The “Mainly for Students “series has long been a mainstay of Estates Gazette, providing concise summaries on many aspects of property, practice, procedure, law and technology which are valued by students and experienced practitioners alike.
Its usefulness has led to many requests for the articles to be published in a handy book. The editors of the series, Phil Askham of Sheffield Hallam University and Leslie Blake of the University of Surrey, have duly obliged and the Best of Mainly for Students has just been published by Estates Gazette, price £23.
It contains a selection of articles published over the past four years, with material which has since been overtaken by events or legislation being excluded.
This week’s topic is concerned with the law where work carried out by a contractor or professional results in death. The second and concluding part of this article will be published on May 15.
In what circumstances may a workman, contractor, or professional person be convicted of manslaughter if his workmanship causes death?
Manslaughter is the offence of homicide next below murder. It is an offence contrary to common law with a maximum punishment of life imprisonment, but in many cases not leading to a custodial sentence at all or, at least, not to a lengthy one.
A recent example is the case of the train driver whose failure to heed a railway signal caused the Purley train disaster, killing five people and injuring 87 others. The Court of Appeal reduced his sentence from 18 months’ imprisonment (with 12 months suspended) to four months’ imprisonment (with no period of suspension): Rv Morgan [1] Crim LR 214.
Similarly, in the case of an electrician whose defective workmanship caused all the radiators and pipes in a house to become live (thereby killing a person who touched the metal sink), the judge at Maidstone Crown Court felt that justice was done by imposing a suspended sentence of nine months’ imprisonment: R v Holloway The Times January 18 and 31 1990.
The word “manslaughter” (unlike the word “murder”) cannot be used as a verb. Accordingly, an indictment which charges a person with the crime of manslaughter particularises that allegation by stating that the defendant “unlawfully killed” the victim. (In Scotland, the crime is known as “culpable homicide”.) This concept of “unlawful killing” should be distinguished from the verdict of “unlawful killing” which is sometimes returned at a coroner’s inquest. In the case of a coroner’s inquest, the phrase unlawful killing is wide enough to cover murder as well as manslaughter.
Manslaughter may be committed in several different ways, some of which are not relevant to the particular problem being discussed here. For example, a killer who intends to kill, or at least to cause grievous bodily harm, may (notwithstanding his malice aforethought) be convicted of manslaughter and not of murder if, at the time of the killing, he was suffering from diminished responsibility or was acting under the influence of some recognisable provocation. These examples of manslaughter belong to a category known as “voluntary manslaughter”. This category was built up in the shadow of the gallows to create merciful exceptions in cases of extenuation which would otherwise be categorised as murder.
The opposite category to voluntary manslaughter is, of course, “involuntary manslaughter” and this category covers those deaths which result from mindlessness, rather than from malice aforethought. It is a category which may be subdivided into two broad classifications: (1) constructive manslaughter; and (2) gross negligence manslaughter (sometimes known as reckless killing).
Constructive manslaughter
A consequence is said to be “constructive” in the eyes of the law if it is deemed to be the true nature of what the defendant (or other relevant person) has done, even though the outward appearance of things seems to be different – and perhaps even to indicate an opposite state of affairs. For example, an employer may be said to have “constructively dismissed” an employee if, wittingly or otherwise, he makes the terms or conditions of employment so unacceptable that the employee is forced to respond by resigning.
Constructive manslaughter is therefore an artificial verdict of homicide applied to a defendant whose conduct has led to the death of another person even though that defendant did not intend to cause serious harm to anyone. It is sometimes known by the alternative name of “unlawful act manslaughter”. It only arises where the defendant has caused death arising out of dangerous (or, at least, risky) criminal act. This formulation requires detailed consideration.
First, the defendant’s conduct must consist of an “act”. It will not be enough (for this type of manslaughter) if the defendant fails to perform a legal duty, even if that failure amounts to a crime in its own right. For example, if a factory owner or contractor fails to provide safety equipment for his employees this may be a criminal offence under the Health and Safety at Work Act 1974 (or some other statutory provision), but a death resulting from such a crime of omission will not automatically amount to constructive manslaughter. If a charge of manslaughter is felt to be appropriate, it will be necessary for the prosecution to bring the case within the four corners of the category of “gross negligence manslaughter” (or reckless killing) discussed below. In other words, the defendant’s conduct must go beyond being “criminal neglect” and must become dangerous to life and limb in the same way as a grossly negligent or intentional act can be: R v Lowe [3] QB 702; R v Sheppard[1981] AC 394.
Second, the “unlawfulness” of the defendant must be of a criminal nature. It will not be enough that it amounts to a tort, breach of contract or some other civil wrong. This was established in Rv Franklin (1883) 15 Cox CC 163 where the defendant (standing on the West Pier at Brighton) threw a box into the sea and unintentionally hit and killed a swimmer. The fact that he did not own the box and did not have permission to throw it in to the sea was held to be irrelevant to the crime of manslaughter. Instead, the defendant was convicted of manslaughter on the basis of gross negligence and he was sentenced to two months’ imprisonment. Quite clearly, Franklin would have been equally guilty of this type of manslaughter even if the box had been his own property.
Third, the crime must be one which carries with it the risk of some harm to some person. Even if Franklin’s conduct could have been categorised as theft (or “larceny” as it would have been known in 1883), rather than merely trespass the goods, such a crime would not have been enough to justify invoking constructive manslaughter in his case.
Theft (unlike robbery) does not normally involve any danger of injury to any person and in Franklin’s case it was the defendant’s grossly negligent method of perpetrating his (arguable) theft which caused the danger, not the theft itself. However, it is not difficult to envisage cases of theft which, by their very nature, create a danger of death or injury (for example, the theft of safety equipment). The situation is even clearer in the case of criminal damage. Thus, for example, in Rv Goodfellow [6] Crim LR 468 the defendant set fire to the house in which he was living in order to obtain an offer of council accommodation. The fire and fumes spread out of control and three people were killed.
The Court of Appeal held that the defendant’s crime of arson, and the deaths which resulted from it, made him guilty of constructive manslaughter. (He was obviously guilty of manslaughter by gross negligence in any event, and this case illustrates the fact that there is a large area of overlap between the two categories of involuntary manslaughter.)
Fourth, although the crime must create a risk of some danger, that danger does not have to be an obvious threat to life. While the probability of the risk must be an obvious one, the foreseeable consequences of that risk eventuating need not be grave. The test was authoritatively stated by Edmund Davies J (afterwards Lord Edmund Davies) in R v Church [6] 1 QB 59 at p70:
. . . 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.
Fifth (and finally), it will be irrelevant that the defendant, through intoxication or stupidity, did not realise the risk created by his criminal act. Thus, for example, in DPP v Newbury and Jones [6] 2 All ER 366 the House of Lords held that two 15-year-old boys were guilty of constructive manslaughter when they threw a paving-stone over a bridge on to a railway track, killing the guard in an oncoming train. The fact that they did not realise the risk they were creating was not a defence to the charge. However, this situation must be distinguished from accidental killings which arise from negligent or innocent mistakes. If, for example, a builder demolishes a wall without first checking whether workmen or trespassers are standing in its path, killing someone in the process, he may be guilty of manslaughter if he has been grossly negligent or reckless. But he cannot be accused of “constructive manslaughter” as his conduct (which may only have been negligent, not grossly negligent) amounted to some sort of assault and battery on the hapless victim. This principle was clarified by the Court of Appeal in a complicated case of a fatal accident caused by a revolver: R v Lamb[1967] 2 All ER 1282.
Negligence as a crime
“Negligence” is not, in law, the same thing as “neglect”. Negligence is the mental state of thoughtlessness with which something is done or not done. Neglect is the failure to perform an act which should have been performed, whether that failure was perpetrated deliberately or unknowingly (for example, through negligence). We have already seen that “neglect” cannot justify a charge of constructive manslaughter (although the law has not always taken this view: see R v Senior [9] 1 QB 283). We must also note now that “negligence” cannot amount to any form of manslaughter. This was very clearly explained by Lord Hewart CJ in R v Bateman [1925] All ER Rep 45:
In explaining to juries the test which they should apply to determine whether negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as “culpable”, “criminal”, “gross”, “wicked”, “clear” and “complete”. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment.
In Andrews v DPP [7] AC 576, Lord Atkin gave cautious approval to this explanation of the law, but he went on to add:
Probably of all the epithets that can be applied “reckless” most nearly covers the case.
Andrews is also authority for the view that constructive manslaughter cannot be invoked to cover fatalities arising from the unlawful performance of a lawful act. For example, although speeding is a criminal offence, driving a car is a lawful act (leaving aside the law of licensing). If, therefore, a speeding motorist kills another road user, the only circumstances in which a charge of manslaughter would be justified would be where gross negligence or recklessness on the driver’s part could be proved. It is self-evident that, in some cases, it does not manifestly endanger life and limb to exceed the speed limit, while in other cases travelling at 5 mph may clearly do so. (The definition of “gross negligence” and “recklessness” will be examined in the concluding part of this article).
One or more crimes?
Manslaughter takes so many forms, each of which has its own precise rules, that it is easy to think that it is not one crime, but the collective name for several crimes. This, however, is not the case.
Constructive manslaughter is not, for example, a separate crime from gross negligence manslaughter (or reckless killing). All types of manslaughter are simply charged as “manslaughter, contrary to common law”. It will only become clear from the evidence whether the prosecution is alleging the commission of a criminal act, which would have been punishable even if no fatalities had occurred, or whether the allegation is simply one of gross negligence (or recklessness) in the abstract.
It is, of course, possible to accuse a negligent contractor of one or more criminal breaches of the building regulations or those regulations relating to the safety of workmen on building sites. If a fatality were to result from such an infringement of the criminal law, it would be theoretically possible to rely on the doctrine of constructive manslaughter, subject to the principles outlined above. But, in practice, it would be difficult to prove a criminal act, rather than a criminal neglect, in such a case and most trial judges would be inclined to rule that such a prosecution must stand or fall on the issue of recklessness.
Almost certainly the contractor would seek to rely on the decision of the House of Lords in Andrews v DPP and would argue that building a house, like driving a car, is a lawful act, even though that activity might, on occasions, be carried out in a reckless way. In such a case, the building regulations will not help, except (perhaps) when showing a reckless departure from accepted professional standards.
It is significant to note that the electrician in the case of R Holloway was convicted of manslaughter because his work was “so badly, negligently and, indeed, recklessly done”. He was not convicted of constructive manslaughter, even though his work must have infringed more than one statutory regulation.
(To be concluded.)
