Constructive manslaughter

Question 1

What is CM

Answer 1

Unlawful act manslaughter is the charge bought when a defendant has the actus reus ofmurder, but only the mens rea of a lesser offence (the unlawful act).

Question 2

Why is Ashworth critical of CM?

Answer 2

the offence as it is a clear breach of the correspondence principle: a battery, which has a 6 month maximum sentence, could become a life sentence if the victim unexpectedly dies as a result of some unforeseen circumstances.

Question 3

Why else is Ahsworth critical of CM?

Answer 3

Fair labelling- conviction should fairly reflect the wrongdoing of the offender, an making the outcome an aggravating feature distorts D’s wrong. With CMS there can be a much bigger gap (than with the gap of GBH rule), this is the ‘one punch’ battery, makes contact with V, who dies in consequence. D may have had no idea when he hit that the consequence might be fatal, so this seems like punishing him for bad luck.
“to apply the label manslaughter to the conduct of a person who envisaged no more than a battery, e.g. by a single punch, is both disproportionate and unfair. It is only luck that makes the difference between the summary offence of common assault (maximum, six months imprisonment) and the grave offence of manslaughter (maximum, life imprisonment).”

Question 4

Facts of R v Harvey

Answer 4

D had argument with his wife throwing the remote at her. He did not know, or she, was that she had a weakness of an artery in her neck, and she could have died at any moment by moving her head sharply. This blow by the remote killed her. As far as the AR is concerned- take V as you find her. In terms on the base offence he had the fault required. The sentence which was reduced in light of the circumstances, arrived at a sentence of 21 months.

Question 5

Folkes

Answer 5

punches his father, in terms of sentencing said to be worth three years. Justification for this, is that D has decided to embark on a wrongful course of conduct. He shifted his normative position. Not necessarily unfair for him to take the consequences.

Question 6

What is the argument for one punch MS

Answer 6

It might be argued that D should take the consequences as he has put himself in the wrong (‘shifted his normative position’) by attacking V

Question 7

What is the argument for moral distance in one punch CM?

Answer 7

Statistically speaking, the risk of death from a single punch is too small to enter into reasonable contemplation… death would not be an intrinsic risk when injuring another, rather than injuring another seriously. It seems wrong to attribute too much weight to chance.” Ashworth & Horder

Question 8

What are the components of CM?

Answer 8

R v Goodfellow: summarised4 separate components required to be proved in unlawful act manslaughter cases: 1) there must be anintentional act; this act must beunlawful; 2) it must also bedangerousand 4) it mustcause death.

Question 9

Facts of R v Goodfellow

Answer 9

In Goodfellow, the defendant firebombed his own house in an attempt to show to the council that he was under threat. Three occupants died and Goodfellow was convicted of unlawful act manslaughter.

Question 10

Intentional Act: which case decided that the unlawful act must be a crime

Answer 10

Franklin: trespass was not enough- he threw a heavy box off a pier which killed a swimmer, this was not an unlawful act since it was not a crime (may fall under gross negligence)

Question 11

Intentional Act: which case held there must be a criminal act.

Answer 11

R v Lamb: A young boy killed his friend during experimentation with a revolver. He was unaware that the chamber of a revolver revolves when the trigger is pulled, such that a bullet was ‘lined up’ when he pulled the trigger. CA quashed his conviction, only unlawful act was the crime of assault, under assault must at least intent to cause another person to fear or apprehend force or violence. Both D and V thought what they were doing was safe. Prosecution had failed to prove their case.

Question 12

why must there be an unlawful act?

Answer 12

If the act which causes death is lawful, there may be no unlawful act manslaughter conviction: If D has a defence to the base crime there is no offence.

Question 13

Unlawful act: r v Scarlett

Answer 13

R v Scarlett: pushing drunk person out of a nightclub was lawful as it was done in self -defence.

Question 14

Unlawful act: case that no omissions for an unlawful act

Answer 14

• R v Lowe: notwithstanding its poor reasoning, appears to disallow unlawful act manslaughter byomission. The crime was the wilful neglect of a child. The element was failing to get medical assistance for his chid. Even an intentional or deliberate omission is not sufficient for this type of MS, may fall within GNM.

Question 15

Unlawful Act: Andrews v DPP

Answer 15

the unlawful act must be a crime, and not a tort: a case which dismissed negligence driving as being able to give rise to a conviction of unlawful act manslaughter. If the fault in conduct lies simply in his negligence, if he kills then the question will be whether he falls under GNM.

Question 16

Unlawful Act: case that should have used Andrews principle but got away with it because of a niche offence in the RTA

Answer 16

Meeking, case where D and her husband had an argument while he was driving, she pulled on the hand break causing him to collide and killing him. This would be a strong case of GNM, but prosecution argued CNM. Using offence under RTA which requires intentionally interfering with a vehicle and a proposition that it would be obvious to a reasonable person that it was dangerous. SO Andrews principle should have been engaged.Wrong to prosecute for unlawful act, but upheld conviction because element of intentional interference as well.

Question 17

What is the MR required for CM

Answer 17

R v Newbury and Jones indicated that for CM it is only the MR of the crime constituting the unlawful dangerous act that is required. It is not necessary to prove that D foresaw any harm from his unlawful act- no subjective test

Question 18

who decides if the act is dangerous

Answer 18

It is for the jury to decide whether the unlawful (and intentional) act was dangerous.

Question 19

Dangerous: where is the test for dangerousness set out

Answer 19

outlined inDPP v Newbury and Jones is theR v Churchtest, anobjective assessment of whether the defendant’s act might cause some harm.

Question 20

Dangerous: DPP v Newbury and Jones

Answer 20

it has been an objective test; the test is not whether D saw a risk of harm but would a reasonable person. D 15 –year-old boys pushed concrete block from bridge, went through a train and killed the guard. Question was designed to test the objective principle, as clear these boys did not see a risk of harm. Question was- can they still be convicted if they did not foresee they might cause harm. House said yes, it is the objective, would sober and reasonable people recognise its danger.

Question 21

Dangerous: In which case did a 14 year old start a fire killing a homeless man and what was held

Answer 21

JF: The arson was deliberated but they claimed not to realise that there was anyone sleeping there. So they were acquitted of aggravated criminal damage. Could not be guilt under CDA, but convicted of MS using the arson as the base crime, because in this context, the test for risk is objective, would the reasonable person have seen such a risk

Question 22

Dangerous: Why was a subjective test rejected?

Answer 22

The objective test was well established and it was for Parliament to determine whether the long established law needs changing in the light of the LC’s various recommendations or whether a further examination is needed by the LC.

Question 23

Dangerous: What must the reasonable person have to know/ think?

Answer 23

he reasonable person, imagine the ULA happening ask what does the reasonable person think will happen next, does he foresee risk of harm?

Question 24

Dangerous: Does the harm need to be serious?

Answer 24

No

Question 25

Dangerous: What happened in R v Dawson

Answer 25

D attempted armed robbery, and threatened the V a 60-year-old attendant, who had a heart condition and died of a heart attack. The proper direction for the jury, is would the reasonable man would have the knowledge which he would have gained if he was present at the scene and watched, so the same knowledge as D and no more. So no insight into the condition of the V. D could not have been aware of Vs weak heart.

Question 26

Dangerous: What happened in R v Watson

Answer 26

burgled house of an elderly man, when in the house it was obvious D was frail and vulnerable therefore the criminal activity was dangerous to him. Conviction was ultimately quashed on grounds of causation, but did satisfy the test of dangerousness .

Question 27

Dangerous: Which case distinguished Watson

Answer 27

R v Ball: in part, holding that the reasonable man does not make mistaken beliefs, so perhaps actual knowledge on one hand and beliefs on the other can be distinguished from each other. D shot at a trespasser intending to fire a blank shot to scare V. He pulled a live cartridge firing that instead and V died. CoA wanted to convict, so said that the rule in Dawson case works in favour of D only where the V has a particular vulnerability.

Question 28

Dangerous: What is the alternative arguably better conclusion that could have been drawn in R v Ball

Answer 28

Dawson not meant to be read so restrictively? CoA find formula which did not mean reasonable man would not make the same decision as the man. Could it be avoided, by D knowing he had a mix in his pocket, so the reasonable man would know that, so the reasonable man would see the risk of injuring even if he didn’t.

Question 29

Dangerous: Which case indicates that the dangerous act need not be aimed at the V

Answer 29

A-G Reference (No. 3 of 1994), it must merely be capable of doing some harm to somebody; in this case an unborn baby. The unlawful act’s malice was transferred to an unborn child. All sober and reasonable people would regard the stabbing as dangerous. It is plain that it was unlawful as it was done with the intention of causing her injury, As the D intended to commit that act, all the ingredients necessary for MS in regard to MS were established, irrespective of who was the ultimate V of it. The death of the child was unintentional, but the nature and quality of the act which caused it was such that it was criminal and therefore punishable.

Question 30

Caused death: what must there be

Answer 30

there must be a causal link between the D unlawful and dangerous act and the death of the V. Means that death must flow from his unlawful act- the crime.

Question 31

Caused death: Kennedy no 2

Answer 31

D prepared and handed an injection of drugs to V who self-injected. Conviction upheld by CA. Decided that D’s participating actions had caused the death. The HL decided that D had not carried out an unlawful act which had caused V’s death. He had not administered a noxious substance under s 23 OAPA. V was a responsible adult who had chosen to self inject. It was this that had caused death. V’s actions broke the chain of causation. D was not guilty as he had not administered or caused the administration contrary to s 23 OAPA. The supply of drugs although unlawful by D, did not cause the death the administration did.

Question 32

Cause: in which case was the chain of causation broken

Answer 32

R v Carey: the victim ran away from gang threats and had a fatal heart attack. The threats were said not be unlawful and in any event, the escape was not provoked by them, but the principle is adequately conveyed. The prosecution relied on the affray as the cause of death. But it was held the affray was not dangerous; and the punch (which was dangerous) did not cause the death because A’s running broke the chain of causation (she was not being chased at this point). Holding that death caused by just running without any reason to why she was running was artificial. Clear that CoA did not want to label C as guilty of MS, and this is the reason for the technical analysis

Question 33

Caused: Can shock equal harm

Answer 33

yes, but the test for dangerous is probably setting the bar too high as requiring a risk of shock suffering to a heart attack

Question 34

Caused: heart attack case

Answer 34

R v M(J): this foreseeability is a question of fact for the jury: the defendant did not know about the security guards health condition which caused an unforeseeable heart attack. D tried to force his way back into a nightclub, he took part in an affray with the bouncers, one of whom the V, had a heart attack and later died. The trigger said to be the shock, the adrenalin surge of V. Court accepted that a risk of such harm, might come a risk of physical harm. So, conviction upheld.

Question 35

Cause: cause for suicide

Answer 35

R v Dhaliwal, what happens if D assaults the V and the V then commits suicide. In this case, in considered obiter, if violence is used against someone who has a fragile and vulnerable personality which leads to death even if immediate cause if suicide, this arguably can be unlawful act MS. Seem to state that the violence must trigger a recognisable physicatric illness of some kind, not mere mental distress.

Question 36

Cause: what is the problem reconciling Kennedy with suicide ?

Answer 36

Not voluntary if V driven by the illness caused by the D

Question 37

Cause: reconciling Carey with suicide?

Answer 37

If D is beating can be said to cause suicide via illness, why doesn’t punching cause the injury sustained by running away even where no immediate pursuit? If it doesn’t matter whether suicide is to prevent more violence, and getting away from D, or results for pysch illness, why can’t it be said in Cary that brought episode of heart failure?