UA Manslaughter and Children...??

jaybeeveedub

Under the Childrens Act 2001 as amended by CJ 2006, no child under 12 shall be charged with a crime unless such crime is murder, manslaughter, rape agg sexual assault....

If a child is being charged with manslaughter, can they be charged with unlawful act manslaughter, if they are not capable of committing such an unlawful act?

S.54 Allows for secondary participation in a crime which otherwise would not be a crime due to the age of the principal offender in the first degree

Does something similar apply to the unlawful act? Or does an unlawful act only become a crime when the offender is fixed with criminal liability?

Thus an unlawful act which would not be a crime can serve to fix liability for UA manslaughter?

jaybeeveedub

no ideas??!!!

johnnyskeleton

jaybeeveedub wrote: »

Under the Childrens Act 2001 as amended by CJ 2006, no child under 12 shall be charged with a crime unless such crime is murder, manslaughter, rape agg sexual assault....

If a child is being charged with manslaughter, can they be charged with unlawful act manslaughter, if they are not capable of committing such an unlawful act?

Well what do you think? The section says that a child under 12 shall not be charged unless the charge is manslaughter. Your question is whether or not a child under 12 can be charged with manslaughter. There is a certain obvious answer that you seem to have identified for yourself.

jaybeeveedub

ah... but that isnt quite my question....!!

my question is can a child under 12 be charged with Unlawful Act Manslaughter?

Apart from Rape and Aggravated Sexual Assault, a child cannot commit a crime....

In Kennedy(no.2) HL held

i) required an unlawful act
ii) act must be a crime
iii) crime must cause death

Scarlett requires the actus reus and the mens rea of a crime

and that the prosecution must disprove any defence....

So my question remains...

apart from Rape and Aggravated Sexual Assault, if a child cannot commit a crime, can they commit Unlawful Act Manslaughter??

johnnyskeleton

jaybeeveedub wrote: »

my question is can a child under 12 be charged with Unlawful Act Manslaughter?

There are not different charges of manslaughter for unlawful act manslaughter, criminal negligence manslaughter etc. It's just one offence of manslaughter contrary to common law i.e. the unlawful killing of another person.

So the obvious reading to my mind is that they can be charged with manslaughter, but not with any separate charges for offences they may have committed at the same time e.g. robbery.

jaybeeveedub

I see your point, but there must be a foundation offence, or a partial defense to murder in order to be charged?

So in Lamb there was no offence to found manslaughter both because the victim apprehended no danger, and the accused did not intend to frighten him meaning there was no assault. This meant there was no unlawful act upon which to found a manslaughter charge.

If a being a child is valid defence to an otherwise complete charge of assault, then that crime is incomplete. Just as Scarlett had a valid defence to battery when ejecting the patron from his pub. Once again leaving no unlawful act to found a charge of manslaughter?

Does this mean a child can only have a manslaughter charge brought if they are charged with murder and have a partial defence i.e. provocation, or if they are grossly negligent? (or as above it is founded on a crime of rape or aggravated sexual assault)

??

MagicSean

My own take on it is that no child can be charged with a crime but they can still commit one. Lets take an 11 year old who robs a bank and during the course of the robbery he shoots and kills someone who tries to stop him. A robbery has still been committed even if the offendor cannot be charged so there is still a foundation offence of robbery. Being a child is not a defence to the unlawful act because no charge can be brought in the first place.

jaybeeveedub

so would it be better to look at as, the child will not be charged as opposed to cannot be

there is a crime, which this child has committed, but as a society we decline to prosecute, as opposed to relieving the child of responsibility

which would support the fact that a secondary participant can still be charged even if the child will not be

234

The offence can't have been committed unless the court determines that it has. So without charges there has been no offence committed because a court has not declared that there has.

MagicSean

234 wrote: »

The offence can't have been committed unless the court determines that it has. So without charges there has been no offence committed because a court has not declared that there has.

What about a case where two people are charged under 112 of the road traffic act, one for stealing a car and one for allowing themselves to be carried in a stolen car. Now let's say the first guy gets off on a technicality. Does that mean the second guy can't be convicted because technically the car was never stolen?

234

I think that's getting more into the territory of the doctrine of impossibility. What I was saying was more of a pocedural point (some would say a semantic point). More to do with the presumption of innocence.

jaybeeveedub

k_mac wrote: »

My own take on it is that no child can be charged with a crime but they can still commit one. Lets take an 11 year old who robs a bank and during the course of the robbery he shoots and kills someone who tries to stop him. A robbery has still been committed even if the offendor cannot be charged so there is still a foundation offence of robbery. Being a child is not a defence to the unlawful act because no charge can be brought in the first place.

then that 11 year old could not be charged with the manslaughter of the person killed, as all elements of the offence must be proved... if it can't be charged it can't be proved....??

MagicSean

jaybeeveedub wrote: »

then that 11 year old could not be charged with the manslaughter of the person killed, as all elements of the offence must be proved... if it can't be charged it can't be proved....??

The facts of the foundation offence can still be proven as part of the manslaughter case though.

jaybeeveedub

yes but the prosecution then must also disprove any valid defence one the other facts have been proven....

MagicSean

jaybeeveedub wrote: »

yes but the prosecution then must also disprove any valid defence one the other facts have been proven....

But is being a child a defence or a bar to prosecution.

jaybeeveedub

it certainly used to be when it was doli incapax... the legislation is silent on this, other than calling it a "general commitment not to prosecute"