The Unlawful Act Manslaughter

Firstly, the term ‘criminalisation’ means turning a legal activity into an illegal activity, hence making it a criminal offence. The Latin term ‘Actus non facit reum, nisi men sit rea’ means ‘an act does not make a man guilty of a crime unless his mind be also guilty’ (Monaghan, Criminal Law, p. 21). This literally means that a criminal offence needs an Actus Reus (the guilty act) and a Men’s Rea (the guilty mind) in order for there to be criminal liability. If the Actus Reus or Men’s Rea are not present then you cannot find the offender guilty of an offence. This essay will be specifically looking at unlawful act manslaughter and whether it violates the legal principle of ‘no act is guilty unless the mind is guilty’.

Involuntary manslaughter can be defined as the unlawful killing of a human being under the Queens peace without malice aforethought. ‘Unlawful act manslaughter’ (otherwise known as constructive manslaughter (Storey, Unlawful and Dangerous, p143) emerges where a defendant intentionally commits an unlawful act which is dangerous and likely to injure another person resulting in causing the death of that person. The offence of unlawful act manslaughter was defined by the court of appeal in the case of R v Larkin [1944] 29 Cr App R 18 (Monaghan, Criminal law p135). In this case Larkin threatened another man at a party with a razor for speaking to his girlfriend. He claimed that his drunken girlfriend had swayed against him and cut her throat by accident. Larkin had committed an assault which led to death. This had been an unlawful criminal act.

Unlawful act manslaughter requires proof of 4 elements as stated in DPP V Newbury & Jones [1977] AC 500. In this case, two fifteen-year-old boys pushed a paving stone onto train tracks where a train was approaching. It hit the driver’s windscreen, killing the driver instantly. They were convicted of manslaughter; however, this was dismissed as it had to be proved that the 4 elements of unlawful act manslaughter were present which were: the defendant’s act must be intentional, the act must be unlawful, the act must be objectively dangerous and it must cause the death.

Primarily, the defendant’s act must be intentional, an omission will not suffice. In the case of R v Lowe [1973] QB 702 the defendant disobediently neglected his child resulting in the child dying. It is still indistinct whether Lowe will be convicted of unlawful act manslaughter on the basis of intentional and deliberate omission. Secondly, the act must be unlawful. The unlawful act must be a criminal act; a civil wrong is not sufficient as stated in the case of Franklin [1883] 15 Cox CC 163. In the case of R v Lamb [1967] 2 QB 981, Lamb and his friend were fooling around with a gun not knowing that it was loaded. Lamb pointed the gun at his friend and pulled the trigger, killing him. It was concluded that Lamb didn’t do an unlawful act because the pointing of the gun at the friend wasn’t an assault as the friend didn’t fear any violence. The case was quashed.

Thirdly, the act must be objectively dangerous. The test for this came from the case of R v Church [1966] 1 QB 59 where a man beat up a girl. He thought she was dead so threw her into a river where she drowned. It was apprehended in the case that the test for ‘dangerous’ is, whether a ‘sober and reasonable person’ would have realised that their act was dangerous and there was a risk of some harm. An issue with this aspect of the law is that the courts are applying an objective test to the situation. The defendant will be guilty if a reasonable person realised it was dangerous and there was risk of some harm. It doesn’t matter that the defendant himself may not have realised it was dangerous. Some feel applying an objective test is very harsh as you are liable for something you may not have realised was going to happen. The harshness of the objective test is illustrated through the case of Elliot v C [1983] 1 WLR 939 where a young girl with learning difficulties was found guilty of an offence even though she didn’t realise she was taking a risk due to the fact that a reasonable person would have realised there was a risk. Objective tests are, however much easier to prove and apply. In the case of R v Dawson [1985] 81 Cr App R 150 the causing of fear was not considered ‘dangerous’ even though it led to the victim having a heart attack and dying. The act wasn’t dangerous because the reasonable person couldn’t have been aware of the victim’s bad heart and would not have seen a risk of some physical harm. In R v Watson [1989] 1 WLR 684, however, the jury considered the burglary to be a dangerous act because the frailty of the elderly women was obvious to the reasonable person and so there was a risk of some physical harm.

The objective nature of the test can be criticised because it fails to reflect the moral culpability of the defendant to convict him of the absence of proof that he foresaw a risk of some harm. Unlawful act manslaughter is therefore believed to be unprincipled because it requires only that a foreseeable risk of causing some harm should have been inherent in the accused’s conduct whereas he is convicted of actually causing death and also to some extent punished for doing so (Lawcom.gov.uk, 1965). The Irish Law Reform Commission (ILRC) have made many solutions to problems regarding unlawful act manslaughter. The ILRC felt that ordinary reasonable people would as a matter of common sense say that pushing someone in the queue would not result in death. Ultimately, this led the ILRC to recommend the creation of a new offence, namely assault causing death (ACD) specifically for cases where a minor assault leads to death and the death has to be ‘wholly foreseeable’ in order to be charged with this (Mitchell, Criminal Law Review (2009)).

Furthermore, the act must cause the death. There must be causation and no Novus actus interveniens. As long as the unlawful act contributed significantly to the cause of the death of the victim, the defendant will be found guilty. It also doesn’t need to be aimed at the victim as seen in the case of R v Mitchell [1983] QB 741, nor at a person as seen in the case of R v Goodfellow [1986] 83 Cr App R 23 where the unlawful act was aimed at property.

Moreover, another problem area for unlawful act manslaughter tends to be with the drug related cases. In the case of R v Cato [1976] 1 WLR 110, the defendant and victim injected each other with heroin. The victim died. Injecting the victim with heroin, is seen as an unlawful act of administrating a noxious substance to the victim contrary to s23 of the Offences Against the Person Act 1861. The defendant was convicted of unlawful act manslaughter. Another drugs case is R v Dalby [1982] 1 WLR 425 where the defendant supplied a drug to the victim in which he self-injected. The defendant’s conviction of manslaughter was quashed as the act of supplying the drug was didn’t cause the death. The act of injecting the drug caused the death and broke the chain of causation. There has been a lot of debate as to whether a victim taking the drug himself should be seen as an intervening act. This was settled in the case of R v Kennedy (No.2) [2007] UKHL 38; [2008] 1 AC 269 where it was stated that the supplier of the drug is not guilty of manslaughter because it is the it is the free and voluntary act of the self-administration by the victim that breaks the chain of causation.

Going back to the question of whether the criminalisation of ‘unlawful act manslaughter’ violates the legal principle of ‘no act is guilty unless the mind is guilty’, the answer is yes it does because there are many problems with unlawful act manslaughter. It covers a wide range of conduct from pushing someone to nearly murder. The level of blameworthiness of the defendants can vary massively as the maximum sentence for manslaughter is life imprisonment and the there isn’t any minimum sentence. So, the defendants can be charged with a fine or a community sentence which makes the law unfair and unjust.

Another problem with this aspect of the law is that in many cases of unlawful act manslaughter death is an unexpected result of the defendants conduct as seen in the case of R v Mitchell [1983]. However, compare this with R v Cato [1976], the risk of death from injecting heroin is much less unexpected. Should both defendants be guilty of the same offence? Are their levels of blameworthiness sufficiently the same or should there be different categories of offence?