Crime XXXXXII – Constructive Manslaughter XI – The Unlawful Act X

When the defendant argues or claims that the unlawful act was the result of a mistaken belief, in order to assess the dangerousness of the act or the extent of the unlawfulness, the courts will apply the objective test or take into account the perceptions of the reasonable man. Would a reasonable man have perceived the act to be dangerous?

In R v Ball (1989) the victim parked her car on the defendant’s land. The defendant and the victim then got into an argument and the victim drove off in her car. She returned later with two men and the defendant went off and came back with a shotgun. He pointed the gun at the victim and pulled the trigger and the victim died as a result.

The defendant argued that he did not intent to kill the victim and that he merely intended to scare her away and honestly believed that the gun was loaded with blanks at the time he pulled the trigger. The defendant was tried and convicted for constructive manslaughter.

The defense appealed. According to the defense the dangerousness of the act or the extent of the unlawfulness should be assessed in accordance with the perceptions of the defendant and not in accordance with that of the reasonable men (as the trial judge had directed)

The appeal was dismissed. It was held that that the dangerousness of the act or the extent of the unlawfulness should be judged in accordance with the perceptions of the reasonable man and not that of the defendant i.e. in order to determine the level of dangerousness or the extent of the unlawfulness the test that should be applied is the objective test and not the subjective test (the subjective test looks into the defendant’s state of mind at the time he committed the act).

  • If we were to use the subjective test or look into the defendant’s state of mind we won’t be able to set any determinants because perceptions will differ from person to person and often depends on the situation. In order to gauge the dangerousness of the act or the extent of the unlawfulness it is best to use the objective test.
  • In order to scare the victim all the defendant had to do was to point the gun and there was no need to pull the trigger. Pulling the trigger after pointing the gun clearly tells us that the defendant was prepared to go one step further in his attempt to scare the victim.

Copyright © 2018 by Dyarne Ward

Crime XXXXXI – Constructive Manslaughter X – The Unlawful Act IX

Earlier we’d asked the question in R v Dawson (1985) and R v Watson (1989), if in order for the defendant to be convicted of constructive manslaughter or unlawful act manslaughter, death needs to result from a physical injury or if it is sufficient that death results from a pre-existing medical condition. The decision in R v Carey & Ors (2006) sheds some light on the matter.

In R v Carey & Ors (2006), the victim and her friends were out for an evening walk when they stumbled across three men who started making fun of them. The men then became rowdy and soon turned violent. The victim had her hair pulled back and was punched in the face.

Afraid, she turned and ran. After running for about 100 meters she collapsed and died. The victim was suffering from a severe heart condition and the attack exacerbated the pre-existing condition and that resulted in her death.

The men were tried and convicted for affray and constructive manslaughter or unlawful act manslaughter. The defense appealed the conviction for constructive manslaughter or unlawful act manslaughter.

The conviction was quashed on appeal. The cause of death was not the physical injury or the unlawful act but rather the pre-existing medical condition.

It could be argued that the defendants did indeed cause the victim some physical injury. However, it was found that the injury was not sufficient to result in death or was not the cause of death. In order to obtain a conviction for constructive manslaughter: –

  • death must result from a physical injury and not from a pre-existing medical condition that was exacerbated or aggravated by the defendant(s) unlawful actions and
  • a reasonable person must be able to foresee or anticipate that the actions of the defendant(s) would result in the death of the victim.

In R v Dawson (1985), R v Watson (1989) and R v Carey & Ors (2006) the defendants were unaware that the victims were suffering from a pre-existing medical condition that could lead to death if aggravated and therefore the conviction for constructive manslaughter or unlawful act manslaughter was quashed.

Would the conviction have remained if the defendants were or had been aware of the victims pre-existing medical condition? It is for a court to decide but if a reasonable man could foresee that aggravating the preexisting medical condition that the victim was suffering from would lead to death then the conviction for constructive manslaughter or unlawful act manslaughter might stand.

 Copyright © 2018 by Dyarne Ward

Crime XXXXX – Constructive Manslaughter IX– The Unlawful Act VIII

In R v Watson (1989) the defendant threw a brick through the glass window of the victim’s home. The victim was aged and elderly and seriously ill at the time. The defendant unaware of the victim’s condition entered the house and stumbled across the victim.

The defendant was in the house for about 90 minutes during which time the victim was verbally abused. Once the defendant had left the house, the victim collapsed and died. The defendant was charged with burglary under section s.9 (1) (a) of the Theft Act 1968.

S 9 of the theft act defines burglary and reads as follows:-

 (1)A person is guilty of burglary if—

(a)he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b)having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2)The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm … therein, and of doing unlawful damage to the building or anything therein.

(3)A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding—

(a)where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;

(b)in any other case, ten years.

(4)References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

The defendant was also convicted for constructive manslaughter or unlawful act manslaughter. The defendant appealed.

The conviction for constructive manslaughter or unlawful act manslaughter was quashed on the grounds of a misdirection. The issue was raised after the jury had retired and the defendant was not given the opportunity to address the issue.

Had the defendant been given the opportunity to address the issue would the conviction have stood or would it have been deemed sound?

1) Could a reasonable person have gauged the victim’s age just by looking at him and having done so would he have verbally abused him? It is not unreasonable to say with some degree of certainty that most elderly people would suffer from some sickness or other. The older the person the higher the chances that he or she is suffering from some sort of an illness that if aggravated could prove fatal.

2) Should the thin skull rule apply i.e. should the defendant take the victim as he or she finds them?

3) It is also worth pointing out that death, like in R v Dawson (1985), did not result from a physical injury but from a pre-existing medical condition.

4) The defendant had already been tried and convicted of one offence and an additional conviction for constructive manslaughter would only serve to lengthen the sentence but we have to keep in mind that sentences can either run concurrently i.e. two sentences can run together at the same time or consecutively i.e. one after the other.

Copyright © 2018 by Dyarne Ward

Crime XXXXIX – Constructive Manslaughter VIII – The Unlawful Act VII

In R v Dawson (1985) the defendant attempted to rob a petrol station armed with a gun and an axe-handle. The defendant pointed the gun at the attendant but did not in any way attempt to use the gun or the axe-handle. The attendant pressed the alarm button and as soon as the alarm rang the defendant ran away.

Unknown to the defendant the attendant suffered from a serious heart condition and once the defendant had fled the attendant had a heart attack and collapsed. He died soon after. The defendant was tried and convicted for constructive manslaughter and the defense appealed.

The conviction was quashed. It was quashed on the grounds that there was a misdirection by the trial judge. The jury were aware of the attendant’s heart condition and the defendant was not. The question that was to be asked was whether the defendant would have foreseen the risk of physical injury (resulting in death) given the fact that he was not aware of the attendant’s heart condition.

The above test makes it more difficult to obtain a conviction for constructive manslaughter because if the defendant did not foresee a risk of physical injury (resulting in death) or did not intend to cause the defendant any type or form of physical injury than it would not be possible to obtain a conviction for constructive manslaughter.

Secondly, would the thin skull rule apply? According to the thin skull rule the defendant ought to take the victim as he or she finds them.

Thirdly, is pointing a gun at the attendant with one hand while holding an axe-handle in the other hand sufficient to constitute assault i.e. put the victim in fear of his life? – keeping in mind that there was nothing to suggest that the defendant was brandishing the axe-handle i.e. waving it in a threatening manner at the defendant. A lot would depend on the evidence and it would be possible to say with some degree of certainty if the defendant’s actions constituted assault or otherwise if there was video footage from a security camera available.

It is also worth asking the question if anyone with a heart condition is suitable to be employed as a petrol station attendant given the fact that there is a very real likelihood of a robbery occurring at some point of time or other. Do employment laws allow employers to employ those with heart conditions as attendants in their petrol stations?

Lastly, is physical injury which is different from exacerbating a pre-existing medical condition a prerequisite to obtaining a conviction for constructive manslaughter or unlawful act manslaughter or establishing constructive manslaughter or unlawful act manslaughter?

 Copyright © 2018 by Dyarne Ward

Crime XXXXVIII – Constructive Manslaughter VII – The Unlawful Act VI

In addition to the unlawful act being a criminal act i.e. an act prohibited by criminal law and not civil law, the act must also be an act that under most circumstances is viewed as serious. It need not be an act that is fatal or an act that inevitably results in death but rather an act, most people would view (we can apply the objective test here to determine if the act is serious or otherwise because we are looking at things from a general perspective) as something that is above frivolous or an act that most people would not construe as horseplay.

In R V Church (1965) The victim mocked the accused or the defendant for his inability to perform sexually. The angry defendant punched the victim thereby knocking her unconscious. According to the statement that was given, the defendant tried to revive the victim but after 30 minutes of trying, the defendant thinking that the victim was dead threw her into a river.

The victim’s body was later recovered and according to the autopsy the official cause of death was drowning which implied that the victim was alive before she was thrown into the river. The defendant was tried and convicted for manslaughter and the defense appealed on the grounds that the defendant was tried only on recklessness and that the issue of provocation was not raised.

It was held that while there may have been a misdirection, the conviction for manslaughter was sound. In the given circumstances it was sufficient that the direction to the jury was based solely on recklessness. Secondly in order to establish constructive manslaughter the act must not only merely be criminally unlawful. We also have to take into account the degree or the extent of the unlawfulness i.e. the act must be an act that “reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm”.

 Copyright © 2018 by Dyarne Ward

Crime XXXXVII – Constructive Manslaughter VI – The Unlawful Act V

In R v Mitchell (1983) the accused jumped a queue at a post office and was confronted by an elderly man. The accused hit the elderly man and he fell into the crowd and collided with an elderly lady. As a result, the elderly lady fell down and broke her leg. She subsequently died from the injuries that she’d sustained. The accused was charged and convicted for constructive manslaughter or unlawful manslaughter.

The defense appealed but the conviction was upheld. It was sufficient that an unlawful act had been committed or perpetrated. The act need not be directed at the victim.

In R v Goodfellow (1986) the accused who’d been repeatedly harassed by a couple of men set fire to his own home and his wife, son and his son’s girlfriend, who were in the house at the time, died in the fire. The accused was tried and convicted for unlawful act manslaughter. The accused appealed.

The conviction was upheld. Reaffirming the decision in R v Mitchell (1983) and decisions in similar cases prior to that, it was held that it was sufficient that an unlawful act had been committed and despite the fact that act was not directed at the victim(s), the accused was nonetheless guilty.

In Attorney-General’s Reference (No.3 of 1994) the accused stabbed his girlfriend three times in various parts of her body including her stomach. She was 22 – 24 weeks pregnant at the time and slightly over a fortnight later, she delivered and though the baby was born premature it lived for 121 days before it died from the injuries sustained from the stabbing. The accused was charged on two counts: – 1) for causing grievous bodily harm (GBH) to his girlfriend for which he was convicted and 2) for causing the death of the child i.e. murder.

On the second count, the question before the court was whether it is possible to cause GBH to a child that was in the mother’s womb and the question arose simply because the child was not yet born and did not have an identity or a personality of its own. The trial judge held that it was not possible to cause GBH to a child that was in the mother’s womb. The Attorney General referred the matter to the Court of Appeal on a point of law and the Court of Appeal held that the death of the baby was murder.

The accused appealed to the House of Lords who substituted the conviction for murder with that of manslaughter and clarified the law. It is possible to cause GBH to a child while it is in the mother’s womb if the child is then born and subsequently dies as a result of the injuries sustained. The death of the child however could not be classed as murder because at the time the injuries were inflicted the child was not yet born and had not acquired an identity or a personality of its own.

 Copyright © 2018 by Dyarne Ward

Crime XXXXVI – Constructive Manslaughter V – The Unlawful Act IV

In order to establish constructive manslaughter, it suffices that the act is unlawful or prohibited by law and the act need not be necessarily directed at the victim, in fact the unlawful act need not even be directed at a person for example when the accused throws stones through a shop window with intent to cause criminal damage.

S1. 1 of The Criminal Damage Act 1971 defines criminal damage. The section reads as follows: –

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;

shall be guilty of an offence.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

In R v Larkin (1942) the accused was brandishing a razor intending to frighten his mistress’s lover in the presence of his mistress. His mistress, who was drunk at the time, stumbled while the accused was brandishing the razor and her throat was cut. The woman died as a result. The accused was tried and convicted for constructive manslaughter and the defense appealed.

It was held that the fact that there was an assault directed at his mistress’s lover i.e. to put him in fear of his life, was an unlawful act and it was sufficient to establish constructive manslaughter. The act need not be directed at the victim.

 Copyright © 2018 by Dyarne Ward

Crime XXXXV – Constructive Manslaughter IV – The Unlawful Act III

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.

Copyright © 2018 by Dyarne Ward

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