unlawful act manslaughter
There are four key elements which we need to break down and look at. All four of them need to be present for unlawful act manslaughter to occur.
- The defendant must do an unlawful act
- That act must be dangerous on an objective test
- The act must cause the death
- The D must have the mens rea for that unlawful act.
Unlawful Act
The act must be unlawful. It must be a criminal act. The act cannot be a tort; it must be a criminal one. Franklin 1883 involved a tortious act and the courts said there was no unlawful act because a tort was not enough to be an unlawful act. The act cannot be an omission (Lowe 1973). It must be a positive act. Khan and Khan (1998) the CoA again pointed out that an omission was not sufficient to convict the defendants of unlawful act manslaughter. ‘The defendants supplied a young prostitute with heroin. They knew she was a new user. She injected herself in their presence but went into a coma. The defendants left the flat and when they returned the next day she was dead. The CoA quashed their conviction for unlawful act manslaughter as they had not done an unlawful act. The omission was not enough for the purposes of unlawful act manslaughter.
The act must be unlawful. It must be a criminal act. The act cannot be a tort; it must be a criminal one. Franklin 1883 involved a tortious act and the courts said there was no unlawful act because a tort was not enough to be an unlawful act. The act cannot be an omission (Lowe 1973). It must be a positive act. Khan and Khan (1998) the CoA again pointed out that an omission was not sufficient to convict the defendants of unlawful act manslaughter. ‘The defendants supplied a young prostitute with heroin. They knew she was a new user. She injected herself in their presence but went into a coma. The defendants left the flat and when they returned the next day she was dead. The CoA quashed their conviction for unlawful act manslaughter as they had not done an unlawful act. The omission was not enough for the purposes of unlawful act manslaughter.
Dangerous Act
The unlawful act must be dangerous. This is decided using an objective standard established in Church 1966. The act is dangerous if 'such as all sober and reasonable people would inevitably recognise...at least, the risk of some harm resulting therefrom, albeit not serious harm'.
The Defendant's perception is not taken into account. If the sober and reasonable person would have realised that the unlawful act was likely to cause some harm or some injury, then the unlawful act will be deemed a dangerous one. •If a sober and reasonable person realised that the unlawful act might cause some injury, then this part of the tests for unlawful act manslaughter is satisfied.
In Larkin (1943) the D threatened another man with a cut-throat razor blade. A woman was drunk and got involved. She fell and cut her throat on the razor blade and died. When he threatened the man with the blade, this was an assault (unlawful act) and the question was asked whether it was dangerous. Would holding an open cut throat razor be judged by all sober and reasonable people to be likely to injure or cause some harm? The answer was yes, therefore it was a dangerous act. This meant he was convicted of unlawful act manslaughter.
•Humphries J explained this in the judgement of Larkin (1943) when he said: ‘Where the act which a person is engaged in performing is unlawful, then, if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by the act, then he is guilty of manslaughter.’
•The act does not have to be aimed at the victim. In Mitchell (1983) the defendant tried to push his way in a queue in a post office. A 72-year old man confronted him and the defendant punched him, who staggered back into an old woman. The woman was knocked over and injured and a few days later died of her injuries. The defendant was convicted of unlawful act manslaughter. His unlawful act was punching the man and it was deemed dangerous as all sober and reasonble people would identify a risk of some harm or injury. It didn't matter that the harm was suffered by another person.
•It is not necessary for the sober and reasonable person to foresee the particular type of harm that the victim suffers. It is enough that the sober and reasonable person would foresee some harm. In JM and SM (2012) , a bouncer died during a fight with two young lads after they had been thrown out of a nightclub. JM lit a cigarette inside a nightclub and was asked to leave. After some pushing, both JM and his brother SM left. Later, they both returned and kicked a fire door. The brothers got into a fight with bouncers and during the fight, V (a doorman) collapsed and died shortly afterwards. He died through blood loss. The CoA held that the sober and reasonable person only had to foresee some harm. They did not have to foresee a specific type of harm. Sober and reasonable people would ‘readily have recognized that all the doormen…were at risk of some harm.’
•The act need not be aimed at a person. It can be aimed at property, provided it is ‘such that all sober and reasonable people would inevitably recognise must subject another person to, at least, the risk of some harm.’ In the case of Goodfellow (1986) the defendant decided to set fire to his council flat so that he would be rehoused. The fire got out of control and his wife and son died. He was convicted of manslaughter and appealed. They upheld the conviction because:
•The act was committed intentionally
•It was unlawful
•Reasonable people would recognise it might cause some harm to another person
•The act caused the death.
The unlawful act must be dangerous. This is decided using an objective standard established in Church 1966. The act is dangerous if 'such as all sober and reasonable people would inevitably recognise...at least, the risk of some harm resulting therefrom, albeit not serious harm'.
The Defendant's perception is not taken into account. If the sober and reasonable person would have realised that the unlawful act was likely to cause some harm or some injury, then the unlawful act will be deemed a dangerous one. •If a sober and reasonable person realised that the unlawful act might cause some injury, then this part of the tests for unlawful act manslaughter is satisfied.
In Larkin (1943) the D threatened another man with a cut-throat razor blade. A woman was drunk and got involved. She fell and cut her throat on the razor blade and died. When he threatened the man with the blade, this was an assault (unlawful act) and the question was asked whether it was dangerous. Would holding an open cut throat razor be judged by all sober and reasonable people to be likely to injure or cause some harm? The answer was yes, therefore it was a dangerous act. This meant he was convicted of unlawful act manslaughter.
•Humphries J explained this in the judgement of Larkin (1943) when he said: ‘Where the act which a person is engaged in performing is unlawful, then, if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by the act, then he is guilty of manslaughter.’
•The act does not have to be aimed at the victim. In Mitchell (1983) the defendant tried to push his way in a queue in a post office. A 72-year old man confronted him and the defendant punched him, who staggered back into an old woman. The woman was knocked over and injured and a few days later died of her injuries. The defendant was convicted of unlawful act manslaughter. His unlawful act was punching the man and it was deemed dangerous as all sober and reasonble people would identify a risk of some harm or injury. It didn't matter that the harm was suffered by another person.
•It is not necessary for the sober and reasonable person to foresee the particular type of harm that the victim suffers. It is enough that the sober and reasonable person would foresee some harm. In JM and SM (2012) , a bouncer died during a fight with two young lads after they had been thrown out of a nightclub. JM lit a cigarette inside a nightclub and was asked to leave. After some pushing, both JM and his brother SM left. Later, they both returned and kicked a fire door. The brothers got into a fight with bouncers and during the fight, V (a doorman) collapsed and died shortly afterwards. He died through blood loss. The CoA held that the sober and reasonable person only had to foresee some harm. They did not have to foresee a specific type of harm. Sober and reasonable people would ‘readily have recognized that all the doormen…were at risk of some harm.’
•The act need not be aimed at a person. It can be aimed at property, provided it is ‘such that all sober and reasonable people would inevitably recognise must subject another person to, at least, the risk of some harm.’ In the case of Goodfellow (1986) the defendant decided to set fire to his council flat so that he would be rehoused. The fire got out of control and his wife and son died. He was convicted of manslaughter and appealed. They upheld the conviction because:
•The act was committed intentionally
•It was unlawful
•Reasonable people would recognise it might cause some harm to another person
•The act caused the death.
•Burglary is an unlawful act which is not normally dangerous under the Church definition with a risk of some harm resulting therefrom. However, a burglar may be carried out in such a way that the circumstances of the commission of the offence make it dangerous.
Bristow, Dunn and Delay (2013) – Ds were part of a gang of at least six men who had agreed to burgle V’s workshop. The workshop was down a long drive, so there was a risk of someone discovering he burglary and trying to prevent the burglars from escaping. Ds used at least two vehicles to get to the workshops. V was found dead near the workshop a few hours after the burglary. There was evidence that he had been hit by one or both of the vehicles used by the Ds. Ds were convicted of V’s manslaughter. The CoA upheld their conviction because the circumstances meant that a reasonable and sober person would recognise the risk of some harm resulting from the burglary.
•The risk of harm includes causing a person to suffer shock. However, mere ‘emotional disturbance’ is not sufficient, as seen in Dawson. The problem in Dawson was whether a sober and reasonable person would have foreseen the risk of harm (shock) to the petrol station attendant. In Dawson (1985) convictions for manslaughter were quashed where three Ds attempted to rob a petrol station. They were masked and armed with pickaxe handles. The petrol station attendant managed to sound the alarm but then dropped dead from a heart attack. The judge directed the jury that ‘harm’ meant either ’emotional or physical disturbance’. The CoA held that this was a misdirection as ‘emotional disturbance’ on its own is not enough to amount to harm.
•Where a reasonable person would be aware of the victim’s frailty and the risk of physical harm to him, then the defendant will be liable. This was stated in Watson (1985) – where the two defendants threw a brick through the window of a house and broke into it, intending to steal property. In the case of Watson(1985) the occupier was a frail 87 year old man. He heard a noise and came to investigate. The two Ds physically abused him and then left. The man died of a heart attack 90 minutes later. The CoA quashed the conviction for manslaughter. They stated that the act of burglary could be ‘dangerous’ in that it became dangerous as soon as the old man’s condition would have been apparent to the reasonable man.
Bristow, Dunn and Delay (2013) – Ds were part of a gang of at least six men who had agreed to burgle V’s workshop. The workshop was down a long drive, so there was a risk of someone discovering he burglary and trying to prevent the burglars from escaping. Ds used at least two vehicles to get to the workshops. V was found dead near the workshop a few hours after the burglary. There was evidence that he had been hit by one or both of the vehicles used by the Ds. Ds were convicted of V’s manslaughter. The CoA upheld their conviction because the circumstances meant that a reasonable and sober person would recognise the risk of some harm resulting from the burglary.
•The risk of harm includes causing a person to suffer shock. However, mere ‘emotional disturbance’ is not sufficient, as seen in Dawson. The problem in Dawson was whether a sober and reasonable person would have foreseen the risk of harm (shock) to the petrol station attendant. In Dawson (1985) convictions for manslaughter were quashed where three Ds attempted to rob a petrol station. They were masked and armed with pickaxe handles. The petrol station attendant managed to sound the alarm but then dropped dead from a heart attack. The judge directed the jury that ‘harm’ meant either ’emotional or physical disturbance’. The CoA held that this was a misdirection as ‘emotional disturbance’ on its own is not enough to amount to harm.
•Where a reasonable person would be aware of the victim’s frailty and the risk of physical harm to him, then the defendant will be liable. This was stated in Watson (1985) – where the two defendants threw a brick through the window of a house and broke into it, intending to steal property. In the case of Watson(1985) the occupier was a frail 87 year old man. He heard a noise and came to investigate. The two Ds physically abused him and then left. The man died of a heart attack 90 minutes later. The CoA quashed the conviction for manslaughter. They stated that the act of burglary could be ‘dangerous’ in that it became dangerous as soon as the old man’s condition would have been apparent to the reasonable man.
Causation of the Death
The unlawful act must cause the death. The rules on causation are the same as for murder. If there is an intervening act which breaks the chain of causation then the defendant cannot be liable for manslaughter. In the case of Cato (1976), the D and V each prepared an injection of a mix of heroin and water. They then injected each other. By injecting V with the heroin, D had committed the unlawful act of administering a noxious substance to V. As V died from the effects of the injection, Cato was convicted of unlawful act manslaughter. The problem has been with situations where the defendant has prepared the injection, handed the syringe to V, and V has then injected himself. There are two points at issue; whether the defendant has done an unlawful act, and has the defendant caused the victim’s death or is the self-injection an intervening act. Kennedy (2007) – D had prepared an injection of heroin and water for V to inject himself. He handed the syringe to V who injected himself and then handed the syringe back to D. •The case was appealed to the House of Lords. They quashed the conviction on the basis that D had not done an unlawful act which caused the death. D had not administered a noxious substance for an offence under s.23 OAPA 1861. V’s act in injecting the heroin himself was an intervening act which broke the chain of causation. The Law Lords pointed out that the criminal law generally assumes the existence of free will. The victim had freely and voluntarily administered the injection to himself. The defendant could only be guilty if he was involved in administering the injection. In this case he had not been. |
Mens Rea for the Act
It must be proved that the defendant had the mens rea for the unlawful act. Where the defendant has committed a deliberate assault on the person of another, such as punching, it is obvious there is mens rea of the unlawful act. It is not necessary for the D to realise that the act is unlawful or dangerous. Newbury and Jones (1976) – the Ds were two teenage boys who pushed a piece of paving slab from a bridge on to a railway line as a train came. It hit the train and killed a guard. They were convicted of manslaughter and the HoL was asked to decide the question of whether the D could be convicted of unlawful act manslaughter if he did not foresee that his act might cause harm to another. The HoL confirmed it was not necessary to prove that the D foresaw any harm from his act. The D could be convicted provided the unlawful act was dangerous and the D had the necessary mens rea for the act. |