Crime 43 - Constructive Manslaughter 2 – The unlawful act 1

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 an “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 of manslaughter (involuntary). It was held that in order to plead 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 pleaded 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 establish constructive manslaughter, the act must be unlawful in criminal law and not just in civil law.