‘Dangerousness’ in Unlawful Act Manslaughter

Date01 August 2015
DOI10.1177/0022018315597849
Published date01 August 2015
AuthorTony Storey
Subject MatterCourt of Appeal
Court of Appeal
Court of Appeal
‘Dangerousness’ in Unlawful Act Manslaughter:
Keywords
Unlawful act manslaughter, dangerousness, aggravated arson
In June 2013, the appellants, JF (a boy aged 14½) and NE (a girl aged 16), set fire to an old duvet in the
basement of a derelict building in Croydon, south London. The fire spread from the duvet to a pile of old
tyres which filled the basement with ‘thick, acrid smoke’ as they burned. A 35-year-old Polish man, Syl-
wester Mendzelewski, who was sleeping rough in the building at the time, was trapped in the basement
and died from the effects of smoke inhalation. JF and NE were charged with manslaughter (count 1) and
aggravated reckless arson, contrary to s. 1(2) of the Criminal Damage Act 1971 (count 2). They appeared
before HH Judge McKinnon and a jury at Croydon Crown Court in June 2014. Neither appellant gave
evidence to the court but in interview JF said that he had known that people slept in the building but had
believed no one to be there at the time. NE said that she had thought there was no one in the building.
The trial judge directed the jury on manslaughter based on an unlawful and dangerous act (‘unlawful
act manslaughter’). He told them that, in order to convict the appellants, it had to be proved that the
appellants had committed an unlawful act, namely arson. He then told them that the Crown had to prove
two further elements in order to establish manslaughter: first, that ‘at the time of starting the fire the
defendant foresaw or contemplated the possibility that some person or persons, known or unknown,
might be in the building’; secondly, that the unlawful act was dangerous ‘in that all sober and reasonable
people would inevitably have recognised that such person or persons might sustain some physical harm
however slight’. The appellants were convicted of manslaughter but acquitted of aggravated reckless
arson. However, they were convicted of reckless arson, contrary to s. 1(1) of the Criminal Damage Act
1971. On appeal, the appellants submitted that their acquittal of aggravated reckless arson showed that
the jury found that they did not have the subjective appreciation of the risk of harm to any person. It was
also contended that the objective test regarding dangerousness should have been adapted to take into
account (i) the ability of persons of similar ages to them to foresee risks and (ii) JF’s mental capacity.
A consultant forensic and clinical psychologist had given evidence that JF had a low IQ (in the range 68–
74) and had ‘poor’ reasoning skills.
HELD, DISMISSING THE APPEALS, that there had been no misdirection on the established law
adverse to the appellants (at [22] and [27]).
For unlawful act manslaughter, two elements had to be ‘carefully differentiated: the requisite state of
mind and the requirement of dangerousness in relation to the unlawful act’ (at [16]). The Court of Appeal
dealt with these in reverse order. Starting with the second element, and following R v Larkin [1943] 1 KB
174, RvChurch [1966] 1 QB 59 and DPP v Newbury & Jones [1977] AC 500; [1976] 2 WLR 918, the
test for determining whether an unlawful act was dangerous is objective (at [17]–[21]), with the key
question being whether ‘all sober and reasonable people’ would recognise the risk of some harm arising
from the unlawful act. In the 1980s, a subjective gloss had been added to the test whereby the circum-
stances known to the defendant were attributed to the sober and reasonable bystander (RvWatson (1989)
The Journal of Criminal Law
2015, Vol. 79(4) 234–237
ªThe Author(s) 2015
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DOI: 10.1177/0022018315597849
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