Court of Appeal
| DOI | 10.1177/002201838705100202 |
| Published date | 01 May 1987 |
| Date | 01 May 1987 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
CONSTRUCTIVE MANSLAUGHTER-THE BASIC ELEMENTS
R.
v.
Goodfellow
In the present case,
(1986) 83
Cr.App.R.
23,
the Court
of
Appeal
confirmed the harsh nature of the doctrine of constructive
manslaughter and once again denied the apparent mitigating effect
thereon
of
the ruling in
R.
v.
Dalby (1982) 74
Cr.App.R.
348.
The defendant, who lived in a council house with his wife and
three children, wished to be rehoused owing to problems with two
neighbours, but was unable to exchange his house for another as he
was in arrears with his rent. He decided, therefore, to set his house
on fire in such a way as to make it seem like a petrol bomb attack by
one
of
the two neighbours. One night, he poured petrol over
furniture in the living room and onto its walls and ignited it. His
family and girlfriend were in the house at the time but the
defendant’s plan was that the adults in the house would take the
children from it once the fire was started. The fire spread very
rapidly and, in the event, the defendant’s wife, son and girlfriend
died as a result
of
the fire. The defendant was charged,
inter
ah,
with three counts
of
manslaughter. He was convicted after the trial
judge, relying in part on a passage in
Archbold,
had given a
direction to the jury on the law
of
manslaughter which explained in
some detail what the prosecution had to prove to establish
constructive manslaughter based on the doing
of
an unlawful and
dangerous act but which also included observations which were
more appropriate
to
cases
of
manslaughter by killing recklessly
(recklessness, here, being given the meaning ascribed to it in
R.
v.
Caldwell(l962)
A.C.
341
and
R.
v.
Lawrence (1982)
A.C.
510).
The
main ground
of
appeal was that the trial judge did not direct the jury
adequately on the law
of
manslaughter in relation to the facts
of
the
case, and in particular directed them on the basis
of
a passage in
Archbold,
now appearing in
42nd
ed. para
20-49(7),
which was the
subject
of
adverse criticism by their Lordships in the Privy Council
in
Kong Cheuk Kwan
v.
The Queen (1985) 82
Cr.App.R.
18,
a brief
report
of
which ruling was drawn to the attention
of
the trial judge
151
Journal
of
Criminal Law
shortly before he came to sum up the case to the jury. The passage
was criticised by their Lordships as confusing causing death by an
illegal act
of
violence with what was said in
R.
v.
Caldwell
(above),
what was said in
R.
v.
Lawrence
(above) and what was said in
R.
v.
Bateman
(1925) 19
Cr.App.R.
8.
Lord Lane C.J., delivering the judgment
of
the Court
of
Appeal,
observed that there had been some discussion between counsel and
the trial judge during the course
of
the trial as to whether the jury
should be directed on the
Lawrence
or
the “unlawful act” basis, and
that the trial judge appeared to favour the former. In his Lordship’s
opinion, this was a case which was capable of falling within either
or
both types
of
manslaughter. On the
Lawrence
aspect, he stated,
“the jury might well have been satisfied that the appellant was
acting in such a manner as to create an obvious and serious risk of
causing physical injury to some person, and secondly that he,
having recognised that there was some risk involved, had
nevertheless gone on to take it”, (p.
26).
This was equally a case, his
Lordship went on, for the “unlawful and dangerous act” direction:
“Where the defendant does an unlawful act of such a kind as all
sober and reasonable people would inevitably recognise must
subject another person to, at least, the risk of some harm resulting,
therefrom, albeit not serious harm and causes death thereby, he is
guilty
of
manslaughter:
Church
(1966)
1
Q.B.
59”,
(p.
26).
Defence counsel submitted that the present case was not a case
of
“unlawful act” manslaughter, because the actions
of
the defendant
were not directed at the victim as was now required following the
ruling
of
the Court
of
Appeal in
R.
v.
Dalby
(1982) 74
Cr.App.R.
348,
where Walker L.J. had stated that
“.
. .
where the charge
of
manslaughter is based on an unlawful and dangerous act, it must be
an act directed at the victim and likely to cause immediate injury,
however slight”, (at p.
352).
Lord Lane explained that he did not
think that Waller L.J. was suggesting that there must be an
intention on the part
of
the defendant to harm
or
frighten
or
a
realisation that his acts were likely to harm
or
frighten. Indeed, he
remarked, such a suggestion would have been contrary to the dicta
of
Lord Salmon in the House
of
Lords in
D.P.P.
v.
Newbury
(1976)
2
All
E.R.
365,
expressly disapproving
of
a passage in the judgment
of
Lord Denning M.R. in the case
of
Gray
v.
Barr
(1971) 2
All
E.R.
949,956,
in which he asserted that the unlawful act must be done by
152
Court
of
Appeal
the defendant with the intention
of
frightening or harming someone
or with the realisation that it is likely to frighten or harm someone.
What Waller L.J. was intending to say, Lord Lane believed, was
that there must be no fresh intervening cause between the act and
the death. His Lordship added that
R.
v. Pagetr (1983) 76
Cr.App.R. 279 and
R.
v. Mitchell (1983) 76 Cr.App.R. 293, both
seemed to support this interpretation
of
Dalby and he concluded by
stating that: “The questions which the jury have to decide on the
charge
of
manslaughter
of
this nature are: (1) Was the act
intentional? (2) Was
it
unlawful? (3) Was
it
an act which any
reasonable person would realise was bound to subject some other
human being to the risk
of
physical harm albeit not necessarily
serious harm?
(4)
Was that act the cause
of
death?”, (p. 27).
Lord Lane noted that the trial judge did in fact direct the jury on
this type
of
manslaughter. It was true that he went further and
added observations which were more appropriate
to
the Lawrence
type
of
manslaughter but,
if
anything, his Lordship remarked, those
passages resulted in a direction which was more favourable to the
defendant than if they had been omitted. Thus, he concluded that
the convictions for manslaughter were neither unsafe nor
unsatisfactory and the appeal was dismissed.
The unreserved acceptance by the Court
of
Appeal
of
the
suitability
of
the present case for a Lawrence direction regarding
killing recklessly re-inforces the recent advance
of
Caldwelll
Lawrence-recklessness into the law
of
involuntary manslaughter
(cf. Kong Cheuk Kwan v. The Queen (1985) 82 Cr.App.R. 18;
(1986) 50 J.C.L. 379).
David Cowley LL.
B.
Senior Lecturer in Law
The Polytechnic
Newcastle upon Tyne
DEFENCE OF DURESS-MEANING
OF
“DURESS”
R.
v. Ortiz
In the present case, (1986)
83
Cr.App.R. 173, the defendant, a
Colombian businessman, was invited by a business acquaintance,
153
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