IM Evaluation

IM Evaluation

1. Unlawful act M

   • Problems
     • Wide range of conduct
       • E.g. pushing V or an act just short of murder
       • Large variation in blameworthiness
       • Consequently max life imprisonment but no min sentence
         • Could separate levels of blameworthiness to create narrower sentencing bands
     • Death an unexpected result
       • Mitchell
         • Transferred malice
       • Cato
         • Death a much less unexpected outcome
       • Should both be found guilty of the same offence and branded with the same level of blameworthiness?
     • Objective part of the test
       • LC (R): Legislating the Criminal Code: Involuntary Manslaughter, No 237 (1996)
         • Recommended the abolition of the offence
       • Why should a D be liable for a serious offence when he didn't even realise the risk of some harm?
       • Conflicts with the law where the MR required is recklessness
         • Under recklessness D must be shown to foresee the risk
           • G and another
         • Recklessness applies to a range of offences which carry less serious sentences and social stigmas
   • Reform proposals
     • LC (R): Murder, Manslaughter and Infanticide (2006)
       • Proposed 3 tier structure for homicide
         • 1st degree and 2nd degree murder and manslaughter
         • Cover (1) GNM and (2) criminal act manslaughter
           • (2) CAM: (a) through the commission of a criminal act intended by D to cause injury, or (b) through the commission of a criminal act that D was aware involved a serious risk of causing some injury
             • Subjective test
             • Some serious M offences would become 2nd degree and so distinguish balmewothiness

2. GNM

   • Problems
     • Circular test
       • Jury have to decide whether to convict D of M (a criminal offence) by deciding whether his conduct was criminal
     • Incosistency
       • Test makes jury decide point of law. This is normally decided by J in other offences and jury just decide on facts
       • As each case is tried by a different jury there may be inconsistencies in similar circumstances
     • Civil or criminal negligence
       • Adomako
         • Lord Mackay: 'Ordinary principles of negligence applied in deciding whether D had broken a duty of care owed to V'
           • Appears to say civil tests apply to criminal
             • Not developed the same
               • Stone & Dobinson (GNM) would not be liable with the application of civil tests.
                 • LC pointed out this inconsistency in their 1996 report on manslaughter
     • Risk of death
       • Clarified in Misra - CA held test for GNM includes consideration of the risk of death. Risk of bodily injury or injury to health is insufficient
   • Reform proposals
     • 1996
       • Splitting GNM into reckless killing and killing by gross carelessness
         • RK: D is aware that his conduct will cause death or serious injury and it is unreasonable in the circumstances for him to have taken the risk, having regard to the circumstances as he believes them
           • Answers the criticisms that D can be liable for the serious offence without awareness of the consequences
         • GC: D's conduct falls far below what can reasonably be expected of him in the circumstances, or intends by his conduct to cause some injury or unreasonably takes the risk that it may do so, and the conduct causing the injury constitutes an offence
     • 2006
       • Single GNM offence where a person by his conduct causes the death of another; a risk that his conduct will cause death... would be obvious to a reasonable person in his position; he is capable of appreciating that risk at the material time; and his conduct falls far below what can reasonably be expected of him in the circumstances
         • Largely restates the law. LC proposed the keeping of the of the rule that GNM can be committed where D was unaware of the risk
           • But D must appreciate this at the material time. Protecting those with disabilities and younger Ds

3. Reform of RM

   • 2006
     • LC proposed the abolition of RM as a separate category. Suggested that the less serious cases would be covered by GNM and the more serious (those in which there is also an intention to cause injury or a fear or risk of injury) would come under 2nd degree murder