Reconstructing unlawful and dangerous act manslaughter
| Author | Gavin Leigh |
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
| DOI | http://doi.org/10.1177/0022018319860921 |
| Subject Matter | Articles |
The Journal of Criminal Law
2019, Vol. 83(4) 272–283
Reconstructing unlawful and
ª The Author(s) 2019
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dangerous act manslaughter
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DOI: 10.1177/0022018319860921
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Gavin Leigh
Coventry University Law School, UK
Abstract
In the last three decades, unlawful and dangerous act manslaughter has been subject to con-
tradictory recommendations for reform. The debate has been dominated in that time by
disagreement over the change of normative position, considered when attempting to justify
liability for causing death in the commission of a crime with the objective risk of injury in the
circumstances. The article suggests that this current definition of unlawful and dangerous act
manslaughter is defensible if appropriately interpreted by the Supreme Court. The inter-
pretation requires an intended unlawful act and the foreseeable risk of injury from a specific
circumstance known to the defendant before the unlawful act.
Keywords
Unlawful and dangerous act manslaughter, change of normative position, moral luck
Introduction
Unlawful and dangerous act manslaughter has been deconstructed by judges and academics, but
never reconstructed in a satisfactory form. The Court of Appeal’s recent view,1 supporting
Andrew Ashworth’s,2 is that wide-ranging consultation and legislation is the way forward. How-
ever, there have been two contradictory proposals for reform from the Law Commission in the last
three decades alone. This article will suggest that the current definition, as laid down in DPP v
Newbury and Jones,3 can be defended by the idea that the actus reus elements of the unlawful
act should be intended by the defendant and that the foreseeable injury should exist before the
crime.
1. R v JF and NE [2015] EWCA Crim 351; [2015] All ER (D) 117 (March) at [33] [JF and NE].
2. A Ashworth, ‘Case Comment’ [2013] 4 Crim LR 335 at 337.
3. DPP v Newbury and Jones [1977] AC 500 (HL) [Newbury and Jones].
Corresponding author:
Gavin Leigh, Coventry University Law School, Priory Street, Coventry CV1 5FB, UK.
E-mail: ac2599@coventry.ac.uk
Leigh
273
Unlawful act manslaughter has been described as ‘illogical’,4 ‘unattractive’5 and ‘antiquated’.6 It
involves the attribution of criminal liability for causing death in the commission of a crime,7 provided
there was the foreseeable risk of bodily harm, which need not be serious harm,8 in all the circumstances
that were known to the defendant.9 This objective test takes no account of the defendant’s capacity to
foresee what the reasonable person would have foreseen.10 Furthermore, the degree of foreseeable risk
required is unclear.11 The crime must be a more than minimal cause of death,12 but need not be directed
at the victim.13
The main criticism of unlawful act manslaughter has been its constructive nature. This is reflected in
the gap between the degree of foreseeable harm required and the death caused, which has created
arguments about whether the defendant should be held liable for causing a death that is so dependent
on luck. This can also be seen in the lack of a clearly foreseeable relationship between some crimes
against property and the death caused. In the light of the latter point, the test of dangerousness performs
the task of distinguishing between a conviction for the unlawful act and a conviction for unlawful act
manslaughter.
Much of the debate surrounding unlawful act manslaughter has centred on the discrepancy between
the degree of harm risked and the harm actually caused by the defendant. Some have argued that this
means of proving manslaughter could be justified by carrying out an act with the intent to cause bodily
harm, or at least an ‘attack’, which involves an injurious offence against the person.14 Horder defended
the idea that unlawful and dangerous act manslaughter should only be based on an act with the intent to
cause bodily harm. He did this through his argument that the moral and legal justification for unlawful
act manslaughter is the law’s respect for ‘physical integrity’ and its indivisibility from the victim’s ‘life
force’.15 This is his answer to the so-called change of normative position involved in being held
responsible for the unforeseen death caused by the dangerous crime. This has been the centre ground
of the debate regarding unlawful and dangerous act manslaughter in the last three decades. It suggests
that the defendant should be held responsible for the resultant death, even if it was unforeseen, because
knowingly committing crime, or ‘certain risky crimes’, opens up the defendant to liability for prohibited
results beyond those intended or foreseen.16 This implicates the defendant in what has been termed
‘moral luck’,17 which involves responsibility for an accidental death that is arguably beyond the control
of the defendant.
4. R v Creamer [1966] 1 QB 72 (CCA) at 82 (Lord Parker CJ).
5. R v Lowe [1973] QB 702 (CA) at 709 (Phillimore LJ) [Lowe].
6. R v Scarlett (1994) 98 Cr App R 290 (CA) at 291 (Beldam LJ) [Scarlett].
7. An omission is insufficient. A deliberate omission should be sufficient. See Lowe, (n 5). Cf. R v Gibbons and Proctor [1918]
13 Cr App R 134 (CCA).
8. See Newbury and Jones (n 3).
9. R v Watson [1989] Crim LR 733 (CA) [Watson].
10. Cf. R v Creighton [1993] 3 SCR 3 (SCC) at 61 (McLachlin J): ‘considerations of principle and policy dictate the maintenance
of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the
risk which the activity in question entails’.
11. R v Larkin [1943] 1 All ER 217 (CCA) [Larkin] at 219: ‘an act which is likely to injure another person’. Cf. R v Carey [2006]
EWCA Crim 17; [2006] All ER (D) 189 (January) at [31] (Dyson LJ): ‘Church only requires a risk of some harm resulting’.
Italics added.
12. R v Cato [1976] 1 All ER 260 (CA).
13. Attorney General’s Reference (No 3 of 1994) [1998] AC 245 (HL).
14. CMV Clarkson, ‘Context and Culpability in Involuntary Manslaughter’ in A Ashworth and B Mitchell (eds), Rethinking
English Homicide Law (Oxford University Press, Oxford 2000) 133 at 160.
15. J Horder, ‘Violating Physical Integrity: Manslaughter by Intentional Attack’ in J Horder (ed), Homicide and the Politics of
Law Reform (Oxford University Press, Oxford 2012) 143.
16. J Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (1994) 53 CLJ 502 at 509.
17. T Nagel, Moral Luck (Cambridge University Press, Cambridge 1979) 26: ‘Where a significant aspect of what someone does
depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can be
called moral luck’.
274
The Journal of Criminal Law 83(4)
These issues could be overcome by concentrating on the test of dangerousness, which in practice
takes two forms. The first is when the unlawful act does not require recklessness as to injury, rendering
the test objective. The second is when the unlawful act can be proved by recklessness as to some injury
and the test is actually satisfied by the defendant’s subjective risk-taking.18 In the first, unlike in the
second test, there is no opportunity to avoid creating the risk of injury, unless the circumstances known
before the crime is committed suggest there is the foreseeable risk of injury. This is illustrated by the
following example. In the course of committing a burglary, the defendant accidentally disturbs a young
child, who is sleeping upstairs in a bedroom. The child runs away from the defendant and, during this
‘burglarious intrusion’,19 the defendant watching the events unfold would foresee the risk of injury, but
that risk of injury has already been created and cannot be avoided on the facts. If the child falls down the
stairs and dies, the defendant could be convicted of unlawful and dangerous act manslaughter on the
basis of a continuing unlawful act. This article will suggest that a conviction for unlawful act man-
slaughter should depend on the foreseeable risk of injury from the circumstances known before the
commission of the crime, unless recklessness as to some injury suffices for the unlawful act. Narrowing
the law to a specific and dangerous circumstance, known before the commission of a crime, would allow
the defendant the opportunity to avoid a conviction for unlawful act manslaughter and lessen the impact
of luck on criminal liability. The development of the case law since Newbury and Jones has allowed for
the risk of injury to arise at any time during the continuing circumstances of the crime. This change in the
test of dangerousness has never been approved at the highest appellate level.
These issues could also be overcome by concentrating on the meaning of an intentional unlawful act
as defined in Newbury and Jones. There is historical authority for a version of unlawful act manslaughter
defined by an intention to cause bodily harm. Moreover, it makes no sense to interpret intentional in this
context as voluntary given that R v Lamb,20 approved by Newbury and Jones, is unclear whether an
intended unlawful act or its mens rea is required. Seen in this light, unlawful and dangerous act
manslaughter is not a constructive crime. It should not need proof of a crime, but an intended criminal
act. Even if recklessness is enough to prove the crime, it should be insufficient for unlawful and
dangerous act manslaughter. Crucially, an intention to commit the actus reus elements of the unlawful
act lessens the impact of moral luck on unlawful and...
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