The Blip Blop Blog (Team Entity)

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.

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

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

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 autop

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 ca

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

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 o

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 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

Constructive manslaughter or unlawful act manslaughter is a form of involuntary manslaughter that occurs when the defendant or the accused kills the other without having the intention to kill or lacks the mens rea to kill i.e. the defendant does not intend to kill but regardless, death is the outcome of the defendant’s actions or the actions of the accused. It must be distinguished from voluntary manslaughter which occurs in the heat of the moment and involuntary manslaughter (reckless manslaughter). In order for a plea of constructive manslaughter to succeed, it is a lesser offence when compared to murder, the defendant or the accused must satisfy three criteria. They are as follows: - 1.      The accused must have a committed an unlawful act which is not always necessarily the same as a reckless act. For example, if the speed limit is 60 km per hour and the accused or the defendant was driving at 80 km per hour then the act is unlawful. However, if the driver was driving