CONSTRUCTIVE MANSLAUGHTER
Constructive MS is committed when the accused has performed an unlawful
and dangerous act resulting in the death of the victim.
“Dangerous” means apt to subject another to the risk of harm, albeit not serious
harm. It is not necessary to show that the accused appreciated that the unlawful
act he was committing was dangerous in this sense as long as it would be
recognized as such by the sober and reasonable person.
Constructive malice for murder was abolished by S. 1 of the Homicide Act.
Liability is constructed out of the actus reus and mens rea of another crime. The
task to the prosecution is to prove that:
(a) There was an unlawful act;
(b) The Act was Dangerous;
(c) The Unlawfulness of the Act Must be Constituted Independently Of
Its Dangerousness
(d) There was causal connection b/w the act and the death.
UNLAWFUL ACT
The unlawful act must be criminal, rather than merely unlawful.
Franklin (1986):
D killed a swimmer by throwing a wooden crate off a pier into the sea. D’s
conviction for Constructive MS was quashed since what he had done, was
unlawful under the tort of negligence but was not criminally wrong. The principle
being that a person who committed the tort of negligence (or trespass) against
another was not guilty of Constructive MS.
Fenton (1830):
‘One punch killing’ would fall into the ambit of criminally unlawful act. It is
because, battery is a crime and punching is dangerous in the obvious sense that
physical harm is likely to result from its commission.
Simon v Slingsby (1995):
The accused managed to inflict some serious internal injuries on the deceased
with a signet ring in the course of violent but entirely consensual sexual activity.
Injuries were not deliberately inflicted and were an accidental by-product of
consensual conduct there was no assault upon which to support a conviction for
manslaughter.
The prosecution must be able to prove all the elements of a criminal offence to
support the conviction of Constructive MS [Larkin (1943) & Lamb (1967)].
If D has a defence to the core offence, no conviction for unlawful act
manslaughter can arise.
Scarlett (1993):
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 MS
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.
Omissions cannot form the conduct element in constructive MS.
Ashworth (2006):
Argued that since there is no moral distinction B/w acts and omissions the
distinction is untenable.
Andrews (1937):
HoL ruled that only acts which are inherently criminal can form the basis of a
constructive MS charge. If they are criminal only because they are performed in
a careless or dangerous fashion then the prosecution must charge gross negligence
MS.
Lord Atkins “There is an obvious difference in the law of MS b/w doing an
unlawful act and doing a lawful act with a degree of carelessness which the
legislature makes criminal.”
THE ACT MUST BE DANGEROUS
‘Dangerous’ means simply of the nature to cause harm.
Church (1966):
It was held that a punch could be the core offence of conviction for Constructive
MS.
It was enough that the accused’s act was objectively dangerous.
Edmund Davies LJ defines dangerous act as ‘the unlawful act must be such as
all sober and reasonable people would inevitably recognize must subject the other
person to, at least, the risk of some harm resulting therefrom, albeit not serious
harm.’
It is not necessary that the dangerous act was directed at the deceased specifically.
It could be directed against a third party.
Mitchell (1983):
Conviction of constructive MS was upheld, when a man punched another for
queue jumping, who fell of an old lady who died.
The act must be objectively dangerous.
Dawson (1985):
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 MS.
On Appeal the conviction was quashed, because the judge has 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.
Watson (1989): - Contrary Case
D committed burglary on a house occupied by V, an 87-year old man who
suffered from a heart condition. The encounter B/w 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 constructive MS.
CoA, upheld the conviction that the encounter was objectively dangerous, as
soon as, D came to know that the V was an old man and frail.
THE UNLAWFULNESS OF THE ACT MUST BE CONSTITUTED
SEPERATELY FROM ITS DANGEREOUSNESS
Lamb (1967):
The accused and his friends were playing around with a loaded gun. Having
checked that no bullet was opposite the firing pin, the accused pointed the gun at
his friend and pulled the trigger. He had forgotten or did not know, the chamber
of a revolver ‘revolves’ upon firing. His conviction for Constructive MS was
quashed on appeal. What Lamb did was undoubtedly dangerous but it was not
unlawful.
The act performed should be criminal in itself, rather than becomes criminal
simply because it is performed in a negligent or dangerous fashion. (E.g. Careless
driving)
DPP v Newbury & Jones (1976):
Two youths threw a piece of paving stone off a bridge and into the path of an
oncoming train. The paving stone fell into the driver’s cab, killing the guard (base
crime; criminal damage). It was not necessary to show that the boys foresaw the
risk of harm, as long as the risk would have been obvious to the reasonable
person.
HoL confirmed that the subject matter of the Constructive MS did not have to be
a crime of endangerment. The sole question to be considered was whether the
crime, in the circumstances in which it was committed, provoked the risk of
physical injury.
It is required that the prosecution must specify the unlawful act relied upon.
[Jennings (1990)]
R v Meeking (2012):
The appellant, A, was convicted of manslaughter of her husband. They had been
drinking and had an argument as the deceased was driving. A, without any
warning, pulled the handbrake. She later said that she did this to make the
deceased stop. The husband was killed in the crash.
The crime relied upon was 22A(1)(b) of Road Traffic Act, 1988 which makes
it an offence to intentionally interfere with a motor vehicle in circumstances that
would make it obvious hat to do so would be dangerous. The CoA concluded
that the offence was made out.
Dhaliwal:
The deceased committed suicide after a long period of abuse at the hands of the
D, her husband. The prosecution were unable to prove a charge under S. 20 of
OAPA. The absence of such criminal act was fatal to the charge of Constructive
MS.
CAUSATION
The unlawful act must be directed at a person, not necessarily the victim.
*It may be argued that, there should be requirement of the act being directed at
the victim, as the act should be objectively dangerous. It cannot be held
objectively dangerous unless it is known, that the person towards whom the act
is would be hurt. [argue Dawson (1985)]
However, it may be argued that the directed at doctrine is also unsustainable, if
the act has to be directed towards a person, why was liability incurred in
Newbury.
Dalby(1982):
The accused had supplied the deceased with a drug for intravenous use. The
deceased overdosed and died. The accused was not guilty, as the act of supply
was not directed at the victim’s body. The death was caused by the deceased own
voluntary act of injecting.
Goodfellow:
The interpretation of Dalby was accepted by CoA, and accordingly rejected the
contention that the accused’s action had to be directed against the victim.
Lewis (2010):
L chased V into a road following an altercation, V was killed by an oncoming
car. The CoA upheld the trial judge’s direction to the effect that the chain of
causation b/w L’s unlawful act and V’s death would remain intact if V’s response
of running away was one of the responses to be expected from someone who finds
himself in V’s position.
The orthodox view, is that it is necessary only to show that the accused’s conduct
provoked a risk of harm towards the victim and that the chain of causation linking
death with the initial unlawful act was unbroken. [Le Brun (1992)]
