The Meaning of ‘Dangerousness' in the Context of Constructive Manslaughter
| Published date | 01 February 2013 |
| Date | 01 February 2013 |
| DOI | 10.1350/jcla.2013.77.1.810 |
| Author | Adam Jackson |
| Subject Matter | Court of Appeal |
Court of Appeal
The Meaning of ‘Dangerousness’ in the Context of
Constructive Manslaughter
R v JM and SM [2012] EWCA Crim 2293
Keywords
Involuntary manslaughter; ‘Church test’; Dangerousness;
Risk of harm; Affray
The case concerned an appeal by the prosecution under s. 58 of the
Criminal Justice Act 2003 against a ruling at Newcastle Crown Court
that, taking the prosecution case at its highest, it would not be open to
the jury to convict either respondent of manslaughter. Both respondents
were charged with involuntary manslaughter, the basis of the charge
being that the respondents committed an affray which caused the death
of the victim, Peter Jopling (V).
The alleged affray arose out of a violent incident which occurred at a
nightclub on 12 December 2010 where V worked as a doorman. After
lighting a cigarette inside the club, JM and his brother SM were asked to
leave the club by V, which they did. After leaving the club both JM and
SM returned and engaged in a fight with other members of the club’s
door staff. It is unclear whether V was subjected to direct physical
violence, but he made himself available to offer assistance to his col-
leagues in dealing with what the court described as a ‘very unpleasant
incident’ (at [6]) and was present during the violence.
After re-entering the club, immediately following the incident, V
collapsed. He died a short time later. Unbeknownst to V he was at the
time suffering from a renal artery aneurysm of about 0.7 cm in diameter
and the cause of his death was blood loss resulting from a rupture of the
aneurism. Evidence available suggested that a ‘spontaneous or coincid-
ental rupture of the artery was ‘very unlikely’ or ‘highly unlikely’’ (at
[7]) and for the purposes of the appeal the court proceeded on the basis
that the affray was a substantial cause of the victim’s death.
The decision taken by the trial judge to halt the proceedings was
based on a consideration of whether the unlawful act committed by the
defendants could be considered ‘dangerous’ in the way required by R v
Church [1966] 1 QB 59 (the ‘Church test’), namely, that the unlawful act
or acts must be such that any reasonable and sober person would
inevitably realise they would subject the victim to the risk of some
physical harm, albeit not serious harm.
In addition to the Church test the trial judge considered the decisions
of the Court of Appeal in R v Dawson [1985] 81 Cr App R 150...
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