Crime XXXXIV – Constructive Manslaughter III – The Unlawful Act II

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

Crime XXXXIII – Constructive Manslaughter II – The unlawful act I

We will now examine the nature of the unlawful act and we will also try to determine or establish if the severity of the offence or the extent of the unlawfulness is to be taken into consideration when deciding whether the offence can be classified as constructive manslaughter.

In R v Fenton (1830) the accused threw stones down a mine and his actions caused the scaffolding to collapse and resulted in the death of some miners working in the mine.

It was held that the unlawful act in itself was sufficient to constitute constructive manslaughter, despite the fact that an action was brought in tort (trespass) (civil law) i.e. the accused did not have either implied or express permission to enter the premises, and not in criminal law.

The nature or the type of “unlawful act” that could give rise to constructive manslaughter was clarified in the case of R v Franklin (1883).

In R v Franklin (1883) the accused threw a box from a pier and the box hit a swimmer who drowned as a result. The accused was charged and convicted for manslaughter (involuntary). It was held that in order to raise constructive manslaughter the act had to be an act that was unlawful in criminal law and not merely in civil law.

Prior to the decision in R v Franklin (1883), constructive manslaughter could be raised in cases and instances where the accused caused the death of another by committing an act that was unlawful in either civil or criminal law but post the decision in R v Franklin (1883), in order to raise or establish constructive manslaughter, the act must be unlawful in criminal law and not just in civil law.

 Copyright © 2018 by Dyarne Ward