Constructive Manslaughter

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Definition of Constructive Manslaughter

To be guilty of constructive manslaughter the defendant must be proved to have performed an act which was:

  • (1) Unlawful;
  • (1) Dangerous; and
  • (3) Caused the death of the victim.

The House of Lords undertook a thorough examination of constructive manslaughter in Attorney-General’s Reference (No 3 of 1994) [1998].

An Unlawful Act

The defendant must have committed a criminal act, but violence is not essential (see, for example, the case of R v Goodfellow (1986)).

The mens rea and actus reus of the criminal act must be proved (R v Slingsby [1995]). Also see the case of R v Dhaliwal [2006].

Note: it is generally accepted that a strict liability offence or an offence of negligence (e.g. dangerous driving) cannot form the basis of constructive manslaughter (Andrews v DPP [1937]).

There has been debate over whether a criminal omission can form the basis of constructive manslaughter. R v Senior [1899] suggests a criminal ommission can form the basis of constructive manslaughter, but R v Lowe [1973] suggests it cannot. However, where there has been a criminal omission often the defence of gross negligence manslaughter is raised.

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CONTENT

Dangerous Act

The defendant's act must have posed a risk of some physical injury (R v Carey [2006]).

Emotional harm is often not enough, unless that emotional harm could lead to physical harm such as a heart attack or even shock (R v Carey [2006]).

Whether there is a dangerous act is to be viewed objectively i.e. would the reasonable person think the act is dangerous (R v Church [1966]). See, for example, R v Dawson (1985).

Also see the cases of R v Lamb [1967], R v Nebury and Jones [1976], and R v Watson [1989].

Causation

The defendant’s unlawful and dangerous act must cause the victim’s death.

The unlawful and dangerous act need not be directed to the victim to rely on the defence e.g. if you punch X who stumbles into Y causing him to fall over and die you may still rely on constructive manslaughter.

It must be shown that it was the unlawful and dangerous act of the accused that caused the death of the victim, and not simply that the victim died while the defendant was committing an unlawful and dangerous act. This appears to have been overlooked in the case of R v Cato [1976].

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