Act simply means that the initial crime must be an action not an omission. E.g. in R v Love, the D did not do anything for the child so it does not classify as an Act.
Finally, it resulting in death; where there must be a causal link between the initial crime and the death. E.g. in R v Church, she died because she was unconscious when thrown in the river.
In this question clearly Don has been died due to the unlawful and dangerous act of Brian elbowing him in the face twice.
The MR of Constructive Manslaughter is simply the MR of the offence that form the initial criminal offence. E.g. in R v Church, the MR of battery or ABH. If the MR of the initial crime is missing the D is not guilty. E.g. R v Lamb, where he pointed a gun at his friend as a joke with no intention or seeing the risk of death or injury. He pulled the trigger and his friend died of the shot wound.
In Brian’s case the initial crime is the Battery s39 Criminal Justice Act 1988, therefore if he has the MR of Battery he will subsequently have the MR of Constructive Manslaughter.
The MR of Battery is it is an intention to apply unlawful physical force to another, or recklessness that such force may be applied. E.g. in the case of R v Brown, where the D engaged in various homosexual sadomasochistic practises in private.
Brian has the MR of Battery as he intended to apply the unlawful physical force on Don in the form of elbowing him twice in the face.
Therefore I conclude that the AR and MR of Constructive Manslaughter are present and that Brian will be liable for Don’s death as a result of his unlawful and dangerous act unless he can use a general or partial defence.
Self-Defence (Private Defence), is a general defence to Battery found in The Homicide Act 1957. It has two elements.
Firstly was the force necessary? The more the possibility of retreat, the less evidence there is that the force was not necessary. However the courts do take into account the circumstances the D is in e.g. fear, frozen e.g. in R v Palmer where it was stated that “a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action”. Furthermore, the more imminent the threat the more justified the D is, but it depends of the circumstances E.g. in Att. Gen. Ref. (No 2 1983) where it was stated that the threat to his property was imminent due to the extensive rioting in that area.
Additionally is the threat is self-induced the defence is not available. In Malnik v DPP the D armed himself (i.e. this caused the threat) and went to see a known violent thief to recover his friend’s car.
A mistake as to the threat is a mistake as to the facts, therefore if the mistake is genuine and honest the defence can be used. In R v Williams the D attacked a man trying to apprehend a mugger he believed to be harassing the boy, unbeknownst to him that the boy was a mugger.
In Brain’s case the force will amount to it being necessary as there was an immediate threat that Don might have choked Brian to death himself and there was no possibility of retreat.
The second element required for Self-Defence is was the force used reasonable in those circumstances. The level of force is a law question and a subjective test. I.e. would a reasonable person (member of the jury) think that the force was reasonable in those circumstances? In R v Martin the force uses was held to be excessive as there was given that the burglars were trying to escape at the time and additionally that he had boasted that he would shoot burglars in the local pub.
