(II) Manslaughter

Next to the French law of involuntary homicide, the English offence of manslaughter is a serious crime with very serious associations. For, while it can apply to cases of involuntary homicide (that is, where the defendant has no intention to kill as understood above), it also applies to many cases of voluntary homicide whose circumstances are seen as justifying a degree of diminution not merely in sentencing but in the characterisation of the offence: where there is provocation, ‘diminished responsibility’ or a suicide pact.⁶⁰

Somewhat isolated examples exist in the nineteenth century law reports of the application of manslaughter to the provision of unsafe products. For example, in R v Kempson, in 1893 a farmer supplied the carcass of a diseased animal to market for human consumption.⁶¹ In the circumstances, Pollock B found the farmer so grossly negligent as to be guilty of manslaughter of a person who died as a result of consuming the animal’s meat.⁶² However, overall manslaughter has not been a ground of conviction for the manufacture or supply of unsafe products which have caused death, for the understanding of its mens rea has not lent itself to application in the context of health and safety, including product safety.

After the decision of the House of Lords in R v Adomako,⁶³ there are two ways in which the requisite mental element in involuntary manslaughter may be fulfilled: by the use of ‘unlawful means’ and by ‘gross negligence’.⁶⁴

At the very first look, ‘unlawful means’ manslaughter looks rather like the French law of involuntary homicide, which sometimes allows the ‘fault element’ to be provided by the breach of a legal or regulatory duty, but this is a false impression. For, under this heading it is manslaughter if the defendant intended to do an act⁶⁵ which, whether he knows it or not, is unlawful and objectively dangerous in the sense of being likely to cause personal injury and direct harm is caused.⁶⁶ A clear example of this test being fulfilled is where a defendant intended to assault the victim (but not to kill), and the victim dies.⁶⁷ The courts have showed their discomfort with this form of ‘constructive’ mens rea which finds the intention for one crime in the intention for another, by defining ‘unlawful’ narrowly and in particular by holding that neither civil nor even criminal negligence is enough.⁶⁸ While some commentators have suggested that breaches of safety regulations which have caused death could be sanctioned by (p.412) manslaughter under this heading,⁶⁹ the general unpopularity of ‘unlawful act’ manslaughter is reflected in the recommendation by the Law Commission that it should be abolished.⁷⁰

Secondly, Adomako established that the mens rea for manslaughter may be fulfilled by showing the defendant’s ‘gross negligence’.⁷¹ Adomako concerned an anaesthetist convicted of manslaughter in relation to his treatment of a patient during surgery, though in the Court of Appeal the case had been joined with two other medical homicide cases and one which concerned an electrician’s responsibility for the death of a householder electrocuted by mis-wiring.⁷² In giving judgment for the House of Lords, the Lord Chancellor, Lord Mackay held that ‘ordinary principles of the law of negligence’ should apply so as to ascertain whether a defendant owed the deceased a duty of care; whether there was a breach of that duty; and whether that breach caused the deceased’s death.⁷³ However, as to the fault element in the criminal context:

[t]he essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.⁷⁴

On the other hand, it is not clear quite how the gross negligence issue should be understood. The Lord Chancellor’s reference to the ‘ordinary principles of the law of negligence’ suggests that the proper standard of care is objective even as regards criminal negligence, and this is confirmed by his later reference to the standard of a ‘reasonably competent doctor’.⁷⁵ This has been criticised, though, on the basis that in the criminal context the standard of care ought to be more subjective, taking into account a defendant’s mental and physical capabilities.⁷⁶

However, it must be said that despite the simplification of the test of mens rea for manslaughter after Adomako, prosecutors have continued to be reluctant to charge and juries to convict in respect of deaths caused by failures in health and safety, as can be seen in a number of high-profile cases arising out of disasters.⁷⁷ Moreover, in the context of a manufacturer or supplier of a product, in order to convict a jury would have to be satisfied that a ‘grossly negligent’ decision was made ‘to the point of criminality’ in a context where the negligence itself consisted of the balancing of a complex of factors, some of which may involve scientific aspects of some uncertainty. (p.413) Given this, it is not surprising that there have been no recent prosecutions for manslaughter of manufacturers or suppliers of unsafe products which have caused death.⁷⁸

This position contrasts strikingly with French law, both before and after the reform of the law of involuntary homicide in 1996 and 2000. Before these reforms, French courts convicted defendants for involuntary homicide on the very slightest of faults, including where they had merely broken strict safety obligations.⁷⁹ Moreover, while the reform of 1996 was intended to give exactly the ‘subjective’ twist to the standard of negligence in criminal cases which has been suggested for English law, in the hands of French judges this appears to make little difference.⁸⁰ At first sight the much more significant changes to the French law made in 2000 as regards injury or death caused indirectly by individuals which required either deliberate breach of a legal duty of safety or ‘aggravated fault’ look as though it is drawing closer to the English law of manslaughter by ‘gross negligence’:⁸¹ they certainly have in common that the ‘fault element’ rests on a very serious fault assessed by bodies with considerable room for ‘assessment’ (the juges du fond and the English jury). However, here the similarities cease. For, first, while both juges du fond and jury have room for assessment in deciding the degree of fault serious enough to justify a conviction, they are very different bodies acting in very different institutional and procedural contexts, not least, the Tribunal correctionnel and Cour d’appel being composed of professional judges, the jury entirely lay. The different make-up of the bodies is clearly reflected in the fact that the English judges are concerned to express the law by way of formulating ‘jury directions’, such as the ones in Woollin and Adomako,⁸² of which there is no need in the French context. Secondly, in the French context, the special faults required for involuntary homicide form an exception to a general picture where for a century the slightest fault has been enough to ground criminal responsibility (and civil liability), an exception created for a very particular purpose (the protection of public decision makers).⁸³ Thirdly, the relatively less serious nature of the French offence is reflected in the classification of involuntary homicide as a délit⁸⁴ with a maximum punishment of three years’ imprisonment rising to five years maximum in its aggravated form,⁸⁵ whereas manslaughter is tried on indictment and (if the defendant does not plead guilty) by jury and bears a maximum of life imprisonment.⁸⁶ Therefore, while the formal descriptions in French or in English law of ‘gross fault’ sufficient to attract involuntary homicide or manslaughter may look similar, their application in the two systems is likely to be very different, though to a degree which is hard to establish given the nature of their adjudication.

(p.414) Moreover, even after the legislative changes to the substantive French criminal law and to the procedural relationship between criminal responsibility and civil liability made in 2000, in many cases of involuntary homicide the French actors (ministères publics and judges, defendants and their insurers, and the victims themselves and their insurers) still have in mind the role of the criminal process in ensuring compensation as well as imposing penalties. And, as a result, responsabilité civile will remain coloured by its remaining doctrinal and procedural links with responsabilité pénale. By contrast, even after Adomako, the English definitions of the mens rea of manslaughter prevent the vast majority of cases of death caused by failures in health and safety from going before the criminal courts and therefore from the possibility of the courts’ exercising their (strictly limited) powers to award compensation for death. This reflects English lawyers’ much stronger sense of the distinctive natures of criminal responsibility and civil liability.