Unlawful and Dangerous

AuthorTony Storey
Published date01 April 2017
Date01 April 2017
DOIhttp://doi.org/10.1177/0022018317694715
Subject MatterArticles
Article
Unlawful and Dangerous: A
Comparative Analysis of Unlawful
Act Manslaughter in English,
Australian and Canadian Law
Tony Storey
Northumbria School of Law, Northumbria University, UK
Abstract
The crime of unlawful act manslaughter (otherwise known as constructive manslaughter) exists
in English and Australian common law. It is also an offence contrary to the Canadian Criminal
Code. In all three jurisdictions the offence shares the same essential elements, including the
requirements that the accused commit an act which is both unlawful and dangerous. This
article will explore the case law on unlawful act manslaughter in Australia, Canada and England,
focusing on the elements of an unlawful act and dangerousness, in order to identify similarities
and differences in the application of the law in the three jurisdictions. Where differences are
found, consideration will be given to the question whether English law should be reformulated.
Keywords
Homicide, manslaughter, unlawful act, dangerousness
Introduction
In English and Australian common law,
1
D will be guilty of manslaughter if he kills by an unlawful and
dangerous act. In Canada, the equivalent offence is located in s. 222(5)(a) of the Criminal Code, which
states that ‘A person commits culpable homicide when he causes the death of a human being by means of
an unlawful act’. In all three jurisdictions, the following elements must be proven to exist:
1. D must commit an unlawful act.
2. The act must be ‘dangerous’.
3. D must have intended to commit the unlawful act.
4. That act must have caused death.
Corresponding author:
Tony Storey, Northumbria School of Law, Northumbria University, Newcastle-upon-Tyne NE1 8ST, UK.
E-mail: tony.storey@northumbria.ac.uk
1. The common law states are New South Wales, South Australia and Victoria.
The Journal of Criminal Law
2017, Vol. 81(2) 143–160
ªThe Author(s) 2017
Reprints and permissions:
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DOI: 10.1177/0022018317694715
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The intention behind this article is to compare the law in England with that in Australia and Canada
regarding the first two elements of the offence: the unlawful act requirement and the requirement of
‘dangerousness’. The purpose is to identify similarities and differences in the three jurisdictions’ appli-
cation of these elements in order to suggest ways in which English law could be reformulated. Attention
will be paid, inter alia, to the following questions:
1. Does the unlawful act have to be a criminal offence?
2. What is the situation if one or more elements of the unlawful act cannot be proven and/or the
accused raises a defence?
3. Are there any categories of criminal offence that are excluded from the scope of the unlawful act
element, for example strict liability offences, or crimes in which the fault element is satisfied by
proof of negligence?
4. Can the unlawful act element be established where the accused commits an offence having failed
to act?
5. Is ‘dangerousness’ assessed subjectively or objectively?
6. If it is assessed objectively, to what extent can the test be modified to take into account the
characteristics of the accused?
An ‘Unlawful’ Act
The Need for a Criminal Offence
At one time it was thought that it was sufficient if D committed a civil wrong, such as in Fenton,
2
where D was convicted of manslaughter on the basis that he had committed the unlawful act of trespass
to property. This approach quickly changed and the law now requires that D commit a criminal
offence. In Franklin,
3
the court stated that ‘The mere fact of a civil wrong committed by one person
against another ought not to be used as an incident which is a necessary step in a criminal case.’ In
Lamb,
4
Sachs LJ said that in the context of unlawful act manslaughter ‘it is long settled that it is not in
point to consider whether an act is unlawful merely from the angle of civil liabilities’.
5
This is also the
position in Australian law. In Burns,
6
French CJ said that ‘An unlawful act for the purposes of
unlawful and dangerous act manslaughter is one which is a breach of the criminal law’.
7
Canadian
courts have stated that ‘the actus reus of unlawful act manslaughter is the actus reus of the predicate
offence’, the use of the word ‘offence’ implying that an underlying civil wrong would fall short of the
standard required.
8
In the English jurisprudence the criminal acts are typically assault,
9
battery
10
or assault occasioning
actual bodily harm.
11
However, convictions have been obtained using the crimes of procuring
2. [1830] 1 Lew CC 179.
3. (1883) 15 Cox CC 163.
5. Ibid. at 988.
6. [2012] HCA 35, High Court of Australia.
7. Ibid. at [8].
8. See e.g. T[2006] 7 WWR 102; 199 CCC (3d) 551; 31 CR (6th) 187; 195 Man R (2d) 89, Manitoba Court of Appeal at [5].
9. Larkin [1943] KB 174; Lamb [1967] 2 QB 981; Pagett (1983) 76 Cr App R 279; Arobieke [1988] Crim LR 314; Ball [1989]
Crim LR 730; Lewis [2010] EWCA Crim151.
10. Church [1966] 1 QB 59; Lipman [1970] 1 QB 152; Mallet [1972] Crim LR 260; Pagett;Le Brun [1992] QB 61, [1991] 3 WLR
653; Scarlett [1993] 4 All ER 629; Coleman (1992) 95 Cr App R 159; Attorney-General’s Reference (No.3 of 1994) [1998] AC
11. Mitchell [1983] QB 741.
144 The Journal of Criminal Law 81(2)

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