Here are some guidelines for answering an examination problem question on the legal topic of 'Constructive Manslaughter'.
The elements of constructive manslaughter:
1. D has committed an unlawful act. The act is ‘intrinsically’ criminal, not merely careless (Andrews 2002)
- Assault (Larkin 1943, Lamb 1967, Mallet 1972)
- Battery (Church 1965, Mitchell 1983)
- Arson (Goodfellow 1986, Willoughby 2004)
• OMISSION is not sufficient (Lowe 1973).
• D must have the mental element which combines with the unlawful act to constitute a criminal offense (Lamb 1967)
• There is no requirement that D foresee that D’s act may cause death or even injury (DPP v Newbury and Jones 1977)
• NO MENTAL ELEMENT: In Lamb (1967) D did not appreciate the risk of the gun firing and hence, did not possess the mental element of assault.
• INNOCENT AGENCY:
- An unaware adult pulling trigger
- A child
- An innocent agency will not brake the chain of causation (Michael (1840)
2. The act was dangerous in the sense that a sober and reasonable person would recognise that it carried some risk of harm (Church 1965). The risk need only be of some harm, not serious harm (Larkin 1943). According to Watson (1989) this means all the information that the defendant has. There must be a risk of physical harm; mere fear is not enough (Dawson 1985).
- GUN: although using this approach, from the defendants perspective, there is always a risk that the gun could be loaded (Ball 1989)
- ARSON: An act aimed at property can still be such that a sober and reasonable person would realise the risk of some harm (Goodfellow 1986).
3. The act was a substantial (i.e. not de minimis) cause of death. Normal causation rules apply. The act must be the factual and legal cause of death (Goodfellow 1986); and
4. The accused intended to commit the act as distinct from intending the consequent death.
Ball (1989): Distinguishing feature is on the one hand between the vulnerability of victim and on the other hand, the severity of act.
If you have any questions about Constructive Manslaughter, feel free to contact Tufts.