The Journal of Criminal Law

This article critically examines the development of statutory restrictions on the common law right to silence in the UK, providing insight from common law, jurisprudence and historical legal contexts, and considering the broader context of the privilege against self-incrimination, and critically evaluates the development restriction of the right, by ss 34–38 of the Criminal Justice and Public Order Act 1994.

The aim of this article is to separate out and justify two means of proving manslaughter by an unlawful (and dangerous) act. One is manslaughter by an act of intended bodily harm. The other is manslaughter by an unlawful and dangerous act. Some historical authority for these two kinds of unlawful act manslaughter is established, but the line of argument centres on the separate justifications for each kind. The justification for manslaughter by an act of intended bodily harm centres on the relationship between intention and luck. The justification for manslaughter by an unlawful and dangerous act concentrates on the distinction between negligence and heedlessness. This article concludes that manslaughter by an act of intended bodily harm may be justifiable, but that this may be possible where death is caused through any advertent crime. This is with a view to potential development or reform through the courts or Law Commission.

Despite playing a significant role in defining the boundaries of manslaughter, the ‘gross negligence’ concept is notoriously indeterminate. There is no comprehensible and consistent means of measuring whether conduct is sufficiently gross to warrant criminal conviction. The gross negligence condition also sets the culpability bar too low by permitting the criminal censure of undeserving defendants who did not advert to any risk of death associated with their conduct. Whilst acknowledging the difficulties of distinguishing advertence from inadvertence in cases that straddle the margins of legitimate criminal punishment and accidental death, it is argued that punishment should only be meted out to those who are consciously aware, or at least had a conscious inkling, of the risk of encroaching on the victim’s legally protected interests. A reformulated offence that regards the defendant’s conscious choices as the true determinant of culpability is theoretically plausible and would inject the clarity, certainty and consistency that is required of a law that dictates the parameters of a serious homicide offence.

The crime of unlawful act manslaughter (otherwise known as constructive manslaughter) exists in English and Australian common law. It is also an offence contrary to the Canadian Criminal Code. In all three jurisdictions the offence shares the same essential elements, including the requirements that the accused commit an act which is both unlawful and dangerous. This article will explore the case law on unlawful act manslaughter in Australia, Canada and England, focusing on the elements of an unlawful act and dangerousness, in order to identify similarities and differences in the application of the law in the three jurisdictions. Where differences are found, consideration will be given to the question whether English law should be reformulated.