Chapter 15: Constructive Manslaughter

Question 1

What is constructive manslaughter?

Answer 1

Unlawful killing of another person without malice aforethought

• Where accused performed an unlawful and dangerous act resulting in the death of the victim

Question 2

What are the 3 elements for constructive manslaughter? Specify the sub-elements.

Answer 2

AR

1. Unlawful killing
2. Dangerous
3. Resulted in Death

MR

1. The unlawful act must be one of intention/recklessness

Question 3

What are the 3 things that constitute an unlawful act?

Answer 3

1. An unlawful conduct in the criminal sense of the work, where the act itself must constitute a crime
2. To constitute an unlawful act, MR also must be proven (only for the unlawful act)
3. Must be a positive act (omissions/negative act will not suffice)

Question 4

What is NOT an unlawful act?

Answer 4

• It can’t be a lawful act which becomes unlawful due to the manner in which it was done
• Not a civil wrong

Question 5

What are the 2 cases that state unlawful act is not a civil wrong

Answer 5

R v Franklin (1883)

R v Lamb [1967]

Question 6

R v Franklin (1883)

Answer 6

Facts

1. Person committed tort of negligence or trespass against a person by dropping a box on his head

Held

1. Not guilty of manslaughter
2. “the mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step to a criminal case.”

Question 7

What was stated by what authority in R v Lamb [1967]

Answer 7

Sachs LJ - “…It is long settled that it is not in point to consider whether an act is unlawful merely from the angle of civil liabilities.”

Question 8

What are the 5 cases for unlawful acts?

Answer 8

1. Andrews v DPP [1937]
2. Goodfellow (1986) 83 Cr App Rep 23
3. Mitchell (1983) 2 All ER 427
4. R v Arobieke [1988]
5. R v Cato [1976]

Question 9

Andrews v DPP [1937]

Who gave the judgement and what did she say?

difference of lawful/unlawful

Answer 9

Facts

1. Appellant driving a van at 10.30 p.m. on a Saturday night
2. Driving fast, over 30mph in a van
3. Overtook a car and driving well offside the road
4. Hit a man who was crossing the road
5. Appellant did not stop the car

Held

1. Charged for involuntary manslaughter
2. Lord Atkin stated
   “… There is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal. if it were otherwise a man who killed another while driving without due care and attention would ex necessitate commit manslaughter…”

Question 10

Goodfellow (1986) 83 Cr App Rep 23

Answer 10

Facts

1. Accused wanted to be re-shifted
2. He set his council house on fire with his wife and children still occupying the House
3. His child, wife and another person died in the fire

Held

1. No intention to kill but he was still convicted

Question 11

Mitchell (1983) 2 All ER 427

Answer 11

Facts

1. Accused punched a man and the man fell on top of an 89-year-old lady who broke her leg and then died from pulmonary embolism

Held

1. Accused was convicted of manslaughter

Takeaway

1. Issue of transferred malice and causation was an issue here

Question 12

What are the 4 cases for MR needing to be proven, for it to be an unlawful act?

Answer 12

1. DPP v Newbury [1976]
2. R v Scarlett [1993]
3. R v Slingsby (1995) Crim LR 570
4. R v O’Driscoll [1977]

Question 13

DPP v Newbury [1976]

MR

Answer 13

Facts

1. Boys threw part of paving stones over a bridge at an approaching train
2. Rail guard was killed

Held

1. HOL held act of the boys constituted an unlawful act

Question 14

R v Scarlett [1993]

MR

Answer 14

Facts

1. D (manager of pub) ‘bundled’ a drunk customer (V) out of the pub
2. C fell backwards down steps and died
3. Prosecution argued that D had used excessive force and D was convicted of manslaughter

Held

1. COA held D was not guilty of an unlawful act
2. There was insufficient evidence that D had used excessive force

Question 15

R v Slingsby (1995)

MR

Answer 15

Facts

1. Accused was wearing a signet ring and penetrated the victim’s vagina and rectum
2. Serious internal injuries were inflicted
3. Died due to septicaemia

Held

1. injuries were not intentionally inflicted and was an accident of consensual conduct

Question 16

R v O’Driscoll [1977]

MR

Answer 16

• Where D committed an unlawful act that was a basic intent crime
• D lacking MR due to intoxication would not suffice

Question 17

What is are the 2 cases showing that unlawful act must be a positive act?

Answer 17

1. R v Lowe[1973] QB 702
2. R v Lamb [1967]

Question 18

R v Lowe[1973] QB 702

Who was the judge and what did they say?

omission

Answer 18

Facts

1. Parent (D) knew infant was sick
2. D omitted to call a doctor for child which resulted in death
3. Charged with wilfully neglecting the child contrary to Section 1(1) of the Children and Young Persons Act 1933

Held

1. Phillimore LJ
   “There is something inherently unattractive in a theory of constructive manslaughter. It seems strange that an omission which is willful solely in the sense that it is inadvertent and the consequences of which are not in fact foreseen by the person who is neglectful should, if death results, automatically give rise to an indeterminate sentence instead of the maximum sentence of two years which would otherwise be the limited imposed.”

Takeaway

1. Omission, although how judges may see it as peculiar. Omissions will not suffice as unlawful acts

omission will not suffice, although it is skeptical

Question 19

R v Lamb [1967]

Answer 19

Facts

1. D pointed at his best friend a revolver with 5 chambers
2. Had bullets in 2 of the chambers
3. D thought it was safe to pull the trigger, while friend also was playing along
4. Shot his friend and died

Held (before)

1. Trial judge directed that pointing the trigger was an unlawful act, even if there was no intent to injure

Held (final)

1. COA held that judge misdirected the jury
2. Since appellant thought it was a joke. There was no MR for the unlawful act.
3. Thus could not be guilty

Takeaway

1. The D’s action of pulling the trigger was a positive act (conscious and voluntary movement of muscles)

Question 20

What is the test for determining if the unlawful act is ‘dangerous’? (2 case)

Answer 20

Dangerousness is a question of objective risk of harm (not a matter of subjective foresight)

• A test whether all sober and reasonable persons would realise that the conduct subjected the victim or someone else to the risk of some harm - to impose a personal moral responsibility for the death

Case

• ‘Dangerous’ test laid down by R v Church [1966]
  Subsequently approved by HOL in DPP v Newbury-Jones [1976]

Question 21

What are the 4 cases for the unlawful act being ‘dangerous’

Answer 21

1. R v Church [1966]
2. DPP v Newbury and Jones (1976) 2 All ER 365
3. Watson (1989) 1 WLR 684
4. Dawson (1985) 81 Cr App R 150

Question 22

What is the tet laid down in R v Church [1966]

Answer 22

“Would all sober and reasonable person foresee the risk of some harm stemming from the accused’s act?”

Question 23

DPP v Newbury and Jones (1976) 2 All ER 365

Answer 23

Held

1. HOL held that the two young people who threw a piece of paving stone off a bridge and into the path of an oncoming train were dangerous
2. Risk of harm would have been obvious to the reasonable person

Lord Salmon

• “… An accused guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that the act inadvertently caused death; and
• That it is unnecessary to prove that the accused knew that the act was unlawful or dangerous.”

HOL approved Church in this case

Question 24

Watson (1989) 1 WLR 684

emotional harm (compare with Dawson)

Answer 24

Facts

1. The defendant knew or had notice of the victim’s condition

Held

1. Defendant could see that the victim of a burglary was old and frail
2. Physical harm would be foreseeable on grounds that the V’s frailty and great age would be apparent to the reasonable observer

Question 25

Dawson (1985) 81 Cr App R 150 ## Footnote emotional shock (compare with Watson)

Answer 25

Facts 1. Defendant was conducting an armed robbery when the victim, who had a heart condition, died of heart failure Held 1. COA held that if only emotional shock was foreseeable and nothing more, this **would not be sufficient ‘harm’** to satisfy the test under R v Church Note 1. A reasonable person is provided with the knowledge of the accused at the time of committing the offence 2. Judge should have directed the jury to discount the heart condition as this was not known to the accused 3. Harm foreseeable **must be physical** (emotional shock does not suffice) ## Footnote Dangerous unlawful acts are only **physcial**

Question 26

What is the MR for constructive manslaughter?

Answer 26

AR and MR in the unlawful act is used as the **mens rea** for the conviction of constructive manslaughter (**DPP v Newbury and Jones**; **R v Lamb**)