Constructive manslaughter cannot be raised if the act was not an unlawful act. In R v Lamb (1967) two boys got their hands on a revolver. The boys believed that the chamber was empty and started fiddling around with it when in fact there were two bullets in the chamber.
One boy pointed the gun at the other and it went off killing the other boy. The boy that pulled the trigger was charged with unlawful act manslaughter or constructive manslaughter.
It was held that there was no unlawful act as the boys clearly thought that the gun was empty. It is also worth asking the question if it is an offence to pick up an empty gun or a revolver?
Pointing a gun at someone could constitute assault i.e. a threat that puts someone in fear of imminent harm but in the given situation neither of the boys were even remotely afraid.
In R v Arobekieke (1988) the accused was chasing a victim and the latter ran into a train station and got on board a stationary train. The accused peered into the carriage doors in search of the victim and the victim, in fear, jumped out off the train and onto to the railway tracks and was subsequently electrocuted. The accused was arrested, charged and convicted of constructive manslaughter or unlawful act manslaughter. The accused appealed.
The appeal was allowed and the conviction was quashed. While the victim was in fear; the actions of the accused were not unlawful. Peering into the open doors of a stationary train may instill fear in the passengers but the act in itself is not unlawful.
It was further held that while the victim did apprehend an imminent danger or was in fear for his safety, the actions of the accused was not sufficient to constitute assault.
In R v Scarlett (1993) the accused was a pub owner who forcefully ejected the victim from his pub after the latter had had too much to drink. The victim subsequently fell down and died from head injuries sustained as a result. The accused was charged and convicted for constructive manslaughter or unlawful act manslaughter. The accused appealed.
The appeal was allowed and the conviction was quashed. There was nothing to indicate that the appellant had used excessive force and the act of merely evicting someone who was drunk from one’s premises wasn’t by itself unlawful. It would only become unlawful if excessive force was used and in the given circumstances there was no evidence to suggest that excessive force was in anyway used.
Copyright © 2018 by Dyarne Ward