Unlawful Act Manslaughter Needs Proof of an Unlawful Act

One afternoon in October 2020, Auriol Grey (G), 46, was walking along a pavement in Huntingdon, Cambridgeshire. Celia Ward (W), 77, was cycling towards her on the same pavement. W normally rode on pavements or cycle paths because of hearing difficulties. According to witnesses, the two women were stationary when G waved her left arm in W's direction and said, ‘Get off the fucking pavement’. W fell off her bicycle into the road and was run over by a passing car, which had ‘no chance’ of stopping or avoiding her. W was killed.

As a result of cerebral palsy and a brain operation to deal with epileptic seizures in her childhood, G had mobility issues and was visually impaired. When interviewed by police, G said that W had been travelling towards her ‘at speed’ and that she (G) had ‘flinched out’ with her left arm to protect herself and avoid being injured. The incident was captured on CCTV with audio. When that was played to G, she said she could not explain why she had spoken in that way but maintained that her actions were to protect herself.

G was charged with manslaughter (with the Crown case based on unlawful act manslaughter). She appeared before HHJ Enright and a jury at Peterborough Crown Court in February 2023. HHJ Enright directed the jury that a person was guilty of manslaughter if they committed ‘an unlawful act’ which a ‘sane and reasonable person’ would realise would ‘inevitably expose another person to the risk of some harm’. He told them to find G not guilty if ‘what took place was or may have been an accident’ or that she ‘was or may have been acting in self-defence’.

G was convicted and appealed, contending that at no point did the trial judge direct the jury to consider whether G had, in fact, actually committed an unlawful act (a base offence). The Crown accepted that there was no evidence that could prove ‘any physical contact’ between the two women, so it could not have been battery, but nonetheless contended that there had been an assault.

HELD, ALLOWING THE APPEAL, that the jury had not been directed to consider whether G had committed an assault (at [21]). To convict G of manslaughter it had to be proven that all of the elements (both actus reus and mens rea) of assault had been committed, i.e., did G cause W to apprehend immediate unlawful violence? Did G intend this apprehension or, if not, had she foreseen the risk of W being made apprehensive? However, ‘The judge's legal directions did not address any of these issues’ (at [25]).

In terms of the actus reus of assault, at its ‘highest’ the Crown case was that W had ‘perhaps apprehended a blow’. But ‘it was not enough for the prosecution to prove that [G's] conduct may have caused [W] to apprehend immediate unlawful force. The prosecution had to make the jury sure that [G's] actions did have that effect’ (at [29]; emphasis added). In terms of the mens rea, ‘there was no focus on [G's] subjective state of mind. There was no identification of what [G] needed to have appreciated in order to establish recklessness. No attention was given to whether she recognised that there was a risk of [W] apprehending that she would be violent towards her… The mental element of common assault was simply not addressed at all’ (at [30]).

Commentary

At its heart, this case affirms a simple proposition: In every case of unlawful act manslaughter, the Crown must not only identity the unlawful act but also prove it. As Dame Victoria Sharp, P. said, ‘This case illustrates that it will often be helpful to consider what offence might have been charged if no death had occurred’ (at [20]). As Dame Victoria also observed, had no death occurred in the Grey case, it was ‘inconceivable’ that G ‘would ever have been charged with assault in circumstances where it could not be established that she had made any physical contact with the cyclist’ (at [35]).

Of course, we have been here before. Generations of law students have learned the case of Lamb [1967] 2 QB 981, in which Terry Lamb, in jest, pointed at his friend, Tim O’Donaghue, who was also treating the incident as a joke, a Smith & Wesson revolver. The gun's cylinder had five chambers. Two bullets were in the cylinder, both of which were in chambers that were not in line with the barrel. Without intending to fire the revolver, Terry pulled the trigger. Unfortunately, what both men failed to appreciate was that pulling the trigger caused the cylinder to rotate before the hammer struck the firing pin. When Terry pulled the trigger, one of the two bullets was brought into line with the barrel and was then immediately propelled down the barrel as the hammer struck the firing pin; Tim was shot and killed.

Like Auriol Grey, Terry Lamb was convicted of unlawful act manslaughter, apparently based on the unlawful act of assault, and was sentenced to three years’ imprisonment. And just like Auriol Grey, Terry Lamb's appeal was allowed because there was no proof of an unlawful act. In the Court of Appeal in Lamb, Sachs LJ agreed with Crown counsel that ‘for the act to be unlawful it must constitute at least what he then termed a technical assault’. However, ‘there was no evidence to go to the jury of any assault of any kind’ (Lamb at p.988, per Sachs LJ). The trial judge's direction to the jury, to the effect that pointing a gun at another person and pulling the trigger was per se unlawful ‘whether or not it falls within any recognised category of crime’ was held to be a misdirection (Lamb at p.988).

Sachs LJ went on to consider whether ‘the acts of the defendant were on any other ground unlawful in the criminal sense of that word’. He concluded not: ‘if, for instance, the pulling of the trigger had had no effect because the striking mechanism or the ammunition had been defective no offence would have been committed by the defendant’ (Lamb at p.988). In other words: no unlawful act, no manslaughter (absent proof of gross negligence), even though the defendant has caused death.

Of course, not every case of unlawful act manslaughter involves an assault. If there is such a thing as a typical case, it involves the unlawful act of battery: A phenomenon so depressingly frequent that it has attracted the sobriquet ‘one punch killing’ (see e.g., Groome [2022] EWCA Crim 539). Other unlawful acts that have been identified (and proved) in cases of unlawful act manslaughter include inter alia arson, criminal damage, theft, burglary, administering a noxious substance (contrary to s.23 of the Offences Against the Person Act 1861), endangering road users (contrary to s.22A(1)(b) of the Road Traffic Act 1988) and even facilitating a breach or attempted breach of immigration law (contrary to s.25(1) of the Immigration Act 1971). What Grey and Lamb remind us is that, regardless of which offence is relied upon as the ‘base’ offence, the Crown need to both identify and prove it.