Rethinking the Mental Element in Involuntary Manslaughter
| DOI | 10.1177/00220183211004068 |
| Date | 01 August 2021 |
| Published date | 01 August 2021 |
| Author | Dennis J Baker |
| Subject Matter | Articles |
Article
Rethinking the Mental Element
in Involuntary Manslaughter
Dennis J Baker
De Montfort University, UK
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
Corresponding author:
Dennis J Baker, Leicester De Montfort Law School, De Montfort University, Leicester LE1 9BH, UK.
E-mail: dennis.baker@dmu.ac.uk
1. DA Stroud, Mens Rea (Sweet & Maxwell, London 1924) at 120.
2. R v Adomako [1994] 3 WLR 288. Smith observes: ‘Fact-specific statutory provisions and narrowly confined interpretive
judgments were effortlessly delivered by a judiciary against a background of the vaguest and unprincipled “principles” of
criminal fault. But,...removal of criminal law’s most extravagant punishment in the early decades of the nineteenth century
The Journal of Criminal Law
2021, Vol. 85(4) 280–301
ªThe Author(s) 2021
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DOI: 10.1177/00220183211004068
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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 demon-
strate that the cases of gross negligence manslaughter before the 19th century rested as much on a
violent unlawful act
6
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 faul t. 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.
produced no rapid change in a judicial and wider legal culture largely indifferent, if not positively resistant, to speculative
conceptualization’. K Smith, ‘General Principles of Criminal Law’ in W Cornish and others (eds), The Oxford History of the
Laws of England: Volume XIII: 1820–1914 Fields of Development (OUP, Oxford 2010) at 217.
3. HKSAR v Chow Heung Wing [2017] HKEC 2695 per Barnes J at para 34; RvG[2004] 1 AC 1034; A Ashworth, ‘Belief, Intent
and Criminal Liability’ in J Eekelaar and J Bell (eds), Oxford Essays in Jurisprudence (3rd edn OUP, Oxford 1987) at 1–31
4. R v Longley [1962] VR 137; Sir John Chichester’s Case (1646) Al 12. Coke treats reckless foresight of the risk of causing injury
as grounds for a murder conviction. E Coke, The Institutes of the Laws of England: Third Part (W Lee, London 1648) at 56–57.
Cf. DPP v Newbury [1977] AC 500.
5. In Chan Wing-siu v The Queen [1982] HKEC 398, McMullin V-P said: ‘A risk is unjustifiable when objectively judged, it was
unreasonable to take it in view of its magnitude and want of social utility’.
6. WO Russell, A Treatise on Crimes and Indictable Misdemeanours (Lilly and Wait, Boston 1831) vol 1 at 460.
7. This example is restated in treatises over many centuries from Bracton to Hale, but no actual case is given of it resulting in a
manslaughter conviction as opposed to homicide by misadventure. Hale puts it under the category of homicide per infortunium.
M Hale, The History of the Pleas of the Crown (Printed by E and R Nutt and others, London 1736) vol I at 472. At 475, Hale
quotes R v Hull (1664) Kel 40, but that case resulted in a homicide by misadventure conviction.
Baker 281
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