.56 – 8.58 118 Territorial jurisdiction 8.59 – 8.62 119 Consent to prosecution 8.63 – 8.66 120 Mode of trial 8.67 122 Alternative verdicts 8.68 – 8.70 122 The court’s powers on conviction Compensation 8.71 123 Remedial action 8.72 – 8.76 123 Corporate liability for the individual offences 8.77 125 PART IX: SUMMARY OF OUR RECOMMENDATIONS 127 APPENDIX A: DRAFT INVOLUNTARY HOMICIDE BILL 133 APPENDIX B: INVOLUNTARY MANSLAUGHTER: SENTENCING 143 1. Long sentences for involuntary manslaughter Manslaughter involving the use of a firearm B.3 – B.5 143 Manslaughter in the course of burglary B.6 – B.7 144 Manslaughter in the course of robbery B.8 – B.13 145 Manslaughter of young child B.14 – B.16 146 Manslaughter caused by setting fire to buildings etc B.17 – B.22 147 Other forms of involuntary manslaughter B.23 – B.24 148 Conclusion B.25 149 2. Discretionary life sentences B.26 149 Criminal Justice Act 1991 B.27 – B.28 149 The case law B.29 – B.30 150 iv Paragraphs Page The gravity of the immediate offence B.31 – B.32 151 Mental instability B.33 – B.38 151 Injurious consequences of injuries to others B.39 153 Manslaughter and the discretionary life sentence B.40 154 The proposed offence of killing by gross carelessness and the discretionary life sentence B.41 – B.43 154 APPENDIX C: LIST OF PERSONS AND ORGANISATIONS WHO COMMENTED ON CONSULTATION PAPER NO 135155 APPENDIX D: LIST OF THOSE WHO ASSISTED WITH THE PROJECT AFTER CONSULTATION HAD FINISHED 158 v THE LAW COMMISSION Item 11 of the Sixth Programme of Law Reform: Criminal Law LEGISLATING THE CRIMINAL CODE: INVOLUNTARY MANSLAUGHTER To the Right Honourable the Lord Mackay of Clashfern, Lord High Chancellor of Great Britain PART I INTRODUCTION THE SCOPE AND STRUCTURE OF THIS REPORT 1.1 This report is concerned with the criminal liability of those who kill when they do not intend to cause death or serious injury. There are two conflicting schools of thought about the way in which the law should deal with such people. Some argue that society should always punish a person who causes terrible consequences to occur. Professor Hart puts the opposite view in these terms: All civilised penal systems make liability to punishment for at any rate serious crime dependent not merely on the fact that the person to be punished has done the outward act of a crime, but on his having done it in a certain state or frame of mind or will.1 In this report we consider what “frame of mind or will” ought to be required if criminal liability is to be imposed for unintentional killing. 1.2 There are only two general homicide offences2 under the present law. The more serious of these, murder, requires proof of intention to kill or to cause serious injury,3 and the absence of such mitigating circumstances as the fact that the killer was provoked, or acted under diminished responsibility, or was the survivor of a suicide pact.4 Every other case of unlawful killing is included within the second homicide offence, manslaughter. This offence is, therefore, extremely broad. It “ranges in its gravity from the borders of murder right down to those of accidental death”.5 1.3 Although it is a single offence, manslaughter is commonly divided by lawyers into two separate categories, “voluntary” and “involuntary” manslaughter. The first of these describes cases where the accused intended to cause death or serious injury, 1 H L A Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968) p 114. 2 There are, of course, other homicide offences aimed at particular situations, such as mothers who kill their babies (Infanticide Act 1938, s 1) or drivers who kill on the roads (Road Traffic Act 1988, s 1, as substituted by Road Traffic Act 1991, s 1), in certain circumstances defined by statute. 3 Moloney [1985] AC 905. 4 Homicide Act 1957, ss 2–4. 5 Walker (1992) 13 Cr App R (S) 474, 476, per Lord Lane CJ. 1 but is excused liability for murder because some mitigating factor may be present.6 In the present project we are concerned only with the second type, “involuntary” manslaughter.