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Published online by Cambridge University Press: 16 January 2009
That the much agitated question of mens rea in manslaughter should again be essayed may require some justification. Such is readily found in the deplorable circumstance that this major crime remains obscure and controversial in its most important aspect. Decisions may be found to support any of a variety of views about the presence, absence or nature of the mental element in manslaughter; textbooks on criminal law differ widely on the question; and student, teacher, practitioner, and doubtless also sometimes judge, are left in bewilderment by the abundance and variety of dicta, argument and opinion on the subject. This may seem good reason for not adding another view, but the writer is persuaded that, upon the basis of much valuable inquiry carried out in recent years by a number of workers in the field, it is now possible to state in reasonably clear and confident terms what is that element which, together with the actus reus of killing, constitutes the crime of manslaughter in English law. The writer would begin by acknowledging his indebtedness in particular to various writings of Dr. Turner, Dr. Glanville Williams and Professor Hart. They are not to blame for what follows; but whatever illumination this article may shed is the result of his study of their work.
Encouragement to write this article was derived from the following passage in Russell on Crime:
“It is … incumbent upon writers, especially in matters of general principle, whenever there appears to be a lack of precision in the authorities, to make concrete suggestions for the removal of doubts and difficulties.
1 The writer is in the main not in agreement with the views of Dr. Turner on this subject, but shares the sentiment expressed by Professor Hart in the following words: “Dr. Turner's arguments are singularly clear and uncompromising; even if I am right in thinking them mistaken his mistakes are illuminating ones. So much cannot always be said for the truths uttered by other men.” (“Negligence, Mens Rea and Criminal Responsibility” in Oxford Essays in Jurisprudence at p. 32.)
2 11th ed., J. W. C. Turner, Vol. I, p. 55.
3 e.g., R. v. Williamson (1807) 3 C. & P. 635; R. v. Timmins (1836) 7 C. & P. 499; R. v. Hughes (1857) Dears. & B. 248; R. v. Markuss (1864) 4 F. & F. 356; R. v. Dant (1865) L. & C. 567; R. v. Benge (1865) 4 F. & F. 504; R. v. Noakes (1866) 4 F. & F. 920; R. v. Spencer (1867) 10 Cox 525; R. v. Jones (1870) 11 Cox 544; R. v. Jones (1874) 12 Cox 628; R. v. Doherly (1887) 16 Cox 306; R. v. Elliott (1889) 16 Cox 710; R. v. Pittwood (1902) 19 T.L.R. 37Google Scholar; Tinline v. White Cross Insurance Association [1921] 3 K.B. 327Google Scholar; R. v. Bateman (1925) 19 Cr.App.R. 8Google Scholar; Andrews v. D.P.P. [1937]Google Scholar A.C. 576; R. v. Bonnyman (1942) 28 Cr.App.R. 131Google Scholar; R. v. Roberts [1942] 1 All E.R. 187Google Scholar; R. v. Larkin [1943] 1 All E.R. 217Google Scholar; The People v. Dunleavy [1948] I.R. 95.Google Scholar
4 It is respectfully submitted that Dr. Turner falls into this error, e.g., in Kenny's Outlines of Criminal Law, 17th ed., p. 172, where it is stated that it has “repeatedly been laid down by the courts” that “inadvertence” is not a source of criminal liability at common law. What the courts have laid down, however, is that such negligence or inadvertence as suffices for civil liability is not sufficient in the criminal law. See also Dr. Turner's essay “The Mental Element in Crimes at Common Law” in The Modern Approach to Criminal Law, at p. 208: “…although negligence in this sense of inadvertence may be blameworthy … it is at the present day not sufficient to amount to mens rea in crimes at Common Law.”
5 We should do well to observe this precept in Russell on Crime, 11th ed., Turner, Vol. 1, p. 18: “ … in any matter of definition of ideas or legal conceptions a word used should have only one meaning, and each idea should have only one word to express it.”
6 Cf. Woodworth, R. S. & Marquis, D. G., Psychology, 20th ed., pp. 395–402Google Scholar; Munn, N. L., Psychology, 3rd ed., pp. 309–320.Google Scholar
7 In a recent article, “Carelessness, Indifference and Recklessness,” 24 M.L.R. 592, Professor White uses the term “inattention” in a wide sense of inattention to the risks involved in an activity and the means of avoiding them: the opposite of this, it would seem, is attention to all external stimuli which are relevant to the successful prosecution of the activity, and contemplation of (thinking of) all possible factors that may cause the activity to fail and of the appropriate means of dealing with them.
8 Williams, Glanville, Criminal Law, 2nd ed., p. 53.Google Scholar
9 “ … we may fail to realise the possibly harmful consequences of what we are doing and as to these our mind is in a sense a ‘blank’; but the negligence does not, of course, consist in this blank state of mind…” (Hart, “Negligence, Mens Rea and Criminal Responsibility,” in Oxford Essays in Jurisprudence, at p. 41.) Where, however, it is unjustifiably risky to embark at all upon an activity, the negligence that is involved in doing so may consist precisely in not adverting to the consequences of acting.
10 See 24 M.L.R. 592; 25 M.L.R. 437.
11 e.g., by Glanville Williams (who admits a subjective element—inadvertence to consequences—only in order to distinguish negligence from intention and recklessness): Criminal Law, 2nd ed., pp. 102–103.
12 Cf. Hart, “Negligence, Mens Rea and Criminal Responsibility,” in Oxford Essays in Jurisprudence, at p. 41: “Very often if we are to comply with a rule or standard requiring us to take precautions against harm we must, before we act, acquire certain information: we must examine or advert to the situation and its possible dangers … and watch our bodily movements…” To this extent negligence consists in “our failure to take precautions against harm by examining the situation.” It has been suggested that negligence may be present without inadvertence in the case, for example, of a man who is lazy and simply does not bother to take precautions: see Fitzgerald in 25 M.L.R. at pp. 50–51. But such a person is either conscious of the risk he runs and is therefore reckless (see below), or is inadvertent to the possible results of his inaction.
13 In cases of an incapacity (e.g., innate, or due to injury, or disease, or fatigue, or emotion) of which the actor is not aware, causing some harmful consequence, it may be that the degree of failure in performance will in any event not suffice for liability (e.g., will not amount to “gross negligence”). Alternatively the behaviour may be “involuntary,” as not being subject to the control of the actor, and so not amount to the actus reus of any crime. (Cf. Fitzgerald, “Voluntary and Involuntary Acts,” Oxford Essays in Jurisprudence, p. 1.) But the defence of involuntariness or automatism is very limited: see Watmore v. Jenkins [1962] 3 W.L.R. 463.Google Scholar
14 Following, in this respect, both Glanville Williams, op. cit., pp. 53, 100, and Turner, “The Mental Element in Crimes at Common Law,” in The Modern Approach to Criminal Law, at p. 207. “Failing to behave” like a reasonable man includes acting when a reasonable man would refrain from doing so.
15 This is derived from Hart, op. cit., p. 33.
16 Cf. Glanville Williams, op. cit., p. 112, n. 20.
17 The simplicity or otherwise of the necessary but neglected precautions may be relevant in determining the degree of negligence: cf. Hart, op. cit., p. 42.
18 Cf. Hart, op. cit., p. 42.
19 “Carelessness, Indifference and Recklessness,” 24 M.L.R. 592 at p. 594. See also the replies in 25 M.L.R. 49, 55, and the rejoinder in 25 M.L.R. 437.
20 25 M.L.R. 54, 57.
21 Pace Professor White in his rejoinder, 25 M.L.R. at p. 440.
22 Unless, perhaps, “recklessness” means an especially high degree of negligence. But this is a confusing use of the term.
23 Of course this does not happen in Professor White's analysis because, although satisfied with “awareness,” he insists upon “indifference.” Is there not, however, some awkwardness in the proposition that an awareness not involving advertence may be associated with indifference as to consequence? Can there be indifference to a risk not adverted to, if indifference is like “damning the consequences”?
24 Op. cit., p. 33.
25 Recklessness as “indifference to risk,” i.e., involving, it would seem, advertence to the risk, is accepted by Atkin, Lord in Andrews v. D.P.P. [1937] A.C. 576 at p. 583Google Scholar as constituting the crime of manslaughter, although “probably not all-embracing.”
26 Cf. Glanville Williams, op. cit., p. 64.
27 [1937] A.C. 576 at p. 583: “It is difficult to visualise a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter…” Cf. n. 25, supra.
28 In some foreign legal systems, and in some respects in English law, recklessness is deemed to be equivalent to intention. Cf. de Vabres, Donnedieu, Traité de Droit Criminel et de Législation Pénale Comparée, 3rd ed., p. 81Google Scholar, n. 2.
29 Cf. Parke B. in R. v. Packard (1841) 1 C. & M. 236 at p. 244; J., Davitt in The People v. Dunleavy [1948] I.R. 95 at p. 101.Google Scholar
30 Cases like R. v. Wild (1837) 2 Lew. 214, in which death resulted unexpectedly from an intertional infliction of harm, are explicable in terms of the old misdemeanour-manslaughter rule. See also R. v. Cheeseman (1836) 7 C. & P. 455; R. v. McIntyre (1847) 2 Cox 379; R. v. Griffin (1869) 11 Cox 402; R. v. Porter (1873) 12 Cox 444; R. v. Towers (1874) 12 Cox 530; R. v. Hayward (1908) 21 Cox 692.Google Scholar The writer is not aware of any case in which, there having been no “unlawful act” by reference to which the misdemeanour-manslaughter rule might be invoked, and death having resulted improbably from the reckless or negligent infliction of harm, a jury was directed that it might convict of manslaughter, or such a conviction was affirmed on appeal.
31 Cf. Glanville Williams, op. cit., p. 111, n. 19. This would be to permit the operation of chance in the determination of criminality, a factor which, it is conceded, cannot be wholly eliminated from the administration of criminal justice, but one whose role should be reduced to the minimum. To the maxim quoted in the text may be opposed another: poenalia sunt restringenda.
32 See the cases cited in n. 3, ante. Some of these cases make clear that foresight of consequences is not required for liability; see, e.g., R. v. Elliott (1889) 16 Cox 710 at p. 714: “If the prisoner was so absorbed in the business and interest of the company as to give no heed to their [railway passengers] safety, that might be considered as negligence.” Cf. Glanville Williams, op. cit., p. 106 et seq.
33 See n. 24, supra.
34 As to the justification of punishment for negligent homicide, see Hart, op. cit., p. 49, and Wechsler and Michael, “A Rationale of the Law of Homicide,” 37 Col.Law Rev. 701 at p. 729.
35 Strafgesetzbuch, art. 222. Ebermayer, Lobe, Rosenberg, Strafgesetzbuch nach dem neuesten Stand der Gesetzgebung: Leipziger Kommentar, 7th ed., Vol. 1, p. 15.
36 Code Pénal, art. 319. Mazeaud, Précis de Droit Pénal Spécial (1950), p. 280.
37 Wetboek van Strafrecht, art. 307. Vos, Leerboek van Nederlandsch Strafrecht, pp. 141–142.
38 R. v. Meiring, 1927 A.D. 41.
39 Cf. Vos, Leerboek van Nederlandsch Strafrecht, p. 142.
40 Cf. Glanville Williams, op. cit., pp. 111–112.
41 J., Davitt in The People v. Dunleavy [1948] I.R. 95 at p. 102Google Scholar, requires foreseeability of “substantial personal injury.”
42 It is of interest that the German Reichsgericht has refused to find criminal liability for negligent homicide under art. 222 of the Strafgesetzbuch where physical injury but not death was foreseeable: Ebermayer, Lobe, Rosenberg, Strafgesetzbuch nach dem neuesten Stand der Gesetzgebung: Leipziger Kommentar, 7th ed., Vol. 2, p. 216.
43 e.g., in R. v. Larkin [1943] 1 All E.R. 217 at p. 219Google Scholar; The People v. Dunleavy [1948] I.R. 95 at p. 102.Google Scholar
44 R. v. Hutchinson (1864) 9 Cox 555; R. v. Elliott (1889) 16 Cox 710; Tinline v. White Cross Insurance Association [1921] 3 K.B. 327Google Scholar; R. v. Bateman (1925) 19 Cr.App.R. 8Google Scholar; Andrews v. D.P.P. [1937]Google Scholar A.C. 576; and cases cited by Glanville Williams, op. cit., p. 108, n. 11 in fin.
45 e.g., R. v. Smith (1869) 11 Cox 210; R. v. Pittwood (1902) 19 T.L.R. 37.Google Scholar
46 Cf. Glazebrook, P. R., “Criminal Omissions: The Duty Requirement in Offences Against the Person,” 76 L.Q.R. 386.Google Scholar “Assumption of responsibility” as a criterion of liability may be said to be a “category of indeterminate reference,” and if the element of “duty” is retained, it would appear to be a “category of circuitous reference”: see Stone, The Province and Function of Law, p. 181 et seq. Categories of these kinds may be at once devices for the development of the law and expressions of conservatism or restraint: the requirement of an “assumption of responsibility” or “taking charge,” for example, allows for some creative activity by the courts, but also prevents the extension to omissions of a general principle of liability, consisting only in a requirement of reckless or grossly negligent conduct.
47 [1937] A.C. 576.
48 e.g., Stephen, Digest of the Criminal Law, 9th ed., p. 222, n. 4; Archbold, Pleading, Evidence & Practice in Criminal Cases, 34th ed., pp. 959–960; Russell on Crime, 11th ed., Vol. 1, p. 655.
49 Cf. Williams, Glanville, “Constructive Manslaughter” [1957]Google Scholar Crim.L.R. 293, and R. v. Watson (1959) 43 Cr.App.R. 111Google Scholar; R. v. Cashmore [1959]Google Scholar Crim.L.R. 850.
50 Op. cit., n. 49, supra. R. v. Larkin (1942) 29 Cr.App.R. 18Google Scholar, followed in R. v. Cashmore [1959]Google Scholar Crim.L.R. 850, can hardly be reconciled with Andrews v. D.P.P., and such authority as these cases have, must, it is suggested, be limited to the principle stated in the text.
51 Op. cit., n. 49, supra, at p. 296.
52 e.g., Fenton's Case (1830) 1 Lew. 179; R. v. Conner (1835) 7 C. & P. 438; R. v. Cheeseman (1836) 7 C. & P. 455; R. v. Archer (1858) 1 F. & F. 351; R. v. Hopley (1860) 2 F. & F. 202; R. v. Sheet (1866) 4 F. & F. 931; R. v. Campbell (1869) 11 Cox 323; R. v. Griffin (1869) 11 Cox 402.
53 At all events any blurring of the boundary with murder would be due to the uncertainties of the latter crime: cf. R. v. Ward [1956] 1 Q.B. 351Google Scholar; D.P.P. v. Smith [1960] 3 W.L.R. 546.Google Scholar
54 It is respectfully suggested that there has been some exaggeration of the difficulty of explaining to a jury what is meant by recklessness or gross negligence. Cf. Russell on Crime, 11th ed., Turner, Vol. 1, p. 49; Turner, “The Mental Element in Crimes at Common Law,” 6 C.L.J. 31 at p. 40.
55 If the accused foresaw that the death of someone was certain to result from his conduct, he would be guilty of murder. This would also be so if he intended some harm to his victim, and death or grievous bodily harm was a reasonably foreseeable consequence of his action: D.P.P. v. Smith [1960] 3 W.L.R. 546.Google Scholar
56 [1937] A.C. 576.