Chapter 7

Part 2

Involuntary manslaughter
Involuntary manslaughter can be one of three types:
● ‘foresight’ or ‘reckless’ manslaughter
● ‘unlawful act’ or ‘constructive’ manslaughter
● gross negligence manslaughter (causing death through lack of care).

Overlap between forms of involuntary manslaughter

Hyam (Hyam [1975] AC 55) and Smith (Smith [1961] AC 290) both killed in
the course of doing something extremely dangerous. In the former case,
Hyam threw a petrol bomb through V’s letter box, while in the latter case,
Smith drove his car extremely dangerously in an attempt to dislodge a
police officer trying to arrest him. Both victims were killed. If these cases
came to the courts today the defendants should not be charged with
murder, which requires intention to kill or cause grievous bodily
harm. They could, however, be charged with:
● reckless manslaughter, if the prosecution could prove foresight of
death or serious injury
● gross negligence manslaughter, if, irrespective of whether the
prosecution could prove foresight of death or serious injury, the jury
considered their actions to be grossly negligent as to the risk of death
● constructive manslaughter, since both defendants killed in the course
of doing something illegal and dangerous.
The prosecution will tend to charge the form which is most easy to establish
as a matter of evidence. Here this is probably constructive manslaughter,
but the prosecution would still find it relatively easy to gain a conviction
charging either of the other two forms.

Distinctiveness
There are, however, killings where only one form should be charged. This
distinctiveness should be understood. Reckless manslaughter is rarely
charged. Since acting with foresight of death or serious injury will usually
be a criminal offence, almost all cases of reckless manslaughter will also be
cases of constructive (unlawful act) manslaughter. Reckless manslaughter
comes into its own when the defendant is charged with murder and the
judge directs the jury that it can find the defendant guilty
of manslaughter if not convinced there was the necessary intention but if
convinced that the defendant foresaw death or serious injury as probable.
Examples of cases where this would be appropriate include Hyam (1975),
Goodfellow (1986) 83 Cr App R 23 and Hancock and Shankland [1985] 3
WLR 1014. Since this explanation tells us all we need to know about
reckless manslaughter, no more will be said about it in this chapter.
Constructive manslaughter is the correct charge when there is evidence that
death resulted from an unlawful and objectively dangerous act of D, but
there is insufficient evidence that D intended (or foresaw) death or serious
injury, or was grossly negligent as to the risk of death. For instance, A hits B
with a single punch to the jaw. B dies as a result of a hidden weakness in his
skull which implodes under the force. This is constructive manslaughter;
neither of the other two forms apply since A neither foresaw death nor
grievous bodily harm, and nor was he grossly negligent as to the risk of
death. Gross negligence manslaughter is the correct charge where there is
insufficient evidence that D foresaw death or serious injury resulting from
their conduct and there is no unlawful and dangerous act upon which to
graft liability. It is most appropriate, therefore, for those who kill in the
course of performing a lawful activity in a criminally careless fashion, or
who omit to do something they should have done. It covers, for example,
parents who neglect their children, train drivers who ignore signals,
electricians who forget to earth their circuits, builders who break building
regulations, surgeons who perform incompetent surgery on their patients,
bus drivers who fall asleep at the wheel and so on.

Constructive manslaughter
Constructive manslaughter is also known as unlawful act manslaughter. It
is called constructive manslaughter because liability does not derive, as it
usually must, from a combination of an actus reus and mens rea which
match a consequence with an equivalent mental state. Rather, liability for
one crime is constructed out of the elements of another. For example, one
can be guilty of manslaughter if death results from the commission of an
assault, criminal damage, burglary, robbery or even theft. The prosecution’s
task is to prove:
- the elements of the core offence (e.g. the assault, the criminal
damage, etc.)
- the objective likelihood that harm would result from the commission
of that offence, and
- a causal connection between the core offence and the death.
This offence is, in the opinion of most commentators, unjust, since – as the
example above shows – the criminal label may seriously overstate the
gravity of the defendant’s wrongdoing.

Actus reus: constructive manslaughter

An act
To be guilty of constructive manslaughter the cause of death must be an act.
This is one of the few crimes which cannot be committed by omission.
Omissions are not sufficient even where there is a duty of care. So in Lowe
[1973] QB 702 D was charged with the constructive manslaughter of his
child whom he had badly neglected. He was convicted on the basis that he
had caused his child’s death through the commission of a criminal offence.
That offence is wilful neglect of a child (s.1 of the Children and Young
Persons Act 1933). D’s conviction was quashed. The Court of Appeal ruled
that an act was of the essence for constructive manslaughter. This charge
would have been proper if the child had died as a result of injuries
sustained through a beating. As no such acts could be established, the case
should have been charged as one of gross negligence manslaughter. No
doubt the prosecution chose to charge constructive manslaughter because it
was easier to establish the commission of the s.1 offence than it was to
establish gross negligence on D’s part. The Court of Appeal saw through
this ruse!
An act which is criminally unlawful
This is an important point. It was first established in Franklin (1883) 15 Cox
CC 163 in which D killed a swimmer when he threw a wooden crate off a
pier into the sea. D’s conviction for constructive manslaughter was quashed
since what he had done, if wrongful, was not a criminal wrong. In deciding
whether someone has committed constructive manslaughter, therefore, the
first question to ask is whether the death resulted from the commission of a
crime. This crime must, moreover, be identified by the prosecution
(Jennings [1990] Crim LR 588).
Larkin [1943] KB 174 and Lamb [1967] 2 QB 981 are authorities for the
proposition that the prosecution must be able to prove all the elements of a
criminal offence to support a conviction for constructive manslaughter. But
the prosecution’s task does not stop there. If D has a defence to the core
offence, for example consent or self-defence, again no conviction for
unlawful act manslaughter will arise. In Scarlett [1993] 4 All ER 629 D, a
publican, ejected a drunk from a public house who then fell backwards
down the steps and died following a fractured skull. D’s conviction for
constructive manslaughter was quashed on the basis that he feared the
drunk was about to attack him and so his use of force was lawful
self-defence. This meant that he had not committed the core offence that
constructive manslaughter requires.

Constructive manslaughter and crimes of negligence: a

qualification
Certain activities are lawful if done properly, but unlawful if done
dangerously or negligently. The most common example of these are driving
offences. If D commits a driving offence such as speeding or dangerous
driving which results in V being killed, is D automatically guilty of
constructive manslaughter? This is an important question because if the
answer is yes it would threaten to put a lot of people, whose only fault is
negligence or absent-mindedness, behind bars. It would also take over the
space currently occupied by gross negligence manslaughter and render a
conviction for negligent killing easier; indeed, far too easy. In Andrews
[1937] AC 576, the House of Lords ruled that only acts which are inherently
criminal can form the basis of a constructive manslaughter charge. If they
are criminal only because they are performed in a careless
or dangerous fashion then the prosecution must charge gross negligence
manslaughter, which will necessitate the prosecution proving not merely
the carelessness or dangerousness required by the core crime but also gross
negligence as to death.

The criminal act must be dangerous

‘Dangerous’ is a term of art here. It does not mean threatening to life or
limb; it means simply of a nature to cause harm. A punch then is dangerous
because punches often result in harm, albeit not serious harm. A punch was
the core activity which resulted in a manslaughter conviction in the leading
case of Church [1966] 1 QB 59. In this case, Edmund Davies LJ gave the
following authoritative definition of what counts as a
dangerous act. The act must be such that all sober and reasonable people
would inevitably recognise must subject the other person to, at least, the
risk of some harm resulting therefrom, albeit not serious harm.

The criminal act must be dangerous

The principle in Church should be committed to memory. It is brief and
very helpful. Now try applying it to the following problem. Jack lets the
tyres down on Jill’s car. Jill does not notice this when she returns to
the car and drives off. She soon notices the problem, panics and brakes
suddenly. Humpty, who is driving too closely to stop in time, crashes into
the back of Jill’s car, killing her. Is Jack guilty of constructive
manslaughter? To answer this question, your job is to analyse the facts to
ensure that all the elements of the offence are present, including in
particular the dangerousness requirement as defined by Edmund Davies
LJ in Church. The phrase ‘the other person’ in the Church quotation does
not mean that the dangerous act need be directed against the deceased
specifically. It could be directed against a third party, as happened in
Mitchell [1983] 2 All ER 427 (the altercation in the Post Office queue
case, see Chapter 4), but it must be of a nature to cause harm to someone.
So in the above problem, it would make no difference to Jack’s potential
liability, if the deceased was Jill, Jill’s baby who was in the front baby seat,
or Humpty. Two cases involving different outcomes from similar actions
illustrate this meaning of ‘dangerous acts’. In Dawson (1985) 81 Cr App R
150 D pointed a replica gun at V in the course of a robbery. V had a history
of heart conditions and died of a heart attack: D was convicted of
constructive manslaughter. On appeal, his conviction was quashed because
the judge had not made clear to the jury that it could convict only if
pointing the gun was objectively dangerous. And it would be objectively
dangerous only if it was known that V had a heart condition – this had not
been established. In Watson [1989] 1 WLR 684, D committed burglary on a
house occupied by V, an 87-year-old man who suffered from a heart
condition. The encounter between D and V resulted in V being disturbed
and upset, and a little later he suffered a heart attack and died. D was
convicted of manslaughter. Although his appeal was successful on other
grounds, the Court of Appeal made clear, on the basis of the Church
definition, that D’s encounter with V was objectively dangerous, as soon as
it became clear that V was old and frail. Continuing with the burglary after
this realisation would therefore satisfy the dangerous act requirement.

The dangerous act must cause death

Establishing causation is not generally a problem for the prosecution, as
was seen in Chapter 4. It will normally follow from the fact that but for D’s
act the death would not have occurred, although this is not always the case.
D’s act must be the substantial and operating cause, which it will not be if,
independently of D’s action, another cause intervenes which rids D’s initial
act of all causal potency. (For a good example, see the discussion of Rafferty
in Wilson, Section 5.6.A.4 ‘Breaking the chain of causation intervening
cause supersedes defendant’s act’). A particular causal sequence in which
this routinely happens involves the supply of dangerous drugs. Supplying
drugs is a criminal act and it is dangerous in the Church sense. However, if
V self injects and this causes V’s death, D (who supplied the drugs) is not
guilty of manslaughter. V’s free and
informed act breaks the chain of causation (Kennedy (No 2) [2007] UKHL
38). If, however, D does the injecting then D will be liable for constructive
manslaughter if this results in V’s death. Here, however, it is not the act of
supply which will form the basis of the charge, but the administration of the
drug (an offence under s.23 OAPA 1861). D will remain liable because no
subsequent act or event intervenes, following this administration, to break
the chain of causation (Cato [1976] 1 WLR 110). Another knotty problem
concerns acts of the defendant towards V, which triggers V’s
suicide. What test of causation is to be applied here? Is it ‘take your victim
as you find them?’ as in Blaue; a reasonable foresight test as in Roberts; a
daft or disproportionate reaction test as in Williams; or a voluntary act test
as in Kennedy? In Wallace (see Section 4.3), the Court of Appeal
sidestepped this question, ruling that the question to be considered in all
cases where more than one cause contributed to the death is whether ‘the
accused’s acts can fairly be said to have made a significant contribution
to the victim’s death’.

Mens rea
As has been explained, constructive liability involves the defendant being
held liable for crime A on the basis of their liability for committing crime B.
If, therefore, D is being charged with constructive manslaughter (crime A)
on the basis of having committed an assault (crime B), all the prosecution
has to establish is that V’s death was caused as a result of the assault (crime
B). Setting aside proof of causation, which is a given, its first task is to prove
the actus reus of assault (e.g. a punch). Its second task is to prove the mens
rea for assault, that is intending or foreseeing (recklessness) unlawful
physical contact with V.

Reform proposals
The Law Commission recommended the abolition of the rule in Newbury
and Jones, which permits liability in the absence of foresight of harm.
Under its proposals, manslaughter will encompass ‘killing through a
criminal act intended to cause some injury, or in the awareness that the act
posed a serious risk of causing some injury’. These proposals were
considered by the Court of Appeal in R v F.
Gross negligence manslaughter (manslaughter by breach of
duty)
People whose gross carelessness results in death may be charged with gross
negligence manslaughter, the essence of which is a breach of a legal duty to
be careful. Such duties do not exist in a vacuum. As we have seen in Chapter
3, for example, where death is caused by an omission such a duty exists
only where it has been voluntarily assumed, or where there is a contract,
special relationship and so on. So a lifeguard may be guilty
of gross negligence manslaughter for failing to save a child drowning in
their swimming pool, but not an expert swimmer who is in attendance and
witnesses the whole affair. Whether a duty exists in cases of affirmative
action causing death is a matter of law to be decided by the trial judge. In
the civil law of negligence, such duties tend to arise by virtue of the duty
holder being in a position where their actions are likely to cause harm to
another if care is not taken. The criminal law follows this pattern to a large
extent, but the fact that a duty is not recognised in the civil law does not
mean that it will not be recognised in the criminal setting. In Wacker
[2002] EWCA Crim 1944 a lorry driver transported illegal immigrants in an
airless container which led to the deaths of most of them. He was held
properly convicted of manslaughter for his failure in this regard. Although
in the civil law such a duty would probably not have arisen due to the
immigrants’ complicity in an illegal enterprise, no such stricture applied in
the criminal law where deeper considerations of public policy applied. A
similar result was seen in Willoughby [2004] EWCA Crim 3365 where D
and V torched D’s building for the purpose of committing an insurance
fraud, during which V died. Again, although no duty of care would have
arisen in the civil law, a duty did arise in the criminal law and D
was guilty of manslaughter. The modern law of gross negligence
manslaughter derives from the leading case of Adomako [1995] 1 AC 171, in
which an anaesthetist was charged with manslaughter for failing to
supervise properly a patient who was given a general anaesthetic in
the course of an eye operation: the patient died when, unnoticed by the
defendant, his oxygen supply was cut off. The House of Lords made a
number of important statements of principle in the course of this case. In
particular, it deprecated the trial judge’s use of the term recklessness to
describe the fault element and said that trial judges should direct the jury in
terms of gross negligence only in cases where a lack of care is alleged to be
the cause of death. It stated that the elements of this form of manslaughter
were threefold. The prosecution must show:
 ● D owed a duty of care
● D was in gross violation of this duty
● death occurred as a result of this breach of duty.

Duty of care
As explained above, it is a matter of law for the judge to decide whether the
defendant owed a duty of care to the victim. The jury’s function is to decide
whether the duty was broken and if the death was caused by the breach.
This principle was affirmed in Evans [2009] EWCA Crim 650 in which the
Court of Appeal introduced a new duty situation in cases of manslaughter
by omission – namely one arising where the defendant is
responsible for contributing to circumstances of extreme danger for the
victim. This was an extension of the principle in Miller in which the House
of Lords had limited this duty to cases where the dangerous situation was
caused by the defendant (see Chapter 3). Now it is enough that they simply
contributed to the danger. In the words of Lord Judge CJ:
When a person has created or contributed to the creation of a state of
affairs which he knows, or ought reasonably to know, has become life
threatening, a consequent duty on him to act by taking reasonable steps to
save the other’s life will normally arise.

Breach of duty
How negligent does a person have to be to breach their duty of care? Very!
In Adomako the standard of care was described as follows. [Responsibility]
will depend on the seriousness of the breach of duty committed by the
defendant in all the circumstances in which the defendant was placed
when it occurred… [The jury must consider] whether, having regard to the
risk of death involved, the conduct
of the defendant was so bad in all the circumstances as to amount in their
judgment to a criminal act or omission. (Adomako [1995] 1 AC 171 per
Lord Mackay). Note here that liability for gross negligence manslaughter
requires there to be a risk of death. There is no liability if the risk is simply
of harm/serious harm (compare constructive manslaughter). Moreover, the
risk of death has to be apparent at the time of the breach of duty. This is an
important qualification and was made clear in R v Rose [2017] EWCA Crim
1168. An optometrist failed to conduct a full examination of the deceased’s
eyes during a sight test. If the optometrist had done so, she would have
discovered that the deceased had
a life-threatening condition and would have sent her for urgent specialist
attention. Her conviction for gross negligence manslaughter was quashed.
The Court of Appeal agreed that her failure to conduct a full examination
was very negligent. However, the fact that a proper examination might have
revealed a serious life-threatening problem did not mean that there was a
‘serious and obvious risk of death’ if such an examination was not
carried out. This was, after all, a simple routine eye test. It might have been
different if the patient had presented with symptoms that themselves had
either pointed to the risk of a potentially life-threatening condition or
provided a sign that alerted a competent optometrist to that risk.
Consistent with Rose is R v Kuddus [2019] EWCA Crim 837. The new
owner of a takeaway restaurant was held not to have committed
manslaughter when a customer died due to a peanut allergy that had been
disclosed to the former owner but not to him. Although he was at fault in
not complying with health and safety regulations concerning allergies, a
risk of death would only be objectively apparent if he had cause to
believe that a customer had such an allergy, which he did not. It has been
argued that the offence of gross negligence manslaughter breaches Article 7
of the European Convention on Human Rights which proscribes
retrospective criminalisation. This is because the line between mere
negligence and gross negligence is not precisely drawn. Whether a person’s
conduct amounts to gross negligence, therefore, cannot be assessed in
advance but only by a jury deciding ex post facto. This
argument was rejected in Amit Misra [2004] EWCA Crim 2375.