Homicide - Constructive Manslaughter

Criminal Law Homicide: Constructive Manslaughter Involuntary manslaughter Involuntary manslaughter arises where D does not satisfy the mens rea of murder, so does not commit murder, but does commit a lesser manslaughter offence.  D does not intend to kill or cause GBH, but there is sufficient fault to justify criminal liability on D’s part.  “Involuntary manslaughter” is an umbrella term for 3 types of manslaughter offences: o Constructive manslaughter: D commits a criminal act in dangerous circumstances, and this causes the death of V. o Gross negligence manslaughter: D causes V’s death through criminal negligence. o Reckless manslaughter: D causes V’s death, being reckless as to causing death or GBH.  Courts do not tend to analyse manslaughter offences with actus reus and mens rea elements alone, but rather through a series of tests which comprise actus reus and mens rea. Constructive manslaughter D commits constructive manslaughter (unlawful and dangerous act manslaughter) when he commits a base criminal offence, which carries an objective risk of some physical harm to V, and V dies as a result.  Will apply to cases just short of murder: o where D kills V foreseeing that her act is likely to kill or cause GBH, but not foreseeing it as a virtual certainty; or o where D commits a relatively minor offence without foreseeing significant risks to V, but V is killed as a matter of “bad luck”.  Result crime: D’s acts must take place in particular circumstances where the base crime is committed which cause both the required result of the base offence and V’s death.  Cannot be committed by an omission to act. Test for constructive manslaughter D must have performed an act which was: 1. unlawful; 2. dangerous; and 3. caused the death of V. Unlawful act (base offence) Which is objectively dangerous Causing death Constructive manslaughter An unlawful act There must be an initial criminal act (base offence) for which. D has committed the actus reus and the mens rea for.  The most common base offences are offences against the person, however, other criminal offences may qualify. o Burglary may constitute a base offence. (R v Watson [1989]) o Criminal damage may also constitute a base offence. (R v Goodfellow [1986])  The base offence must be a criminal act and not a civil wrong. (R v Franklin (1883))  The base offence must be intrinsically criminal, requiring subjective mens rea. o Strict liability offences or negligence will not qualify as base offences for constructive manslaughter. (Andrews v DPP [1937] confirmed by R v Lamb [1967])  However, it has been implied that constructive manslaughter might apply to strict liability. (R v Andrews [2003]) o If D had no mens rea or has a defence for the base offence, then there can be no constructive manslaughter. (R v Lamb [1976])  The base offence cannot be completed from an omission to act. o Only offences committed by physical acts will qualify as base offences for constructive manslaughter. (R v Lowe [1973]) R v Goodfellow [1986] 83 Cr App R 23 R v Franklin (1883) 15 Cox CC 163 Andrews v DPP [1937] AC 576 Facts: D had been harassed by two men and wished to move from his council accommodation. In order to get re-housed he set fire to his house making it look as if it had been petrol bombed. Unfortunately, three people were killed in the fire. He was charged with criminal damage with constructive manslaughter. Held: Only some harm need be foreseeable from the unlawful act to make it capable of giving rise to a conviction. There was no requirement that the unlawful act was directed at the victims nor that it was directed at a person. Facts: D picked up a large crate from Brighton Pier and threw it into the sea. V was swimming underneath in the sea at the time and was struck by the crate and died. It was argued that D had committed the base offence of trespass and thus could be convicted of constructive manslaughter. Held: There must be an unlawful act for constructive manslaughter. The unlawful act must be a criminal offence, and not a mere a civil wrong. Facts: D drove above the speed limit and attempted to overtake another car on the road. As he did so, he struck a pedestrian and killed him. D was charged with dangerous driving and constructive manslaughter. Held: The base crime for constructive manslaughter could not be satisfied by a strict liability offence or negligence. The act must require a mens rea capable of being fulfilled. R v Lamb [1967] 2 QB 981 R v Lowe [1973] QB 702 Lord Atkins: "Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established." Facts: D pointed a loaded revolver at V as a joke. Neither D nor V understood how a revolver worked, and so when D pulled the trigger neither realised that the barrel of the gun would revolve and the bullet would be fired. It did, and V was killed. D was charged with assault and constructive manslaughter. Held: The base offence (assault or battery) was not complete because D lacked mens rea, he did not intend or foresee a risk of harm to V or a risk of causing V to apprehend harm. Facts: D's child died from neglect. The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act. The jury convicted him of both neglect and manslaughter. Held: In order to find liability for constructive manslaughter, there must be an unlawful act. The offence must have been committed by a positive act, it could not be committed by an omission to act. A dangerous act The unlawful act must have also been dangerous.  Test for dangerousness is set out in R v Church [1966]: o “the unlawful act must be such that all sober and reasonable people would inevitably recognise that it must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm”  For an act to be dangerous, the act just has to constitute a risk of some injury. Minor physical harm is sufficient. (R v Carey [2006])  What constitutes a dangerous act is assessed objectively: o Would the reasonable person have foreseen the risk of some physical harm?  Although a risk of harm will often be foreseeable, this will not always be the case. (R v Dawson (1985)) o The only exception, where D’s subjective mind is taken into account, is where D has “special knowledge” of risks to V that may not be obviously apparent to a reasonable person. (R v Watson [1989])  It is sufficient that some form of physical harm was foreseen by the reasonable person. D does not have to foresee the actual harm. (R v JM & SM [2013])  The foreseeable risk of harm need not be a risk of serious harm, and need not be a risk of life-threatening harm. (R v Church [1966]) o Foreseeable risk of unlawful physical contact with V will qualify. o o o A base crime can be foreseeably dangerous even if no physical contact with V is anticipated. (R v Watson [1989]) A foreseeable risk of psychological or emotional harms short of psychiatric injury (e.g. fear or distress) will not be sufficient. (R v Dhaliwal [2006]) It is irrelevant whether D personally foresaw the risk of danger, and even whether D was capable of foreseeing the risk. (Farnon & Ellis [2015]) Facts: D and V were in a van for sexual purposes. V started mocking him and a fight ensued. He knocked V semi-conscious. After his attempts to rouse her proved unsuccessful, he panicked, thought V was dead, and threw her into the river. V then drowned. D was convicted of manslaughter and appealed. R v Church [1965] 2 WLR 1220 R v Carey & Ors [2006] EWCA Crim 17 Dawson (1985) 81 Cr App R 150 Held: Whilst there were several errors in the judge's direction the conviction for manslaughter was safe. Edmund Davies LJ: "The conclusion of this Court is that an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm." Facts: V and three friends went out for an early evening walk. They came across the three defendants who had been drinking. The defendants then got into a physical fight with V and her friends. V then ran off but collapsed and died. It transpired that she had a severely diseased heart and the run had induced a ventricular fibrillation which resulted in her death. The three defendants were convicted of affray and constructive manslaughter, they appealed. Held: The physical assault on V was not the cause of death. The cause of death was V running away in fear, however, this was not act which the hypothetical sober and reasonable person would regard as subjecting V to some physical harm. D should not be liable unless, at the time of D’s acts, there was a foreseeable risk of harm to V, and not just a risk to the more immediate victim of her violent attack. Convictions quashed. Facts: D and others attempted to rob a petrol station using an imitation gun. V was not elderly, was in apparent good health, and protected behind bullet-proof glass. V suffered a heart attack and died, owing in part to an underlying heart condition. D was charged with constructive manslaughter. Jury was directed to consider the risk of danger from the perspective of a reasonable person knowing what they (the jury) knew, which included knowledge of the heart condition. D was convicted and appealed. Held: Direction was wrong to include facts that were known to the jury but would not have been apparent to a reasonable person in D’s shoes at the time of the attempted robbery. The reasonable person standing in D’s shoes knowing what D knew would not have known that merely pointing an imitation firearm was dangerous. D might have foreseen that V would be frightened or extremely frightened, but would not have foreseen a risk of some physical harm from an imitation firearm. D also had a lack of knowledge of V’s extremely weak heart. Facts: D and another person threw a brick through an elderly man’s home (V). Unaware of V’s condition and age, they entered V’s house, verbally abused him and left. Within 90 minutes of the incident, V died of a stress-induced heart attack. Mr Watson pleaded guilty to burglary but was also convicted for constructive manslaughter. He appealed his conviction. R v Watson [1989] 2 All ER 865 R v JM and SM [2012] EWCA Crim 2293 Held: It was the entirety of the act of burglary that constituted the unlawful act and therefore, all the knowledge D gained throughout the burglary (V’s age and health) counted. The jury were thus correctly directed on this point. A sober and reasonable person would regard the act of the appellant as dangerous as they would have known of the age and frail condition of V. However, the trial judge had misdirected the jury and it could not be proven that the break-in was the cause of V’s heart attack. D’s conviction was therefore unsafe. Facts: D1 and D2 had been involved in a fight with a few doormen in a nightclub. One of the doormen, V, who had no signs of health problems, had a renal artery aneurysm and died. D1 and D2 were charged with affray and constructive manslaughter. The judge held that without the prosecution proving that V’s death resulted from harm that any reasonable person would unquestionably recognise as affray capable of causing, a conviction for manslaughter could not be achieved. In the present case, even taking the evidence at its highest, the jury could not be satisfied of this. The prosecution appealed. Held: There is no requirement in constructive manslaughter that D should have foreseen any specific harm or that any reasonable person would have realised the sort of harm that had in fact occurred and caused V’s death. What actually mattered was whether a reasonable person would recognise that an accused’s unlawful act necessarily subjected V to the risk of at least some harm resulting from that act. A jury, if adequately and correctly directed, could have concluded based on the evidence that a reasonable person would have foreseen that V had been at a risk of suffering some harm as a result of the defendants’ unlawful acts of affray. An unlawful and dangerous act which causes V’s death D’s unlawful act, as well as foreseeably endangering V, must have caused V’s death.  The normal rules of factual and legal causation apply. o Factual causation:  “But for” D’s conduct, would the result have occurred at the time it did and in the way it did? o Legal causation:  D’s contribution must be more than de minimis, negligible, or significant.  There must be no novus actus interveniens to break the chain of causation.  Strict liability element: D’s base offence must cause death, but there is no requirement for D to have intended; known; foreseen; or had any mens rea at all as to this result. (Attorney General’s Reference (No. 3 of 1994) [1998]) o In AG’s Reference (No. 3. Of 1994) [1998], Liability for murder could not be found because of the difficulty of demonstrating mens rea as to the death of V. However, constructive manslaughter should have been found because no such mens rea is required:  D need only complete a base offence (the assault of M); for that base offence to be objectively dangerous to V (clearly satisfied); and for that base offence to cause the death of V (satisfied on the facts).  Areas of interests in causation for constructive manslaughter: o In flight cases where D appears healthy and there are no obvious physical hazards, it may be difficult to demonstrate an objectively foreseeable risk of harm (Carey [2006]). It must also be shown that V’s conduct in taking flight has not broken the chain of causation between D’s offence and V’s death. o There can be no liability in self-injection drug cases, merely supplying drugs alone is not thought to be a dangerous act capable of causing V’s death. (R v Kennedy (No. 2) [2007])  There is no requirement that the base offence be directed at the victim. (R v Mitchell (1983))