HOMICIDE

Murder requires the killing to be accompanied by an intention to kill, or an intention to cause

grievous bodily harm. Manslaughter does not.
Manslaughter does require proof of fault but the nature of that fault varies according to the type
of manslaughter charged.
Reckless manslaughter requires foresight of death or serious injury. It can be committed by
commission or omission.
Gross negligence manslaughter requires no foresight, but a very high degree of negligence as
to the risk of death. It can be committed by commission or omission.
Constructive manslaughter requires neither foresight nor even negligence as to the risk of death
(or serious injury). It requires simply the commission of a crime likely to cause harm with the
relevant mens rea for that crime. It cannot be committed by omission.

Murder
A killing is lawful if it is accidental; that is, not blameworthy (see Illustration 1(e)). It is also lawful
if a valid defence operates: for example, self-defence.

Consent is not a defence to liability for criminal homicide by affirmative action: there is no
defence of euthanasia or of (consensual) duelling.

A person: the victim of homicide must be a person.

According to law an unborn child cannot be a victim of murder/manslaughter because they are
not yet people (Vo v France (2006)).

⇒ Unlawfully: If the defendant is able to rely on the defence of self-defence he/she has not
been killed unlawfully
R v Beckford [1988]
The appellant was a police officer. He was issued with a shot-gun and ammunition and sent with
a number of other armed police officers to a house. According to the appellant a report had
been received from Heather Barnes that her brother Chester Barnes was terrorising her mother
with a gun. Heather Barnes, however, denied that she had made a telephone call to the police
or that her brother was armed.

The appellant said that on arriving at the house, he saw a man run from the back door with an
object which appeared to be a firearm. As the police followed him, the appellant stated that
Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact
no gun was ever found.

Held:
The appeal was allowed and the conviction was quashed. The test to be applied for self-
defence is that a person may use such force as is reasonable in the circumstances as he
honestly believes them to be in the defence of himself or another.

⇒ Queen’s peace: It must be shown that the killing took place in the Queen’s peace i.e. this is
why killing someone at war is not murder.

⇒ Killed: the defendant must have caused the death of the victim. It must be shown that the
defendant sped up the death of the victim by more than a negligible amount
R v Adams [1957]
r Bodkins Adams had administered a lethal dose of painkillers to a terminally ill patient.

Held:
Dr Bodkins was acquitted of murder.
Devlin J:
"a life shortened by weeks or months is just as much murder as one shortened by years....
However, a doctor is entitled to do all that is proper and necessary to relieve pain and suffering
even if such measures may incidentally shorten life."

R (Nicklinson) v Ministry of Justice [2014]

Mr Nicklinson suffered from ‘locked-in syndrome’, following a stroke, which rendered every
muscle in his body below his eyelids paralysed. He sought a declaration that it would be lawful
on grounds of necessity for his doctors or his wife to terminate his life, since his condition
rendered his life intolerable. He claimed that a refusal would be in violation of his human rights
and his autonomy, since, because of his total paralysis, he was being denied the rights of all
other people to take the steps necessary to kill himself in such intolerable circumstances. His
claim was rejected. His appeal was also rejected by the Supreme Court. This decision was later
affirmed in the European Court of Human Rights case Nicklinson v UK (Admissibility) (2478/15)
(2015) 61 EHRR SE7 on the ground that the matter was so morally contentious that only
Parliament could properly address it. It should be noted that no such caution characterised the
decision in an equivalent case in Canada (Carter v Canada (Attorney-General) February 6
2015). The prohibition on physician-assisted suicide was declared contrary to human rights by
the Supreme Court of Canada. In reaching this conclusion, the Court ruled that the
corresponding prohibition in the Canadian Criminal Code (241(b)) infringed s.7 of the Canadian
Charter of Rights and Freedoms.

Intention to kill or cause grievous bodily harm

R v Inglis [2011]
The appellant appealed against her conviction for murdering her son Thomas. Thomas had
suffered serious head injuries when he had fallen out of an ambulance. He had undergone
lifesaving surgery which removed part of his skull which resulted in severe head and facial
disfigurement. He was in a vegetative state but doctors were hopeful that he would make a
recovery. The appellant, however, was convinced that his vegetative state was permanent. She
became obsessive and believed he was in pain and wanted to end his suffering. She injected
him with a lethal dose of heroin with the intention to kill. She appealed against her conviction.

Held:
Her conviction was upheld. The lethal injection that killed her son was seen to be premeditated
so could not raise the defence of provocation (under the old law) or, as it would be now, the
defence of loss of control.

Intention in murder
In the context of murder, having death (or grievous bodily harm) as one’s objective in acting as
one did, such that, if death (or grievous bodily harm) did not occur, one would consider one’s
action a failure (Duff, 1990).

R v Vickers [1957]
Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is a term of art.
It has always been defined in English law as either an express intention to kill, as could be
inferred when a person, having uttered threats against another, produced a lethal weapon and
used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous
bodily harm to the victim, and the victim died as the result."

R v Cunningham [1982]
D attacked V in a pub wrongly believing that the victim had had sexual relations with his fiancé.
V suffered a fractured skull and a subdural haemorrhage from which he died 7 days later

D was guilty of murder

Intention to cause grievous bodily harm suffices as mens rea for murder
Lord Hailsham LC
“Malice aforethought has never been limited to the intention to kill or to endanger life”

Voluntary Manslaughter

Used to be ‘Provocation’
Provocation was relevant to killings that took place before 4 October 2010, when this partial
defence was abolished and replaced with that of loss of control under the Coroners and Justice
Act 2009.

R v Acott [1997]
The appellant, aged 48, lived with his mother and became financially dependent on her. On 17th
Feb 1993 the appellant called an ambulance as his mother had fallen down the stairs. She died.
Medical evidence was such that the mother died from a sustained attack rather than from a fall.
The appellant was charged with her murder. At his trial he denied any attack and maintained
that his mother fell. During the trial, Counsel for the prosecution continually put it to the
defendant that his mother had mocked him and berated him for being inadequate and he then
lost his control and attacked her and pushed her down the stairs. The defendant strongly denied
all such allegations. Nevertheless the jury convicted him of murder. The defendant appealed
contending that the trial judge should have directed the jury on provocation due to the
allegations made by the prosecution.

Held:

There was no evidence put forward of provocation and therefore the trial judge was right not to
put the defence to the jury. The appeal was dismissed and the appellant's conviction for murder
upheld.

R v Ibrams & Gregory (1982)

The two appellants had been harassed and terrorised by John Monk. Ibram's
girlfriend ,Andronik, left him to start a relationship with Monk. However, Monk was extremely
violent towards her, leading her to flee the country. She returned to the UK and resumed the
relationship with Ibrams. Monk was serving a sentence in Borstal. However, on his release,
Monk started visiting the couple using violence and making threats and forcing Andronik to
sleep with him. The police had been informed of the events but did not take any action. On one
of his visits Gregory, a friend of the couple witnessed the violence. They hatched a plan
whereby Andronik would invite Monk round, get him drunk and entice him into bed. Ibrams and
Gregory would then burst in and beat him up. In fact the two appellants went further than
planned and killed Monk. They stated that once they started beating him they lost their control.
The trial judge did not allow the defence of provocation to be put before the jury as the planning
indicated that there was no sudden and temporary loss of self control. The defendants
appealed.

Held:

The appeal was dismissed.

In particular, a woman subject to cumulative domestic abuse might lose her self-control after a
period of ‘slow burn’, simmering anger which erupts long after the last provocative event. So
long as the killing was by way of loss of self-control, and not revenge or premeditation, the
defence remained available.

R v Ahluwalia [1992]
This case is decided under the old law of provocation. The appellant poured petrol and caustic
soda on her sleeping husband and then set fire to him. He died six days later from his injuries.
The couple had an arranged marriage and the husband had been violent and abusive
throughout the marriage. He was also having an affair. On the night of the killing he had
threatened to hit her with an iron and told her that he would beat her the next day if she did not
provide him with money. At her trial she admitted killing her husband but raised the defence of
provocation however, the jury convicted her of murder. She appealed.

Held: The Court of Appeal dismissed the appeal on the grounds of provocation. Lord Taylor of
Gosforth said there had to be a “sudden and temporary loss of self-control”. The longer the
defendant waits between the provocation and the killing the harder it will be to rely on the
defence: here, the defendant had thought about the attack for a few hours before actually doing
so. However, the appeal was allowed on the grounds of diminished responsibility.

Loss of control

Under the previous law, defendants had successfully used the defence in many cases thought
to be undeserving: for example, loss of self-control triggered by a crying infant, a nagging
partner or, most commonly, an unfaithful partner. This is no longer possible. The new defence
requires the defendant’s conduct to be partially justified by the context. It is not enough, in other
words, that they (perhaps excusably) simply ‘lost it

The subjective element

R v Duffy [1949]
The appellant attacked and killed her husband with a hammer and a hatchet whilst he was
sleeping in bed. He had subjected her to violence throughout their marriage.

Devlin J gave the classic definition of provocation as:

"Provocation is some act, or series of acts done (or words spoken)... which would cause in any
reasonable person and actually causes in the accused, a sudden and temporary loss of self-
control, rendering the accused so subject to passion as to make him or her for the moment not
master of his or her mind."
The fact that the killing appears frenzied or disproportionate is not in itself sufficient evidence of
this (R v Goodwin [2018] EWCA 2287). It follows from the requirement that the defendant killed
while out of control that a revenge killing cannot ground the defence. This is in fact made explicit
in s.54(4), which states that the defence is not available ‘if, in doing or being a party to the
killing, D acted in a considered desire for revenge’. But, incorporating Ahluwalia, the loss of self-
control does not have to be sudden. As Ahluwalia made clear, it is quite possible for a loss of
control to occur in certain cases, such as those involving cumulative domestic abuse, even if
there is a significant delay between the abuser’s last act and the victim’s reaction. However, the
judge should always direct the jury that, as a matter of pure evidence, the longer the time lag
between the trigger and the killing, the less likely it is that the killing is attributable to D’s loss of
self-control.

First qualifying trigger

The first qualifying trigger is fear of serious violence. Specifically, it operates where ‘D's loss of
self-control was attributable to D's fear of serious violence from V against D or another identified
person’ (S.55(3)). A typical scenario covered by this trigger is the person who, after a period of
cumulative violence, snaps and kills their tormentor

R v Clegg 1995
D, a soldier stationed at a checkpoint in Northern Ireland, fired 4 shots at stolen car approaching
at speed
The 4th shot killed a passenger
D was charged with murder, D argued that he fired in self-defence

Appeal dismissed
The 4th shot was found not to be in self defence since the car had already passed and the use
of force was held to be grossly disproportionate
There was no distinction to be drawn between the use of excessive force in self-defence and
the use of excessive force in the prevention of crime or in arresting an offender

Where a person used a greater degree of force in self-defence than was necessary in the
circumstances he was guilty of murder

R v Martin (Tony) [2001]

D shot two people who were burgling his farmhouse
Both were injured and one died
D was charged with murder but argued that his perception of danger was affected by his
paranoid personality disorder
Appeal allowed; conviction for murder quashed and replaced with manslaughter on the basis of
diminished responsibility
In considering whether the use of force was reasonable such that the defence of self-defence
applies, psychiatric condition should not be taken into account apart from exceptional
circumstances

Second qualifying trigger

The second qualifying trigger, under s.55(4), operates where:

…D's loss of self-control was attributable to a thing or things done or said (or both) which—

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged.

The first question is designed to filter out trivial triggers, such as ‘nagging’, crying babies and
sexual jealousy, because they do not constitute circumstances of an ‘extremely grave
character’. Sexual infidelity is in fact explicitly excluded from the range of qualifying triggers by
s.55(6) (see below).
There are two components to the second question. The trigger must cause D to feel seriously
wronged. If D would have killed anyway, the trigger is inoperative (see also the discussion of
s.55(6) below). In addition, D must be justified in feeling that they have been seriously wronged.
It will normally follow from being the subject of an extremely grave provocation that a person’s
sense of being seriously wronged is justifiable.

If D is at fault in causing V to use violence – for example, D strikes the first blow, or says or
does something provocative (e.g. commits a sexual assault on V) which triggers a violent or
otherwise abusive reaction from V – D is not disabled from using V’s conduct as a qualifying
trigger
R v Johnson [1989]
The appellant was at a nightclub. A woman called him a 'white ni**er'. The appellant was white
but had taken to adopting a West Indian accent. He took exception to the comments and made
violent threats to her. A male friend of hers intervened and poured a glass of beer over the
appellant. A fight developed between the two men and the appellant stabbed the man resulting
in his death. The appellant argued he was acting in self-defence as he believed he was about to
be glassed. He also denied losing any self-control. The judge directed the jury on self-defence
but did not direct the jury on provocation because he considered the provocation was self-
induced. The jury rejected self-defence and convicted him of murder. He appealed contending
the judge had a duty to direct the jury on provocation.
Held:
Conviction for murder quashed and substituted for manslaughter. The judge should have
directed the jury on provocation.

However, if D does so in order to give themself an excuse to kill V when V retaliates, then D is
disabled. This was confirmed in Bowyer [2013] EWCA Crim 322.

R v Bowyer [2013]
The defendant, Barry Bowyer and the victim Gary Suller, were both having a relationship with
Katie Whitbread, a prostitute. Suller was her pimp. The defendant was not aware she was a
prostitute. They were both aware of the other’s relationship. On the night of the killing, the
defendant went to Suller’s house to burgle him. Suller disturbed the burglary and a fight
developed. Suller then revealed that Katie was a prostitute and taunted him that she was her
best earner. The defendant lost his control and beat Suller and tied him up with an electricity
cable. He was alive when he left him but was found dead the following afternoon. The defendant
was addicted to heroin, diagnosed as bipolar and suffered social phobia, anxiety and
depression.

Held:

The defendant had no justifiable sense of being wronged given that he was committing a
burglary at the time of the offence.

Sexual infidelity
Under the old law of provocation, one of the most common triggers, in line with the defence’s
heavily gendered nature, was sexual jealousy and possessiveness. The new law seeks to
remove gender bias from the defence by ensuring that emotions such as sexual jealousy and
unjustified anger are no longer qualifying triggers. Only justified loss of self-control is covered.

To make sure no judge was under any illusions that sexual jealousy was a qualifying trigger,
s.55(6) explicitly excludes it. Now, a person who kills because they witness or hear about the
sexual infidelity of their partner cannot use the defence.

R v Clinton,Parker and Evans [2012]

In the first case, Clinton killed his wife in their family home because of her sexual infidelity. He
was convicted of murder and arson by the Crown Court. He was sentenced to life imprisonment
with a minimum specified term of 26 years. The verdict was returned by the jury after the
defence considered diminished responsibility. The judge ruled that there was insufficient
evidence of loss of control for this issue to be considered by the jury. Clinton appealed.
In the second case, Parker killed his wife in their family home because of her sexual infidelity.
The jury at the Crown Court rejected the loss of control defence and convicted him of murder.
He was sentenced to life imprisonment with a minimum specified term of 17 years.

In the third case, Evans killed his wife in their family home because of her sexual infidelity. The
jury at the Crown Court rejected the loss of control defence and convicted him of murder. He
was sentenced to life imprisonment with a minimum specified term of 11 years.

Held
If sexual infidelity was the only potential trigger to the harmful act, s.55(6)(c) Coroners and
Justice Act 2009 has to be applied.

(2) If there are other circumstances though, in light of ss. 54(1)(c)and 54(3), sexual infidelity
should be taken into account where it is integral to the facts as a whole, being one of the factors
which caused the defendant to lose control.

Clinton’s appeal was allowed because the judge misdirected herself as to the relevance of
infidelity and wrongly did not leave the matter to the jury.

Parker’s and Evan’s appeals were dismissed because their loss of control defences were put to
the jury.

An important clarification was made by the Court of Appeal. In effect, Clinton interprets s.55(6)
to mean that sexual infidelity which prompts a loss of self-control due to sexual jealousy,
possessiveness or family honour is not a qualifying trigger. However, if the sexual infidelity
provides the context within which another trigger operates, it must be considered.

Dawes, Hatter and Bowyer [2013]

Facts: The defendant, Mark Dawes, went to his estranged wife’s (i.e. they no longer lived
together) house and found her asleep on the sofa with Graham Pethard. He awoke him and
started punching him in the face and hitting him with a bottle. According to the defendant,
Pethard took the bottle off him and attacked him. The defendant then grabbed a knife from the
kitchen and fatally stabbed him in the neck. At trial he raised the defence of self-defence which
was not accepted by the jury. The judge held that the defence of loss of control could not be put
to the jury under s.55(6)(a) of the Coroners and Justice Act 2009) as he had incited the
violence. He was convicted of murder and appealed contending the defence of loss of control
should have been put to the jury.

Held: To rely on loss of control it must be shown that the defendant was in a situation of an
extremely grave character and had been seriously wronged. Thus, the judge was correct in not
putting the defence of loss of control to the Jury.
The objective element
In keeping with the old law of provocation, the new partial defence also contains an objective
element. Under s.54(1)(c), the reaction of the defendant must be consistent with what might be
expected of ordinary people of D’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of D

R v Willcocks (2016) the question for the court on appeal was whether a personality or mental
disorder of the defendant was one of the circumstances the jury should take into account in
deciding whether the defendant’s reaction was to be expected. The Court of Appeal said that
the trial judge was right to refuse to allow this to be taken into account, since the only relevance
of this disorder was that it reduced the defendant’s powers of self-restraint. The circumstances
that the jury are able to take into account are circumstances to which any ordinary person may
be subject (e.g. their race, religion, gender, sexual preference, physical appearance, past
events and experience).

Another way of saying this is that it disqualifies the defendant from relying on the defence if their
reaction was triggered not by an external element but by a character flaw, such as being
unusually intolerant or aggressive, or being intoxicated

R v Asmelash [2013]
D was insulted and taunted by V, D was drunk when he stabbed the victim to death
It was claimed that direction given by judge was wrong as it excluded evidence of intoxication
The judge directed the jury that voluntary intoxication was not within the ‘circumstances’ in
s54(c) Coroners and Justice Act 2009

Appeal dismissed; the judge’s direction was correct

Voluntary intoxication by the defendant do not form part of the circumstances relevant to the
loss of control defence under s54(c) Coroners and Justice Act 2009

R v Martin [1989]
the appellant had driven whilst disqualified from driving. He claimed he did so because his wife
threatened to commit suicide if he did not drive their son to work. His wife had attempted suicide
on previous occasions and the son was late for work and she feared he would lose his job if her
husband did not get him to work. The appellant pleaded guilty to driving whilst disqualified
following a ruling by the trial judge that the defence of necessity was not available to him. He
appealed the ruling.

Held:
Appeal allowed. The defence of duress of circumstances should have been available to him
following the decisions in R v Conway and R v Willer. No distinction was to be drawn between
driving whilst disqualified and reckless driving. It did not matter that the threat of death arose
through suicide rather than murder.

Diminished responsibility
It should be noted that, unusually – and contrary to the position with loss of self-control – the
burden of proof is on the defence. The standard of proof is the civil standard: that is, on the
balance of probabilities.

(1) A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if
D was suffering from an abnormality of mental functioning which –

(a) arose from a recognised medical condition,

(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection
(1A), and

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are –

(a) to understand the nature of D’s conduct;

(b) to form a rational judgement;

(c) to exercise self-control.

Abnormality of mental functioning arising from a recognised mental condition

R V VINAGRE [1979]
The defendant (D) killed his wife (V) after suspecting her of having an affair. At the defendant’s
trial for murder he raised evidence to suggest he suffered from 'Othello Syndrome’, which
involves extreme feelings of jealousy without any real foundation.

Held: CONTD's plea was successful and got 7 years manslaughter by reason of diminished
responsibility. However, in the Court of Appeal, Lord Lawton was unhappy with the verdict,
referring to D's evidence as 'flimsy' and incredibly unfair on the victim.
R v Brennan [2014]
D killed V in a savage attack
D applied for the diminished responsibility defence under s2 Homicide Act 1957
D presented expert evidence severe mental illnesses impaired his ability to exercise self-control
at the time of the attack
The Crown did not call an expert witness
However, the charge of murder was not withdrawn from the jury and D was convicted for murder

Appeal allowed – the conviction for murder was overturned and substitute for manslaughter
The charge of murder will be withdrawn from the jury if there is uncontradicted evidence of
diminished responsibility

R v Hobson [1997]
The appellant stabbed and killed her abusive alcoholic partner in Jan 1992. At her trial the
defence of self defence and provocation were rejected by the jury and she was convicted of
murder. At the time of her trial Battered Women’s Syndrome was not included in the standard
British classification of mental diseases. The appellant appealed contending that at the time of
her trial Battered Women’s Syndrome would not have been readily considered by practising
psychiatrists. She now had reports from two psychiatrists that she was suffering from Battered
Women’s Syndrome at the time of the killing.

Held:

The appellant's conviction for murder was quashed and a retrial ordered.

Alcohol and drugs

R v Fenton (1830)
The defendant threw some stones down a mine shaft. This caused scaffolding to collapse and
resulted in the death of some miners.

Held:
The tort of trespass was sufficient to constitute an unlawful act for the purposes of constructive
manslaughter.
NB. This position of the law was changed in R v Franklin 1883 where it was held that the act
must be against criminal law as opposed to civil law to amount to an unlawful act for the
purposes of manslaughter.

R v Dietschmann [2003]
The defendant was drunk when he killed the victim. Medics said that he had a “depressed tired
reaction”; in other words, he was depressed following the death of his aunt.

Held: The court held that it is possible to use the defence of diminished responsibility even
though he was drunk, as long as the media condition was the substantial cause of what he did.
Although this case was decided under the old law (pre-2009) it seems likely the outcome of this
case would be the same today.

R v Stewart [2009]

The appellant was a chronic alcoholic sleeping rough. One time when drunk he killed a man. He
raised the defence of diminished responsibility. The jury rejected the defence and convicted him
of murder. He appealed.

Held: The appeal was allowed. Lord Judge CJ said that in such cases the jury should consider
“the extent and seriousness of the defendant’s dependency”, whether D’s “ability to control his
drinking or to choose whether to drink or not, was reduced”, whether he could abstain from
drinking, and whether D was drinking more than usual because it was a special occasion.
Although this case is decided under the old law it is likely a similar approach would be followed
under the current law.

R v Golds [2016]
The issue arose as to the meaning of substantial under the s2(1)(b) Homicide Act
Substantial’ did not mean ‘having some substance’ or ‘anything more than merely trivial’ but
rather required something ‘important or weighty’: [27]
Ordinarily the judge should not have to define the term substantial in his direction to the jury, it
should be taken by its ordinary meaning by the jury, but if the issue arises as to whether being
more the merely trivial suffices, the judge should clarify that it does not: [43]
Under s2(1)(b) Homicide Act, substantial means significant or important, not just more than
trivial

R V R [2010]
The defendant killed his cousin because his wife was having an affair with him. At his murder
trial he relied on the defence of diminished responsibility. He was convicted of murder. D
appealed on the basis that the jury had not been given a definition of “substantial” within the
definition of ‘diminished responsibility’.

⇒ Definition of diminished responsibility: The defendant must show that he/she suffered from an
abnormality of mental functioning, arising from a recognised medical condition, which provides an
explanation for committing the killing. It must be shown that the abnormality substantially impaired
his/her ability to understand the nature of his/her conduct, form a rational judgement, and exercise self-
control.
Held: Lord Judge CJ said that “the jury must decide for itself” whether the defendant’s
impairment was substantial.

CONSTRUCTIVE MANSLAUGHTER
Hyam (Hyam [1975] AC 55) and Smith (Smith [1961] AC 290) both killed in the course of doing
something extremely dangerous. In the former case, Hyam threw a petrol bomb through V’s
letter box, while, in the latter case, Smith drove his car extremely dangerously in an attempt to
dislodge a police officer trying to arrest him. Both victims were killed. The House of Lords found
both defendants had been properly convicted of murder. If these cases came to court today, the
outcome would be different. Murder requires an intention to kill or cause grievous bodily harm.
And what Hyam and Smith did, although wicked and dangerous, was not done in furtherance of
an intention to kill or cause serious injury. They could, however, be charged with:

reckless manslaughter, if the prosecution could prove foresight of death or serious injury
gross negligence manslaughter, if, irrespective of whether the prosecution could prove foresight
of death or serious injury, the jury considered their actions to be grossly negligent as to the risk
of death
constructive manslaughter, since both defendants were killed in the course of doing something
illegal and dangerous.

Distinctiveness
There are, however, killings where only one form should be charged. This distinctiveness should
be understood. Reckless manslaughter is rarely charged. Since acting with foresight of death or
serious injury will usually be a criminal offence, almost all cases of reckless manslaughter will
also be cases of constructive (unlawful act) manslaughter. Since this explanation tells us all we
need to know about reckless manslaughter, no more will be said about it in this topic.

Constructive manslaughter is the correct charge when there is evidence that death resulted
from an unlawful and objectively dangerous act of D, but there is insufficient evidence that D
intended (or foresaw) death or serious injury or was grossly negligent as to the risk of death.

Constructive manslaughter
Constructive manslaughter is also known as unlawful act manslaughter. It is called constructive
manslaughter because liability does not derive, as it usually must, from a combination of an
actus reus and mens rea which match a consequence with an equivalent mental state. Rather,
liability for one crime is constructed out of the elements of another. For example, one can be
guilty of manslaughter if death results from the commission of an assault, criminal damage,
burglary, robbery or even theft.
The prosecution’s task is to prove:

the elements of the core offence (e.g. the assault, the criminal damage, etc.)
the objective likelihood that harm would result from the commission of that offence, and
a causal connection between the core offence and the death.

Actus reus: constructive manslaughter

An act
R v Hayward 1908
The defendant chased his wife out of the house shouting threats at her. She collapsed and died.
He did not physically touch her. She was suffering from a rare thyroid condition which could lead
to death where physical exertion was accompanied by fright and panic. Both the defendant and
his wife were unaware she had this condition.

Held: The defendant was liable for constructive manslaughter as his unlawful act (assault)
caused death. The egg shell (thin) skull rule applied (see notes on this here). He was therefore
fully liable despite the fact an ordinary person of reasonable fortitude would not have died in
such circumstances.

R v Lowe [1973]
The appellant's child died from neglect. The trial judge directed the jury that if they found him
guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds
that neglect was an unlawful act. The jury convicted him of both neglect and manslaughter.

Held:
Appeal allowed. For constructive manslaughter there must be an unlawful 'act'. The offence
could not be committed by an omission.

An act which is criminally unlawful

R v Franklin (1883)
The appellant threw a box into the sea off Brighton Pier. The box struck a swimmer who died as
a result of being hit.

Held:
For constructive manslaughter there must be an unlawful act. The unlawful act must constitute a
criminal offence. It is not sufficient that the act committed is against civil law.

R v Larkin (1942)
The appellant waved a razor about intending to frighten his mistress's lover. He claimed his
mistress, who was drunk, blundered against the razor and was killed when it cut her throat.

Held:
Conviction upheld.
An unlawful act had been committed consisting of the assault against the mistress's lover. This
was a dangerous act in that it was one which a sober and reasonable person would regard as
dangerous.

R v Lamb [1967]
Two boys were playing with a revolver. There were two bullets in the chamber but neither were
opposite the barrel. The two boys believed that this meant it would not fire. One of the boys
pointed the gun at the other and fired. As he pulled the trigger the chamber turned and the gun
went off killing the boy. The other was charged with constructive (unlawful act) manslaughter.

Held: There was no unlawful act as no assault had been committed as the victim did not believe
the gun would go off therefore he did not apprehend immediate unlawful personal violence.

R v Scarlett [1993]
D, a publican, ejected a drunk from a public house, who then fell backwards down the steps and
died following a fractured skull. D’s conviction for constructive manslaughter was quashed on
the basis that he feared the drunk was about to attack him and so his use of force was lawful
self-defence. This meant that he had not committed the core offence that constructive
manslaughter requires.

Constructive manslaughter and crimes of negligence: a qualification

Andrews v DPP (1937)

The appellant drove a van above the speed limit and overtook another car. As he did so he
struck a pedestrian and killed him.

Held: His conviction for manslaughter was upheld. It is quite difficult to interpret the judgement,
but seems to suggest strict liability offences and cases of negligence cannot exist in
constructive manslaughter.

In other words, you cannot charge constructive manslaughter if the only criminal wrong
committed by the defendant is speeding, driving while intoxicated, dangerous driving or driving
without due care. In such cases, the prosecution must charge gross negligence manslaughter,
which will necessitate the prosecution proving not merely the carelessness or dangerousness
required by the core crime but also gross negligence as to death.

The criminal act must be dangerous

R v Church [1966]
D was knocked the victim unconscious during a fight
D dumped her body in the river, thinking that she was already dead
Medical examination showed that D died from drowning
The judge directed the jury to consider the ‘whole course of conduct of the accused as one’

D’s conviction for manslaughter was upheld

The principle in Rv Thabo Meli [1954] 1 WLR 228 applies to manslaughter – the mens rea need
not exactly coincide with the act causing death if the act is part of a connected series of acts
which at some point of time coincided with the mens rea
To establish constructive/unlawful act manslaughter, the risk of harm have been capable of
being foreseen by sober and reasonable people
R v Mitchell [1983]
D and another man S became involved in a scuffle in a Post Office
D pushed S, who fell onto an elderly lady, causing the lady injuries from which she later died

Whether the person at whom the act is aimed must also be the person whose death is caused
for manslaughter to be made out

R V DAWSON [1985]
The defendant and two other men carried out an attempted robbery at a petrol station. The
cashier at the petrol station was a 60 year old man who, unknown to the defendants, suffered
from a heart disease. Dawson had pointed a replica handgun at the victim and his partner had
banged a pick-axe handle on the counter. Money was demanded, but the victim pressed the
alarm button and the defendants fled empty handed. Shortly afterwards the victim collapsed and
died from a heart attack.

Held: The defendants were not convicted of manslaughter. As the reasonable person in the
defendants’ position during the attack would not have known of the man’s heart condition they
cannot be guilty; in other words, the reasonable person would not see their actions as
dangerous.

Watson [1989
The appellant smashed a window and broke into the house of an 87 year old man, Harold
Moyler. Moyler went to investigate and the appellant shouted abuse at him and ran off. The
police arrived and Moyler suffered a heart attack and died 90 minutes after the initial break in.

Held: His conviction was quashed as it could not be established that the break in was the cause
of the heart attack. However, the Court of Appeal held that a sober and reasonable person
would regard the act of the appellant as dangerous as they would have known of the age and
frail condition of the victim.
The dangerous act must cause death
Establishing causation is not generally a problem for the prosecution, as was seen in Topic 4. It
will normally follow from the fact that but for D’s act the death would not have occurred, although
this is not always the case. D’s act must be the substantial and operating cause, which it will not
be if, independently of D’s action, another cause intervenes which rids D’s initial act of all causal
potency.

R v Kennedy [2007]
Kennedy prepared a syringe of heroin for Marco Bosque, Bosque injected himself and died
Kennedy was convicted for manslaughter
Appeal allowed; conviction overturned
Bosque had made a voluntary and informed choice to inject himself which amounted to a novus
actus interviens
voluntary and informed choice by the victim breaks the chain of causation

R v Cato [1976]
The appellant purchased some heroin and took it to his home which he shared with Anthony
Farmer and two others. He invited them all to use the heroin. They each prepared their own
solution and then paired off to inject each other. Farmer prepared his own solution and the
appellant injected him. This was repeated during the night. The following day Farmer was found
dead. The appellant was convicted of manslaughter and administering a noxious thing under
s.23 OAPA 1861.

Held: Appeal was dismissed. The Conviction for manslaughter was upheld. The difficulty intros
case was that it was said that the unlawful act (needed in constructive manslaughter cases) was
possession, but this seems hard to support; it would have been better to have said the injecting
of the drugs was the unlawful act as it poisoned the victim contrary to s.23 Offences Against the
Persons Act 1861.

Mens rea
As has been explained, constructive liability involves the defendant being held liable for crime A
on the basis of their liability for committing crime B. If, therefore, D is being charged with
constructive manslaughter (crime A) on the basis of having committed an assault (crime B), all
the prosecution has to establish is that V’s death was caused as a result of the assault (crime
B). Setting aside proof of causation, which is a given, its first task is to prove the actus reus of
assault (e.g. a punch). Its second task is to prove the mens rea for assault, that is intending or
foreseeing (recklessness) unlawful physical contact with V.

Gross negligence manslaughter (manslaughter by breach of duty)

For gross negligence manslaughter it must be shown that:

(1) The defendant owed the victim a duty of care;

(2) The defendant breached that duty of care;
(3) The breach of the duty caused the death of the victim;
(4) The breach was so gross as to justify a criminal conviction.

where death is caused by an omission, such a duty exists only where it has been voluntarily
assumed, or where there is a contract, special relationship and so on. So a lifeguard may be
guilty of gross negligence manslaughter for failing to save a child drowning in their swimming
pool, but not an expert swimmer who is in attendance and witnesses the whole affair.

Wacker [2002]
, a lorry driver transported illegal immigrants in an airless container, which led to the deaths of
most of them. He was held properly convicted of manslaughter for his failure in this regard.
Although in the civil law such a duty would probably not have arisen due to the immigrants’
complicity in an illegal enterprise, no such structure applied in the criminal law, where deeper
considerations of public policy applied.

A similar result was seen in Willoughby [2004] EWCA Crim 3365, where D and V torched D’s
building for the purpose of committing an insurance fraud, during which V died. Again, although
no duty of care would have arisen in civil law, a duty did arise in criminal law and D was guilty of
manslaughter.

Adomako [1995]
The appellant was an anaesthetist in charge of a patient during an eye operation. During the
operation an oxygen pipe became disconnected and the patient died. The appellant failed to
notice or respond to obvious signs of disconnection. The jury convicted him of gross negligence
manslaughter.

Held: His conviction for gross negligence manslaughter was upheld by the House of Lords.

⇒ Lord MacKay LC: “…gross negligence…depends…on the seriousness of the breach of the duty
committed by the defendant in all the circumstances in which he was placed when it occurred and
whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the
circumstances as to amount in the jury’s judgement to a criminal act or omission”.

Duty of care
R v Rose [2017]
D, an optometrist, performed a routine eye examination, determining that V did not need
glasses
5 months later, V fell extremely ill from hydrocephalus (a buildup of brain fluid) and passed away
V’s cause of death was recognisable by any competent optometrist at the time of D’s eye-test
through a specific examination
Furthermore, all optometrists had a statutory duty to perform such an examination during routine
eye-tests
D had performed the examination at the time, but when looking at the tests, she accidentally
viewed the images from the previous year
D was convicted by gross negligence manslaughter and appealed the conviction

Appeal allowed; D was acquitted of gross negligence manslaughter

There was no serious and obvious risk of death at the point of breach

To establish gross negligence manslaughter, a serious risk of death must be reasonably

foreseeable without considering the information which D should have had available had they not
breached their duty.

Subjective Reckless Manslaughter

⇒ Subjective reckless manslaughter is where the defendant killed the victim foreseeing a risk of death or
personal injury.

⇒ Subjective reckless manslaughter is rare because whenever there is subjective reckless manslaughter it
will be possible to charge constructive or gross negligence manslaughter, both of which are easier to
prove.