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Criminal | Offences Against The Person

Involuntary Manslaughter: Subjective Recklessness

Study Note | A Level

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Under unlawful act manslaughter the unlawful must be objectively dangerous. This is without reference to a person’s special characteristics, such as mental ability.

Newbury and Jones (1976)

Defendants, teenagers, had threw a paving stone from a railway bridge onto a train and killed the victim, a train guard. Defendants were convicted of manslaughter.

House of Lords upheld the conviction and confirmed it was not necessary to prove the defendant had known the act was unlawful or dangerous. It is sufficient to prove a defendant intentionally did an act which was unlawful and dangerous and that act caused death.

However, for non fatal assaults the test can be subjective.

Cunningham (1957)

Defendant removed gas meter from an empty house to steal money from it. This caused a gas leak, which seeped next door. The victim, a woman who lived next door, became ill and her life was endangered by the gas.

The court found that to have the necessary mens rea the defendant must either intend the consequence or realise that there was a risk of the consequence happening and decide to take that risk.

Therefore, some debate has arisen surrounding the nature of the test for recklessness.

Subjective test for recklessness

A subjective approach means a defendant either intended injury or realised there was a risk of injury and took that risk.

  • Criminal damage

    Case law has developed the concept in relation to the Criminal Damage Act 1971.

    Stephenson (1979)


    Defendant, a schizophrenic, had tried to go to sleep in a haystack, he felt cold and lit a fire which caused £3,500 of damage.

    Court of Appeal quashed his conviction because although ordinarily a person would realise a fire close to haystack may cause damage the defendant’s illness meant he did not consider this. They also stated the point should be left to a jury to decide.

    Lord Lane: .. We wish to make it clear that 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)

    Defendants, were boys aged 11 and 12 , they went to the back of a shop in Newport Pagnell, lit some newspapers which set fire to a wheelie-bin and engulfed the shop, causing £1m of damage. They were convicted of arson by a jury.

    House of Lords overturned their convictions. Finding the trial judge wrong for directing the jury not to consider the young age of the defendants. The test appears to be an entirely subjective one, where a defendant is only guilty if he realises the risk of damage.

  • Manslaughter

    Lidar (1999)

    Defendant, was in the driver seat of his car in a pub carpark when the victim lent through the passenger window and a fight started. Defendant drove off with the victim still half in the car and the victim got his feet caught in the rear wheel and died. The trial judge referred to recklessness in his direction to the jury and the defendant was convicted.

    On appeal his conviction was affirmed. Lord Evans noted that there was nothing in the Adomako (1994) decision to exclude reckless manslaughter.

  • Summary

    It appears both subjective recklessness manslaughter and gross negligence manslaughter exist in parallel but they are distinguished from unlawful act manslaughter as they do not require an unlawful act.

    For example, it seems the defendant in Lidar (1999) could have been convicted of gross negligence manslaughter. As a driver he owed the victim a duty of care and by driving away, with the victim half in the car, it could be argued he breached that duty. It would then be for the jury to decide if this was a breach sufficient or gross negligence.

    The subjective test when applied to manslaughter means a defendant is only found 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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