[1] [3] Emily Finch and Stefan Fafinski, Criminal

David C May, Corrections And The Criminal Justice System (Jones and Bartlett
Pub 2008).

Edward Coke, Institutes Of The Laws Of England (E & R Brooke 1797).

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Emily Finch and Stefan Fafinski, Criminal Law.

Richard Jochelson and others, Criminal Law And Precrime.

Emily Finch and Stefan Fafinski, Criminal Law.


Emily Finch and Stefan Fafinski, Criminal Law.



Crime And Criminal Justice (Wilfrid Laurier Universit 1981).

Emily Finch and Stefan Fafinski, Criminal Law.

Dennis J Baker and Glanville Llewelyn Williams, Textbook of Criminal Law.

Emily Finch and Stefan Fafinski, Criminal Law.

Jacqueline Martin and Tony Storey, Unlocking Criminal Law.

The Journal Of Criminal Law (The university of California 2001).

J. C Smith and Brian Hogan, Criminal Law (Butterworths 2002).



Graham McBain, ‘Modernising The Law Of Murder And Manslaughter: Part 1’ (2015)
8 Journal of Politics and Law.


21 Murder, Manslaughter and
Infanticide (Stationery Office 2006).


Annual Report 2004 (Stationery Office 2005).

David C Brody and James R Acker, Criminal Law (Jones & Bartlett Learning,
LLC 2014).


David C BrodyJames R Acker, Criminal Law (Jones & Bartlett Learning, LLC

Joycelyn M Pollock, Criminal Law.

The Law Commission (Law Com No 237). Legislating The Criminal Code. Involuntary
Manslaughter. Item 11 of the Sixth Programme Of Law Reform: Criminal Law
(Proquest LLC 2007).

Russell, AQA A2 Law (Hodder Education 2014).

some extent, I agree with the essay question because the abolition of objective
reckless manslaughter that was established in R v Adomako 1995 helped resolve
one of the main issues with the law on involuntary manslaughter which was that
the objective test used was unjust, unfair and inappropriate and didn’t always relate
to a case which meant that there were many injustice cases. To a large extent,
there are still many arising issues within involuntary manslaughter that the
aboloition of objective reckless manslaughter hasn’t helped to overcome such as
the fact that there is still an objective nature to the act which shows how the
law needs to be reformed.


The Law Commission, in Legislating the Criminal Code:
Involuntary Manslaughter (report 237) 27suggested that involuntary
manslaughter be abolished altogether and replaced by three new offences which
would be corporate killing, reckless (subjective) killing and killing by gross
carelessness. If this was to become law, then it would make those in businesses
liable for a person’s death if they failed to be competent.28 The abolishment of involuntary
manslaughter would further complicate the legal system because even with these
three new proposed offences, there would still be many areas within involuntary
manslaughter that would not be covered, thus confusing judges even more.

When trying to determine whether a case is one of gross
negligence or an unlawful act, it can be very difficult as it is hard to precisely
distinguish between the two. This is evident in the case of R v Willoughby
(2004)25 where even the judges
were not able to come to a decision of whether it was gross negligence or an
unlawful act that was committed. 26 This case further show
how there is not a clear outline or guidelines to what gross negligence amounts
to. This confusion is not only within the legal system but also with the public
as they wouldn’t understand the different sentencing of those convicted.

Moreover, in the case of Adomako, there was an issue regarding
what duty of care is. Duty of care is a civil test commonly used in civil law and
it has been argued that civil principles and civil tests should not be applied
to criminal cases because the law is very different within the two branches.  However, in the case of R v Wacker (2003)23, the court of appeal
confirmed that “duty of care is usually to be given the meaning it has in the
tort of negligence”.24When looking at whether a
defendant had a duty of care and was negligent or not, an objective test is
used to determine this. Thus, critics have questioned whether or not it is the
right test to do as it is very important to know the defendant’s state of mind
in criminal law to determine whether he is liable or not.

An idea for a reform proposal from the Murder, Manslaughter and
Infanticide Report (2006) recommended that “murder should be reformed to create
first and second degree murders… Worst cases of recklessness should be under
second degree murder and less serious cases should be covered under gross negligence
These reforms were proposed after a previous proposal from the law commissions
2004 report condemned the law on murder and described is as a “mess” and with “some
areas of law so flawed to the extent that it was beyond reform by the courts”.22 If these recommendations
were to made law, it would allow a more narrow approach as there wouldn’t be a
wide range of different offences falling under involuntary manslaughter and
this way, it can really help reflect the seriousness of different crimes. In
addition, the law on involuntary manslaughter would be more clear to understand
and would give judges will not be so confused when it comes to sentencing.

Another issue to point out is that involuntary manslaughter is
very broad and covers a wide range of different offences. For example, there
could be circumstances where the defendant was unaware of the risk and is not
to fully blame and circumstances where the defendant was conscious of the risks
of their conduct but continued their actions. To further add to the confusion,
the only difference between murder and manslaughter is malice aforethought which
has not been precisely defined and the different types of manslaughter continues
to confuse the public. For example, death may be unexpected such as in the case
of R v Larkin (1943)20 and if death hadn’t had occurred,
it would then become a non-fatal offence such as ABH or GBH. This is because he
claimed he had no intention to kill his victim but just cause an assault.
Moreover, even though the abolition got rid of objective reckless, there is
still an objective nature towards the Adomako test. This is because regardless
of whether the defendant realised the risk at the time or not, they will still
be found guilty. Therefore, involuntary manslaughter should be reformed and
updated as the law is not clear, is currently outdated and inconsistent.

In order to try and find a solution to problems still arising
with gross negligence manslaughter, the law commission in 2006 made it very
clear as to what gross negligence is. It clearly states that the risk must be
to cause death and one of serious injury is not enough which is evident in the
case of R v Misra & Srivastava.18 They
also recommended that the prosecution would need to prove that D is capable of foreseeing
the risk at the time. This essentially prevents cases like Elliott 1983 from
happening again and protects those who are not mentally stable or are not of an
age to understand the consequences or risks. These recommendations would also
mean that the law on gross negligence and recklessness would be easier to distinguish

There were many issues within involuntary manslaughter before
the abolition of objective recklessness manslaughter that still remains today
and needs to be solved. One issue that is found to be within involuntary
manslaughter is that the gross negligence test is considered by many to be
circular. This is because juries are directed by judges to come to a decision
on whether the defendants conduct was “criminal”. Leaving it to juries to decide
can lead to inconsistent decisions as not every juror will bear the same
opinion. The abolition of objective recklessness manslaughter did nothing to
fix this problem and this is still very uncertain.

 The idea of negligence
comes from the law of tort and the idea of duty of care is more common in civil
law than criminal. However, Adomako held that if a duty of care was owed then
ordinary principles of civil law apply.16After the ruling in Adomako,
reckless manslaughter was abolished. However, case of Lidar 200017 reintroduced recklessness
but subjectively and the risk of death must be highly probable.

 Adomako’s case reintroduced
the idea of gross negligence manslaughter and is the leading case for gross
negligence. As a result most cases that would have come under reckless manslaughter,
is now considered one of gross negligence. In order for Gross negligence to be
used, it requires a duty of care to the victim and a breach of that duty which
then resulted in death. There must be a risk of death and also the breach must
be so “gross” that the jury would deem it as criminal.



In Lord Mackay’s LC speech, he said that “the word reckless be
used but as Lord Atkins put it ‘in the ordinary connotation of that word'”.15 This
allowed judges to only use the word “reckless” in cases they felt like it
applied in and as a result, it created greater freedom between judges so the
decisions of gross negligence cases varies.

The case of R v Adomako (1995)13
involved an anaesthetist who failed to notice that a vital respiratory tube had
become disconnected during the operation and as a result that patient died. It
was questioned whether or not he should be considered liable for the death of
the patient if he was unaware of the risk towards them. The House of Lords
ruled in this case that the objective test of recklessness did not apply to manslaughter.
They ruled that “cases involving manslaughter by criminal negligence involving
a breach of duty, the ordinary principles of the law of negligence applies and
that it is up to the jury to decide whether the defendants conduct was bad
enough to be seen as a criminal act or an omission.14 This
essentially gave permission to the juries to figure out whether they feel like
the conduct of the defendant was criminal or not. In addition, it also allowed
judges to be more relaxed when sentencing as they didn’t have to follow the
ruling in Caldwell which was considered inappropriate.

Recklessness could be an offence towards
property or danger towards a human being. Under the Criminal Damage Act 1971
s1, a person acts recklessly when they are aware of the risk that would occur
and it would be unreasonable to take that risk yet they do the act anyway. 4In
regards to recklessness, the problem has always been whether there should be a
subjective or an objective test when determining whether recklessness has played
a part. Without a clear definition, judges are given discretion when sentencing
and look to previous cases or rulings for guidance on what recklessness includes. Our definition of recklessness today originated from
the case of R v Cunningham in (1957)5
which is subjectively defined as “the conscious taking of an unjustified risk”.6
However, the case of MPC  v Caldwell 7 in (1982) objectively
defined recklessness as “failure to think about a serious and obvious risk”8 which added more confusion
to what recklessness is and the decision was followed in other courts and
noticeably in R v Lawrence (1982).9 This definition would also
relate to criminal damage. This objective test meant that the risk must be
obvious to the reasonable man but need not be obvious to the defendant.10  Problems with the
objective test that critics pointed out was the fact that the objective test is
unfair and could lead to injustice. This was evident in the case of Elliott
1983 where a 14 year old girl of low intelligence poured white spirit on the
floor and set it alight causing a fire. The judges in this case used the ruling
in Caldwell11
so even though she wasn’t aware of the risk, if the reasonable person would
have noticed the risk then that’s all that mattered. This was criticised as it
was said that those of low IQ or of mental disabilities would fail to see risks
that would have been noticeable to the “ordinary” person leading to others
deeming this unjust.12

is the killing of a human being by another human being with murder being an
example of an unlawful homicide.1
Murder is defined by Sir Edward Coke as “the unlawful killing of a reasonable person
in being and under the King’s (or Queen’s) peace with malice aforethought,
express or implied.”2Along with murder, manslaughter
is the other offence that makes up homicide and there are two types: voluntary
where there is intent to kill or cause serious bodily harm and involuntary
which doesn’t require intent. Involuntary manslaughter is an offence where the
malice aforethought is missing which the mens rea for murder requires as cited
above. It falls under 3 categories which are constructive manslaughter,
gross negligence manslaughter and subjective recklessness manslaughter.
Although in recent years, recklessness is rarely used and tends to overlap with
constructive and gross negligence manslaughter. The case of R v Adomako (1995)3
caused a lot of controversy, however, did set clear guidelines on the
distinction between gross negligence and recklessness. Several issues regarding
involuntary manslaughter continue to rise over the years such as the fact that involuntary
manslaughter covers such a wide range of different offences which allows the judge
discretion when sentencing or the fact that the only difference between murder
and manslaughter is the mens rea which isn’t always clear to understand. In
this essay, I will discuss the extent to which the abolition of objective
reckless manslaughter helped clarify issues within involuntary manslaughter.