Manslaughter — DPP v Newbury and Jones

Facts

Two boys of fifteen pushed a piece of paving stone from a railway bridge as a passenger train approached. The stone struck the train and killed the guard.

History

The boys were convicted of manslaughter at trial. The Court of Appeal dismissed their appeals and certified a point of law of general public importance.

Issue

Whether a defendant who commits an unlawful and dangerous act that causes death is guilty of manslaughter only if he foresaw that the act was unlawful and dangerous, or whether it is enough that a reasonable person would have recognised the danger.

Held

Appeal dismissed and the manslaughter convictions upheld. The prosecution must prove that the defendant intended to do the act that proved unlawful and dangerous, but need not prove that he knew it was unlawful or dangerous.

Ratio

• The mental element of unlawful act manslaughter is the intention to commit the unlawful act; it is not necessary to prove that the defendant foresaw that the act was unlawful or dangerous, so long as a sober and reasonable person would inevitably recognise that it exposed another to the risk of some harm.

The judgments

Key reasoning

• The decided cases on unlawful act manslaughter, notably R v Church [1966] 1 QB 59, state an objective test of danger, asking what a sober and reasonable person would have recognised.
• Requiring the defendant to have foreseen the danger would import a subjective requirement that the earlier authorities did not demand and would blur the line between manslaughter and murder.
• Pushing a heavy stone from a bridge onto a railway line is an act whose danger would be obvious to any reasonable person, so the convictions stood even if the boys did not themselves appreciate the risk.

Where it fits in the module

Topic 2 on homicide is built around the boundaries between murder and the forms of manslaughter and the extent to which liability for death should depend on subjective fault. Unlawful act manslaughter is the main example of constructive liability, where a defendant is convicted of a homicide offence on the basis of a base offence plus an objective risk, without foresight of death or even of harm. Later decisions on the base offence and on causation, such as R v Kennedy (No 2) [2007] UKHL 38, work within the framework this case set.

Criticisms

• The offence imposes homicide liability on the basis of what a reasonable person would have seen, not what the defendant saw, which departs from the principle that serious criminal liability should rest on subjective fault.
• The test of danger is satisfied by the risk of some harm, so a defendant can be convicted of the serious offence of manslaughter where nothing more than minor injury was foreseeable to anyone.
• The label of manslaughter attaches to a wide range of culpability, from reckless acts like this one to trivial assaults that happen to end in death, and the rule does not distinguish between them.
• Because the defendant need not know his act was unlawful, the decision fails to explain why the base offence supplies the fault element that the homicide requires.