Chapter 15: Constructive Manslaughter Flashcards
What is constructive manslaughter?
Unlawful killing of another person without malice aforethought
- Where accused performed an unlawful and dangerous act resulting in the death of the victim
What are the 2 elements for constructive manslaughter? Specify the sub-elements.
AR
- Unlawful killing
- Dangerous
- Resulted in Death
MR
- The unlawful act must be one of intention/recklessness
What are the elements for unlawful act?
- An unlawful conduct in the criminal sense of the work, where the act itself must constitute a crime
- To constitute an unlawful act, MR also must be proven (only for the unlawful act)
- Must be a positive act (omissions/negative act will not suffice)
What is NOT an unlawful act?
- It can’t be a lawful act which becomes unlawful due to the manner in which it was done
- Not a civil wrong
What are the 2 cases that state unlawful act is not a civil wrong
R v Franklin (1883)
R v Lamb [1967]
R v Franklin (1883)
Facts
- Person committed tort of negligence or trespass against a person by dropping a box on his head
Held
- Not guilty of manslaughter
- “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.”
Who gave and what is the phrase that was said in R v Lamb [1967]
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.”
What are the 5 cases for unlawful acts?
- Andrews v DPP [1937]
- Goodfellow (1986) 83 Cr App Rep 23
- Mitchell (1983) 2 All ER 427
- R v Arobieke [1988]
- R v Cato [1976]
Andrews v DPP [1937]
Who gave the judgement and what did she say?
difference of lawful/unlawful
Facts
- Appellant driving a van at 10.30 p.m. on a Saturday night
- Driving fast, over 30mph in a van
- Overtook a car and driving well offside the road
- Hit a man who was crossing the road
- Appellant did not stop the car
Held
- Charged for involuntary manslaughter
-
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…”
Goodfellow (1986) 83 Cr App Rep 23
Facts
- Accused wanted to be re-shifted
- He set his council house on fire with his wife and children still occupying the House
- His child, wife and another person died in the fire
Held
- No intention to kill but he was still convicted
Mitchell (1983) 2 All ER 427
Facts
- 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
- Accused was convicted of manslaughter
Takeaway
- Issue of transferred malice and causation was an issue here
What are the 4 cases for MR needing to be proven, for it to be an unlawful act?
- DPP v Newbury [1976]
- R v Scarlett [1993]
- Simon Slingsby (1995) Crim LR 570
- R v O’Driscoll [1977]
DPP v Newbury [1976]
unlawful act
Facts
- Boys threw part of paving stones over a bridge at an approaching train
- Rail guard was killed
Held
- HOL held act of the boys constituted an unlawful act
R v Scarlett [1993]
Lawful act
Facts
- D (manager of pub) ‘bundled’ a drunk customer (V) out of the pub
- C fell backwards down steps and died
- Prosecution argued that D had used excessive force and D was convicted of manslaughter
Held
- COA held D was not guilty of an unlawful act
- There was insufficient evidence that D had used excessive force
Simon Slingsby (1995) Crim LR 570
lawful act
Facts
- Accused was wearing a signet ring and penetrated the victim’s vagina and rectum
- Serious internal injuries were inflicted
- Died due to septicaemia
Held
- injuries were not intentionally inflicted and was an accident of consensual conduct
R v O’Driscoll [1977]
unlawful act
- Where D committed an unlawful act that was a basic intent crime
- D lacking MR due to intoxication would not suffice
What is are the 2 cases showing that unlawful act must be a positive act?
- R v Lowe[1973] QB 702
- R v Lamb [1967]
R v Lowe[1973] QB 702
Who was the judge and what did they say?
omission
Facts
- Parent (D) knew infant was sick
- D omitted to call a doctor for child which resulted in death
- Charged with wilfully neglecting the child contrary to Section 1(1) of the Children and Young Persons Act 1933
Held
-
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
- Omission, although how judges may see it as peculiar. Omissions will not suffice as unlawful acts
omission will not suffice, although it is skeptical
R v Lamb [1967]
Facts
- D pointed at his best friend a revolver with 5 chambers
- Had bullets in 2 of the chambers
- D thought it was safe to pull the trigger, while friend also was playing along
- Shot his friend and died
Held (before)
- Trial judge directed that pointing the trigger was an unlawful act, even if there was no intent to injure
Held (final)
- COA held that judge misdirected the jury
- Since appellant thought it was a joke. There was no MR for the unlawful act.
- Thus could not be guilty
Takeaway
- The D’s action of pulling the trigger was a positive act (conscious and voluntary movement of muscles)
What can we tell if an unlawful act was ‘dangerous’?
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
- ‘Dangerous’ test laid down by R v Church [1966]
Subsequently approved by HOL in DPP v Newbury-Jones [1976]
What are the 4 cases for the unlawful act being ‘dangerous’
- R v Church [1966]
- DPP v Newbury and Jones (1976) 2 All ER 365
- Watson (1989) 1 WLR 684
- Dawson (1985) 81 Cr App R 150
What is the tet laid down in R v Church [1966]
“Would all sober and reasonable person foresee the risk of some harm stemming from the accused’s act?”
DPP v Newbury and Jones (1976) 2 All ER 365
Held
- 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
- 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
Watson (1989) 1 WLR 684
emotional harm (compare with Dawson)
Facts
- The defendant knew or had notice of the victim’s condition
Held
- Defendant could see that the victim of a burglary was old and frail
- Physical harm would be foreseeable on grounds that the V’s frailty and great age would be apparent to the reasonable observer
Dawson (1985) 81 Cr App R 150
emotional shock (compare with Watson)
Facts
- Defendant was conducting an armed robbery when the victim, who had a heart condition, died of heart failure
Held
- 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
- A reasonable person is provided with the knowledge of the accused at the time of committing the offence
- Judge should have directed the jury to discount the heart condition as this was not known to the accused
- Harm foreseeable must be physical (emotional shock does not suffice)
Dangerous unlawful acts are only physcial
What is the MR for constructive manslaughter?
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)
