Unlawful Act Manslaughter
Where a reasonable person sharing the defendant’s knowledge of the circumstances would have realised that an unlawful act might cause a risk of some physical harm to any person on the road at that time, that is to say, the unlawful act was a dangerous one which carried an obvious risk of injury, and that unlawful act caused death, he is guilty of manslaughter: Reference by Her Majesty’s Attorney General pursuant to section 36 of the Criminal Justice Act 1988: Between Henry Long, Albert Bowers and Jessie Cole [2020] EWCA Crim 1729 Dame Victoria Sharp P, Holroyde LJ, William Davis J.
The modern foundation of the offence is the decision of the Court of Criminal Appeal in Church [1966] WB 59. The formulation provided by the Court was:
“… an unlawful act causing the death of another cannot simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, 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.”
That decision was approved by the Supreme Court in Jogee [2017] AC 287. Lord Hughes said that in the context of considering joint liability in cases of homicide:
“… if he participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results.”
At trial it was never in issue that the defendants had been to W’s house intending to steal W’s quad bike and that they had been in the Seat driven by Long away from the scene as it was pursued by the police.
Long pleaded guilty to manslaughter on the basis that it was part of the criminal agreement to steal and that, in the event of being interrupted by the police, he would behave dangerously by driving in a dangerous manner.
The issue was whether he was guilty of murder. It was clear from his acquittal of that offence that the jury was not sure he knew that a person was being dragged by the Seat.
It was common ground that Bowers and Cole could not be convicted of murder unless and until Long was convicted of that offence.
Their participation in the offence of manslaughter was by way of encouragement and assistance.
It was submitted before the Court that where manslaughter was alleged to have arisen from an act of driving, the jury must be directed in accordance with Andrews [1937] AC 576.
In that case the defendant overtook a car and struck a pedestrian as he was still on the wrong side of the road. He was convicted of manslaughter.
Lord Atkin said: “The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence.
“Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.
“Probably, of all the epithets can be applied reckless most nearly covers the case. It is difficult to visualise a case of death caused by reckless driving … which would not justify a conviction for manslaughter.”
The Court rejected the proposition that Andrews was applicable to the present case. Andrews concerned manslaughter by negligence. The requirement for a very high level of negligence leading to a serious risk of death in such cases was well-established.
The real issue in the case before the Court was whether the nature of the conspiracy to steal to which Bowers and Cole on their own admissions were parties, rendered it a dangerous act in addition to it being an unlawful act.
Bristow and others [2013] EWCA Crim 1540 was concerned principally with issues of participation and joint enterprise, but the concept of conspiracy to burgle being a dangerous and unlawful act was considered:
“Whilst burglary is itself not a dangerous crime, a particular burglary may be dangerous because of the circumstances surrounding its commission. We consider that the features identified by the Crown were capable of making this burglary dangerous when coupled with foresight of the risk of intervention to prevent escape.”
Precisely the same rationale could be applied to the facts of this case. The terms of the agreement as conceded by Bowers and Cole made the theft dangerous.
The escape and dangerous manner in which it was carried out were part and parcel of the conspiracy to steal just as was the position in Bristow.
*See also article entitled Attorney General’s Frivolous Reference