Rethinking the Mental Element in Involuntary Manslaughter

Abstract

In this article, it is argued that the mental element for gross negligence manslaughter requires subjective fault. It is argued that the negligent conduct is evaluated objectively but does not mean a person cannot be subjectively aware of the fact that he or she is engaging in such conduct. Wilful negligence is not contradictory, because the noun refers to the conduct while the adjective refers to the fault of the wrongdoer. It is submitted the ancient authorities strongly support the theory of that grossness in negligence required subjective fault—and was not referring to the noun.

Keywords

Gross negligence manslaughter fault conduct mental element

Introduction

In this essay, I consider the development of involuntary manslaughter through a historical lens. A good account of its history alone would make a significant contribution to the literature, but I aim to do more by trying to demonstrate that historically the mental element for gross negligence manslaughter required subjective fault (dolus), not mere culpa lata. Furthermore, I shall attempt to demonstrate that historically unlawful act manslaughter required subjective fault beyond simply having the requisite fault for the underlying (unlawful act) crime. It is only possible to make a speculative case for such an interpretation, because the authorities, including those from the Victorian period when there was a marked increase in the number of gross negligence manslaughter cases,¹ make no express statement about whether or not subjective fault is required. In the 1900s, the House of Lords suggested that objective fault is all that is required, but it failed to clearly decouple the fault element from the conduct element.² Because the case law has failed to decouple the fault and conduct elements in a convincing way, and the Supreme Court has not had an opportunity to consider the matter since the 21st-century move towards subjectivism,³ it would be open to the Supreme Court to hold that gross negligence manslaughter requires subjective fault. I shall attempt to show the history of the offence supports such a reading. While unlawful act manslaughter always allowed for a degree of constructive liability, this, in practice, was limited to cases where it could be inferred that the perpetrator must have foreseen that he or she would cause serious bodily injury by doing the particular unlawful act. That was adopted in the Australian state of Victoria some decades ago, but alas did not gain traction.⁴ England and Wales, post the Homicide Act 1957, continued to adopt a more constructive approach in holding that an objective test must be applied to the question as to whether an accused’s unlawful act was dangerous with the requirement minor harm will do.

It shall be argued that a reinterpreted unlawful act manslaughter offence would be distinguishable from a reinterpreted gross negligence manslaughter offence (ie a gross negligence manslaughter offence requiring that the defendant subjectively foresaw that the grossly negligent conduct might cause a death), because unlawful act manslaughter would be made out when the perpetrator foresees that the unlawful act might cause serious bodily injury to another. Obviously, if gross negligence manslaughter requires subjective fault as to the risk of death, then there is no need to develop an independent category of reckless manslaughter. If a person foresees that an act or omission might cause the death of another and has no justification for taking that risk,⁵ that per se would fall well below the standard of conduct expected of a reasonable person.

In the second part of this essay, I shall give a brief sketch of the old law of murder to try to show the point in time when involuntary manslaughter started to be taken seriously as a head of criminal liability independently of murder and pardonable homicide by misadventure. In the third part of this essay, I trace violence and unreasonableness as elements in gross negligence manslaughter to demonstrate that the cases of gross negligence manslaughter before the 19th century rested as much on a violent unlawful act⁶ as they did on acts that were unlawful due to the degree of negligence involved. While the institutional treatises give examples of non-target directed violent homicide such as where a person caused a death by negligently failing to give a warning while throwing tiles from a roof, such cases nearly always fell into the category of pardonable homicide by misadventure.⁷ On the other hand, cases involving excessive violence directed at a particular victim, that became unlawful due to its unreasonableness and excessiveness, were treated as manslaughter. In the third part, I also try to make the case for interpreting gross negligence manslaughter as requiring subjective fault. In the fourth part of this essay, I shall attempt to make the case for reinterpreting constructive manslaughter to limit its application to facts where the defendant had subjective foresight that the underlying crime might cause serious injury.

The main caveat I offer is that I am not, in this short essay, aiming to invoke the sort of rigid timeline chronology a historian might apply. The approach adopted in this essay is topic-ordered rather than chronologically ordered to help the reader to follow the arguments. I shall rely on the orthodox homicide doctrines presented by the institutional writers such as Lambarde, Coke, Hale and Foster. The aim is to try to draw a connection between the idea of subjective fault and the doctrinal foundations of the law of involuntary manslaughter. I limit myself to using doctrine from different periods only when the doctrine has been applied consistently to similar problems across the periods, because sentences, procedures and processes vary considerably across the various historical periods. In that vein, I do not survey the coroner rolls to look for the variations that might have occurred in practice as a result of jury or judicial discretion.⁸ The focus is on the core doctrines that run consistently and evolutionarily through the history of homicide law and those that have had consistent and significant influence on appellate courts for centuries.⁹

Murder and Pardonable Homicide

The term murder originally referred to killings done in secret and was the name of the fine bore collectively by a community (a hundred) that was unable to prove the dead person was English. After the Danish invasion by Cnut in 1015 and later the Norman invasion by William the Conqueror in 1066, resistance from the local English population resulted in members of the invading populations being murdered in secret.¹⁰ Covert means were used to try to make the chances of being caught less likely.¹¹ The ‘clandestineness’ of such homicides was the aggravating feature that made these forms of homicide the most serious kind.¹² Long after the Norman Conquest, malice aforethought¹³ alone (rather than malice aforethought plus secrecy) became the criterion for making murder the most serious form of homicide.¹⁴ By the end of the 16th century, the category of homicide labelled ‘murder’ covered all killings done with malice aforethought (ie done with either direct or oblique intention). From the time of Bracton (c. 1210–1268), there were categories of both voluntary and involuntary homicide that were pardonable such as justifiable self-defence (voluntary) and accidental homicide by misadventure (involuntary). A category of voluntary manslaughter slowly formed in the 14th and 15th centuries and was labelled chance-medley—it applied primarily to what we would now categorise as loss of control cases.¹⁵ As we will see below, after the abolition of benefit of clergy for murder in the 16th century, the embryonic offences of gross negligence manslaughter and unlawful act manslaughter develop into fully fledged offences.

Due to the dearth of writers on criminal law in the 350 years between Bracton and Coke, Stephen based his major works on the history of English criminal law on his study of 467 cases from Fitzherbert’s¹⁶ abridgement of the cases from the Year-Books and concluded that the substantive criminal law changed very little during this time.¹⁷ In the different periods over the last 500 years, the criminal law and procedure operated rather differently to the modern position, through, for example, the role of the benefit of clergy, or the denial of counsel to defendants indicted for felony until the 1730s,¹⁸ or the denial of the right of the accused to give evidence in his or her own trial until 1898,¹⁹ but as Stephen points out, as late as 1883, Bracton’s two forms of unlawful act manslaughter (ie a death resulting from an act that is criminal per se or alternatively a death resulting from an act or omission that is criminal (unlawful) due to the level of negligence involved) were ‘in accordance with more modern decisions, and represents the existing law’.²⁰

Stephen’s conclusions are also supported by Green’s masterful study of the Plea rolls.²¹ Remarkably, a researcher can jump a few centuries and find the core doctrines being restated verbatim. From Fitzherbert²² to Lambarde,²³ there is no clear definition of manslaughter by chance-medley or any explanation of its compass, even though benefit of clergy no longer applied to murder. However, as we will see below, Lambarde recognised involuntary manslaughter in the middle of the 16th century. Nonetheless, gross negligence manslaughter only emerges distinctly from pardonable homicide by misadventure in the 18th century, but it is not tried as a matter of routine until the 19th century.²⁴ Coke mentions pardonable homicide by misadventure, but there is no mention of gross negligence manslaughter in his treatise, which was regarded as the leading work of its time.²⁵

A major change occurred in the 16th century as a result of the immunity from capital punishment being abrogated for members of the clergy who had been indicted for murder.²⁶ In the medieval period, all homicides were capital offences apart from those done as a matter of lawful justice. Even as late as the 19th century, there remained more than 200 capital offences in England and Wales.²⁷ Pardons were readily available for homicides resulting from self-defence or from misadventure, but beyond that the only relief was the immunity known as benefit of clergy.²⁸ Benefit of clergy was an immunity that allowed anyone (apart from women until 1691)²⁹ who could read a verse from the Bible to have their capital punishment reduced to a branding and a year in jail. The defendant would read a verse from the Bible to prove he or she was ‘in holy orders’ (though there was never a clear definition of which lesser orders counted for this purpose), because in the early medieval period clergymen were outside the jurisdiction of the secular courts and had the right to be transferred to an ecclesiastical court under canon law.³⁰ Those who had relied on benefit of clergy were branded so they would not be able to use it for a second offence at a later time. If a person holding the benefit of clergy was found guilty in the secular courts, he had to be transferred and retried in the ecclesiastical courts where he would receive a short prison sentence at the most. Judges usually selected verses from Psalm 51. Benefit of clergy was widely used and even the illiterate could be trained to memorise enough to pass the flexible literacy standards applied by the judges.³¹

From 1705³² onwards, the reading test was abolished and benefit of clergy became available for any first-time offence unless it had been expressly excluded from this privilege. With the full abolition of benefit of clergy in the middle of the 16th century for all killings done with malice aforethought, demonstrating that a homicide was clergyable manslaughter rather than non-clergyable murder was essential, if the accused wanted to avoid capital punishment.³³ After Coke interpreted constructive murder very widely to include a death resulting from any unlawful act (later called the felony-murder rule because Holt CJ limited its application to felonies),³⁴ there might very well have been pressure to bring many forms of unlawful act murder into a category of clergyable manslaughter—but it is hard to find any overt policy arguments for this in any of the institutional treatises. Hale was not the creator of unlawful act manslaughter, but he gave it credence beyond what it had prior to the abrogation of benefit of clergy for murder.³⁵ It is arguable that Hale’s statement on unlawful act manslaughter was aimed at ameliorating the potential harshness of Coke’s unlawful act murder doctrine, because Hale treats Coke’s unlawful act murder exemplar as unlawful act manslaughter. The only categories of involuntary homicide identified by Coke were a doctrine that can only be conceptualised as reckless unlawful act murder and homicide by misadventure.³⁶

In the 16th century, Lambarde identifies two forms of voluntary manslaughter that are so categorised because they are done without malice aforethought (malice prepense).³⁷ The two forms of voluntary manslaughter Lambarde identified were homicide by chance-medley and homicide in self-defence.³⁸ (We can leave aside executions done for the purpose of inflicting lawful capital punishment and killings done as a matter of enforcing the law, since these were fully justified killings and resulted in no criminal liability or forfeiture of property.) Lambarde applies chance-medley manslaughter not only to killing resulting from a loss of control simpliciter but also to other situations where there was no premeditated direct intention to kill such as killing in a game of buckles³⁹ and killing while attempting to regain lawful possession of one’s home from a trespasser.⁴⁰ Chance-medley was a synonym for manslaughter from at least the time of Staunford’s treatise⁴¹ through to the beginning of the 17th century.⁴² However, the facts in the repossession cases involve sudden quarrels and justificatory action, so they rest on the idea that there was an absence of a premeditated intention to kill.⁴³ As for the sudden loss of control cases, Lambarde writes it is ‘taken as manslaughter only: unless the respite and distance of time have been such, that the heat of the first anger might in that meanwhile have been assuaged’.⁴⁴ In the category of manslaughter by misadventure, Lambarde introduces his discussion as follows⁴⁵:

Having thus perused these kinds of homicide, that are willingly (though not all alike wilfully) committed and done, we must come to that which happen clean beside the will and purpose of him that do it. And therefore according to the law of god (which judged him not worthy of death, that ignorantly kills another…our law saveth unto such a one his life and lands, but yet taketh his goods, and giveth him a pardon of course….⁴⁶ (emphasis added)

In Lambarde’s time, homicide by self-defence and misadventure resulted in a conviction, even though these forms of homicide were pardonable.⁴⁷ Insanity and infancy (those aged under 12) were recognised as excuses because those who harmed as a result of insanity or infancy were deemed to have no will to harm and no ability to know good from evil.⁴⁸ There was no such crime as ‘unlawful act manslaughter’ in 16th century,⁴⁹ but by the 17th century there were signs that a lesser form of constructive homicide was starting to be distinguished from constructive murder.⁵⁰ The only category of involuntary manslaughter mentioned by Lambarde was homicide by misadventure—that is, by pure accident. If the degree of subjective recklessness was not sufficient to bring the killing within the purview of the offence of murder, it was simply deemed manslaughter by misadventure and a pardon could be obtained for the price of forfeiting one’s goods.⁵¹

What emerged from Hale’s⁵² assessment of the existing doctrine at the time when he was writing were the nuclei for two forms of involuntary manslaughter: (1) unlawful act manslaughter and (2) gross negligence manslaughter. The fault element for these two offences is given little to no treatment in Hale, Foster⁵³ or in the early 20th-century work of Harris,⁵⁴ partly, because subjective recklessness had not been distinguished from intention.⁵⁵ While involuntary manslaughter was starting to be distinguished from pardonable misadventure, both forms of involuntary manslaughter only started to be tightened up and applied independently of pardonable homicide by misadventure after the time of Hale (c. 1609–1676). From the first half of the 16th century, both unlawful act and gross negligence manslaughter were being charged,⁵⁶ but before that it appears homicide was treated as either murder or pardonable misadventure.

Obliquely Intended Murder or Reckless Murder

Some of the ancient cases suggest intention was imputed on facts that in our own time would give rise only to an inference of a high degree of subjective recklessness.⁵⁷ Pulton thought that the level of subjective recklessness involved in shooting arrows into a market was sufficient to justify either a manslaughter or a murder conviction.⁵⁸ The old murder cases give many examples of a conviction resting on a high level of subjective recklessness falling short of oblique intention such as where a person caused a death by taking a dangerous horse into a pedestrian zone or⁵⁹ a gaoler caused a death by knowingly putting a prisoner in a cell with other disease-carrying prisoners.⁶⁰ The substantive fault doctrine seems to have required direct intention or at the very least oblique intention,⁶¹ but in practice a high level of subjective recklessness was not distinguished from intention until the late 20th century.⁶²

Hence, many forms of what would now be conceptualised as reckless homicide fell into either the homicide by misadventure category or the murder category, depending on whether the facts were strong enough to infer a high degree of subjective fault—fault that might not necessarily lead to an inference of direct intention in the 21st century. Lambarde refers to malice aforethought,⁶³ but the examples he gives cover not only direct intention but also situations that manifestly allow for an inference of oblique intention.⁶⁴ It is difficult to be too harsh on the early writers, because subjective recklessness was still being held to be sufficient mens rea for a murder conviction until the second half of the 20th century.⁶⁵ There are many cases reported where malice aforethought was found even though there was no evidence of premeditation.⁶⁶ This suggests that by the late 16th century premeditation was not a substantive fault requirement but merely of evidential value for inferring malice aforethought.⁶⁷ Premeditation was also taken as an aggravating feature.⁶⁸ Arguably, ‘implied intention’⁶⁹ really meant no more than ‘inferred intention’.⁷⁰ The maxims for inferring fault and the primitive approach to proving cases resulted in convictions where the facts showed there was nothing more than subjective recklessness.

Looking at the cases in Lambarde,⁷¹ which are generally repeated verbatim in most homicide chapters in the institutional treatises (see the homicide chapters in the treatises by Pulton, Dalton, Hale, Foster, Hawkins, East and Russell), difficulty of proving a case one way or the other meant that many cases of reckless homicide either fell on the side of homicide by accident (misadventure) or fell the other way and were deemed to be murder. Given murder was a non-clergyable capital offence, juries no doubt leaned towards a misadventure conviction or a finding of no malice when the evidence was not compelling.⁷² Baker presents a 15th-century interpretation of the law as follows⁷³:

If a man throws an arrow or throws a stone over a house, and it falls in the high street and kills someone, now this is felony and the actor shall be put to death for it. Yet there is misfortune, but not alone; and therefore he shall have the benefit of this statute [Statute of Marlborough 1267], for there is infortunium together with the negligence and foolishness [mysfolie] of the actor, knowing well that high street where folk were passing.…. (emphasis added)

Kaye came to a similar conclusion when he asserted:

In the first passage Brooke, glossing Fineux’ example of the reckless strone-thrower, drastically limits the application of the defence of infortunium by asserting that, if an act be wanton or reckless, there will be liability at least for manslaughter if any death results accidentally from it.⁷⁴

Lambarde gives the famous murder cases of the woman who left her newborn in a field to be eaten by kites and of the man who took his gravely ill father from his home against his will and made him travel in freezing weather. Lambarde also gives the case of a gaoler who causes the death of a prisoner from subjecting him or her to cruel and hard treatment.⁷⁵ The infant abandonment case could allow for an inference of either direct intention or oblique intention, but the unreasonable treatment from the gaoler seems to be more of a case of a high degree of subjective recklessness falling short of oblique intention. Greaves’ late 19th-century interpretation of the abandonment case goes as follows:

There have been cases where it has been held that persons leaving a child exposed, and without any assistance, and under circumstances where no assistance was likely to be rendered, were guilty of murder. It will be for you [the jury] to consider whether the prisoner left the child in such a situation that to all reasonable apprehension she must have been aware that the child must die, or whether there were circumstances that would raise a reasonable expectation that the child would be found by some one else, and preserved; because that would only be the crime of manslaughter. If a person were to leave a child at the door of a gentleman, the probability would be so great that it would be found, that it would be too much to say that it was murder….⁷⁶ (emphasis added)

Pulton refers to the son carrying his sick father from town to town against his will and observes that this ‘was adjudged felony in him; for in that case the son had a meaning that his father’s life be shortened, and be brought to his death’.⁷⁷ Horne puts it as follows: ‘To other sort [of murderers] is of those who have desire to kill and cannot, as it is of those who cast infants, sick people, old people, in such places where they intend they shall die for want of help…’.⁷⁸ The social practice and social conditions of this epoch have to be considered, since it was a time when there was minimal welfare, no NHS or social care for senior citizens and so forth.⁷⁹ If old people and infants were being dumped in a way that was certain to cause their death, then an inference of intention would not have been inventive. Confusion about the different degrees of subjective fault and the maxims that were used to guide fact-finders when attempting to infer fault or the absence of fault continued to muddle things until the second half of the 20th century.⁸⁰

Wilner argues:

Cases have arisen in which even the hard-thinking, common-law judges found it to be an exaggeration to base conviction on the ground of implied malice, and it appeared to them to be more satisfactory to say that the defendant ought to be convicted because he was engaged in the commission of an unlawful act.⁸¹

There is no doubt that the tests for implying (malice) fault (including the maxim that a person intended the natural and probable consequences of her action) would have been hard to apply in many cases. However, it is equally likely that unlawful act manslaughter was a response to the harsh non-clergyable form of murder that became known as felony-murder.⁸² The move away from treating all risk-taking as misadventure was perhaps in response to the gap in the law for cases where it could be inferred that the perpetrator must have been subjectively aware of the risk of death or serious injury resulting from his or her actions,⁸³ even though such consequences were not directly intended. There was perhaps pressure to find a way to punish risk-taking that resulted in fatalities when it seemed deserving of some penal response.

The unlawfulness of what the defendant was doing when he or she caused a death was an important evidential issue for inferring intention, but it was not a substitute for a substantive mental element.⁸⁴ Lambarde said that if the defendant perpetrates a crime such as a violent robbery and as a result kills another, it might be inferred from the defendant’s actions that the defendant’s purpose was to kill the victim to make his robbery succeed. This is not a presumption of fault but an inference. A modern reader might find it put awkwardly, but generally presumptions of intention or recklessness need to be expressly provided for in law.⁸⁵ When the law is silent on the matter, guides for drawing inferences about what the facts were ought not to be taken as presumptions of fact.⁸⁶ ‘You may infer but are not required to infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted…The language here is permissive’.⁸⁷ An unlawful act not only was a basis for involuntary manslaughter but was in other instances used as evidence that permitted the fact-finder to make an inference.⁸⁸ If the defendant stabbed another in the heart with a large knife, the jury might infer from that nature of that particular unlawful act that the defendant intended to kill the victim.⁸⁹ In homicide cases, it was enough to infer that the defendant intended to cause the victim serious bodily injury.⁹⁰ In this sense, the maxim that a person intended the natural and probable consequences of his or her actions offered a potential constraint against extreme constructivism in the law of homicide. The natural and probable consequence maxim might only have been meant as a guide to assist juries to make inferences about guilt,⁹¹ but its application to some cases would produce less severe results than the ‘objective minor harm’ element introduced into unlawful act manslaughter.⁹²

Unlawfulness Element in Gross Negligence Manslaughter

Bracton’s unlawful act doctrine is at the heart of both gross negligence manslaughter and unlawful act manslaughter. The former requires negligence so gross that it becomes criminally unlawful and the latter requires a criminal act per se. While it is a medieval doctrine, it bears quoting in full because it has permeated every treatise from Bracton through to Turner’s edition of Russell on Crime in the second half of the 20th century.⁹³

[Homicide] by chance, as by misadventure, when one throws a stone at a bird…, and another person passing unexpectedly is struck and dies…But here we must distinguish whether he has been engaged in a proper or improper act. Improper, as where one has thrown a stone toward where men are accustomed to pass, or while one is chasing a horse or ox someone is trampled by the horse or ox and the like, here liability is imputed to him. But if he was engaged in a lawful act, as where a master has flogged a pupil as a disciplinary measure, or if [another is killed] when one was unloading hay from a cart or cutting down a tree and the like, and if he employed all the care he could, that is, by looking about him and shouting out, not too tardily or in too low a voice but in good time and loudly, so that if there was anyone there, or approaching the place, he might flee and save himself, or in the case of a master by not exceeding mean and measure in flogging of his pupil, liability is not imputed to him.⁹⁴ (emphasis added)

In the examples of a person pursuing a horse or casting a stone into a busy pedestrian area, Bracton seems to refer to conduct where a fact-finder might infer subjective risk-taking, and this seems to be the interpretation given to it by Coke and Pulton.⁹⁵ The words ‘passing unexpectedly’ imply foresight was required in that a person was only liable when he or she threw stones in circumstances where he or she expected pedestrians to be present. Furthermore, the words, ‘employed all the care he could’, at a minimal allow for a speculative conclusion that Bracton required the harm-doer to be aware that his or her conduct was negligent.⁹⁶ Bracton then outlines what is an early evaluative standard, but he applied it only to measure the lawfulness of the conduct. Bracton holds that the violence against the scholar will be unreasonable and thus unlawful if it is excessive when measured against the norms for such discipline. Thus, if the norm was 20 lashes for an unruly scholar, but the master gave a hundred and this caused the scholar to die, it might be deemed unlawful conduct for the purposes of establishing homicide. It seems that this type of homicide hinged on it being inferred that the master must have known the unlawfulness of excessive discipline and the risk of injury it carried for the scholar.

In the case of the scholar, it might be argued that the justificatory defence of reasonable discipline does not cover excessive force—since it is not a lawful act of discipline but an unlawful assault as soon as it exceeds what the justificatory defence allows. Like excessive self-defence, the defence is denied in its entirety since there was no justification for the conduct that caused the death. The unreasonable mistake about the proportionality of the force used means the perpetrator was not justified in using that amount of force, even if the perpetrator’s mental state might have been altered by his or her belief that such force was reasonable. The defendant’s act is an unjustifiable unlawful assault. In the excessive discipline cases, the defendant intended to inflict serious bodily injury and did so without a justificatory defence and thus this doctrine does as much to establish the foundations for the unlawful act form of involuntary manslaughter as it does to establish the conduct element for gross negligence manslaughter. None of the excessive discipline cases treat the issue as a matter of there being a lack of a justificatory defence for the excessive discipline. The cases treat it as unlawfulness due to gross negligence.⁹⁷ Russell raises the question of the probability of the conduct causing a death, but it is not clear whether he was using probability as a test for inferring that the defendant must have foreseen the unlawfulness (unreasonableness) and harmfulness of what he or she was doing.⁹⁸

By the time of Hale, it is safe to argue two doctrines of involuntary manslaughter are developing independently of reckless murder: (1) unlawful dangerous act manslaughter and (2) gross negligence manslaughter. For example, Hale argued that if a person shoots a gun into a cornfield without taking precautions such as checking whether there are any people in the field, this would be homicide for failing to apply due diligence (adhibere debitam diligentiam).⁹⁹ Hale says nothing about whether the perpetrator has to be aware that such conduct is objectively negligent conduct.¹⁰⁰ After the time of Hale, we see a move towards having a category of involuntary manslaughter that is independent of pardonable homicide by misadventure and of reckless murder. Before this time, it seems from a reading of the homicide chapters in the institutional treatises from c. 1250 to at least c. 1700 (Fleta, and the treatises authored by Lambarde, Coke, Dalton and Hale) that most cases of homicide by gross negligence were simply put into the category of homicide by misadventure and thus were pardonable.¹⁰¹

Objective Conduct or Objective Blame?

The preoccupation of scholars and lawyers concerning gross negligence manslaughter has been with the conduct element. The conduct element for gross negligence manslaughter is determined by an objective evaluation of the lawfulness of the conduct and this can be traced back to Bracton’s case of causing death by unreasonable (excessive) discipline.¹⁰² By the 19th century, much of the judicial focus concerning gross negligence manslaughter was on the controversial question of what conduct could be objectively evaluated as criminally negligent as opposed to civilly negligent. Nonetheless, there is nothing in the 19th-century cases to suggest that the defendant personally did not have to foresee that the objectively negligent conduct risked killing the victim.¹⁰³ It is arguable that the mental element required subjective fault and that unreasonableness, if it had any connection to the mental element as opposed to the conduct element, was simply a test of proof: Did the defendant have reasonable grounds for believing her conduct posed no risk to others? It would be grossly negligent conduct to shoot a gun in small and busy square such as St James’s Square, but unless the defendant foresaw that this risked killing another human she ought not to be liable. The more unreasonable the defendant’s belief, the less likely the jury are to believe that she did not foresee what any other normal person would have foreseen.¹⁰⁴

A gross negligence manslaughter conviction usually resulted in a minor sentence and perhaps that is why so little attention was paid to its mental element.¹⁰⁵ This was a time of rapid industrialisation but there is no suggestion that gross negligence manslaughter was aimed at criminalising workplace negligence.¹⁰⁶ There was no such thing as corporate manslaughter before the 21st century,¹⁰⁷ and there is nothing in the leading treatises of the late Victorian era to suggest that the rise in gross negligence manslaughter trials in that period correlated with the growth of dangerous factory work.¹⁰⁸ The bulk of the cases have facts that give rise to personal violence (ie excessive discipline cases), which one might speculate required subjective fault.¹⁰⁹

Turner (a leading authority on criminal law from the 1930s to 1950s) traced a line of 19th-century and early 20th-century cases that demonstrated that gross negligence manslaughter required subjective fault.¹¹⁰ Hall, America’s foremost authority on criminal law (writing in the same period) took the same view.¹¹¹ The editions of Archbold from the 1930s and 1940s (the most authoritative practitioner treatise then and now) also concluded that gross negligence manslaughter required subjective fault.¹¹² Over the last 75 years, the picture has become less clear, because judges have failed to outline both the mental element and conduct element for gross negligence manslaughter.¹¹³

The conduct element is satisfied if the conduct falls well below the standard of care expected of a reasonable person in the same situation as the defendant. However, it is not clear that the objective standard also applies to the mental element. Turner and Hall argued very persuasively that gross negligence manslaughter had gross negligence as its conduct element and subjective recklessness as its mental element. In light of the common law’s move towards properly conceptualising and embracing subjectivism,¹¹⁴ some judges in Hong Kong have held that subjective recklessness is required in that jurisdiction.¹¹⁵ It is submitted that Turner’s and Hall’s interpretation of the law is to be preferred and it is hoped that the Supreme Court will give a clear ruling on the mental element sooner than later. If Parliament wants to criminalise causing death by gross negligence without requiring any subjective fault, then it should do so in a narrowly tailored offence that allows for proportionate punishment.

The conduct element and mental element have been welded together without courts unequivocally outlining what both elements require. This was avoided in the case of murder by grossly negligent conduct, because the gross negligence in murder cases always involved the intentional infliction of grievous bodily harm meaning constructive murder was made out.¹¹⁶ The substantive question about the unreasonableness of the degree of force used to discipline a child was moot, if the perpetrator caused its death by intentionally causing grievous bodily injury.¹¹⁷ Similarly, it would be oxymoronic to suggest that when a parent intentionally starves a child to death, that the parent also negligently starves it to death on the basis that the parent’s conduct fell well below the standard expected of a reasonable parent. Compare this with the situation where a person intentionally drives at great speeds in a pedestrian zone without any intent to harm anyone. This conduct falls well below the standard of care expected of a reasonable motorist, but there is no conceptual problem with requiring the defendant be only criminally liable, if the defendant was subjectively aware of the dangerousness of his or her driving. Of course, a statute can impose an objective standard for both the conduct and fault elements, but it ought to express this in clear terms. Hawkins suggests that the mental element for negligent conduct causing death was subjective.¹¹⁸

Neither shall he be adjudged guilty of a less crime who kills another in doing such a wilful act as shows him to be as dangerous as a wild beast, and an enemy to mankind in general; as by going deliberately with a horse used to strike, or discharging a gun among a multitude of people, or throwing a great stone or piece of timber from a house into a street, through which he knows that many are passing; and it is no excuse that he intended no harm to any one in particular, or that he meant to do it only for sport, or to frighten the people, &c. (emphasis added)

The offence in s 1 of the Children and Young Persons Act 1933 provides a good example. That offence expressly requires subjective fault with respect to neglect, but neglect itself is conduct that is determined objectively. The normative evaluation of what is neglectful may be truncated when the conduct is specifically proscribed in an offence, but not all forms of neglect will be listed in a deeming provision. In R v Senior,¹¹⁹ Lord Russell CJ said:

‘Wilfully’ means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it. Neglect is the want of reasonable care—that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind—that is, in such a case as the present, provided the parent had such means as would enable him to take the necessary steps.

Lord Russell held that while the conduct element of neglect is determined objectively, any fault relating to it is subjective. Therefore, the defendant must know or believe that the conduct is neglectful and choose to do nothing to prevent the neglect or choose to continue engaging in the conduct that is causing the neglect. The decision was approved in R v Sheppard,¹²⁰ Lord Diplock said:

The presence of the adverb ‘wilfully’ qualifying all five verbs ‘assaults, ill-treats, neglects, abandons or exposes’, makes it clear that any offence under section 1 requires mens rea, a state of mind on the part of the offender directed to the particular act or failure to act that constitutes the actus reus and warrants the description ‘wilful’.

Did the parents fail to provide for Martin in the period before his death medical aid that was in fact adequate in view of his actual state of health at the relevant time? This, as it seems to me, is a pure question of objective fact to be determined in the light of what has become known by the date of the trial to have been the child’s actual state of health at the relevant time.¹²¹ (emphasis added)

It does not, however, seem to me that the concept of the reasonable parent, what he would observe, what he would understand from what he had observed and what he would do about it, has any part to play in the mens rea of an offence in which the description of the mens rea is contained in the single adverb ‘wilfully’.¹²²

Similarly, Lord Edmund Davies said¹²³:

By attaching no importance to the mental ingredient of wilfulness R. v. Lowe and all similar decisions must, in my respectful judgment, be regarded as wrongly decided. ‘Neglect’ is doubtless a state of fact to be objectively determined, and in the circumstances of the present case it was ‘deemed’ by section 1 (2) (a) to be established by the unchallenged fact that in truth the accused had “failed to provide adequate medical aid” for their son.

When, in the 19th century, Parliament passed the first law against cruelty to a neglect of children by their parents, it confined the offence of neglect to ‘wilful’ neglect, and this is still the law. The adjective ‘wilful’ is evidently intended to import a mental element. The neglect must be ‘likely to cause unnecessary suffering or injury to health’. Under the legislation now in force, this is deemed to occur if the parent (or guardian) ‘has failed to provide adequate food, clothing, medical aid or lodging’, which is merely a statement of the obvious. Clearly, the neglect is an objective state. But the neglect is not wilful unless the parent knows that the child is in a state of being deprived. Merely negligent neglect, therefore, is not an offence. (‘Negligent neglect’ is not a tautology, because the noun refers to the state of the child while the adjective refers to the fault of the parent.)

Baker, Britain’s foremost legal historian, has presented fairly convincing evidence in support of the proposition that¹²⁴:

Negligence, unless it included violent conduct, was outside the scope of felony. The criminal law did not punish the unskilled shipwright whose defective ship sank and drowned the crew, or the careless carpenter whose weak roof collapsed and killed a man below, or the shoddy armourer whose product failed to protect the purchaser when put to the test. Mountford even excluded the stabler who hired out a dangerous horse, which threw and killed the rider, and the spiteful friend who advised a man to go to Islington in the sure knowledge that his enemies were coming that way to kill him. (emphasis added)

What we can see here is an overlap with the unlawful act form of manslaughter, since a violent act of negligence is what gave rise to criminal liability in the excessive discipline cases, but such violent conduct is criminal per se. There is no need to evaluate such conduct to determine its lawfulness—negligence. It is without justification and thus is criminal conduct. Baker highlights that even cases involving subjective recklessness could be treated simply as misadventure, but we have seen above that they could also be treated as murder.

It is not until the early 19th century that we start to see what fault might be required. In the landmark case, R v John St John Long, ¹²⁵ Bayley B said:

I do not charge it on ignorance merely [mere inadvertence], but there may have been rashness. And I consider that rashness will be sufficient to make it manslaughter. As, for instance, if I have a tooth-ache, and a person undertakes to cure it by administering laudanum, and says ‘I have no notion how much will be sufficient’, [awareness of a safe dose] but gives me a cup-full, which immediately kills me; or, if a person prescribing James’s powder says, ‘I have no notion how much ought to be taken’, [subjective awareness of the fact that he has no knowledge of a safe dose] and yet gives me a table-spoonful, which has the same effect; such persons acting with rashness will, in my opinion, be guilty of manslaughter.

Bayley B’s examples and his use of the concept of rashness make it possible to speculate in fairly strong terms that he was holding that subjective recklessness was the requisite fault for a gross negligence manslaughter conviction. Clark (the then Regius Professor of Civil Law, Cambridge) argued that during this period rashness was taken to mean a low level of subjective recklessness.¹²⁶ Clark’s Austinian interpretation of rashness aligns not only with Professor Hearn’s definition of rashness¹²⁷ but also with the formulation of rashness adopted in R v John St John Long. In R v Bateman,¹²⁸ the Lord Chief Justice said that ‘dolus’ was key to making negligence criminal:

To convict A of manslaughter, the prosecution must prove…that A’s negligence amounted to a crime.…There must be mens rea.… It is such a degree of negligence as excludes the loosest degree of care, and is said to amount to dolus.

Dolus included subjective recklessness. Austin argued:

When it was said by the Roman Lawyers, ‘that Negligence, Heedlessness, or Rashness, is equivalent, in certain cases, to Dolus or Intention’, their meaning (I believe) was this: Judging from the conduct of the party, it is impossible to determine whether he intended, or whether he was negligent, heedless, or rash. And, such being the case, it shall be presumed that he intended, and his liability shall be adjusted accordingly, provided that the question arise in a civil action. If the question had arisen in the course of a criminal proceeding, then the presumption would have gone in favour of the party, and not against him.¹²⁹

Other epithets used for dolus in R v Bateman ¹³⁰ included the term ‘wickedness’.¹³¹ The problem is the epithets used to describe dolus are mixed up with the epithets that are used to describe the degree or grossness of the negligence, so it is difficult to know when the Lord Chief Justice is referring to the mental element and when he is referring to the conduct element. This conflation continues in the 21st-century judgments. In a late 20th-century decision from the Court of Appeal,¹³² Lane LJ said:

Indifference to an obvious risk and appreciation of such risk, coupled with a determination nevertheless to run it, are both examples of recklessness.…What the prosecution have to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendant’s conduct can properly be described as reckless, that is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it. (emphasis added)

The rashness test laid down in R v John St John Long can be reconciled with Lane LJ’s indifference test set out in R v Stone. In R v Adomako,¹³³ Lord Mackay said the following statement from R v Bateman as applied by Lord Atkin in Andrews v Director of Public Prosecutions, ‘is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter’¹³⁴:

‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. (emphasis added)

Indifference requires a mental state.¹³⁵ A person cannot be indifferent to something without being conscious of its existence. Indifference to a known risk was the basis of responsibility in these cases. Note that Lane LJ does not invoke the concept of ignorance but rather the concept of indifference. Similarly, in R v Carr,¹³⁶ D was convicted of manslaughter for ‘knowingly’ selling substantive explosives.

Gross Negligence Manslaughter and Fault in the 21st Century

In R v Rose,¹³⁷ Leveson P seems to continue the tradition of fusing the conduct and mental element together in a fully objective test, but he seems to have developed an excuse of negligently not discovering information that would have put a reasonable person in a position to foresee the risk of death for the victim. Leveson P took the view that test is prospective based on the information available to the defendant at the time when he or she breaches his or her duty.¹³⁸ The facts of R v Rose were that Rose, an optometrist, failed to notice that a seven-year-old child had swollen optic discs when she carried out an examination of his eyes. The abnormality is a symptom of the life-threatening condition hydrocephalus (fluid on the brain). The child died within five months of this condition being left undetected due to the eye test being performed with gross negligence. Rose had not looked at retinal scans taken by a colleague and failed to examine the back of the child’s eyes with an ophthalmoscope, which a reasonable optometrist would have done. Rose also failed to arrange a timely follow-up examination to get a proper look at the back of the child’s eyes. It was common ground that if Rose had conducted a full eye examination or had viewed the child’s latest scans, the swollen discs at the back of the eye would have been patently obvious. If that condition had been patently obvious, so too would have its potential life-endangering effects. It was also common ground that Rose had a statutory duty to carry out the eye check to the standard expected of a reasonable optometrist and that she was in breach of that duty. Rose’s gross negligence in not finding the information that would have alerted Rose to the fact that there was an obvious risk of death allowed her to evade liability.

Leveson P said that any optometrist without that information would not have foreseen the risk of death and therefore Rose was not liable. This is an odd finding since it was her own breach of duty that prevented her from having the information that would have allowed her or any other reasonable optometrist to see the risk of death. Leveson P said:

The question raised by this case can be simply stated. In assessing reasonable foreseeability of serious and obvious risk of death in cases of gross negligence manslaughter, is it appropriate to take into account what a reasonable person in the position of the defendant would have known but for his or her breach of duty?¹³⁹

Leveson P answers this question as follows:

The question of reasonable foreseeability is evident from the words used, i.e. what is reasonably foreseeable at the time of the breach (a prospective view). It is not what would, could or should have been known but for the breach of the identified duty of care, i.e. if the breach had not been committed (a retrospective view).¹⁴⁰

Leveson P quotes the decision in R v Rudling ¹⁴¹ in support of this finding, but that case can be contradistinguished since the facts were not strong. In that case, the doctor had not carried out a health check at all and at best the doctor was only negligent in not ordering a more timely health check. It is not clear that Rudling was grossly negligent in not obtaining the information that would have made her aware that the child had a life-threatening condition. The child’s mother phoned late on a Friday and Rudling’s assessment of the information supplied over the phone was that the child ought to be brought in for a health check the following Monday. Rudling took the view that the described condition did not require emergency attention.¹⁴² The available information seems to have fallen short of putting Rudling on notice that the boy was close to death and needed emergency treatment.¹⁴³ If someone had phoned Rudling and given the symptoms of a stroke or cardiac arrest, she would have sent an ambulance—but what was described to Rudling did not appear in that range of danger. Hence, it is not clear that Rudling was grossly negligent in not taking further steps to immediately ascertain whether or not the boy had a life-threatening condition, even if she was civilly negligent.

Drawing analogies from R v Rudling is problematic, since it was a very borderline case as far as Rudling’s failure to obtain the relevant information was concerned (ie the information that would have put her on notice that the child’s life was in danger). On the other hand, Rose had carried out a medical examination and the life-threatening condition was right before her eyes to be discovered and it was her duty to find it. Arguably, R v Rudling can be distinguished from R v Rose, if we accept that Rudling was only negligent rather than grossly negligent in not obtaining the information that would have made it obvious to her that her patient’s life was in danger. As a question of fact, if Rudling was grossly negligent in not obtaining the relevant information, then the case is factually the same as R v Rose and ought to be subject to the same criticism.

It seems Leveson P was grappling with the unfairness of objective fault in such cases and thus formulated some in between test, but the solution is for the Supreme Court to give a clear ruling on the mental element for gross negligence manslaughter. The halfway house created by Leveson P is likely to lead to peculiar results. For instance, Adomako¹⁴⁴ was grossly negligent in not discovering what was causing the patient’s death. The information was right in front of him to discover, but he was grossly negligent in not finding it and interpreting it so as to take steps to save the life of the patient. The only distinction that can be made is that Adomako knew the patient was dying but he did not discover how he could prevent the patient from dying, because he was too incompetent to read the information that was before his eyes. It was his duty to see what was before his eyes as it was Rose’s duty to see what was before her eyes. Both had first-hand access to the relevant information. Adomako did not cause the dangerous situation, but he had a duty to prevent it from killing the patient. He was liable because he failed to discover what any reasonable anaesthetist would have discovered. Rose did not know the child had a life-threatening condition, but she was equally incompetent in not discovering that information.

In R v Johnson,¹⁴⁵ a builder blocked a chimney he was rebuilding and caused the homeowner to die from carbon monoxide poisoning. The builder used an excessive amount of mortar to rebuild the structure, some of which squeezed out of the inside of the brickwork and fell down the chimney blocking the flue. The builder was grossly negligent in creating the dangerous situation, but his gross negligence also meant he had no idea of the danger he had set in motion. Like Rose, he failed in his duty to check for information that would have alerted him to the fact that the chimney repairs had caused a life-threatening situation. Johnson should have ensured that the chimney was clear after he finished the work and that the boiler was operating safely. A gas engineer ought to have been called to check on the boiler following this type of work. Hence, the distinction made by Leveson P is unhelpful. If a person is called in to do a health and safety check on a boiler and is grossly negligent in failing to see that it is faulty and will kill occupants in a house, R v Rose holds that such a person is not liable, because the information that he or she had a duty to find was not available at the time because of his or her own negligence in not finding it. In effect, Rose was acquitted because she had no subjective awareness of the risk of the boy dying or of the fact that her conduct was grossly negligent. A subjective test was applied to her conduct but was labelled objective.

The Unlawful Act (Minor Harm) Manslaughter Doctrine

Unlawful act manslaughter is a harsh doctrine of strict liability homicide akin to the abrogated felony-murder rule. A line has to be drawn between ‘limited’ constructive liability¹⁴⁶ and the broader form of constructive liability that was introduced into unlawful act manslaughter in the 20th century.¹⁴⁷ Limited constructive liability would require a close parity between the harm foreseen and the harm caused. At a bare minimal, it would require the harm-doer to foresee that his or her unlawful conduct might cause the potential victim serious bodily injury. Without any foresight requirement even to a lesser form of harm such as serious bodily injury, it is not even a constructive liability offence, but rather is a strict liability form of homicide.

It is doubtful that Hale intended minor harm to form the basis for unlawful act manslaughter, but his loose words were clutched with alacrity by courts in the 19th¹⁴⁸ and 20th centuries.¹⁴⁹ What is not clear is the level of harm required by the unlawful dangerous act doctrine. Arguably, the examples and reasoning given by Hale suggest that serious bodily injury had to be a subjectively foreseeable consequence of perpetrator’s unlawful act. This is supported by the strong decision in Sir John Chichester’s Case.¹⁵⁰ Hale writes: ‘Regularly he that voluntarily and knowingly intends hurt to the person of a man, though he intend death not’, will be liable for ‘murder or manslaughter, as the circumstances of the case happen’.¹⁵¹ By the circumstances of the case, it is arguable that Hale meant that where there was intention, the case would be constructive murder, and where there was subjective awareness (knowledge) of the fact that the unlawful act risked hurting another, it would be manslaughter.¹⁵² Hale did not state that the perpetrator of the unlawful act need not have subjective awareness of the fact that the unlawful act might cause serious injury to another. The strong argument for subjective foresight of serious injury has to be that this form of manslaughter slowly took over the territory formerly covered by reckless murder. Coke said it was murder to risk injuring others by throwing stones where one expects them to be walking. The only limitation Coke put in place was that the perpetrator was only liable if the death resulted from an act that was intended to at least frighten the victim or to cause them a slight hurt.¹⁵³ Hence, the objective minor harm test is a fiction that was embraced in the 20th century and is not supported by the precedents, but it emanates from Coke’s wide interpretation of murder and thereafter Hale’s equivocal attempt to reformulate Coke’s reckless and widely constructive murder doctrine as unlawful act manslaughter. If Hale had been less equivocal, the law may never have had taken a wrong turn. This does not mean there was no such thing as constructive manslaughter, but it rests on a limited form of constructive liability in that the defendant needs to foresee that the unlawful conduct might cause another a serious injury.

Professor LaFave observes that legislatures have stepped in to clarify the position in many states in the USA and have enacted provisions that expressly provide that the act must ‘inherently pose a risk of serious bodily injury’.¹⁵⁴ East tried to tighten up the test by requiring that the underlying crime pose danger.¹⁵⁵ For East, it was the potential harmfulness of the act that was the determining factor, although acts that risk unjustifiable serious injury will almost always be unlawful. Alas, East did not categorise the degree of danger required. It has to be kept in mind that in the time that Hale and Coke were writing, a trivial injury could be life-threatening as medicine was primitive and was not readily available.

It is submitted that the tests outlined in two streams of Australian cases (the two streams of cases of relevance are those from the Supreme Court of Victoria and those from the High Court of Australia) come much closer to the old law than does the test laid down by a solo judge in England in 1966.¹⁵⁶ The test laid down in 1966 merely requires fault for the underlying criminal offence (eg the criminal assault) plus objective harm of a minor nature. This cannot even be reconciled with the notorious maxim that a person intended the natural and probable consequences of his or her act, let alone with the modern move towards subjectivism. After all, the natural and probable consequence of minor harm is not death. The High Court of Australia has held that while conduct must be objectivity dangerous, liability also hinges on demonstrating that a reasonable person in the position of the defendant would have appreciated that her act exposed the victim to a risk of serious injury.¹⁵⁷ The High Court of Australia also held that in assessing the objective dangerousness of the defendant’s act, the jury should consider the defendant’s age and whether she had an intellectual disability.¹⁵⁸ However, it is my view that a better interpretation of what the old law required can be found in the decision of R v Longley,¹⁵⁹ where Sholl J said: ‘it is manslaughter if in the course of an unlawful assault upon another, of a character which the accused must have realized involved an appreciable danger of death or serious injury to the other, the accused unintentionally caused his death’. Sholl J’s approach aligns with the law as stated in Lambarde and Pulton and with Sir John Baker’s analysis of the historical readings from the Inns. It also aligns with the late 19th-century authorities.¹⁶⁰ Pulton’s reasoning strongly supports the decision in R v Longley, because he seems to understand it is fairer to treat what was reckless (constructive) murder¹⁶¹ as a form of reckless (constructive) manslaughter. The decision in R v Church ¹⁶² is difficult to reconcile with Pulton and Hale’s accounts¹⁶³ and the 21st-century move towards subjectivism.¹⁶⁴

Conclusion

It is submitted that the above doctrinal analysis leaves sufficient elbow room for an appellate court to reinterpret the mental element in a similar fashion to the approach taken in Hong Kong and by the House of Lords in R v G.¹⁶⁵ It has been argued that the old law is open to the argument that historically the mental elements for both types of constructive manslaughter required subjective fault (and that in the case of unlawful act manslaughter the requirement for subjective fault went beyond simply having the requisite fault for the underlying unlawful act). There is an ancient common law principle that in the case of doubt a criminal statute or doctrine is to be ‘strictly construed’ in favour of the defendant.¹⁶⁶ The Supreme Court need not engage in judicial law reform to tidy up these offences, because the majority of the foundational authorities, and the recent authorities on the mental element for serious crimes, support a subjective reading of the fault element for both unlawful act manslaughter and gross negligence manslaughter. The problem can be traced back to a lack of speculative conceptualising in the early 19th century from the judiciary when involuntary manslaughter was starting to be used more widely.¹⁶⁷ To the contrary, in the later part of the 20th century, the judiciary were more open to speculative conceptualisation and we see this in decisions such as R v Woollin and R v G.

There are some strong statements in support of the case for a subjective interpretation of the mental element in gross negligence manslaughter. In R v Bateman, the Lord Chief Justice held that ‘there must be mens rea.… said to amount to dolus’,¹⁶⁸ and this has been endorsed by the House of Lords on more than one occasion.¹⁶⁹ Alas, the House of Lords’ discussion of the mental element is collapsed into its discussion of the conduct element (ie the degree of the negligence required to take the conduct beyond the civil law threshold), and that has led many later courts astray.¹⁷⁰ Currently, gross negligence manslaughter is one of the few serious crimes that requires no more than negligence as its mental element.¹⁷¹ Some cases have attempted to outline subjective reckless manslaughter as an independent head of liability,¹⁷² but a subjective test for gross negligence would make such an offence of reckless manslaughter superfluous.

The case has to be somewhat speculative as far as gross negligence manslaughter is concerned, because the above analysis demonstrates that gross negligence manslaughter did not emerge distinctly from pardonable homicide until the 18th century. Coupled with that, the bulk of the cases since that time are silent or equivocal about the mental element. That they are silent does not mean subjective fault was the test required, but given the overall hankering for subjectivity in the judgments (recall Leveson, LJ’s judgment in R v Rose), there does appear to be ample room for judicial interpretation without judicial lawmaking.

As for unlawful act manslaughter, it is very difficult to reconcile the interpretation given to that offence with the early development of involuntary manslaughter and with the modern move towards subjectivism. There is no strong authority for an objective test of minor dangerousness and there is no authority underpinning Edmund Davies J’s (as he then was) minor harm test as enunciated in R v Church.¹⁷³ Constructive malice was abolished by s 1 of the Homicide Act 1957. That statute expressly mentions murder only, which suggests at that time constructive manslaughter was not considered to be a strict liability form of constructive homicide. Continuing the fiction of invoking strict liability for a crime as serious manslaughter cannot be reconciled with the authorities or a modern approach to constitutional and criminal justice. This essay has argued that were this area of the law to be revisited by the modern Supreme Court (as the article argues is highly desirable), and the Supreme Court were to adopt a subjective view of the fault element for both types of manslaughter, such a view would be supported both by the history of the offences and by more recent authorities.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.