Serene Allen

‘Constructive manslaughter’ is a direct violation of a number of general principles of English

criminal law. Discuss.

There are a number of principles that the English Criminal Law rests upon. There are six principles
that this essay will focus on: the principle of legality, principle of responsibility, principle of
minimal criminalisation, principle of proportionality, principle of fair labelling and the
correspondence of the actus reus and mens rea of a crime. The crime of constructive manslaughter,
or unlawful and dangerous act manslaughter, can be seen to contravene the above principles
showing it can be a controversial offence at times. Constructive manslaughter has three elements to
it: (i) the act must be unlawful; (ii) the act must be dangerous; and (iii) the act must have caused the
death of the victim.1 The act must be unlawful means the act is an offence in criminal law (not of
negligence or omission) such as assault. It then needs to be classed as dangerous and then as a result
the victim’s death must have occurred. For example, if A pushes B who subsequently dies, A is
liable for constructive manslaughter as his assault was unlawful and dangerous and caused B to die.
The principle of legality states that the law must be unambiguous, must be capable of being obeyed
and be available to the public.2 The law needs to be clear and understandable by all in order for it to
be obeyed properly. Within the context of constructive manslaughter, the definition of ‘dangerous’
can be seen to violate this principle in that it is not always clear as to what is meant by it. Again the
tension between objectivism and subjectivism is evident. The definition for dangerous that is
established is that, ‘the unlawful act must be such as all sober and reasonable people recognise
must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not
serious harm’.3 Therefore, the objectivist approached prevailed especially as the House of Lords
refused to put an element of the defendant’s foresight into it.4 Although there is a definition for
dangerous it uses the reasonableness test which always leaves room for debate as to whether that
should be the reasonable person of the same age and gender or even perhaps further characteristics.
The principle of responsibility is otherwise known as the principle of individual autonomy.5
This means that as individuals have control over what to do, they are held responsible for their own
conduct. So if A pushes B, A is responsible for that assault as it was his own free choice to do so.
However, can it be said that A is responsible for the death of B is he subsequently dies? A did not
intend for B to die or perhaps even be hurt badly yet constructive manslaughter holds him
responsible. Perhaps, it is fair to say in that case he is responsible but where the chain is longer such
as in Mitchell 6 it is hard to accept that he should be held responsible to the degree of manslaughter.
Mitchell pushed a man who in turn fell into an elderly woman breaking her femur. She
subsequently died and Mitchell was convicted of manslaughter. Although there is the feeling that
someone should be punished for the lady’s death, it seems to go against this principle. Mitchell
chose to assault the man so he is responsible for that but the lady was an unfortunate occurrence
which asks the question ought he to be held responsible for her death also. If yes, then how long
does the chain last? What if there had been five people falling into each other before death resulted?
It seems that this principle and constructive manslaughter clash.
The principle of minimal criminalisation means that things should be criminally prohibited
only if necessary. If there are other ways of dealing with certain behaviour, then criminalisation is
not needed. Criminalisation should occur as little as possible. In the case of constructive
manslaughter it can be said that this principle is not particularly adhered to in that where a person
has committed an act of ABH but results in death they are criminalised twice; once for their assault
and then for the manslaughter also as seen in Mitchell (the above case). He faced two convictions
for his act that in his foresight would only have possibly resulted in one if any at all. This is not to

1
Jonathan Herring, Criminal Law: Texts, cases and materials 2nd ed, OUP, 2006, p274
2
Ibid, p11
3
Church [1966] 1 QB 59
4
DPP v Newbury and Jones [1977] AC 500
5
Andrew Ashworth, Principles of Criminal Law 5th ed., OUP, 2006, p25
6
Mitchell [1983] QB 741

1
Serene Allen

say manslaughterers ought not to be convicted but in constructive manslaughter the defendant could
be said to be over criminalised.
The sentence should reflect the seriousness of the crime is the principle of proportionality.
So for a life imprisonment sentence for an act of criminal damage would violate this principle. In
constructive manslaughter, the defendant would receive the punishment for manslaughter which
varies but could be as much as life imprisonment. For someone who simply pushes someone but
because the victim has a weak heart, dies, the defendant faces the punishment for manslaughter
when what their act was, was actually assault. It can be argued though that due to the fact that they
will be convicted of manslaughter rather than assault, there is no violation of this principle of
proportionality. The difficulty is that it can seem to be unfair for someone to get a much greater
sentence when the act they committed would not have the same magnitude. For example, if criminal
damage resulted in death the difference in sentences is large and that may seem to be somewhat
unfair.
The principle of fair labelling says that an act must be described as what it actually is. Thus,
we have the distinction in English criminal law between actual bodily harm and grievous bodily
harm and murder and manslaughter. Herring says, ‘In defining the offence it is necessary to
distinguish between the losses suffered by the victim and the wrongs done to the victim.’ 7 He goes
on to explain that the state of the mind of the defendant matters in labelling the crime. In the
circumstance of constructive manslaughter, it does not seem this principle if fully upheld. The
defendant’s unlawful act is not what is described. In the earlier example of A pushing B, the
unlawful act, according to how constructive manslaughter is determined, is the assault yet in the
end, A is not labelled using assault, he is labelled as a manslaughterer. It is understood that the
death of B needs to be taken into account in the label but a label such as “death by assault”
describes the act more accurately. This is especially an issue when the defendant had no knowledge
of risk of serious injury or death. This issue is in the process of reform which William Wilson 8 in
his article welcomed the proposal that there needs to proof that the defendant was aware of the risk.
The last principle to be discussed in this essay is that of correspondence. This means that
there is a nexus between the actus reus of a crime and the mens rea. For example, the actus reus for
murder is causing death of a person and the mens rea is intent to kill or cause grievous bodily harm.
Without either the actus reus or mens rea, a defendant cannot be found guilty of murder. Barry
Mitchell9 says, ‘In criminal law mens rea plays an important role in seeking to ensure a sufficient
level of fault so that D deserves conviction and punishment.’ In constructive manslaughter, the
mens rea that is required is the mens rea for the unlawful act rather than manslaughter. So, if the
unlawful act was criminal damage, the mens rea for that and manslaughter are vastly different.
However, like Mitchell says the mens rea determines whether someone deserves their conviction. If
someone is to be convicted of manslaughter, surely the mens rea ought to be for that crime but this
is not the case in constructive manslaughter. The actus reus and mens rea do not always match in
cases of constructive manslaughter showing that this crime contravenes another principle of English
criminal law.
In conclusion, it can be seen that the criminal offence of constructive manslaughter violates
several principles of the English criminal law. Only six were discussed here and it can be seen from
these that there are some problems with the offence. The definitions are sometimes ambiguous as to
what is meant, taking a lot of interpretation by the judges. The offence means that if you are
committing a criminal act, you must be liable for whatever the consequences. Although this seems
to be fair, when analysing it with the principles we see that it is not in line with them all. The reform
on homicide looks to tackle constructive manslaughter by narrowing the scope a little so as to
include an element of foresight. This could help make constructive manslaughter conform to the
principles discussed.

7
Jonathan Herring, Criminal Law: Texts, cases and materials 2nd ed, OUP, 2006, p19
8
William Wilson, The Structure of Criminal Homicide, Criminal Law Review, 2006
9
Barry Mitchell, In defence of a principle of correspondence, Criminal Law Review, 1999, p205

2
Serene Allen

Words – 1461

Bibliography
Jonathan Herring, Criminal Law: Text, Cases and Materials 2nd edition
Andrew Ashworth, Principles of Criminal Law 5th edition
Barry Mitchell, In defence of a principle of correspondence, Criminal Law Review, 1999
Mitchell C Davies, Constructive manslaughter - A not so basic, basic intent crime, Journal of
Criminal Law, 1994
William Watson, The structure of criminal homicide, Criminal Law Review, 2006
Mitchell [1983] QB 741
Church [1966] 1 QB 59
DPP v Newbury and Jones [1977] AC 500