Unlawful Act Manslaughter

Manslaughter Generally

Manslaughter, like murder, is a common law offence, not defined by statute. It is a lesser offence than murder, both in the stigma attached and in the possible sentence as it involves a discretionary and not a mandatory life sentence. The offence of manslaughter is committed when the accused commits the actus reus of all homicide - causing the death of another - but has done so in circumstances which are regarded as less blameworthy than murder. Initially we can distinguish between voluntary and involuntary manslaughter:

where the killing is done with malice aforethought, it is usually regarded as murder but there are circumstances which we have already looked at that reduce the offence from one of murder to manslaughter - these are provocation, diminished responsibility and suicide pacts. These are known as voluntary manslaughter though perhaps they would be better termed 'intentional' manslaughter.
the second category is where the killing is done without the requisite malice aforethought for murder but in circumstances which are regarded as still meriting blame.

These categories are known as involuntary manslaughter although again they would be better termed 'unintentional' manslaughter. These consist of:

i) unlawful act manslaughter

ii) gross negligence manslaughter

iii) (possibly) 'foresight' manslaughter

The effect of a conviction for manslaughter avoids the stigma of a 'murder' conviction and also avoids the mandatory life sentence. Though the maximum sentence for manslaughter is life, this is at the discretion of the judge who is able to impose any sentence from a discharge or probation up to that maximum. The sentence can reflect the degree of the accused's culpability since manslaughter can range from unfortunate 'accidents' to killings which come close to being classified as murder.

At this top end, the substantive issue in cases such as Moloney, Hancock and Nedrick was the borderline where we must distinguish the highly culpable 'manslaughter' from murder . But in this section we are concerned more about the bottom point - is the killing sufficiently blameworthy to attract liability for manslaughter, for a lesser offence or indeed no liability at all?

It is sensible to regard manslaughter not as a single offence but as separate offences. Those offences are unlawful act manslaughter and gross negligence manslaughter. Each have their own requirements.

Unlawful Act Manslaughter

This is the corollary to the old felony/murder rule and is often known as constructive manslaughter - at common law it is manslaughter to kill in the course of committing an unlawful act just as it was murder to kill in the course of committing a felony. As we have seen the felony/murder rule was repealed by s.1 Homicide Act 1957 but the constructive malice rule is still with us.

For unlawful act manslaughter, the requirements are that:

accused must have caused the death of another AND:
the killing must have occurred in the course of the accused's unlawful act AND:
that unlawful act must have also been dangerous - i.e. exposing the victim to a risk of harm.

Unlawful act

The killing must occur in the course of the accused's unlawful act. This in itself requires explanation:

it must be shown that the act was unlawful: -

Historically it was possible for the act to be a ...

This is a preview of the whole essay

For unlawful act manslaughter, the requirements are that:

accused must have caused the death of another AND:
the killing must have occurred in the course of the accused's unlawful act AND:
that unlawful act must have also been dangerous - i.e. exposing the victim to a risk of harm.

Unlawful act

The killing must occur in the course of the accused's unlawful act. This in itself requires explanation:

it must be shown that the act was unlawful: -

Historically it was possible for the act to be a tort (Fenton (1830) where the accused threw stones down a mine shaft, damaging the sides and causing an accident with the cage) but Franklin (1883) involved the accused walking along Brighton pier, picking up a good-sized box from a refreshment stall and throwing it into the sea where it struck and killed the victim. The prosecution argued that, ignoring the recklessness of the act, this was a tort - trespass to the goods of the stall owner. Field J. rejected this argument saying that the mere fact of a civil wrong should not be used as a step towards criminal liability.

Thus the act should be a crime and it must be demonstrated to the court that this is the case - i.e. if no killing took place, then the accused could be convicted of another offence. In Lamb (1967), the accused pointed a loaded gun at the victim as a joke. The friend was not alarmed because neither understood the mechanism of the revolver - the bullet appeared to be away from the firing mechanism. But as the trigger was pulled, the gun went off and the friend was killed. There was no criminal assault since there was no intent nor was the victim threatened. Thus this could not be unlawful act manslaughter. (However the jury might nowadays have decided that the accused was grossly negligent and thus guilty of manslaughter through this route). See also Jennings (1990) - possession of a knife is not necessarily unlawful if the accused had cause to believe he was going to be attacked.

Minor consensual assaults are not unlawful - boxing, rugby tackles etc. If a rugby player dies after a tackle, so long as the tackle was within the normal limits of the game, then no offence either of assault or of manslaughter occurs. Remember there are limits - AG's Ref 6/80; Brown (1992). Also remember that threats of violence are unlawful acts as much as actual infliction of physical force -we saw this in escape cases such as Boswell or Mackie - although even here there are limits as in Arobieke (1988)- simply looking at a person so that they become so scared they seek to escape across electrified train lines does not constitute an assault and thus the death does not attract liability for manslaughter.

the unlawful act must be criminal for some other reason simply than the fact that it has been negligently performed:

You can be criminally liable on the basis of simple negligence - see the driving cases below. Where criminal liability is simply on that basis, (in other words, if the act would be lawful but for negligent performance), then it cannot be the basis of a charge of unlawful act manslaughter. The prosecution would have to be based on grossly negligent manslaughter and not unlawful act manslaughter.

This can be seen in driving cases - driving itself is perfectly lawful but becomes unlawful when it is done carelessly. In Andrews (1937), the accused killed a pedestrian - it was shown that he was driving dangerously (itself a criminal offence) at the time. Did the fact that he had killed the victim while committing this other offence automatically make him guilty of manslaughter? Lord Atkin said:

There is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with such a degree of carelessness which the legislature makes criminal.

In such cases, where the prosecution is alleging negligence or gross negligence/recklessness on the part of the accused in relation to the initial act, then the prosecution cannot succeed in showing unlawful act manslaughter but instead would have to prove the more difficult elements in grossly negligent manslaughter.

if the unlawful 'act' is an omission, even an intentional omission, again this cannot be treated as an unlawful act for the purposes of unlawful act manslaughter

Again, in such a case, the prosecution would have to prove the more difficult elements in grossly negligent manslaughter. In Lowe (1973), the accused wilfully neglected his child causing unnecessary suffering so as to commit an offence under s.1(1) Children and Young Persons Act 1933. The child also died. This did not make the accused automatically guilty under the 'unlawful act manslaughter' doctrine:

How then can mere neglect amount to manslaughter? The court feels that there is something inherently unattractive in a theory of constructive manslaughter.... We think that there is a clear distinction between an act of omission and an act of commission likely to cause harm. Whatever may be the position with regard to the latter, it does not follow that the same is true of the former. In other words, if I strike a child in a manner likely to cause harm, it is right, if the child dies, that I may be charged with manslaughter. If, however, I omit to do something with the result that it suffers injury to health which results in its death, we think that a charge of manslaughter should not be the inevitable consequence.

Whether there is always a positive criminal act is dubious - it should be necessary to pinpoint the unlawful attack and sometimes the cases slide over this. In Cato (1976) the victim produced heroin and syringes and he and the accused injected one another. The victim died. The court referred to s.23 OAPA 1861 - administering a noxious thing - as the unlawful act but whether the requirements of s.23 are met is debateable. Clarkson and Keating comment that the courts 'are not beyond simply manufacturing an unlawful act as and when the need arises'. Also consider whether there are problems in the 'unlawful act' requirement as it is applied to the facts in Lipman (1970) where the accused and his friend took LSD - he believed that he was involved in a struggle with snakes in a pit and when he awoke, his friend was dead with a sheet down her throat. The unlawful act looks like an assault but at the time of the assault, the accused was in no state to form any mens rea. (However see the discussion on the defence of intoxication through drink or drugs and the effect of Majewski later on in the course)

To summarise, then, an unlawful act must have the following characteristics:

i) it should be criminal

ii) it should not be based on negligence

iii) it should not be an omission.

Unless all three are satisfied, then the prosecution must rest, if at all, on the basis of reckless manslaughter.

Directed at another

This is not a requirement of the offence of unlawful act manslaughter.

It has been said that the act should be directed or aimed at the victim. This was the result of the decision in Dalby (1982) where the accused obtained Diconal tablets and supplied them to the victim. The victim injected himself intravenously, was later found unconscious by the accused who failed to call an ambulance until it was too late. In his appeal against a conviction for manslaughter, Waller LJ held that the act of supplying the drug was not one which caused direct harm though it made it possible for the harm to occur. There had to be an act directed at the victim and likely to cause harm.

This was considered in Mitchell (1983) where the accused pushed a man who fell against an old lady in a post office queue. She suffered a broken leg, thrombosis and died. On appeal the accused argued that his act was not directed at the victim but the court upheld the conviction, expressing doubts about Dalby. The latter was a case where the chain of causation had been broken by the victim's own acts unlike Mitchell. In other words, Dalby is really a causation case and does not introduce a new element into manslaughter. This was confirmed in Goodfellow (1986) where the accused, wishing to be rehoused, set fire to a house in which three people died. The arson was not directed at the victims but the conviction for manslaughter was upheld. Though the result in Dalby was affirmed, Dalby was seen by the court in Goodfellow as not having caused the victim's death.

Unlawful and Dangerous

At one point, it was felt that as long as the act was unlawful, then if it caused death, it had to be manslaughter. Now it is clear that the act must also be dangerous. In Larkin (1943), the accused's mistress had been having sex with another man. The accused took out a razor with the intent of frightening that man but, being drunk, swayed against his mistress and cutting her throat:

Where the act which the 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 that act, then he is guilty of manslaughter.

This was confirmed in Church (1966) where the accused knocked a woman unconscious, tried to revive her, failed and, believing her to be dead, threw her body into the river where she drowned. The trial judge directed the jury that wherever death resulted from an unlawful act, then that amounted to manslaughter. Edmund-Davies corrected this:

..an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of harm resulting therefrom, albeit not serious harm.

The question which arose from this was whether the defendant had to be shown as recognising that risk. However in manslaughter, we are not interested in the accused's state of mind relating to the consequences of his act (though we may be with regard to the initial unlawful act). The Church test does not relate to the mens rea but instead explains and defines what is 'dangerous' - i.e. an act which reasonable people would see as involving the risk of harm.

This was confirmed by the House of Lords in Newbury (1977) where the accused were 2 15 year old boys who pushed paving stones from a bridge into the path of a train. The guard sitting alongside the driver was killed. The appeal was on the basis that the defendants did not recognise their acts as dangerous, though reasonable people might have. The House upheld the convictions and Church - the test of what was dangerous was an objective test not related to the accused's state of mind.

In Newbury, the accused also argued that s.8 Criminal Justice Act 1967 applied - the jury were not bound to infer that the accused foresaw a consequence because a reasonable person would have done so but should take into account all the evidence. Here the House supported the decision by Widgery LCJ in Lipman (1970) which treated s.8 as irrelevant. Why? The answer lies in the following train of reasoning:

firstly s.8 applies to those situations where a constituent element of the offence is the intent or foresight of the defendant. The jury must decide whether the defendant possessed that state of mind and s.8 prevents juries from doing that by reference to the reasonable person (See Smith v DPP)
secondly the constituent elements in manslaughter do not include consideration of whether the accused's intent or foresight
what unlawful act manslaughter requires is that the act is dangerous. This consideration of a quality of the act itself - the act must be dangerous. It is not relevant whether the accused believes it to bo so or not. The question is 'What is dangerous?' and the answer is given in Church:

the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of harm resulting therefrom, albeit not serious harm

In some situations, the danger is not immediately apparent - burglary, for example, is not inevitably dangerous. In Watson (1989), the accused broke into the home of an elderly man with a serious heart condition who later died from the shock. The court held that the 'reasonable person' must be endowed with the knowledge that the defendant possessed - during the burglary, he became aware of the age and frailty of his victim and the reasonable person would have recognised the risk.

Conclusion

Constructive or unlawful act manslaughter requires:

an unlawful act not based on negligence or omission
a dangerous act in the sense that all reasonable people would inevitably recognise the risk of harm - though not necessarily serious harm.