Unlawful act manslaughter - intrinsically and objectively uncertain?

There are two main heads of involuntary manslaughter, gross negligence manslaughter (GNM) and unlawful act manslaughter (UAM), with the difference being that GNM requires a lawful act conducted in a grossly negligent way, so the law regards the act as a crime, such as a train driver driving a train through two stop signals, which causes a collision with another train and people are killed. On the other hand, UAM requires a base crime per se, such as a burglary where a householder dies. However, at the point of commission, both crimes are crimes of negligence, but UAM is much hasher to defendants because, in effect, it only requires mere civil negligence as to some harm, albeit not serious harm (Church [1966] 1 QB 59), in contrast with GNM, which requires gross negligence as to an obvious and serious risk of death. It is unjust to blame someone for a death which they did not intend or foresee, and which would not be foreseen by a reasonable person in that person’s shoes.

Must the base crime be intrinsically criminal?

In Andrews v DPP [1937] AC 576, Andrews killed a pedestrian while trying to overtake another car. He was convicted of UAM, with the base crime being dangerous driving, which had negligence as the basis of fault for death. The House of Lords quashed his conviction, holding that the base crime for UAM must be intrinsically criminal and it was not enough that there was ‘a lawful act with a degree of negligence that the legislature makes criminal’. This means that the base crime cannot be negligent crimes or strict liability offences. If there is no base crime which is intrinsically criminal, there can be no liability for UAM. So, in Grey [2024] EWCA Crim 487, the defendant was convicted on retrial of UAM. While she was walking along a pavement, she confronted the victim, who was cycling on the pavement towards her. Grey told her to ‘get off the fucking pavement’ and swung her arm towards the deceased, who wobbled and fell off her bicycle into the road, where she was killed by an oncoming car. The Court of Appeal quashed her conviction as no-one at the trial had identified the base offence. There was no proof that the defendant touched the victim, thus there was no battery. There was no assault as there was no evidence that the victim apprehended immediate unlawful violence.

Must the base crime be intrinsically dangerous?

The base crime must be intrinsically dangerous, a crime of endangerment. Thus, in Goodfellow (1986) 83 Cr App R 23, the defendant wanted to be rehoused but, as he was in arrears with his rent, he would not be rehoused. He planned to burn down his house, rescue the occupants and obtain another house from the local council. He doused his living room with petrol and threw a petrol bomb through the window. Because of the rapid spread of the flames, it was not possible to rescue all the occupants and three of them died. The defendant was convicted of UAM because he committed a crime of endangerment, arson. But if further action is required by the victim, then there will not be a crime of endangerment. Thus, in Rebelo [2021] EWCA Crim 306, Rebelo sold a chemical, DNP, claiming it promoted weight loss. The victim bought some DNP capsules, took eight and died. DNP is regarded as hazardous and its toxic effects include kidney failure, liver failure and cardiac arrest. Rebelo was convicted of both UAM and GNM. He appealed against his manslaughter convictions. The Court of Appeal allowed the appeal against the UAM conviction because the placing of DNP for sale was not intrinsically dangerous and, therefore, could not amount to a base crime sufficient for UAM. It appears that on this element, UAM is certain and clear.

However, Wilson maintains that the base crime need not be intrinsically dangerous, giving the example of a person who steals a ladder, just as the victim, a roofing contractor, is about to climb down it, with the result that the victim falls to their death. The base crime here, according to Wilson would be theft (Wilson, Criminal Law (eight edition), Longman p. 394). He quotes from DPP v Newbury and Jones [1977] AC 500 as authority for this proposition, where two youths were convicted of UAM after they threw part of a paving stone off a bridge into the path of an advancing train, killing the guard. The House of Lords failed to identify the base crime. But surely it amounted to dangerous criminal damage, a crime which is intrinsically dangerous? The youths must have foreseen that danger, as Mitchell states “[I]f I throw part of a paving stone off a railway bridge at a train as it passes beneath me I would have great difficulty in persuading a court that the risk of causing injury, perhaps serious or even fatal injury, to someone on that train was neither foreseen by me nor foreseeable” (Mitchell ‘More thoughts about unlawful and dangerous act manslaughter and the one punch killer’ [2009] Crim LR 502 at 506). In any case, it is not in the public interest to label a simple thief as a manslaughterer when they only had the mens rea for theft, an intention to permanently deprive and dishonesty. To do so would go against the principle of fair labelling.

When is the base crime objectively dangerous?

If the act was intrinsically dangerous, then the next question is whether it is objectively dangerous, and also whether an entirely objective standard is being imposed. The test for dangerousness is that stated in Church ‘the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person, to at least, the risk of some harm resulting therefrom, albeit not serious harm.’ The ambit of UAM is much wider in that the danger in question need not relate to a risk of death or even serious bodily harm as the risk of minor physical harm is enough. The law is harsh.

The first question is what suffices as minor physical harm. Is fright or shock sufficient? This was first considered by the Court of Appeal in Dawson (1985) 81 Cr App R 150, where a petrol attendant, a middle-aged man who was suffering from a heart condition, died of a heart attack during a robbery in which, while the defendant remained outside the petrol station shop and the attendant was protected by armour-plated glass, the defendant brandished a replica handgun. The jury was directed to take account of the victim’s heart condition in deciding whether the Church test was satisfied. This was held to be a misdirection, because the heart condition (and therefore the heart attack) was not and could not be known to the reasonable sober bystander because middle-aged men are not normally susceptible to heart attacks caused by shock. That bystander would have foreseen that the attendant would have been frightened, perhaps extremely frightened, but fright or shock in itself was not a form of physical harm in the Church test. Thus, the requirement for a dangerous act was not without a subjective limiting effect on liability for UAM.

However, the question is whether fright or shock can, in some circumstances, amount to physical harm for the purposes of the Church test. This issue fell to be decided in JM and SM [2012] EWCA Crim 2293. The defendants were involved in an affray at a nightclub with a number of doormen during which one of the doormen, aged 40, who had appeared to be in good health but had a renal artery aneurysm, died of heart failure caused by the aneurysm. The defendants were charged with UAM on the basis that they had committed an unlawful act, namely affray, which had caused the victim’s death. The prosecution alleged that the cause of death was the rupture of the aneurysm as a result of shock and a sudden surge in blood pressure, due to the release of adrenalin during the affray.

The Court of Appeal makes it clear that what matters is whether the reasonable bystander would have recognised that the affray would have inevitably subject the victim to the risk of some physical harm resulting from it. That is what the Church test requires. So, it was sufficient that the victim suffered some objectively foreseeable physical harm. However, the Court also held that it also sufficient that the physical harm was shock or fright resulting from the affray. Lord Judge CJ identified the question for the jury to consider as whether ‘the reasonable sober person would inevitably recognise the risk of harm going beyond concern and fear and distress to physical harm in the form of shock.’ So, the physical harm which makes the act dangerous can be shock and not the unforeseeable consequences of shock. This extends liability for UAM, as it goes further than Dawson, by allowing fright or shock itself to be the physical harm in the Church test. Such an interpretation is a gloss on the Church test, which is not justified as it widens the ambit of UAM and is unwelcome because it was always thought shock or fear per se (not amounting to a psychiatric condition) was not the type of harm in terms of the Church test.

This constructive liability is reinforced by the principle of causation ‘take your victim as you find them’, by guaranteeing there is no causal obstacle to convicting the defendant of a crime involving death that was not intended or foreseen. The interpretation of the Church test by the Court of Appeal represents a move towards an entirely objective standard of fault and the reason for this follows from the suspicion that juries cannot be relied on to convict defendants because they are too prone to accept the defendant’s account.

The base crime must have caused the death of the victim

The defendant’s conduct must be the cause of death in fact and the blameable cause in law (being significant and operating the cause of death). Most of the cases concern those who have been engaged in intravenous drug use. In Kennedy (No 2) [2007] UKHL 38, the House of Lords was faced with the following point of law of general public importance, namely:

‘When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A controlled drug, which is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes his death?’

In a unanimous judgment given by Lord Bingham, the answer to the certified question was ‘[i]n the case of a fully informed and responsible adult, never.’ In a mere 26 paragraphs, the House restored the fundamental principle of causation, namely that voluntary and fully- informed conduct acts as an obstacle to any other casual investigation in the law of crime. Even Rodgers [2003] 2 CR App R 10 was overruled, where the defendant held a tourniquet around the victim’s arm, while the victim injected himself. This means that causation is only present when the defendant injects the victim. This does limit the ambit of UAM, although two decisions by the Court of Appeal in Rebelo [2021] EWCA Crim 306 (voluntary taking of drugs) and Field [2021] EWCA Crim 380 (voluntary drinking of alcohol) upheld a GNM conviction and a murder conviction, even though they appeared to be voluntary acts by the victims. Kennedy was distinguished as concerning UAM, so voluntary intravenous drug use by the victim will break the chain of causation and it is thought the Court of Appeal will consider itself bound by stare decisis, although nothing can be taken for granted with the Court of Appeal.

Conclusion

UAM is harsh and uncertain and should not be prosecuted. It is submitted that it should be abolished by parliament because the objective fault element is harsh, and it also violates Article 7 of the Human Rights Act 1998 (HRA), which creates in English law ‘convention rights’. Article 7 includes the principle of legality, which requires the law to be accessible and formulated with sufficient accuracy to enable citizens to regulate their conduct, they must know, sometimes with legal advice, the probable result of any proposed action. UAM fails this test and does not comply with the principle of legality. In the meantime, the Crown Prosecution Service (CPS) should not prosecute UAM, because as a public authority it is obliged not to act in a way that is incompatible with convention rights (Section 6(1) HRA). The CPS should prosecute involuntary manslaughter based on subjective recklessness, applying the Court of Appeal’s statement in Lidar [2000] 4 Archbold News 3 CA, that a defendant would be guilty of manslaughter if they foresaw serious injury as highly probable and they take the unjustified risk of it and death results. That would restore certainty to the law of manslaughter