Tutorial 8: Involuntary Manslaughter

Key Cases
R v Church [1965] 2 All ER 72; R v Wacker [2003] QB 1207; R v Adomako [1994] 2 All ER
79; R v Evans [2009] EWCA 650; R v Misra and Srivastava [2005] 1 Cr. App. R. 21; R v M
[2012] EWCA Crim 2293; [2013] Crim LR 335; Watson (1989) 1 WLR 684; Dawson (1985) 81
Cr App R 150.
Presentation: DPP v Newbury [1976] 2 All ER 365
Questions
1. Under what circumstances, if any, can a person be guilty of constructive manslaughter
for having caused V to die by suicide?

- Constructive manslaughter: defendant must be proved to have performed an act

which was unlawful (criminal act), dangerous and caused the death of victim. [AG
Reference (No. 3 of 1994)]

- Wallace – acid – suicide

- If medically recognised – emotional harm is itself not enough

Unlawful (criminal act)

- Does not need to show that D intended or foresaw death or serious injury – only MR
required is that needed for the unlawful act [exp criminal damage, only need to show
D intended or was reckless as to damaging property belonging to another]
- Omissions are not sufficient even where there is a duty of care – Lowe – D failed to
call for medical assistance for a dying child – not guilty of manslaughter
- Strict liability offence cannot form basis of CM – Andrews v DPP – D kills
pedestrian while overtaking another car – cannot be charged with CM, only GN/RM
- Act must be criminally unlawful – R v Franklin – D took up a larger box from
Brighton Pier and threw it into the sea. The victim was swimming underneath in the
sea at the time and was struck by the box and died – civil wrong, not to be used as a
necessary step in a criminal case; R v Lamb – D and friend were playing with a
revolver, D checked that there was no bullet opposite the firing pin, pulled the trigger,
had not appreciated that the chamber revolves when shot, friend was shot – although
the act was dangerous (a reasonable person would have known that the gun might go
off) there was no unlawful act (lacked MR) and so he could not be convicted of
manslaughter.
- Cannot be guilty of MR if D has a defence to the criminal act – R v Slingsby –
penetrated the complainant’s vagina and rectum with his fingers, accidentally cutting
her with the signet ring he was wearing – not an unlawful act where consent had been
obtained.
 Dangerous act
- Dangerousness judged objectively – whether a reasonable person in D’s shoes would
appreciate that it was dangerous – R v Dawson – D approached petrol station which
was staffed by a 50y/o man, armed with imitation gun and V suffered heart attack and
died, convicted – conviction quashed, as D did not know V had heart condition, a
reasonable person would not judge that the act was in itself dangerous – Watson – D
and another person threw a brick through the elderly and seriously ill V’s house.
Unaware of V’s condition and age, they entered the victim’s house. They verbally
abused him and left. Within 90 minutes of the incident, V died - the entirety of the act
of burglarious intrusion that constituted the unlawful act and therefore, all the
knowledge the defendant gained throughout the burglarious intrusion (i.e. the victim’s
age, health, etc.) counted (reasonable person would regard the act of D as dangerous
as they would have known of the age and frail condition of the victim)

Cause death of victim (causation)

- Act need not be directed against V – Mitchell – D pushes one person who falls over
and knocks into someone else who also falls over and dies, CM
- Cato – D supplied unlawful drugs to V and injected each other with drugs, V died –
conviction upheld, injection by D, possession did not cause death

2. Explain for the purpose of constructive manslaughter a. the mental element to be

proved b. the meaning of dangerousness

a) Must have intention to commit an unlawful criminal act. But no intention or

foreseeing of the death or serious injury. Newbury: Defendants threw a stone on a
train, they have to had the mens rea/intention to that act and when committing that act
(assault or damaging property), Did not need intention for the harm that happened to
the train driver – MR of the unlawful act itself, not necessarily intention to kill/GBH

b) If that act is dangerous in the circumstances and if it causes death. Dawson the
reasonable standard: Only if the act is objectively dangerous and that a reasonable
person in the defendant’s shoes with any special knowledge that the defendants have
is here the benchmark. Watson: Court: a reasonable person could have foreseen this
and were convicted. only some harm. Church – objective test – dangerous to throw
the girl into the river

c) deviates from obj test? Dawson – no special knowledge of the heart condition,
Watson – expected, no need special knowledge

3. John, as a prank, punctures Jane's car tyre. Not noticing the problem Jane drives
off. Upon reaching a traffic light she tries to stop but is unable due to the state of her
tyre. Frank, who is approaching from the intersecting road, crashes into Jane's car.
Both are killed. Discuss
Involuntary manslaughter – constructive, gross negligence, reckless

Constructive – criminal act, dangerous, caused death of V

Issue: is John liable for involuntary manslaughter of both Jane and Frank?
AR: punctures Jane’s car tyre
Result: deaths of Jane and Frank
Causation: factual causation – but for test – R v White – yes, legal causation – substantial
and operative – Miller – yes
MR – mens rea of criminal act – criminal damage?

DPP v Newbury and Jones – Two 15-year-old boys threw a stone off a railway bridge
as a train approached. The stone went through a glass window on the cab of the train and
struck the guard killing him – held: ( a ) that an accused was guilty of manslaughter if it
was proved that he intentionally did an act which was unlawful and dangerous and that
that act inadvertently caused death and ( b ) that it was unnecessary to prove that the
accused knew that the act was unlawful or dangerous; that the test was still the objective
test, namely whether all sober and reasonable people would recognise that the act was
dangerous and not whether the accused recognised its danger. [did not need intention to
harm train driver] – analogous to this case, no intention to harm Jane and Frank but
recognise that act is dangerous, act done was intentional

D knew the action was unlawful and dangerous, does not need to be specifically at
someone – D act must be intentional (Lowe), unlawful act (Franklin), objectively
dangerous (Church), must cause death (Kennedy)

Don’t need foresight / intention of death – only need MR of the unlawful act

Act need not be directed against victim – Mitchell – but the act must be cause of death

C: liable for constructive manslaughter for Jane and Frank

2 ppl – can john be held criminally liable for first death? Followed by Franklin
Exam – there is death, so go through murder first
Murder
- 3 elements: AR, MR, lack of defence
- AR – punctured tyre – circumstances – prank, result – death, causation: factual White
yes, legal causation – substantial and operative (Miller) yes, no NAI
- MR – intention to kill/GBH, Moloney – aim/purpose – no, virtual certainty (prank) –
no, no MR – go to manslaughter
Constructive manslaughter
 - Unlawful act – criminal damage – without lawful excuse, [talk about MR after
unlawful act] MR – intention to commit unlawful act [looking at dangerous element –
if you puncture tyre, least serious outcome – accident], dk intention to kill, but there is
clear intention to cause criminal damage (Newbury), no need to be against victim
- Committed in dangerous circumstances – cause accident resulting death
- Factual – yes, legal causation

Frank
- CM – [Causation] Jane ran against red light – is that a break of chain – for 3rd party,
need informed and voluntary, Jane’s act not voluntary – cannot stop the car
- Mitchell – no need to be directed at specific person – would be liable

4. Answer the following questions:

• Why was Mr Slingsby [1995] not guilty of constructive manslaughter.

- R v Slingsby – penetrated the complainant’s vagina and rectum with his fingers,
accidentally cutting her with the signet ring he was wearing – no constructive
manslaughter, the activity of inserting fingers into the vagina and rectum for sexual
pleasure was not in itself an assault and was not an unlawful act, where consent had
been obtained
- Unlawful act – cannot have defence, Slingsby there is defence

• Lamb shot dead his friend. Why was he not guilty of constructive manslaughter?
Could he have been guilty of gross negligence manslaughter?

- R v Lamb – D and friend were playing with a revolver, D checked that there was no
bullet opposite the firing pin, pulled the trigger, had not appreciated that the chamber
revolves when shot and so the chamber with a bullet moved to opposite the pin and
gun went off, friend was shot – although the act was dangerous (a reasonable person
would have known that the gun might go off) there was no unlawful act (lacked MR)
and so he could not be convicted of manslaughter.
- Strict liability offence (illegal possession) – cannot form basis of CM
- Checked the chamber – no MR, cannot rely on possession
- GNM? DOC non-specific activity; could argue there is DOC
- GNM elements – DOC, breach – expected SOC of a reasonable person – could argue
yes? [R v S – reasonable person of that age? But found guilty anyway], did breach,
breach causes death [causation] – factually cause, substantial and operating, 4th –
obvious risk of death, foreseeable: reasonable person would have been aware of the
risk, play with gun someone will get hurt; counter: but he did checked, reasonable
person would not have realised? 5th – breach so gross, difficult to qualify, no test –
depends on own argument
5. Adam rapes Eve. Eve is so traumatized by this event that on her way home she
stumbles without thinking onto a road where she is knocked over and killed by a
passing car. Is Adam guilty of constructive manslaughter?

Result: death
AR: rape
Causation: factual – but for test – yes, legal – substantial and operative cause – rape was
substantial and operative to the traumatised condition?
Novus actus interveniens? Free, informed and voluntary (Wallace) – breaks the chain –
arguably not voluntarily, affected by traumatic state causing her to lose focus? Although
stumble is her act, likely to have no NAI, victim contribution to result through CN will
not break the chain – R v Holland – refuse to have finger amputated – died
MR: mens rea of unlawful act of rape

Slingsby – consent, lawful act so no constructive manslaughter; this case no consent

Dangerous? Objective test – whether a reasonable person in D’s shoes would appreciate
that it was dangerous – R v Church – reasonable person would have realised that
traumatic state is one of the effects a victim of a rape case would suffer?

6. For the purpose of gross negligence manslaughter, what must the jury take into
account in deciding whether a duty has been breached?

Gross negligence
a) D owed DOC
b) D breached DOC
c) Breach caused death
d) Obvious risk of death at the time D breached the duty
e) Breach was so gross as to justify a criminal conviction
- Jury must consider whether having regard to the risk of death involved, the conduct
of D was so bad in all the circumstances as to amount in their judgment to a criminal
act or omission (Adomako – Lord Mackay)

- Amit Misra? Challenged the issue?

7. Sample Exam Question:

At closing time after a long night at the pub John gets involved in a fight. Steven, the
barman, asks him to leave but John refuses and so Steven pushes him to the door. John
swears at Steven and aims a punch. Steven retaliates by pushing him down the steps to
the pub. John suffers very serious injuries, including a fractured skull. Neither Steven nor
Amy, the pub landlady, do anything to assist Steven, although Amy calls for an
ambulance when she sees him still lying there an hour later. When the ambulance arrives
the paramedics assume that John is drunk, and so they do not appreciate the seriousness
of his condition. When John arrives at the Accident and Emergency department he is kept
waiting without proper examination for three hours. When his condition is finally
diagnosed and he is operated upon, it is too late to save his life. John dies on the
operating table. A post-mortem shows that John had an unusually thin skull. Discuss any
criminal liability arising.

Steven – should be held criminally liable for death? [Issue]

AR: Steven has unlawfully killed
Causation: factual – but for – yes, legal – operative and substantial – yes (fractured skull)
MR: retaliation – intention to kill/GBH? Intention: direct (Moloney) – aim/purpose – yes,
oblique – virtually certain (Woollin); retaliation – more towards direct intention but not
GBH – foresee death or serious injury, but no evidence of direct intention to kill/GBH or
foresee it as virtually certain – pushing him down the steps

So extraordinary only then there is break (Cheshire) – not that extraordinary for someone
to misdiagnose? Thought drunk – might counter that maybe need more thorough
examination; maybe he fell?

Causation yes

If doesn’t break causation, MR murder – intention to cause death GBH; no MR here to

kill, might be intention GBH – retaliate; virtual certain? No? no intention to GBH; self
defence?

CM – need an unlawful act, but Steven has defence [self-defence] – not unlawful act,
customer attacked first (aimed a fist); better not rely on CM

GNM – DOC? Contractual as a barman; did create a dangerous situation – push him
down the stairs -saw him on the ground – no action (maybe Miller?)

R v Scarlett – The appellant was a publican. He ejected a drunken customer from his
pub. The customer fell, hit his head and died. The appellant was convicted of
manslaughter and appealed – insufficient evidence to demonstrate that the appellant had
used excessive force under s20 OAPA and thus no unlawful act had been established -
where an accused was justified in using some force and could only be guilty of assault if
the force was excessive, the jury ought to be directed that he could not be guilty of an
assault unless the prosecution proved that that accused intentionally or recklessly
applied force to the person of another and that he ought not to be convicted unless they
are satisfied that the degree of force used was plainly more than was called for by the
circumstances as he believed them to be, even if that belief was unreasonable. The
appellant had given clear evidence that he only intended to use sufficient force to remove
the deceased from the bar, which he was entitled to do

Constructive manslaughter – criminal act, dangerous, caused death of V

AR
1. Act – causing death – pushing John down the steps
2. Criminally unlawful – applying force on V; but could raise a defence that he applied
the force to eject John out of the bar – no excessive force was used (R v Scarlett)
3. Dangerous – R v Church – reasonable and sober people would inevitably recognise
must subject the other person to risk of some harm, albeit not serious
4. Need not be directed against V but must cause death
MR
1. Mens rea of criminal act
- DPP v Newbury and Jones – no intention to kill driver, only intend to damage train –
enough for CM – foresight of death or harm is not necessary, test is still objective test
Stephen would most likely not be liable for constructive manslaughter
Gross negligence – D owed DOC, breached, breach caused death, obvious risk of death,
so gross to justify criminal conviction
Duty – Evans – Stephen’s actions create the injury to John, knows or ought reasonably to
know has become life threatening, has a consequent duty to act by taking reasonable
steps to save John
Breach – jury to consider whether having regard to the risk of death involved, conduct of
D was so bad in all circumstances as to amount to a criminal act or omission – on balance
of prob, risk of death could be high if he hit his head, should have taken steps – breach
Stephen is likely to be liable for gross negligence manslaughter

*eggshell skull rule does not serve as NAI

Amy – did not help but called ambulance – no gross neg. own the premise Tuck v
Robertson could be held for GNM,
even if no break of causation, look at paramedic GNM – Adomako? Is there DOC, yes,
breach? Yes, think he was drunk, no more examination, but Amy called, what did she tell
the paramedic? But paramedic assumed? Amy called, might have told sth? Gross?
Actions so bad? Wide discretion to jury, obvious risk of death – would reasonable person
foresee? [individual argument]
Paramedic – did not appreciate the seriousness
Duty – carer (Adomako)
Breach of duty – Adomako requires there to be a risk of death; assumed drunk; even if
John is indeed drunk and fell down, as long as there is contact made between the head to
a surface, there is a risk of death.