essay, I will discuss whether Keith and Ginger are liable for the deaths of
Kurt, Janis, and Keith. The common law offence of Unlawful Act Manslaughter is
the main offence which will be discussed in this essay. Unlawful act
manslaughter is renowned for criminalising consequences which were never
intended or even foreseen by the defendant1. To be
liable for committing the offence of Unlawful Act Manslaughter a defendant must
satisfy three elements: carrying out an unlawful act, the unlawful act must be
dangerous and finally the unlawful act must cause death.
unlawful act must be a criminal offence2
whereby the prosecution must be able to prove the Actus Reus and the Mens Rea
of the offence. The unlawful act cannot be an omission3.
In the case of R v Lamb4
an accident occurred between two friends, where one friend killed the other
with a gun by mistake. He did not realise that he had triggered the gun and
thus killing his friend. The defendant was charged with manslaughter but argued
the killing was accidental. On appeal the defendant’s conviction was supressed
because there was no mens rea present – there was no intention to kill. For the
test of unlawful act manslaughter to be fulfilled, the defendant must have the
requisite mens rea for the unlawful act that he carries out. Where the
defendant does not have the requisite mens rea, the offence of unlawful act
manslaughter has not been committed.
second limb of the test for unlawful act manslaughter is that the unlawful act
must pose a danger of harm. The test for dangerousness is not a literal
interpretation of the word dangerous. The test for dangerousness was set out in
the case of R v Church5
whereby the victim had made fun of the defendant for not sexually pleasing her
resulting in a fight whilst the defendant was drunk. The defendant rendered the
victim unconscious and believed that the victim was dead. The defendant then
threw her in the river where she drowned. On appeal, Mr Justice Edmund Davies
held that “…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”6.
The result of the case of Church is that the test for dangerousness is
objective in that it is based on what a sober reasonable person would consider
as giving rise to some harm.
final limb of the test is that the unlawful act must cause death. There are two
leading cases surrounding this part of the test being R v Cato7
and R v Dalby8. I will
consider these cases in detail below.
respect of Keith’s liability for the death of Janis it is likely that he would
be convicted of unlawful act manslaughter following the decision in the case R
In this case the appellant was found guilty of unlawful act manslaughter on the
basis that the unlawful act he carried out was the offence of maliciously
administering poison so as to endanger life or inflict grievous bodily harm,
under s23 Offences Against the Person Act 1861. The same facts apply in this
scenario whereby Keith administered heroin into Janis’s arm causing her death.
In R v Cato, the Appellant injected heroin into the victim’s arm which was the
cause of his death. The unlawful act element of the crime is therefore made
necessary for the unlawful act carried out by Keith to Janis be dangerous. The
test in R v Church10
is that the unlawful act must be as such that all sober and reasonable people
would inevitably recognise the risk of some harm resulting therefrom, albeit
not serious harm. Although Keith may not consider that what he did was
dangerous, the majority of sober and reasonable people would feel that it is dangerous
because when heroin has been injected, it is not clear what the effect may be
on the person’s body. Furthermore, a sober and reasonable person is likely to
consider that injecting poison may cause serious harm. It is likely the court
would find that injecting another person with heroin is in fact dangerous as
was the case in R v Cato11.
The final limb of the test is whether the unlawful and dangerous act carried
out by Keith and as set out above resulted in Janis’s death. It is clear from
the facts that Janis died from a drug overdose and therefore as a result of the
unlawful and dangerous act.
respect of Keith’s liability for the death of Kurt it is necessary to consider
the case of Kennedy No. 2 (2007)12.
It was held in this case that the appellant’s conviction for unlawful act
manslaughter be quashed on the basis that the victim’s own act broke the chain
of causation. As is the case in this scenario, Keith supplied the drug to Kurt,
who then had a choice, knowing the facts, whether to inject himself or not. The
heroin was self-administered, not jointly administered13.
Keith did not administer the drug into Kurt’s arm, as was the case with Janis
above. In the case of Kennedy No. 2 (2007)14
the court reviewed the case of R v Dias15.
In this case the Defendant had been convicted of
manslaughter. He had prepared a syringe charged with heroin which he had handed
to the deceased who had injected himself. The court recognised that the chain
of causation had probably been broken by the free and informed decision of the
as shown in the case here. Keith did not force or assist Kurt with
administering the heroin and he made a free and informed decision. Due to the
two cases set out above, it is likely that the court, in the case of Keith and Kurt would follow the House of Lord’s
decision in Kennedy and find that Keith was not liable for the death of Kurt.
action towards Lenny would be considered as an unlawful act namely the common
law offence of assault. Assault is defined by case law as intentionally or
recklessly causing the apprehension of unlawful and immediate personal violence17.
The mens rea of the offence being intention or recklessness and the actus reus
would be causing the apprehension of unlawful and immediate personal violence. By
Ginger slamming his fists on the desk in an enraged manner, Lenny would have
apprehended personal violence and it is therefore the actus reus would be
satisfied. Although Ginger did not realise that his actions would cause Lenny
to have a heart attack it is likely to be considered as reckless for the
purposes of the Cunningham18
test. There was a risk that Lenny might apprehend unlawful immediate personal
violence and Ginger took that risk by slamming his fists on the desk. Having satisfied
the mens rea for assault the unlawful act aspect of the offence of unlawful act
manslaughter is satisfied.
action could be regarded as dangerous. Even though Ginger may not see her act
as dangerous, the Church19
test is clear that if a sober and reasonable person looking onto the scenario
considered her actions to be dangerous, it is likely the court would consider
it to be dangerous. It could be argued that Ginger was not the reason why Lenny
died. Lenny’s age and pre-existing heart condition may be considered as a
contributing factor for the reason he had a heart attack. However, the thin
skull rule states that Ginger should take his victim, Lenny, as he finds him.
This means that even if an ordinary person would not have suffered a heart
attack as a result of Ginger slamming his fists on the desk and causing him to
apprehend immediate personal violence, Ginger is still liable for his death.
Whether or not he was aware of Lenny’s pre-existing condition is irrelevant. R
v Hayward20 is
applicable here where it was held the Defendant was fully liable despite the
fact an ordinary person of reasonable fortitude would not have died in such
circumstances. The third and final aspect of the unlawful act manslaughter test
being that the unlawful dangerous act resulted in death, is satisfied as Lenny
died from a heart attack.
conclusion it is likely that Keith is liable for the death of Janis following
the court’s decision in R v Cato21
but is it unlikely he would be liable for the death of Kurt based on the House
of Lords decision in Kennedy22.
It is likely that Ginger is liable for Lenny’s death, although she was not made
aware of Lenny’s pre-existing heart condition, and may not have though that her
action would cause such harm, the thin skull rule prevails and thus does not
break the chain of causation. If found liable for unlawful act manslaughter the
maximum prison sentence for Keith and Ginger is life.
1 Lisa Cherkassky,
“Kennedy and unlawful act manslaughter: an unorthodox application of the
doctrine of causation” (2008) J. Crim. L. 2008, 72(5), 387-408
2 R v Franklin (1883) 15 Cox CC 163
R v Lowe 1973 QB 702
4 R v Lamb 1967 2 QB 981
5 R v Church 1965 EWCA
Crim 1 (Edmund Davis J)
7 R v Cato 1976 1 WLR 110.
8 R v Dalby (1982) 74 Cr App R 348.
12 R v Kennedy 2007 UKHL 38.
13 ibid 24.
15 R v Dias 2002 2 Cr App R 96.
(n 12) 22.
17 Fagan v MPC (1969) 1 QB 439.
18 R v Cunningham 1957
2 QB 396.
20 R v Hayward (1908) 21 Cox 692.
21 Cato (n 7).