Involuntary Manslaughter-UDA

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  • Created by: Hannah
  • Created on: 26-11-12 22:11


This describes the unlawful killing of a human where the AR of murder has taken place, but without the MR for murder. Therefore, D does not have the intention (direct or oblique) to kill (express malice) or to cause GBH (implied malice).

This lack of intention is what distinguishes involuntary manslaughter from murder and it is an area of law that has undergone significant case law development in recent years, leaving it open to considerable uncertainty. Involuntary manslaughter remains a common law offence: not defined in statute but through judicial development.

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Involuntary Manslaughter

This covers a wide range of circumstances. At the top of the scale, behaviour of D that caused the death of someone can be highly blameworthy as there was a clear risk present of causing death or serious injury. However, at the bottom of the scale, Ds behaviour may verge on carelessness and only just enough to be considered blameworthy. This range of behaviour covered by the same offence is the basis of much criticism and momentum for reform proposals.


The maximum sentence available is life imprisonment but a judge has discretion to impose any sentence which suitably reflects the particular circumstances of the crime: even non custodial.

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Unlawful and Dangerous Act Manslaughter

This describes the unlawful killing where there is no proof of malice aforethought, i.e. D does not have the MR for murder. D will be guilty of this type of manslaughter by committing an unlawful and dangerous act which causes the death of V. (Also known as constructive manslaughter).

For public policy reasons, the law will impose manslaughter liability where D had no MR for killing, because D did have MR for the lesser offence that caused a death. Therefore, Ds can be liable for deaths they did not realise could/would occur. The following elements are necessary:

1. D must commit an unlawful act.

2. The act must be dangerous.

3. D must have the MR for the unlawful act (not the death).

4. The act must have caused the death.

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Unlawful Act

The death must be caused by an unlawful act: as in criminal. A civil wrongdoing is not sufficient.

Franklin [1883]

D took a large box from a stall on Brighton Pier and threw it into the sea, hitting a swimmer and causing his death. The prosecution's argument was that the tort of trespass involved in seizing the box was an unlawful act. This was rejected: the act must be unlawful (criminal), not merely a tort: a civil wrong. (However, the man was guilty of manslaughter by gross negligence.) “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.”

If the prosecution cannot establish the underlying criminal offence (AR/MR), then there is no possibility of an unlawful and dangerous act manslaughter conviction, regardless of how dangerous Ds act were.

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R v Lamb [1967]

D and V were fooling around with a revolver. Both knew it was loaded with 2 bullets in a five chamber cylinder but thought it would not fire unless one of the bullets was opposite the barrel. They knew there was no bullet in this position but did not realise the cylinder ‘revolved’ so that a bullet from the next chamber along would be fired. D pointed the gun at V and pulled the trigger. V died.

CA: D had not done an unlawful act (AR) as the pointing of the gun at V was not an assault as V did not apprehend unlawful force and D did not intend or take a subjective risk as to this apprehension (MR) so it was not a criminal offence. The absence of being able to establish the AR/MR for assault meant there was no unlawful act, and therefore no manslaughter.

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Unlawful Act

Though it must be an unlawful act, it need not be ‘against the person’ as it can be a property offence that is dangerous and causes a death. Additionally, the act need not be particularly serious by itself, e.g. assault and battery are summary offences carrying only 6 months imprisonment and yet, should this in the circumstances be dangerous and lead to a death, it can take a summary offence to the level of an indictable offence for which life imprisonment is a possibility.

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Act not Omission

To form the basis of UDA manslaughter, the AR must be a positive act. If D ‘fails to act’ (omission), he cannot be guilty of this type of manslaughter. Even where D fails to act, and would be under a duty to do so and this causes the death, there is no liability for unlawful act manslaughter (but possibly gross negligence.)

R v Lowe [1973]

D was of low intelligence and failed to call a doctor when his 9 week old child became ill. The child died 10 days later. D was convicted of both neglecting his child so as to cause it unnecessary suffering or injury to its health (s.1 (1) CYPA 1933) and UDA manslaughter as the judge directed the jury that if they found D guilty of neglect, then they should also (automatically) find him guilty of manslaughter.

CA: Quashed the manslaughter conviction confirming that there should be a difference between omission and commission.

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Dangerousness-unlawful act must be objectively dan

R v Church [1965]                                                                                                         D and V went to Ds van to have sex but he was unable to satisfy her. She became angry and slapped his face. He then punched her. During the ensuing fight, V was knocked unconscious and D tried unsuccessfully to revive her for 30 minutes and panicking that she was dead, D dragged her body out of the van and dumped her in a nearby river. V was actually still alive but then drowned in the river.

The court therefore imposed an objective standard for assessing dangerousness as it did not matter whether the accused himself realised there was a risk of harm from throwing the woman in the river (as he already thought she was dead), as the sober and reasonable people (bystanders) would have realised there was a risk. The level of risk that the ‘sober and reasonable people’ (jury) are required to recognise is only that of some physical harm. This sets a relatively low level and leaves it open for a jury to return a manslaughter conviction where the harm resulted from a minor incident.

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R v Ball [1989]

D was involved in a dispute with V (neighbour) over parking her vehicle on his land. One night an argument developed which culminated in D grabbing a handful of cartridges which he loaded into his shotgun and fired at her. D was charged with murder, but acquitted as the jury accepted that he honestly thought the cartridges were blanks (therefore he had no MR for murder). However, UDA manslaughter conviction was upheld as the sober and reasonable bystander would have regarded Ds act of firing a loaded shotgun at V as dangerous.

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R v Watson 1989

When determining dangerousness, juries are entitled to attach to the bystander any of Ds pre existing knowledge about V (if any), including any knowledge that D acquires during the commission of the unlawful act as this might make an act dangerous.

Ds attempted to burgle the house of an 87 year old man with a serious heart condition. A brick was thrown through a window to gain access and this alerted V, who came down to investigate. There was a confrontation between Ds and V during which V was verbally abused. Ds left without stealing anything but V died of a heart attack 90 minutes later. There was no evidence that at the time of entry Ds knew the age or physical condition of V and the jury were directed that manslaughter was committed when one person caused the death of another by an unlawful act which was dangerous in the sense of being one which the sober and reasonable bystander would realise would subject the victim to some harm resulting, whether or not the appellant realised it. Ds pleaded guilty to burglary but were also convicted of UDA manslaughter. Ds appealed on the ground that, since the offence under s.9 (1) (a) Theft Act 1968 of burglary was committed at the first moment of entry, the bystander's knowledge would be confined to the knowledge of the appellant at that moment. Lord Lane CJ said that the original direction was correct

CA actually quashed the conviction on causation grounds, but the above direction remains good law.

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Knowledge and level of harm

R v Dawson [1985]

Three Ds attempted to rob a petrol station. They were masked and armed with pick axe handles and replica guns. The cashier (V) was a 60 year old man who, unknown to Ds, suffered from heart disease. Dawson pointed a replica handgun at V and another D had banged the pick axe handle on the counter. Money was demanded but V was able to press the alarm button and Ds fled empty handed. V died of a heart attack shortly afterwards. Ds conviction for manslaughter was quashed following a misdirection. The reasonable man must be taken to know only the facts and circumstances which the D knew. It was never suggested that any of the Ds knew that their victim had a bad heart; therefore the reasonable man would not know this.

(How does this compare with Blaue [1975]?)

According to Church [1965], V must be subjected to ‘the risk of some harm’. Watkins J in Dawson [1985] said that “a proper direction would have been that the requisite harm is caused if the unlawful act so shocks the V as to cause him physical injury.” Thus, merely frightening or shocking V is insufficient; the trauma must produce some physical injury.

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Act need not be aimed at V

R v Larkin [1943]

D threatened a man with an open cut-throat razor. The mistress of the man tried to intervene and because she was drunk, accidentally fell onto the open blade which cut her throat and killed her. On appeal, D’s conviction for manslaughter was upheld. The act of threatening the man with a razor was an assault. It was also an act which was dangerous because it was likely to injure someone. 

R v Mitchell [1983]

D tried to push his way into a queue at the post office. A 72 year old man told him off for this and D then punched the man. This caused him to stagger backwards into an 89 year old woman who was knocked over and injured. She died of her injuries later in hospital.

D was convicted of UDA manslaughter as he had (1) done an unlawful act by punching the man. This act was (2) dangerous as it was an act which was objectively likely to injure another person. D had the (3) MR for the original offence and the act (4) caused the death of the woman. The actions of the elderly man in falling on V were entirely foreseeable and did not break the chain of causation. The court saw no reason why an act calculated to harm A cannot be manslaughter if it in fact kills B.

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Act against property

The unlawful act need not even be aimed at a person; it can be aimed at property provided it is “...such that all sober and reasonable people would inevitably recognise must subject another person to, at least, the risk of some harm.”

R v Goodfellow [1986]

D had been harassed by 2 men and wished to move from his council house. In order to get re-housed he deliberately set fire to his property making it look like it had been petrol bombed. The fire got out of control and his wife, son and another woman died in the fire. He was convicted of UDA manslaughter and the CA upheld the conviction because all elements of UDA manslaughter were present.

N.B. No issue regarding transferred malice here. TM only relates to transferring the MR, but here it is the unlawful act (AR) that transfers to create liability for the manslaughter – the MR remains that of the original unlawful crime – whether that is intention or recklessness against people or property.

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Mens Rea

The prosecution must prove D had the MR for the unlawful act. This can be intention or recklessness, depending on the unlawful act. The important point is that the prosecution do not need to prove any MR in relation to the unlawful death. It is also not necessary for D to realise that the act is unlawful or even dangerous, as this is objectively assessed.

DPP v Newbury and Jones [1976]

Two 15 year old boys threw a paving slab off a railway bridge as a train was approaching. It went through the glass window of the cab and killed the guard. The CA upheld their convictions. Ds appealed to the HL with the following certified question of law: “can a D be properly convicted of manslaughter...if he did not foresee that his act might cause harm to another?”

HL: Yes. There is no requirement for D to foresee harm. It is objectively judged, as per Church [1965].

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Causing the death

The final element is that the unlawful act must cause the death. Therefore, normal rules on causation apply. R v Watson [1989] shows that merely because D has done an unlawful and dangerous act and someone concerned in the events has died will not be sufficient for liability. There needs to be a proven causal link between the act and the death. As always, where there is an intervening act that breaks the chain of causation, D cannot be liable for the manslaughter.

This area has been particularly problematic for the courts where death occurs as a result of taking drugs. Where D actually INJECTS the drug into V (with consent) resulting in a fatal overdose and Vs death, the position is straightforward.

  • o Ds unlawful act is “administering a noxious substance” contrary to s.23 Offences Against the Person Act 1861.
  • o Sober and reasonable people would view this as dangerous and likely to cause some harm.
  • o D intended to inject V.
  • o Overdose of drug caused Vs death.
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R v Cato 1976

D purchased some heroin and took it home to share with 3 others. Each prepared their own syringe and paired off to inject each other. This was repeated throughout the night. The following morning, V was found dead. D (who had injected V) was convicted of UDA manslaughter and the CA upheld the conviction. The unlawful act was ‘administering a noxious substance’ contrary to s.23 OAPA 1861, this is dangerous, and this caused the death.

Confusion was unfortunately cast by obiter comments in this case as the CA suggested that even if D had not injected (s.23 OAPA 1861), the UDA manslaughter conviction could have been based upon the unlawful act of supplying illegal drugs. This was however clarified and corrected in the following case.

R v Dalby [1982] 

D supplied V with some of his prescription Diconal (a heroin substitute). V mixed this with a solution and self injected and was found dead the next morning.

CA quashed the manslaughter conviction on the basis that Vs self administration of the tablets broke the chain. Although supplying is an unlawful act, it was not the supplying that killed; it was the actual taking of the drug.

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R v Kennedy 1999

This case proved very problematic. It concerned the position of a person who had prepared a solution of heroin and handed it to V who self injects.

D prepared a heroin syringe and handed it to V. V self injected and died. D was convicted of supplying a class A drug and of UDA manslaughter. D appealed arguing that there was no direct causal link between the unlawful act of supplying and the death of V.

CA upheld the conviction: the unlawful act was Vs self injection, D had assisted with this by supplying the drugs; the injection was the direct cause of the death.

* N.B. The CA distinguished Dalby [1982] as D in the present case prepared the solution of heroin whereas in Dalby [1982] the V prepared the solution.*

It was then (correctly) recognised in R v Dias 2001 that there is actually no unlawful act committed where a person injects themselves with the drug and it therefore cannot support a UDA manslaughter conviction.

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R v Dias [2001] CA

D and V were both vagrants and drug addicts. They pooled their money and bought £10 worth of heroin. In the stairwell of a block of flats, D prepared the syringe and handed it to V who self injected. D then self injected. When D recovered from the effects of the heroin he realised V was very ill and asked a passerby to call an ambulance and then left the scene. V was taken to hospital but died. Following Kennedy [1999], the self injection was unlawful and D had assisted this act and was therefore guilty.

On appeal, Ds conviction for UDA manslaughter was quashed. The CA now decided that Kennedy [1999] was wrong and that self injection is not an unlawful act. Whilst possession is unlawful, this was not the cause of the death. They confirmed that in any event, it is likely that the freely informed decision, by an adult of sound mind to self-inject drugs, would amount to a novus actus interveniens breaking the chain of causation.

* The CA did suggest, obiter, that a conviction for gross negligence manslaughter might instead be possible where a duty of care could be established. This might possibly be through a duty not to supply and prepare drugs. This is yet to be confirmed in any cases.

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R v Rodgers [2003]

D and V had 2 syringes of heroin. V injected D, and then D held his belt around Vs arm, acting as a tourniquet whilst V self injected. V suffered cardiac arrest, never recovered and died 8 days later.

The CA regarded the application of the tourniquet to be “part and parcel of the act of administering heroin” as there was no difference from holding the end of the syringe while V pressed the plunger and thus fulfilled the s.23 OAPA 1861 charge.

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R v Kennedy 2005

Following the decision in Dias [2001] that self injection is not unlawful casting extreme doubt on Ds conviction in Kennedy [1999], the CCRC referred the case back to the CA.

R v Kennedy [2005] CA

Following R v Rodgers [2003], CA was now of the opinion that preparing the syringe and handing it to V now amounted to “administering a noxious substance” (s.23 OAPA 1861). “D and V were carrying out a 'combined operation' for which they were jointly responsible. Their actions were similar to what happens frequently when carrying out lawful injections: one nurse may carry out certain preparatory actions (including preparing the syringe) and hand it to a colleague who inserts the needle and administers the injection, after which the other nurse may apply a plaster. In such a situation, both nurses can be regarded as administering the drug. They are working as a team. Both their actions are necessary. They are interlinked but separate parts in the overall process of administering the drug."

However, the CA did certify the following question of law for the HL: "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?"

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R v Kennedy [2007] HL

HL allowed the appeal and Ds conviction was quashed. It was decided that D had not administered a noxious substance for the offence of s.23 OAPA 1861. Vs act of self injecting was an intervening act which broke any chain of causation. “It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection. But nothing of the kind was the case here. (This also overruled R v Rodgers [2003].)

As in R v Dalby [1982] and R v Dias [2002], D supplied the drug to V who then had a choice, knowing the facts, whether to inject himself or not. The heroin was...self-administered, not jointly administered. The appellant did not administer the drug. Nor, for reasons already given, did the appellant cause the drug to be administered to or taken by the deceased. The answer to the certified question is: "In the case of a fully-informed and responsible adult, never".

The HL also stated: “The criminal law generally assumes the existence of free will...generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.”

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