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‘One punch’ Manslaughter: One Dissatisfied Public

The tragic moment of Andrew Young's death. Image: Dorset Police. News Article: Metro

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

The CCTV image of Lewis Gill delivering a fatal blow to Andrew Young, a man with Asperger’s syndrome, became even more widespread following the trial judge’s decision to impose a maximum sentence of 4 years for this instance of ‘one punch’ manslaughter. Young had confronted a companion of Gill for using his bike on the pavement. Despite the matter being resolved, Gill took it upon himself to strike Young with a punch, causing Young to fall backwards and hit his head on the pavement; he later died from a fractured skull and severe brain injuries.

The case resulted in a public outcry that the law on ‘one punch’ manslaughter is far too lenient, with Young’s mother referring to the judicial system as a ‘soft touch’. Dominic Grieve QC, the Attorney-General, responded to the issue and brought the case to the Court of Appeal, arguing that the maximum four year sentence did not accurately reflect the gravity of the harm caused. However, the three Appeal judges held that the sentence was not unduly lenient and was in line with current sentencing guidelines. The leading judgment was given by Lord Justice Treacy, who stated that:

The sentencing process cannot be driven only by the harm done, appalling as it is. The other side of the equation is the level of culpability, and inherent in the charge of manslaughter is the recognition that the offender did not intend to cause really serious harm.

He went on to state that should there be a public interest in reviewing current sentencing guidelines; this would be a matter for the sentencing council to address, and not the judiciary. Chris Grayling, the Justice Secretary, has thus announced plans to respond to public requests and review the current sentencing guidelines. This will not be a straightforward process. A cautious examination of the role that culpability and harm play in sentencing will be invoked, and the following crucial question must be asked: what exactly is the law trying to achieve?

The law punishing the culpable

The maximum punishment for manslaughter is a discretionary life sentence. However, sentencing guidelines for ‘single blow’ manslaughter recommend a maximum sentence of four years imprisonment as discussed in R v Furby [2005], due to the partial lack of culpability.

The principle of correspondence dictates that the mens rea and actus reus of an offence must match up, so far as is to be reasonably expected, in order for the defendant to be found guilty. Had the victim not died from the attack, the offender would only be guilty of occasioning actual bodily harm. This offence carries a maximum sentence of five years imprisonment, in compliance with section 47 Offences Against the Persons Act 1861. The end result of the offender’s actions is essentially a matter of chance, and thus it could be considered unduly harsh for the maximum sentence to exceed the sentence of actual bodily harm to too great an extent.

In addition, it must not be forgotten that the punishment does not lie solely in the sentence. The offender is henceforward labelled guilty of manslaughter. Future employers will not care for the difference between unlawful manslaughter as a whole, and ‘single blow’ manslaughter. Surely to refer to any manslaughter sentence as ‘unduly lenient’ is a gross understatement. This is a sentence which will continue to punish the offender for the rest of their existence.

The law redressing wrongfully inflicted harm

Nevertheless, on the other side of the scales is the relevance of the harm caused. An unlawful act has undeniably resulted in the death of a victim. In Attorney General’s Reference No.60 of 2009 (Appleby and Others) it was held that although it is correct for judges to concentrate on actions and intentions, due care and attention must be paid to the catastrophic consequences of said actions.

Undeniably Gill did not intend to kill Young when he delivered the blow; if this was the case we would be looking at a sentence of murder as opposed to manslaughter. However, he did intend to cause significant harm. Gill was well-built, a trained boxer, and the CCTV clearly demonstrates he did not hold back when he knocked Young to the ground. The punch was delivered with deliberation. It could therefore be argued Gill’s actions were subject to constructive liability: those who decide to break the criminal law should be held liable for all the consequences that ensue, even if they are far graver than anticipated.

The law protecting the vulnerable

Of all the aggravating features described in Lord Justice Treacy’s judgement, the defenceless condition of the victim is referred to with particular emphasis. It is acknowledged that the defendant was not aware of Young’s specific condition, however, ‘the victim’s behaviour was unusual and [Gill] must have noticed that.’

Previous case law has also demonstrated a tendency for judges to impose heavier sentences when the victim is considered innocent, defenceless, or particularly vulnerable. In Gray [2012] 1 Cr App R (S)73 the ‘one punch’ killing took place late at night whilst the victim was speaking on a mobile phone, oblivious to the attacker. This was considered a serious example and a sentence of 4 years and 8 months imposed. The sentence indisputably increases alongside an increase in victim vulnerability. The ‘one punch’ victim in Lee [2012] EWCA Crim 835 suffered from learning difficulties, and this factor (alongside others) led to the imposition of a hefty 7 year sentence. Whether or not it is the law’s direct and open intention, it cannot be denied that judges strive to offer sympathy and protection to the vulnerable whenever possible.

Knock-on effect on manslaughter as a whole?

Finally, leaving judges with weak sentencing powers in instances of ‘single blow’ manslaughter is inconsistent with other areas of manslaughter. Take, for example, the ‘eggshell skull’ principle. It has long been established that a defendant must ‘take their as they find them’, regardless of the victim’s physical or spiritual characteristics (R v Blaue). The defendants do not intend to kill the victim; they furthermore do not necessarily undertake unlawful and dangerous acts which involve a foreseeable risk of killing the victim. Nevertheless, the victim dies. This is also an area of law which could be attributed purely to ‘bad luck’, and yet the defendant is held entirely liable for the death. The law on manslaughter must be consistent in order to ensure public confidence in the criminal justice system. In the case of Lewis Gill, this confidence has been lost.

Wider judicial discretion: the way forward

Various outcomes could emerge from Chris Grayling’s review. ‘One punch’ manslaughter could be regulated by the same guidelines just as other forms of manslaughter, thus carrying a maximum sentence of discretionary life imprisonment, or perhaps the recommended sentence will purely be increased from 4 years. This would allow for broad judicial discretion to fully reflect the facts of the case in the sentence.

Alternatively, a new offence could be created altogether. This has been proposed in Ireland by the Irish Law Reform Commission. Assuming that the death is ‘wholly unforeseeable’, the defendant may be guilty of a lesser offence of ‘assault causing death’. This would address the lack of moral blameworthiness in this small category of cases. On the other hand, in his paper ‘More thoughts about unlawful and dangerous act manslaughter and the one- punch killer’ (2009) CLR 502, Barry Mitchell argues that such an offence runs the risk of further diminishing public confidence. Families of the victims may see the attacker as simply being charged with a lesser assault-type offence, despite the death of their loved one. Such an offence would not address the public outcry which has arisen from the death of Andrew Young.

Whatever the outcome of the review, it is clear that the law must respond to public demand. The 2010 judgment in Appleby demonstrated that these instances must be treated on a case-by-case basis, with judges taking into account factors such as the nature of the attack, the condition of the victim, if the attack occurred in a public place, and whether the defendant has any previous convictions of a violent nature. Such factors cannot be given the weight they deserve if judges are themselves victims to restrictive sentencing powers.

 

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Tagged: Criminal Law, Justice

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