Involuntary manslaughter - constructive manslaughter

Constructive manslaughter is also referred to as unlawful act manslaughter. Constructive manslaughter is a form of involuntary manslaughter in that an unlawful killing has taken place where the defendant lacks the mens rea of murder. There are two types of involuntary manslaughter: constructive manslaughter exists where the defendant commits an unlawful dangerous act which results in death; where the defendant commits a lawful act which results in death this may amount to gross negligence manslaughter.

Elements of the offence:

The offence of constructive manslaughter can be broken down into three elements:

1. There must be an unlawful act

2. The unlawful act must be dangerous

3. The unlawful dangerous act must cause death

1. There must be an unlawful act

Originally any unlawful act would suffice even if it was only against civil law:

R v Fenton (1830) 1 Lew CC 179 Case summary

However, it was later established that only offences against criminal law would suffice:

R v Franklin (1883) 15 Cox CC 163 Case summary

All elements of the unlawful act must be present. If there is no unlawful act, there can be no conviction for constructive manslaughter (although there may possibly be liability for gross negligence manslaughter):

Lamb [1967] 2 QB 981 Case summary

R v Scarlett [1993] 98 Cr App 290 Case summary

R v Arobekieke [1988] Crim LR 314 Case summary

There must be an unlawful act, omissions will not suffice:

R v Lowe [1973] QB 702 Case summary

The unlawful act need not be directed at the victim:

Larkin (1942) 29 Cr App R 18 Case summary

Mitchell [1983] QB 741 Case summary

A-G Ref No 3 OF 1994 [1998] AC 245 Case summary

The unlawful act need not be directed against a person:

R v Goodfellow (1986) 83 Cr App R 23 Case summary

2. The unlawful act must be dangerous

The unlawful act must be dangerous, however, dangerous is not given its ordinary and natural meaning. The specific meaning of dangerous was given by Edmund Davies LJ in Church as:

"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."

Church [1965] 2 WLR 1220 Case summary

The test is thus objective, concerned with what a sober and reasonable person would regard as giving rise to some harm. This is assessed as if the reasonable person were present at the time of the unlawful act and observing. The reasonable person will thus have only the knowledge of an observer any special factors which would not be apparent to an observer will not be taken into account.

Compare the cases:

R v Dawson and others [1985] 81 Cr App R 150 Case summary

R v Watson [1989] 2 All ER 865 Case summary

To amount to dangerous for these purposes the sober and reasonable person must recognise the act as inevitably resulting in physical harm:

R v Carey & Ors [2006] EWCA Crim 17 Case summary

Any knowledge of the defendant, including a mistaken belief, can not be imputed to the sober and reasonable person:

R v Ball [1989] Crim LR 730 Case summary

3. The unlawful dangerous act must cause death

This has been particularly problematic for the courts in relation to where a death occurs from taking drugs. The question arises as to whether those who supply such drugs can be liable for manslaughter. Where the defendant actually injects the drug to another person resulting in death, the position is quite straight forward. The defendant's unlawful act is administering a noxious thing contrary to s.23 Offences Against the Person Act 1861 and this act causes death. The defendant is liable for manslaughter notwithstanding the fact that the victim consented to the injection. See:

Cato [1976] 1 WLR 110 Case summary

However, Lord Widgery CJ's obiter comments lead to confusion in the law. Lord Widgery stated had it not been possible to rely on the unlawful act of administering a noxious thing, the defendant would nevertheless be liable as he had committed the unlawful act of possession. The difficulty being that possession of drugs does not in itself cause death.

In Dalby it was recognised that the possession or supply of drugs did not cause death:

R v Dalby (1982) 74 Cr App R 348 Case summary

However, the case of Kennedy proved problematic for the courts. It was subject to two appeals to the Court of Appeal and an appeal to the House of Lords. It concerned the position of a person who had prepared a solution of heroin and handed it to the victim who then injected himself. The first appeal was unsuccessful:

R v Kennedy [1999] Crim LR 65 Case Summary

His conviction was upheld on the grounds that he had assisted the unlawful act of the deceased in self-injecting.

However, in the subsequent case of Dias it was pointed out that it is not a crime to inject oneself:

Dias [2002] 2 Cr App R 5 Case summary

This point was followed in Richards where the conviction was quashed as it was based on the law as stated in Kennedy's first appeal:

Richards [2002] EWCA Crim 3175 Case summary

This lead to Kennedy's further appeal to the Court of Appeal:

Kennedy [2005] 1 WLR 2159 Case summary

However, this was also unsuccessful. The court held, following the case of Rodgers, that the unlawful act was his assisting in the administration of the drug and thus amounted to an offence under s.23.

Rogers [2003] 1 WLR 1374 Case summary

However on appeal to the Lords, the House affirmed the decision in Dias and held that it is never appropriate to convict a person of manslaughter, where he supplies a class A drug to a fully informed and responsible adult who then freely and voluntarily self administers the drug.

Kennedy [2007] 3 WLR 612 Case summary

Mens rea of constructive manslaughter?

At one time it was thought that it must be shown that the defendant had the intention to frighten or harm a person or could foresee the risk of harm. This was based on an obiter statement by Lord Denning in a civil case:

Gray v Barr [1971] 2 QB 554 Case summary

However, in the following case it was established that the statement had no relevance in criminal case.

DPP v Newbury [1977] AC 500 Case summary

Consequently it need only be established that the defendant had the mens rea of the unlawful act committed. There is no requirement that the of mens rea in relation to the ensuing death.