Constructive (unlawful act) manslaughter

Question 1

Requirements

Answer 1

Attorney-General’s Reference (No.3 of 1994): whether the act was done intentionally; whether it’s unlawful; whether it was also dangerous because it was likely to cause harm to somebody; whether it caused the death

Question 2

An unlawful act

Answer 2

R v Lowe: NOT an omission
Andrews v DPP: must be a criminal act

Question 3

Dangerous act

Answer 3

R v Church: “all sober and reasonable people” would recognise at least “the risk of some harm”- objective test
R v Dawson: it’s wrong to allow facts to be taken into account that were not apparent to a reasonable person in D’s shoes- D did not know V had a weak heart
R v JM and SM: danger foreseen need not be the sole or principal cause of death
R v Watson: reasonable person would have foreseen risk of heart attack when restraining an elderly lady; act need not be directed at V

Question 4

Causation

Answer 4

Attorney-General’s Reference (No.3) of 1994: as long as it caused V’s death, no need for the act to have been directed at V
Normal causation rules apply

Question 5

Mens rea

Answer 5

DPP v Newbury and Jones: no need of a specific requirement of foreseeability of death- all that’s needed is the MR of the base offence

Question 6

Criticisms

Answer 6

Law Commission Report No.237: “criminal law should properly be concerned with the question of moral culpability, and we do not think an accused who is culpable for causing some harm is sufficiently blameworthy to be held liable for the unforeseeable consequences of death”
Law Commission Report No.304: proposed a requirement that D must intend to cause injury, or was aware of the serious risk of causing some injury
Freer: “the range of offences which can amount to the “unlawful act” foundation of unlawful act manslaughter has become too wide… The effect is to breach the correspondence principle and fair-labelling principles”

Question 7

Support

Answer 7

Gardner: sees it as perfectly acceptable in principle; D must be culpable in some way even if the culpability does not extend to the causing of death; principles of justice and the rule of law require that the killer have some forewarning that their act will incur some criminal liability