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Criminal | Offences Against The Person

Involuntary Manslaughter: Subjective Recklessness

Revision Note | A Level

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  • under unlawful act manslaughter, the act must be objectively dangerous
  • without reference to D’s special characteristics, such as mental abilities

    Newbury and Jones (1976)

    • Ds, teenagers, threw a paving stone from a railway bridge onto a train and killed V, a train guard
    • Ds convicted of manslaughter
    • House of Lords upheld conviction, confirming was not necessary to prove D had known the act was unlawful or dangerous, sufficient to prove D intentionally did an act which was unlawful and dangerous and that caused death
  • for non fatal assaults the test can be subjective.

    Cunningham (1957)

    • D removed gas meter from an empty house to steal money, causing a gas leak, which seeped next door, V lived next door and became ill
    • found D must intend the consequence or realise that there was a risk of the consequence happening and decide to take that risk
  • some debate has arisen surrounding the nature of the test for recklessness

Subjective test for recklessness

  • subjective approach means D either intended injury or realised there was a risk of injury and took that risk
  • case law has developed the concept in relation to offences under Criminal Damage Act 1971

    Stephenson (1979)

    • D, a schizophrenic, tried to sleep in a haystack, felt cold and lit a fire, caused £3,500 of damage
    • Court of Appeal quashed conviction, D’s illness meant he did not consider risk
    • Lord Lane: .. the test remains subjective, that the knowledge or appreciation of risk of some damage must have entered the defendant's mind even though he may have suppressed it...

    Gemmel and Richards (2004)

    • Ds, 11 and 12yr old boys , lit some newspapers which set fire to a wheelie-bin and engulfed a shop, causing £1m of damage, Ds convicted of arson by a jury
    • House of Lords overturned convictions, judge erred by directing jury not to consider Ds young age
  • some case law has also developed in relation to reckless manslaughter

    Lidar (1999)

    • D, driving his car in carpark when V lent through passenger window and a fight started
    • D drove off with V still half in the car, V got his feet caught in the rear wheel and died
    • trial judge referred to recklessness in his direction to jury, D convicted of manslaughter
    • on appeal conviction affirmed, Lord Evans said nothing in the Adomako (1994) to exclude reckless manslaughter


  • appears both subjective recklessness manslaughter and gross negligence manslaughter exist in parallel
  • distinguished from unlawful act manslaughter as they do not require an unlawful act
  • seems D in Lidar (1999) could have been convicted of gross negligence manslaughter, as a driver he owed V a duty of care and by driving away, with the V half in the car, could be argued he breached that duty, would be for jury to decide if this was sufficient for gross negligence
  • subjective test applied to manslaughter means D only guilty, if at the time of the act, he intended injury and realised that there was a risk of death or serious injury and he took that risk anyway
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