Homicide: Involuntary Manslaughter

● Three types of involuntary manslaughter:

○ Reckless manslaughter;
○ Gross negligence manslaughter;
○ Constructive manslaughter.

RECKLESS MANSLAUGHTER
● Reckless manslaughter refers to cases where D did not have the intention to kill V
nor the intention to cause V GBH, but nevertheless has foreseen the risk of death or
serious injury as a likely result of D’s action.
● Reckless manslaughter is not a charge that is usually preferred. This is because
since D has acted with a foresight of death or serious injury as a likely outcome, in
most cases D was already committing a criminal offence. This can form the basis of
constructive manslaughter.
● Nevertheless, in cases where D is charged for murder, the judge may direct the jury
that it can find D guilty of manslaughter if not convinced there was the necessary
intention but if convinced that the defendant foresaw death or serious injury as
probable.
○ Cases where D may be convicted for reckless manslaughter:
■ Hyam v DPP [1975]:
● Facts: Hyam had dropped a petrol bomb through the letterbox
of her neighbour, Mrs Booth, late one night when Mrs Booth
was asleep. She did so not to kill or cause serious injury to Mrs
Booth but to frighten her out of the neighbourhood, since Hyam
was in love with Mrs Booth’s husband and wanted him for
herself. Two of Mrs Booth’s children died in the fire. Hyam
argued that she did not intend to kill or cause serious injury to
Mrs Booth or the children: her intention was to frighten Mrs
Booth.
● Note: If it can be proven that D, even without the intention to
kill or to cause GBH, had nevertheless foreseen death or GBH
as a likely result, D could have been convicted of reckless
manslaughter.
■ Hancock and Shankland [1986]:
● Facts: Ds were miners on strike. In order to prevent other
miners from breaking the picket line (ie. resuming work), they
dropped concrete blocks from a bridge to block the road
access to the mine underneath the bridge. The concrete blocks
hit a taxi passing by the road, and killed the driver.
■ Goodfellow (1986):
● Facts: The appellant was harassed by two men and wished to
move out from his council accommodation. In order to get
relocated he set fire to his house making it look as if it had
been petrol bombed. Unfortunately his wife, son and son's
girlfriend all died in the fire.

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CONSTRUCTIVE MANSLAUGHTER
● Constructive manslaughter is committed when D has performed an unlawful and
dangerous act that resulted in the death of V.
○ Dangerous in this context means that the act has a tendency of subjecting
others to a risk of harm.
■ It needs not be a serious harm; and
■ It usually (but not necessarily) takes the form of an act of violence.
○ It is not necessary to show that D appreciated that the unlawful act he was
committing was dangerous, so long as a reasonable person will deem it
dangerous.
● Constructive manslaughter covers a very wide spectrum of blameworthiness. Both
these cases would have been covered by CM now:
○ Goodfellow (1986):
■ Facts: The appellant was harassed by two men and wished to move
out from his council accommodation. In order to get relocated he set
fire to his house making it look as if it had been petrol bombed.
Unfortunately his wife, son and son's girlfriend all died in the fire,
although D did not intend to hurt anyone.
○ Mitchell (1983):
■ D punched V1 who accused D of queue-cutting. V1 fell on top of V2
who was an 89 year-old lady which initially broke her leg and later
caused her death from a pulmonary embolism (blood clot gets lodged
in an artery in the lung, blocking blood flow to part of the lung).

Unlawful act:
Criminally unlawful
● The unlawful act must be a criminal offence. This means a civil wrong (i.e. a tort)
will not suffice.
○ Franklin (1883):
■ D dropped a box into the sea and hit the head of V who was
swimming underneath the sea.
■ Prior to this, in Fenton (1830) it was held that it was manslaughter if a
killing resulted from a tort even though the tortfeasor neither intended
to cause nor risked causing harm to another.
● To support a conviction of CM, the principal criminal offence must be first established.
If the principal offence cannot be established (eg. when D has a good defence),
then there is no unlawful act for the manslaughter to be “constructed” upon.
○ Simon Slingsby (1995):
■ D inflicted serious injury on V with a signet ring during a violent but
consensual sexual activity (including buggery, which was an offence
then). V later died from that injury.
■ Crown Court held that since the injuries were not deliberately
inflicted and were an accidental by-product of consensual
conduct there was no assault upon which to support a conviction for
manslaughter.
■ NB: the conviction could not have been supported by the (then)
unlawful act of buggery (consent not being a defence to this offence)
since it was not this act which caused the death.

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 ○ Scarlett (1993)
■ D, a publican, ejected V, a drunk from a public house who then fell
backwards down the steps and died following a fractured skull.
■ D’s conviction for constructive manslaughter was quashed on the
basis that he feared the drunk was about to attack him and so his use
of force was lawful self-defence. This meant that he had not
committed the core offence that constructive manslaughter requires.
○ Jennings (1990) CA:
■ The prosecution must specify the unlawful act relied upon for the
purpose of CM.

Positive act
● The conduct element of constructive manslaughter cannot be an omission.
○ Liability for unlawful act manslaughter requires proof of the commission of
an unlawful act. An omission, even if it is in breach of duty, is not enough.
■ Lowe (1973):
● D, of low intelligence, did not call a doctor for his sick infant
child. The child died from dehydration and gross emaciation.
This forms the offence of ‘wilful neglect’ of the child contrary to
s.1 Children and Young Persons Act 1933.
● On appeal, it was held that the conviction of CM based on the
offence of wilful neglect cannot stand because the principal
offence is one of omission rather than a positive act.
○ It is therefore important to distinguish a situation where a parent positively
does something (eg. hitting) to the child and resulted in death; and a
situation of death caused by omission (eg. in Lowe).
○ The justification for this distinction is that if the moral basis for
incriminating the defendant is, as wilful neglect is, a breach of duty, then
liability for that breach of duty should be subject to the same rule as for
other breaches of duty, namely that the breach should disclose gross
negligence.

Dangerous act:
● Horder: If death resulted unexpectedly from a punch by D, it was at least a
consequence made more likely by D’s conduct. However, if D steals V’s priceless
painting which results in V suffering an unexpected fatal heart attack, even though D
may be guilty of theft, it does not make sense to construct the liability for V’s death on
the offence of theft.

Objectively dangerous
● Before 1965, it was generally accepted that liability for constructive manslaughter
depended upon proof of ‘foresight of possible physical harm less than fatal
harm’
● Church (1965):
○ ‘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’.

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● Dawson (1985):
○ D pointed a replica gun at V in the course of a robbery. V had a history of
heart conditions and died from a heart attack resulting from this. D was
convicted of manslaughter.
○ On appeal, D’s conviction was quashed because the judge should have made
clear to the jury that it should convict only if the pointing of gun was
objectively dangerous; and it would be objectively dangerous only if it was
known that V had a heart condition.
● C/F Watson (1989):
○ D committed burglary on a house occupied by V, an old man with heart
condition. V died from a heart attack resulting from him being upset by the
burglary. D was convicted of manslaughter.
○ Although his appeal was successful on other grounds, the Court of Appeal
made clear, on the basis of the Church definition, that D’s encounter with V
was objectively dangerous, as soon as it became clear that V was old and
frail. Continuing with the burglary after this realisation would therefore satisfy
the dangerous act requirement.
● DPP v Newbury and Jones (1976) HL:
○ Facts: two youths threw a piece of paving stone off a bridge and into the path
of an oncoming train. The paving stone fell into the driver’s cab, killing the
guard.
○ HL did not pinpoint the precise base crime committed by the Ds. It ruled that
it was not necessary to show that the boys foresaw the risk of harm as
long as the risk would have been obvious to the reasonable person.
○ HL ruled that the subject matter of constructive manslaughter did not have to
be a crime of endangerment. The sole question to be considered was
whether the crime, in the circumstances in which it was committed,
provoked the risk of physical injury.
○ Problem:
■ If foresight is not necessary, what then was the base crime upon which
manslaughter was constructed?
● It could not be battery nor criminal damage, as both crimes
require foresight.
● It could be an offence that was not referred to: ‘endangering
the safety of any person conveyed upon a railway’ contrary to
s.34 OAPA 1861.
■ It is likely that the House of Lords simply presumed that the boys had
committed a crime, whether criminal damage or this latter offence.
That being so, the crime, whatever it was, was clearly objectively
(very) dangerous and manslaughter thus established.
○ Proposed reform:
■ The Law Commission recommended the abolition of the rule in
Newbury and Jones, which permits liability in the absence of foresight
of harm:
● It proposed that manslaughter will encompass ‘killing through a
criminal act intended to cause some injury, or in the awareness
that the act posed a serious risk of causing some injury’.
● This was considered by CA in R v F (2015).

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 ● R v F (2015) EWCA:
○ Facts: The appellants, aged 14 and 16 respectively at the time of the
offences, had set a fire in a derelict building. A homeless person in the
building was killed.
○ CA held: For unlawful act manslaughter, two elements had to be carefully
differentiated:
■ the requisite state of mind, and
■ the requirement of dangerousness in relation to the unlawful act.
○ It was established that in determining whether an unlawful act was
dangerous, the test was objective: the knowledge of the circumstances
attributed to the bystander were the circumstances known to the defendant.
○ With regard to the mental element required, the act which constituted the
crime was malicious damage to the building and the judge had directed the
jury that it had to be sure that the appellants had either intended that damage
or were subjectively reckless.

The unlawfulness of an act must be constituted independently of its dangerousness

● Certain activities are lawful if done properly, but unlawful if done dangerously or
negligently. Eg. Driving.
● Liability can only be incurred for this type of manslaughter if the act which causes
death is criminal in itself, rather than becomes criminal simply because it is
done in a negligent or dangerous fashion. In other words, the crime out of which
constructive manslaughter is constructed must (normally) be a crime requiring proof
of intention or recklessness.
● Andrews v DPP (1937):
○ D hit a pedestrian and killed him when he was driving above the speed limit
and was overtaking another vehicle.
○ HL held that only acts which are inherently criminal can form the basis of a
constructive manslaughter charge. If they are criminal only because they are
performed in a careless or dangerous fashion, then the prosecution must
charge D for gross negligence manslaughter, which requires proof of not only
the carelessness or dangerousness required by the principal crime, but also
gross negligence as to death.
○ ‘There is an obvious difference in the law of manslaughter between doing an
unlawful act and doing a lawful act with a degree of carelessness which the
legislature makes criminal’. – per Lord Atkin.

● Lamb (1967):
○ D and his friend, V, were playing with a loaded revolver gun. Having checked
that no bullet was opposite the firing pin, the accused pointed the gun at his
friend and pulled the trigger. The gun went off, killing the friend. D had
forgotten, or did not know, that the chamber of a revolver ‘revolves’ upon
firing.
○ D’s conviction for CM was quashed on appeal:
■ What D had done was undoubtedly dangerous, but it was not a crime:
● There cannot be assault because V did not apprehend
(anticipate) injury, and D also did not intend / foresee injury of
alarm to V;

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 ● There is no known criminal offence that governs the conduct of
‘negligently shooting someone’.
■ D should have been charged for gross negligence manslaughter if it
can be proven that his conduct was grossly negligent.

Causation
● The test for causation is the same ‘but-for’ test for factual causation: but for D’s
unlawful and dangerous act, the death would not have occurred.
● However, the test for legal causation tells us that D’s act must be the substantial
and operating cause, which it will not be if, independently of D’s action, another
cause intervenes which rids D’s initial act of all causal potency.
● Where D supplied V with dangerous drugs (a criminal act and a dangerous act in the
Church sense), D would not be liable for manslaughter if V self-injected the drugs
and died from it. V’s free and informed act broke the chain of causation. - Kennedy
(No. 2) (2007)
● However, if D was the one that injected V with the drugs that killed V, D may be guilty
of constructive manslaughter. However, the base crime here is not the supply of
drugs; rather, it is the administration of the drugs (an offence under s.23 OAPA
1861). If no subsequent act or intervening event that breaks the chain of causation
following the administration, D will remain liable for CM. - Cato (1976)
● However, if D’s wrongful act triggers V’s suicide, what test of causation should be
applied?
○ ‘Take your victim as you find them’ in Blaue?
○ Reasonable foresight test in Roberts?
○ Daft or disproportionate reaction test in Williams and Davis? Or
○ Voluntary act test in Kennedy?
● Wallace (2018) EWCA
○ Facts: D threw concentrated sulphuric acid over her former lover while he was
sleeping. This left him blind, paralysed and suffering from catastrophic injuries
and pain. Two years later he checked into a euthanasia clinic in Belgium
where euthanasia is legal and his life was terminated. He had decided that he
could not continue to live with his injuries and the pain to which he was still
subject.
○ D was charged with murder and the trial judge refused to allow the question
of causation to be considered by the jury on the ground that there was too
long a delay between the act and the death.
○ D was convicted of throwing corrosive fluid on a person, with intent to do
grievous bodily harm, an offence under s.29 OAPA 1861.
○ CA ruled that the trial judge was wrong to withdraw the question of
causation from the jury. It was open to the jury to conclude that, despite
the separation in time between the throwing of the acid and the death,
the acts of the victim were a direct response to the injuries inflicted for
which the defendant was directly responsible.
○ CA held: the question to be considered in all cases where more than one
cause contributed to the death is whether ‘the accused’s acts can fairly
be said to have made a significant contribution to the victim’s death’.

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Mens rea for Constructive Manslaughter
● Since the liability for constructive manslaughter is ‘constructed’ upon the base crime,
the mens rea for CM is that D has the mens rea for the base crime.
● For example: If D is charged with constructive manslaughter on the basis of having
committed a battery, the prosecution has to prove that:
○ The actus reus of the battery (eg. punching the victim);
○ The mens rea for battery: i.e. intending unlawful physical contact with V
(intention) or foreseeing a risk of unlawful physical contact with V
(recklessness); and
○ The causal link between the base offence and the death of V.

GROSS NEGLIGENCE MANSLAUGHTER

● Also known as manslaughter by breach of duty.
● R v Bateman (Percy) (1927): per Lord Hewart CJ: it must be shown that ‘the
negligence of the accused went beyond a mere matter of compensation between
subjects and showed such disregard for the life and safety of others as to
amount to a crime against the State and conduct deserving punishment.’
● As opposed to CM, GNM can arise from an omission and acts that are not criminal
offences by themselves.
● R v Adomako (1994) HL:
○ Facts: a hospital anaesthetist had failed to notice that a patient’s ventilation
tube had become disconnected. Patient died.
○ HL held: In cases involving manslaughter by breach of a duty of care the
relevant questions are:
■ whether there existed a duty of care,
■ whether there had been a breach of that duty,
■ whether the breach had caused the death and, if so,
■ whether the breach should be characterised as gross negligence and
a crime.
● It is for a jury to decide whether the accused's acts were so
bad that in all the circumstances they amounted to a crime.

Duty of Care
● Even though criminal law generally recognised duty recognised in civil law, the fact
that a duty is not recognised in the civil law does not mean that it will not be
recognised in the criminal setting:
○ Wacker (2002) EWCA:
■ Facts: a lorry driver transported illegal immigrants in an airless
container which led to the deaths of most of them.
■ CA held: D was held properly convicted of manslaughter for his failure
in this regard. Although in the civil law such a duty would probably not
have arisen due to the immigrants’ complicity in an illegal enterprise,
no such strict rule applied in the criminal law where deeper
considerations of public policy applied.
○ Willoughby (2004) EWCA:
■ Facts: D and V torched D’s building for the purpose of committing an
insurance fraud, during which V died.

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 ■ Although no duty of care would have arisen in the civil law, a duty did
arise in the criminal law and D was guilty of manslaughter.
● It is a matter of law for the judge to decide whether the defendant owed a duty of
care to the victim. The jury’s function is to decide whether the duty was broken and if
the death was caused by the breach.
○ Evans (2009):
■ CA introduced a new duty situation in cases of manslaughter by
omission – namely one arising where the defendant is responsible
for contributing to circumstances of extreme danger for the
victim. This was an extension of the principle in Miller in which the
House of Lords had limited this duty to cases where the
dangerous situation was caused by the defendant. Now it is
enough that D simply contributed to the danger:
● ‘When a person has created or contributed to the creation of a
state of affairs which he knows, or ought reasonably to know,
has become life threatening, a consequent duty on him to act
by taking reasonable steps to save the other’s life will normally
arise.’ – per Lord Judge CJ

Breach of Duty
● D must be very negligent to breach the duty of care.
○ Adomako (1995):
■ ‘[Responsibility] will depend on the seriousness of the breach of duty
committed by the defendant in all the circumstances in which the
defendant was placed when it occurred...[The jury must consider]
whether, having regard to the risk of death involved, the conduct
of the defendant was so bad in all the circumstances as to
amount in their judgement to a criminal act or omission.’ – per
Lord Mackay
■ Note: the risk involved here must be one of death. There is no liability
for GNM if the risk is simply of harm/serious harm, in which case RM
or CM will be more appropriate.
● The risk of death has to be apparent at the time of the breach of duty.
○ R v Rose (2017):
■ Facts: An optometrist failed to conduct a full examination of the
deceased’s eyes during a sight test. If the optometrist had done so,
she would have discovered that the deceased had a life-threatening
condition and would have sent her for urgent specialist attention.
■ CA held:
● D’s failure to conduct a full examination was very negligent.
However, the fact that a proper examination might have
revealed a serious life-threatening problem did not mean that
there was a ‘serious and obvious risk of death’ if such an
examination was not carried out, since this was, after all, a
simple routine eye test.
■ It might have been different if the patient had presented with
symptoms that themselves had either pointed to the risk of a

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 potentially life-threatening condition or provided a sign that alerted a
competent optometrist to that risk.
○ R v Kuddus (2019):
■ D was the new owner of a takeaway restaurant. V, a customer, died
from peanut allergy after eating the food sold by D. The allergy was
disclosed to the former owner, but not to D.
■ Although D was at fault in not complying with health and safety
regulations concerning allergies, a risk of death would only be
objectively apparent if he had cause to believe that a customer had
such an allergy, which he did not.

Causation
● The prosecution must prove not only that death would not have occurred but for the
defendant’s conduct, but that it was the defendant’s breach of duty that caused
the death.
○ Dalloway (1847):
■ The prosecution could show that the boy would not have died but for
the cart driver’s driving – but what they could not prove was that it
was his negligent driving specifically that was the cause. For this
to be established, they had to prove that the accident would not
have occurred had the cart driver been driving carefully. They
could not do this: it was possible that death might have occurred
however carefully he had driven. In other words, it might have been
just one of those unavoidable accidents. That he was driving
negligently could have been simply a coincidence.
● In cases of omission, P must show that had D done what they were supposed to
do, death would have been prevented (instead of ‘might have been prevented’) - R
v Morby (1882)
○ Broughton (2020):
■ D supplied the deceased, his girlfriend, with Class A drugs at a pop
festival. She experienced a bad reaction to the drugs. Although the
defendant stayed with her throughout, he did not seek any form of
medical assistance.
■ Key question: whether it had been established to the criminal standard
that his failure in breach of duty to seek medical help caused the
victim’s death.
■ Expert witness testified that there would have been a 90% chance of
survival if medical intervention was provided.
■ Held: It was not enough that the victim was deprived of a ‘significant
and substantial chance of survival’. The question to ask is whether
the medical assistance would have saved her life (i.e. as a matter of
certainty). Given that there was a time lag between taking the drug
and her reaction, it was not certain to the criminal standard that it
would.

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