Unlawful Dangerous Act Manslaughter (Udam)

Involuntary manslaughter

UNLAWFUL DANGEROUS ACT MANSLAUGHTER (UDAM)

Involuntary manslaughter, like murder, is a common law offence, which has been defined over the years by case law. It is the name given to an unlawful homicide where the actus reus of murder has taken place, but without the mens rea for the offence of murder.

The actus reus of involuntary manslaughter requires that the D be a ‘substantial’ cause of death

There are 3 kinds of involuntary manslaughter under common law:

1)Manslaughter by an unlawful & dangerous act (sometimes known as CONSTRUCTIVE MANSLAUGHTER)

2)Gross negligence manslaughter

3)Reckless manslaughter

1)MANSLAUGHTER BY AN UNLAWFUL & DANGEROUS (PHYSICAL) ACT-

(Constructive manslaughter)

The P must prove that the common elements of a homicide offence exist, but unlike other unlawful homicides death must be caused by an act; an omission is not sufficient.

IF A PERSON IS TO BE CHARGED WITH UDAM:

i)THERE MUST HAVE BEEN AN UNLAWFUL ACT

ii)THE ACT WAS DANGEROUS (A REASONABLE PERSON WOULD SAY THAT THE ACT CAUSED A RISK OF SOMEPHYSICAL HARM)

iii)THIS UNLAWFUL ACT MUST HAVE CAUSED THE DEATH

i)THERE MUST HAVE BEEN AN UNLAWFUL ACT

If the act causing the death was a lawful one but one that was committed carelessly, it will not come into this category of manslaughter, this will be GROSS NEGLIGENCE MANSLAUGHTER AS IN-

For constructive manslaughter the act itself must be criminal. This is since the case of:

FRANKLIN 1883

HELD: The unlawful act must be a crime opposed to a civil wrong.

If the act is not a criminal act it cannot be manslaughter.

When a person is charged with constructive manslaughter, the unlawful act for point i) often consists of an:

• assault and battery
• criminal damage
• or arson

It will not be a valid defence for the D to argue that he did not intend to injure the person who was actually harmed, provided that the assault itself had been established.

LARKIN 1943

FACTS: The accused had discovered his girlfriend with another man, he had brooded about this for a while then returned with an open razor. He alleged that he had only meant to frighten the man but that his girlfriend, who had been drinking, staggered onto the razor and cut her throat.

HELD:

DPP V NEWBURY & JONES 1977

FACTS:Two young boys had thrown slabs of paving stone from a bridge into the path of a passing train. It entered the window of the cab and killed the driver.

HL: Upheld their UDAM conviction, without specifying upon which offence, exactly, this was based. The most obvious is criminal damage.

Lord Salmon in this case said:

“An accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that the act inadvertently caused death.

It is unnecessary to prove that D knew that the act was unlawful and dangerous. This is why cases of manslaughter vary so infinitely in their gravity, this may amount to no more than pure inadvertence and sometimes to little less than murder.”

ARIOBEKE 1988

FACTS:There was evidence of bad relations between 2 men & the victim the 2 men had been peering into the carriage of a train looking for the victim. The latter panicked and ran cross a live railway line to try and escape. He electrocuted himself when he stepped onto a live line.

CA HELD: Quashed the conviction on the grounds that an assault had not been established.

ii) THE UNLAWFUL ACT MUST ALSO BE A DANGEROUS ONE

An unlawful act which is likely to injure another person.

Whether the act is considered a dangerous one is decide Objectively i.e.,

This was affirmed in the case of:

CHURCH 1966

CA said: “The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the VICTIM to, at least the risk of SOME PHYSICAL HARM resulting there from, albeit not serious harm”

HELD:

1)Was there an unlawful act?

2)Did it cause death?

3) Was the unlawful act dangerous to a reasonable man?

THE ACT NEED NOT BE AIMED AT THE VICTIM:

MITCHELL 1983

FACTS: D pushed his way into a post office queue. A 72 year old man told him off for this. The D punched the man causing him to stagger back into an 89 year old lady. The women fell over & a few days later died of her injuries.

HELD: D was convicted of UDAM. He had done an unlawful act by punching the man. This was dangerous as it was likely to cause some physical harm to another person. Finally the act indirectly caused the death of the woman.

THE D IS LIABLE FOR UDAM DESPITE THE FACT THAT THE PERSON HIT WAS NOT THE ONE WHO DIE

LYNCH 2007

FACTS: D had punched V 4 times in the head and V later died in hospital. D had committed an unlawful act – BATTERY

It was dangerous in the sense that punching someone 4 times in the head was objectively like ly to subject V to SOME harm regardless of whether V had a heart condition.

HELD:D was guilty of UDAM despite V’s death being at least partly attributable to an unknown heart defect.

D could not use the heart condition to escape liability (this is another example of take your victim as you find him)

The judge in the following case of DAWSON stated that when applying the objective test laid down in CHURCH ‘sober and reasonable people’ could be assumed to have the same knowledge as the actual D and no more.

DAWSON 1985

FACTS: D’s attempted to rob a garage wearing masks & carrying an imitation firearm & pickaxe handle. The plan went wrong when the 60 year old garage attendant presses the alarm button & the robbers fled. But the attendant had a severe heart condition & died. The robbers were charged with manslaughter.

The CA had to ask themselves if the reasonable man would have seen the risk of SOME PHYSICAL HARM from their unlawful act to the victim. The reasonable man has the same knowledge of the D’s & as the D’s here did not know about the heart condition neither would the reasonable man.

CA HELD:

DAWSON was distinguished in:

WATSON 1989

FACTS: The accused burgled the house of an 87 year old. They fled without taking anything when they saw the old man. The man died of a heart attack shortly afterwards.

Would the reasonable man see a risk of SOME PHYSICAL HARM to the victim from the unlawful act?

HELD:

If D would have seen SOME PHYSICAL harm it doesn’t matter if the harm turns out to be worse

Obiter Dicta of CA in the case of WATSON:

“It may well act as a deterrent to make potential defendants aware that they ‘take their victims as they find them’ and a strict approach by the courts may help to reduce crimes directed at the old and frail”

iii) THE UNLAWFUL ACT MUST HAVE CAUSED THE DEATH

This is simply an issue of causation. It applies in exactly the same way as discussed in relation to murder.

The unlawful act of the accused must be closely connected to the death that has resulted & a novus actus interveniens must not have arisen to break the chain of causation.

The unlawful act need not however be the sole cause of the death, provided that it made a contribution to it

SHOHID 2003

FACTS: D was with a group of men who attacked the victim & his friend on the platform of a railway station. The V & his friend were forced onto the railway track; the friend was able to climb back out onto the platform. The V however was prevented from doing so by some of the attackers, not including the D & was killed by a train.

HELD:

IT HAS BEEN DECIDED THAT AN UNLAWFUL AND DANGEROUS ACT NEED NOT BE AIMED AT A PERSON IT CAN BE AIMED AT PROPERTY:

In GOODFELLOW CA confirmed:

“There must be no fresh intervening cause between the act and the death”

GOODFELLOW 1986

FACTS:D was being harassed & wanted to move from his council house but knew the chances of a transfer were slight. He took matters into his own hands & set fire to the property making it look as though it had been fire-bombed, hoping that this would lead to him being re-housed. Unfortunately the fire was greater than expected & his wife, son & son’s girlfriend died in the blaze.

C/A HELD:

R V MITCHELL 1983

FACTS: It was decided that although there was no direct contact between D and V, she was injured as a direct and immediate result of his act. The only question is one of causation: whether her death was caused by D’s unlawful act.

It was up to the jury to decide of it was so caused

CA HELD: “We see no reason of policy for holding that an act calculated to harm A cannot be manslaughter if it in fact kills B.

The criminality of the doer of the act is precisely the same whether it is A or B who dies”

Several cases have involved deaths resulting from drug overdoses where the Prosecution has alleged that the V’s drug dealer should face liability for UDAM.

DALBY 1982

FACTS:D & the V were drug dealers. D obtained a drug called diconal lawfully on prescription, but then gave some of the tablets to his friend & they injected themselves before going to out. While they were out there was evidence that the V was injected twice more by someone else. He died the following day

HELD: DALBY was charged with SUPPLYING DRUGS and the offence of UDAM and was found guilty on both counts.

One of the questions that the jury was asked was “whether the supply of diconal was a SUBSTANTIAL cause of the victim’s death”

C/A quashed the conviction, stating:

“Although supplying the controlled drug was an unlawful act, it was not the supplying that had caused the death. The injection caused the death. The injection caused the death & this was a voluntary act by the victim.”

Here the unlawful act of supplying the drugs was not an actdirected against the victim & the supply did not cause any direct injury to him

THE UNLAWFUL ACT IN THIS CASEOF CATO WOULD BE S23 OAPA – ADMINISTERING A NOXIOUS THING.

CATO 1976

FACTS:D & and the person who died where drug users. They agreed to give each other their ‘fixes’. The D injected the V several times during the night with heroin although the victim actually prepared it. The amount proved to be fatal so D was charged with UDAM & administering a noxious substance contrary to OAPA 1861

HELD: D was convicted of UDAM –Where was the unlawful act???

DIAS 2002

FACTS: D prepared a syringe of heroin & gave it to the victim, the victim died.

CA HELD: They made it clear that the self injection was not unlawful D’ s conviction for manslaughter was quashed. The self-injection broke the chain of causation

ROGERS 2003

FACTS: D participated in the injection of heroin by holding his belt around the victim’s arm as a tourniquet to make it easier for the V to find a vein to inject.

He was convicted of UDAM after the judge ruled that the application of the tourniquet was ‘part & parcel’ of the “administering of the noxious substance”of the purposes of s23 of the OAPA.

CA HELD: Dismissed his appeal holding that he had played an active part in the injection process therefore he had committed both the offence under s23 (administering a noxious substance) & UD

The leading case is now KENNEDY:

ROGERS WAS OVERRRULED IN THE HL BY:

KENNEDY 2007

FACTS:D was s drug dealer & V was a heroin addict. One night at V’s request, D prepared a dose of heroin & gave V a syringe ready for injection. V injected himself & later died. D was convicted of manslaughter, but appealed because he had not actually CAUSED V’s death.

The CA put to the HL the following question:

“When is it appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a class A drug which is freely self-administered to the person to whom it is supplied, & the administration of the drug then causes death?”

The Law Lords allowed the appeal & quashed D’s conviction & said that the answer to the above question was “NEVER”

THE EFFECT OF THE ABOVE CASES IS AS FOLLOWS:

Where the D supplies the drug but does nothing towards the administration of it, he has not caused the death- DALBY/KENNEDY

Where the D prepared the syringe & hands it to the victim he has probably not caused the death- DIAS

Where the D assists in the injection in some way, he has participated in the unlawful act of administering a noxious substance BUT where the act cause the death he isNOT guilty of manslaughter- KENNEDY

Where D injects V he is guilty of UDAM - CATO

THE MENS REA OF INVOLUNTARY MANSLAUGHTER

UDAM is a controversial form of manslaughter because of the MR required or the lack of MR. The only MR required is that for the

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i)D does not have to intend or foresee any harm at all

ii) Even the reasonable person need only foresee the risk of ‘SOME HARM’not serious harm

LARKIN 1943

HELD: Larkin’s conviction for manslaughter was upheld even though the only MR he had was for common assault.

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