Court of Appeal
| Author | J. A. Coutts |
| Published date | 01 November 1989 |
| Date | 01 November 1989 |
| DOI | 10.1177/002201838905300403 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
CONSTRUCfIVE
MANSLAUGHTER-UNLAWFUL
ACf
R. v. Watson
Constructive manslaughter is established where one person causes
the
death
of
another
by an act which is unlawful and which is
dangerous in
the
sense
that
all reasonable people would inevitably
realise that it must subject the victim to the risk of some harm
(whether the defendant realises it
or
not).
The
courts have not
always
been
entirely clear in identifying and analysing the unlawful
and dangerous act which is relied on as having caused the victim's
death. Clearly
not
all unlawful acts are dangerous in the sense
required to be proved by the prosecution
and
some unlawful acts
may only be "dangerous" in the circumstances prevailing in the
particular case and/or the knowledge which may be inferred to the
defendant
and
to the reasonable man.
For
example, the unlawful
act of burglary is not, at first sight, an act which one would regard
as "dangerous". Given the right circumstances, however, such as
knowledge by the burglar that the building is occupied by an
elderly
and
frail person who might suffer some harm if startled by
the intruder, does
that
particular burglary become adangerous
act as well as being an unlawful
one?
The
case of R. v. Watson
[1989] 2 All
E.R.
865 gives some insight into how the courts should
react in this type of case and also highlights the problem of properly
establishing causation in such a case.
The
appellant in
the
instant case, together with another, threw
abrick through ahouse window and
broke
in, late at night,
intending to steal. They confronted the householder, an 87 year
old man suffering from a serious heart condition, who was
awakened by the disturbance, and verbally abused him.
The
intruders left without stealing anything
and
the householder died
some ninety minutes afterwards.
At
his trial, the appellant pleaded
guilty to burglary and was convicted by the jury on a manslaughter
charge also preferred against him.
On appeal,
the
first contention on behalf of the appellant was
that the judge
had
misdirected the jury on the extent of knowledge
419
Journal
of
Criminal Law
attributable to the reasonable man in deciding whether the burglary
was a dangerous act. Having correctly defined constructive
manslaughter, the judge's view was that the knowledge gained by
the appellant throughout his stay in the house could be ascribed to
the reasonable man. This was contrary to the views canvassed on
behalf of the appellant that the unlawful act of burglary under
section 9(1)(a) Theft Act 1968 is committed at the moment of
trespassory entry with intent to steal and that the appellant should
be judged on the basis of his knowledge at that time of entry.
(There was no evidence that, at the time of entering the premises,
the appellant knew anything about the age or physical condition
of the occupant).
Agreeing with the trial judge on this issue, the Court of Appeal
declared that the unlawful act comprised "the whole of the
burglarious intrusion" during which time the appellant (and the
reasonable man) must have become aware of the occupant's
approximate age and frailty.
It
followed that the jury had been
properly directed by the judge on this issue.
Afurther ground of appeal, however, related to the matter of
causation and how this had been dealt with by the judge in
response to a question from the jury after retiring. During the
course of the trial there had been some difference of opinion
between the medical expert for the prosecution and the doctor
called by the defence. The former asserted that the burglary caused
the death while the latter took the view that the excitement and
stress of the burglary would have been over within 20 minutes and
that the burglary could not have been operating and subsisting as
a cause of death 90 minutes later. (It was further suggested that
the heart condition could have caused death at any time and that
the arrival of police and of workmen to board up the window
might have been responsible for the heart attack.) The jury had
obviously been concerned about this issue and, after retiring, had
put a question on it to the judge. His response had been to direct
them to consider whether, as a matter of logic, it could be said
that the burglary was the cause of: the arrival of the police; the
need to board up the window; and hence the heart attack -
whichever of the three matters might have been the precipitating
event.
420
Court
of
Appeal
Counsel for the appellant had not been given the opportunity
to say anything on this new issue. Notwithstanding that he might
not have been able to contribute anything which could have been
of assistance to his client, the Court of Appeal recognised that he
should have been afforded the opportunity. Coupled with the fact
that the Appeal Court discerned some lack of conviction on the
jury's part about the correctness of the prosecution medical
evidence, their Lordships felt obliged, although not without
hesitation, to conclude that the verdict of guilty on the
manslaughter count was unsatisfactory. The manslaughter convic-
tion was, accordingly, quashed.
R.1.
Cooper
Law Department,
Newcastle upon Tyne Polytechnic
AUTOMATISM-INSANE
AND
NON-INSANE
Rv. Hennessy
Smith and Hogan in discussing R. v. Quick [1973] 3 All
E.R.
347,
raised the question of what would have happened had the court
found
"that
it was the diabetes and not the insulin which caused
the automatism", (Criminal Law: Cases and Materials, 3rd
ed.,
1976, p. 195). In R. v. Hennessy [1989] 2 All
E.R.
9, the Court of
Appeal has considered the problem and in the light of the
comments of Lawson L.J. in Quick, have decided that in such a
case the defendant would legally be adjudged insane.
In Hennessy, the defendant, who was a diabetic, pleaded not
guilty to an indictment containing two counts; the first of taking a
conveyance without authority contrary to section 12(1) of the
Theft Act 1968' and the second of driving whilst disqualified
contrary to section 99(b) of the Road Traffic Act 1972. At the
trial the defendant sought to raise the issue of non insane
automatism on the basis that he had failed to take his proper,
twice a day, dose of insulin for two or three days and was therefore
in a state of automatism. The trial judge ruled that the defendant's
"mental condition, if it existed, was caused by disease, namely
diabetes" and that it fell within the M'Naghten Rules. The
defendant changed his plea to guilty.
421
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