In order to establish constructive manslaughter the act must be an overt unlawful act. An omission, which is a failure to act when there is normally a duty to act, imposed by either common law or statute for example in the parent child relationship, will not suffice.
In R v Lowe (1973), the parent, Mr. Lowe, a person of low intelligence did not call a doctor to attend to his sick child or bring the child’s illness to the attention of a doctor and the child subsequently died as a result. Mr. Lowe was arrested and charged under s.1 (1) of the Children and Young Persons Act 1933, which states:-
If any person who has attained the age of sixteen years and (has responsibility for) any child or young person under that age, willfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor, and shall be liable—
(a) On conviction on indictment, to a fine . . . or alternatively, . . . , or in addition thereto, to imprisonment for any term not exceeding (ten) years;
(b) On summary conviction, to a fine not exceeding (£400) pounds, or alternatively, . . . , or in addition thereto, to imprisonment for any term not exceeding six months.
Mr. Lowe was convicted for both neglect and constructive manslaughter or unlawful act manslaughter. The defense appealed.
The appeal was allowed. In order to establish constructive manslaughter or unlawful act manslaughter there must be an unlawful act and an omission will not suffice.
While the statute made it illegal for parents to neglect their children or to subject them to any treatment that may be termed or defined as cruel or inhuman, the willful act, is an act that is done deliberately i.e. a deliberate act and not an act that is done inadvertently i.e. an inadvertent act. However an inadvertent act depending on the circumstances can be interpreted as being deliberate if it was reckless. The appeal was allowed because the jury found that the accused had not been reckless.
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