Burglars and liability for manslaughter

Burglary causes considerable fear especially where the home is occupied.  Suppose that a burglar is confronted by the house owner.  Unknown to the burglar, the owner (an elderly lady) has a medical condition involving weakened blood vessels which could rupture under stress.  Some hours later, the owner collapses, is taken to hospital and dies.  Could the burglar be liable for manslaughter?  Those are the outline facts of a recent case in which a manslaughter charge was dismissed by the trial judge on the basis that the judge considered that the death could not be linked to the burglary.  The Guardian 8th June and   Telegraph 26th May.  The 18 year old burglar received a sentence of 27 months for burglary.  He had boasted on Facebook that he would only receive a 6 month sentence.  Clearly he had not read the Lord Chief Justice's words in R v Saw and others [2009] EWCA Crim 1.  It appears that there was some medical opinion to the effect that the victim's stroke was brought on by the experience of the burglary.   It was a bold move by the Crown Prosecution Service to bring a charge of manslaughter since such cases raise some legal difficulties.

Manslaughter - this is a common law offence which
covers all unlawful homicides other than murder.  The textbooks divide manslaughter cases into voluntary and involuntary.  Voluntary manslaughter is committed where the defendant has killed with the mental state ("mens rea") required for murder (i.e. intention to either kill or to cause grievous bodily harm) BUT where there are mitigating circumstances reducing his culpability.  Those circumstances are, in law, diminished responsibility; provocation  or where the killing is in pursuance of a suicide pact.

Involuntary manslaughter has rather ill-defined boundaries.   If the defendant did not have the mens rea for murder, he may still be liable for manslaughter if the killing was "unlawful" but trying to define this element of "unlawfulness" has taxed many judicial minds.  There appear to be two main possibilities: unlawful act manslaughter and gross negligence manslaughter.  Our case of the burglar would have to be based on the former possibility.

It is clear law that a conviction for unlawful act manslaughter must be based on an act which is a crime and that act must be a significant cause of the death - R v Kennedy (No 2) [2007] UKHL 38.  Burglary is obviously unlawful - the offence is defined in the Theft Act 1968 s.9.   Further, the defendant must have had the mens rea required for the offence which constitutes the unlawful act.  An additional objective requirement now comes into play.  The unlawful act must be dangerous which is said to 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" - R v Church [1966] 1 QB 59 (Edmund-Davies LJ).

The "sober and reasonable person" is credited with the same knowledge as the defendant had at the time of the unlawful act: R v Watson [1989] 2 All ER 865 where it was held that the sober and reasonable person could be credited  with knowledge of the facts of which the defendants had become aware when they entered a house, namely the victim's age and frailty.  (The victim in Watson was a lady aged  87, frail and she actually suffered from a heart condition.  The defendants abused her verbally, left the house and she had a heart attack 90 minutes later).

The cases establish some other points.  It is not necessary to prove that the defendant actually knew that his act was unlawful and dangerous:  DPP v Newbury [1977] AC 500.  Also, the unlawful act does not have to be directed against the actual person who died: Attorney-General's Reference 3 of 1994.  

If it is established that our burglar had committed and unlawful and dangerous act then causation must be proved by the prosecution.  Had the victim's encounter with the burglar caused the death?

Causation - the law here has taken many twists and turns which is unsurprising given the enormous variety of factual situations in which causation arises.  Basically, the defendant's act need not be the sole cause, or even the main cause, of the death but it must be shown that the act contributed significantly to the death.  This involves both issues of fact and of questions of law.  Factually, would the death not have occurred but for the defendant's act?  In law, the defendant's act need not be the only cause of the death but must be more than a minimal cause.  The defendant must take his victim as he finds him.  Hence, the defendant may not be heard to argue that his victim would not have died if the victim had been in better health.  Further difficult questions have arisen where the defendant has argued that some intervening event (such as poor medical treatment) was the real cause of the death.  Naturally, the courts tend to lean against this - e.g. R v Smith [1959] 2 QB 35 and the more recent case of R v Cheshire [1991] 3 All ER 670.

Returning to our burglar.  There seems to be no good reason in principle to prevent the burglar being held liable for manslaughter if his victim dies as a result.  Unfortunately, we lack all the detailed evidence which would have been available to the Crown Court judge in the actual case.  We have not heard any legal submissions made to the judge.  Also, we do not have the trial judge's reasons for his decision.   Perhaps the CPS will not be too deterred by their setback in this case.  As to whether the law of "homicide" is satisfactory, it is worth recalling the comment of Lord Mustill in Attorney-General's Reference 3 of 1994 - " ... the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning."  Sadly, little has changed.

An interesting article on Manslaughter and causation is at Criminal Law and Justice Weekly 4th September 2010.