Report No. 35
502. English law relating to homicide by negligence-Murder.-
We proceed to consider the English Law. At English law, it is murder for a person of sound memory and discretion unlawfully to kill any human creature in being and under the Queen's peace, with malice aforethought either expressed or implied by law, provided the person killed dies of the injury inflicted within a year and a day after the same.
503. Manslaughter.- Manslaughter is the unlawful killing of such a person without malice, either express or implied1.
1. Halsbury, 3rd Edn., Vol. 10, p. 704, para. 1349.
504. Malice aforethought.-
The requisite mental element in the crime of murder in English law is, thus, "malice aforethought". The definition of this expression is not to be found in any statute, and has to be drawn from the decided cases. Malice aforethought is either expressed or implied by law. Express malice, according to Halsbury1, exists where the deliberate purpose of the accused is to deprive another of life or, to do some great bodily harm. Malice aforethought, according to Halsbury2, is implied by law-
(i) where the person killed is an officer of the law, legally arresting or imprisoning the accused or executing other process of law in a legal manner;
(ii) where, although there may have been some provocation, the provocation has not been sufficient to reduce the offence to manslaughter;
(iii) where the killing has been caused by the accused while engaged in committing some other felony involving an act of violence or an act dangerous to life3.
An offence which does not fall under murder, may yet fall under manslaughter. Briefly speaking, 'Manslaughter' is the unlawfully killing of a human creature in being and under the Queen's peace, without malice either expressed or implied4. More elaborately, any one is guilty of man-slaughter, who-
(i) unlawfully kills another upon provocation of such a character as to reduce the offence from murder to manslaughter, or
(ii) who, while committing an unlawful act or a felony, not likely to cause danger to others, unintentionally kills another person; or
(iii) who unintentionally causes the death of another by the culpable neglect of a legal duty, resting upon the person causing the death5.
1. Halsbury, 3rd Edn., Vol. 10, p. 707, para. 1354.
2. As to this last category-Death caused while committing felony, see Halsbury, 3rd Edn., Vol. 10, para. 1368.
3. This should be read subject to the Homicide Act, 1957.
4. Halsbury, 3rd Edn., Vol. 10, para. 1349.
5. Halsbury, 3rd Edn., Vol. 10, p. 715, para. 1371.
505. Apart from this position at common-law, we may refer to the statutory provisions in sections 2 and 4 of the Homicide Act, 19571. Under section 2, a person suffering from such abnormality of mind as substantially impaired his mental responsibility-i.e., who comes under "diminished responsibility", who would otherwise be liable for murder (whether as a principal or accessory), is now liable for manslaughter; and under section 4, a person acting in pursuance of a suicide pact between himself and the deceased (whether he himself kills the deceased or is a party to the killings), is guilty of manslaughter and not of murder.
1. Homicide Act, 1957.
506. Generally as to manslaughter by negligence, the detailed discussion in the under-mentioned cases1-2 may be seen.
1. Andrews v. D.P.P., 1937 AC 576: (1937) 2 All ER 552 (HL); and see the analysis in People v. Dunleavy, 1948 Irish Reports 95. (CCA of Eire), summarised in Turner, and Armitage Cases in Criminal Law, (1964), p. 302.
2. See also Vishvanath Vishnu v. King, AIR 1948 PC 183 (184) (on appeal from East Africa-a case under section 222, Tanganvika Penal Cole, corresponding to sections 279-289, Indian Penal Code).
507. Unfortunately, cases of unintentional death which have arisen in England have almost all been1 those where some felony was intended, and the result is that in the books a discussion of the topic of "implied" or "constructive" malice is always presented with reference to the special situations of resistance to officers of justice or offences constituted by acts done in the course or furtherance of felony involving violence2.
1. See the various cases summarised in Turner and Armitage Cases in Criminal Law, (1964), pp. 219 to 235 and 280 et seq.
2. This difficulty has been noticed in Russell on Crime, (1964), Vol. I pp. 477, 586, 591, 594 and conclusion at p. 598.
508. There have not been many cases in England where there was no intention to cause death or bodily harm, and yet death ensued, because of negligence (apart from cases accompanied with the complication of "violence involving felony" or resistance to officers of justice).
509. It would appear that where there is no intention to cause, death or great bodily harm, then (in the absence of a special feature, such as the victim being an officer of the law or the accused being engaged in a felony, etc.), there is no "malice aforethought", and, therefore, no murder.
510. We shall now note the provisions of the 1957 Act. Section 1 of the Homicide Act, 1957, runs as follows:-
"1. (1) Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course of furtherance of another offence.
(2) For the purpose of the foregoing sub-section, a killing done in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody shall be treated as a killing in the course or furtherance of an offence.".
Now the question is, "What is the position resulting from this provision of the law and the 1957 Act regarding death caused by negligence?".
511. View of Russell and Stephens.-
The view1 expressed in a leading work in Criminal Law is, that if malice aforethought could be defined as "foresight that death would or might be caused" then exposition of the law of murder would be simplified and no change in the law itself would be involved in the majority of cases2. This seems to be in harmony with the view of Stephens3, and of the Royal Commission on Capital Punishment4. One who has shown a disregard for the life of others, should, on this reasoning, be guilty of murder (if he causes death).
1. See Russell on Crime, (1964), Vol. I, p. 467.
2. As to the Act of 1967, see Russell on Crime, (1964), Vol. I, p. 593 et seq.
3. See Archbold, (1962), para. 2484.
4. See R.C. Report, pp. 27-28, para. 76(v) and contrast with "pure accidents" dealt with in ibid., p. 40, para. 109.
512. Most of the definitions of manslaughter in English law are of a negative character, for example, that man slaughter consists of killing another person unlawfully, yet under conditions not so heinous as to render the act a murder, or that the offence of manslaughter includes a felonious homicide not amounting to murder, or that it is the unlawful and felonious killing of another without any malice either express or implied1.
1. See the definitions collected in Russell on Crime, (1964), Vol. I, p. 562.
513. It has been the practice to divide manslaughter into two main categories, voluntary manslaughter and involuntary manslaughter1. So far as homicide by negligence is concerned, it is the latter category which is applicable. [The former is confined to cases where intentional killing is reduced to manslaughter owing to provocation or where special statutory provisions, such as section 2(3) and section 4(1) of the Homicide Act, 1957 are applicable].
1. See Russell on Crime, (1964), Vol. 1, p. 562.
514. According to Russell1, the main thread running through all the line of development of manslaughter is the fact that the prisoner brought about a death when engaged in what he realised was exposing someone's person to the certainty or to the risk of some (but not fatal) physical harm. Therefore, if the prisoner caused the death as the result of conducting himself in the manner which, at that time, he realised involved either the certainty or the risk that a physical harm less than death would be suffered by some person, that amounts to manslaughter2-3 (in the absence of a legal excuse or justification).
1. See Russell on Crime, .(1964), Vol. I, p. 598.
2. See Russell on Crime, (1964), Vol. I, p. 598.
3. Cf. R. v. Sharmpal Singh, 1962 AC 188: (1962) 2 WLR 238 (PC).
515. It is often difficult to decide whether a case of dangerous driving resulting in death amounts to manslaughter or not1.
1. Cf. Andrews v. D.P.P., 1937 AC 576 (584): (1937) 2 All ER 552 (577) (HL).
516. The expression usually used in the English cases for denoting the mens rea requisite for manslaughter (in this context) is "criminal negligence1". But it has been pointed out2, that this fails to say affirmatively what exactly is the mens rea in manslaughter.
1. Andrews v. D.P.P., 1937 AC 576 (583): (1937) 2 AER 552 (557) (HL).
2. Kenny Criminal Law, (1962), p. 182.
517. Kenny1 has submitted that the law should be clarified by a statutory provision which should, in effect, settle that it shall be the crime of involuntary manslaughter when a man who has caused the death of another did so in a course of conduct which, he realised, would or might cause someone a physical harm but not a fatal harm, provided that he had no lawful justification or excuse for inflicting or risking the infliction of the physical harm which he foresaw. The test is intended to be subjective.
1. Kenny Criminal Law, (1962), p. 184.
518. Sometimes it may not amount to manslaughter, but many amount to an offence under section 1 of the Road Traffic Act, 1960 or section 2 of that Act.
519. Causing death by reckless or dangerous driving.-
Sections 1 and 2 of the Road Traffic Act, 19601-2, run as follows3:-
"(1). Causing death by reckless or dangerous driving.-(1) A person who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, shall be liable on conviction on indictment to imprisonment for a term not exceeding five years.
(2) An offence against this section shall not be triable by quarter sessions; and nothing in the foregoing sub-section shall be construed as empowering a court in Scotland, other than the High Court of Judiciary, to pass for any such offence a sentence of imprisonment for a term exceeding two years.".
(3) Section 20 of the Coroners (Amendment) Act, 1926 (which makes special provision where the coroner is informed before the jury have given their verdict that some person has been charged with one of the offences specified in that section) shall apply to an offence against this section as it applies to manslaughter.
2.(1) Reckless, and dangerous driving generally.-If a person drives a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public4, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the road, he shall be liable-
(a) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both a fine and such imprisonment;
(b) on summary conviction, to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding four months or to both such fine and such imprisonment, or in the case of a second or subsequent conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.
(2) If upon the trial of a person for an offence against section one of this Act the jury are not satisfied that his driving was the cause of the death but are satisfied that he is guilty of driving as mentioned in sub-section (1) of this section, it shall be lawful for them to convict him of an offence under this section.
(3) Upon the trial of a person who is indicted for manslaughter in England or Wales, or for culpable homicide in Scotland, in connection with the driving of a motor vehicle by him, it shall be lawful for the jury, if they are satisfied that he is guilty of an offence under this section, to find him guilty of that offence.".
1. Road Traffic Act, 1960 (8 and 9 Eliz. 2, C. 16).
2. See, generally, Gross & Jones Introduction to Criminal Law, (1962) pp. 154 and 314, 318.
3. The predecessor of section 1 was section 8, Road Traffic Act, 1956 (Halsbury, Statutes, Vol. 36, p. 807).
4. As to section 2 see R. v. Clow, (1963) 2 All ER 216.
520. Moreover, there is one practical consideration to be borne in mind. It is useless to hold the person responsible where he did not foresee death, because no threat of punishment would deter a man from doing something unless he was directing his mind to the matter. The law of manslaughter has not changed by the introduction of motor-vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence1-2.
1. See Andrews v. D.P.P., 1937 AC 576: (1937) 2 AER 552 (HL).
2. For a comprehensive discussion, see Brett Manslaughter and the Motorists, (1943), 27 Australian Law Journal 6, 89.