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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> DPP v Newbury [1976] UKHL 3 (12 May 1976) URL: http://www.bailii.org/uk/cases/UKHL/1976/3.html Cite as: [1977] AC 500, [1976] UKHL 3 |
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Die Mercurii, 12° Maii 1976
Parliamentary
Archives,
HL/PO/JU/4/3/1282
HOUSE OF LORDS
DIRECTOR OF PUBLIC
PROSECUTIONS
(RESPONDENT)
NEWBURY (APPELLANT)
(ON APPEAL FROM THE COURT OF
APPEAL
(CRIMINAL DIVISION))
DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
JONES (APPELLANT)
(ON APPEAL FROM THE COURT OF
APPEAL
(CRIMINAL DIVISION))
[CONSOLIDATED APPEALS]
Lord
Diplock
Lord
Simon of Glaisdale
Lord
Kilbrandon
Lord
Salmon
Lord
Edmund-Davies
Lord Diplock
my lords,
Lord Simon of Glaisdale
my lords.
Lord Kilbrandon
MY LORDS,
Lord Salmon
MY LORDS,
2
ample evidence that just as the
train was about to reach the bridge the
two appellants, who were
each about 15 years of age, were jointly concerned
in pushing over
the parapet the piece of paving stone which killed the guard.
They
were jointly charged with manslaughter and after a very fair
and
lucid summing up, each was found guilty. Both of them appealed
against
conviction and sentence and their appeals against
conviction were dis-
missed. The appellants now appeal to this
House. The point of law
certified to be of general public
importance is " can a defendant be properly
" convicted
of manslaughter, when his mind is not affected by drink or drugs,
"
if he did not foresee that his act might cause harm to another?"
The learned trial judge did not
direct the jury that they should acquit
the appellants unless they
were satisfied beyond a reasonable doubt that
the appellants had
foreseen that they might cause harm to someone by
pushing the
piece of paving stone off the parapet into the path of
the
approaching train. In my view the learned trial judge was
quite right not
to give such a direction to the jury. The
direction which he gave is com-
pletely in accordance with
established law, which, possibly with one exception
to which I
shall presently refer, has never been challenged. In R. v.
Larkin
29 Cr. App. R. 18, Humphreys J, said at page 23 "
Where the act which
" a person is engaged in performing is
unlawful, then if at the same time
" it is a dangerous act,
that is, an act which is likely to injure another person,
"
and quite inadvertently the doer of the act causes the death of that
other
" person by that act, then he is guilty of
manslaughter." I agree entirely
with Lawton L.J. that that is
an admirably clear statement of the law which
has been applied
many times. It makes it plain (a) that an accused is
guilty
of manslaughter if it is proved that he intentionally did an act
which
was unlawful and dangerous and that that act inadvertently
caused death
and (b) that it is unnecessary to prove that
the accused knew that the act
was unlawful or dangerous. This is
one of the reasons why cases of man-
slaughter vary so infinitely
in their gravity. They may amount to little more
than pure
inadvertence and sometimes to little less than murder.
I am sure that in Reg. v.
Church [1966] 1 QB 59 Edmund Davies J. (as he
then was),
in giving the judgment of the court, did not intend to differ from
or
qualify anything which had been said in R. v. Larkin.
Indeed he was
restating the principle laid down in that case
by illustrating the sense in
which the word " dangerous "
should be understood. Edmund Davies J. said
" For such a
verdict" (guilty of manslaughter) " inexorably to follow,
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 ". The test
is still the
objective test. In judging whether the act was dangerous the test
is
not did the accused recognise that it was dangerous but would all
sober
and reasonable people recognise its danger.
Mr. Esyr Lewis in his very able
argument did not and indeed could not
contend that the appellants'
act which I have described was lawful but he
did maintain that the
law as stated in Larkin's case had undergone a change
as a
result of a passage in the judgment of Lord Denning M.R. in Gray
v.
Ban [1971] 2 Q.B. 554 at 568 which reads as follows: "In
manslaughter
" of every kind there must be a guilty mind.
Without it the accused must
" be acquitted: See Reg. v.
Lamb [1967] 2 Q.B. 981. In the category of
"
manslaughter relating to an unlawful act, the accused must do a
dangerous
" act with the intention of frightening or
harming someone or with the
" realisation that it is
likely to frighten or harm someone, and nevertheless
"
thereafter, in unbroken sequence .cause the death of another, he is
guilty
" he goes on and does it, regardless of the
consequences. If his act does
" of manslaughter". I do
not think that Lord Denning was attempting
to revolutionise the
law relating to manslaughter if his judgment is read
in the
context of the tragic circumstances of the case, which I must
now
shortly recite. James Gray and his wife had been married about
eight years
when they met and became very friendly with the Barrs,
who lived close
by. Both marriages were happy. Unfortunately Mr.
Gray became infatuated
3
with Mrs. Barr and she fell in
love with him. This naturally caused great
distress to Mrs. Gray
and Mr. Barr and put a terrible strain on Mrs. Barr,
who was torn
between her devoted sense of duty to her husband and children
and
her deep love for Mr. Gray. The association between Mr. Gray and
Mrs.
Barr continued. This was too much for Mrs. Gray, and her husband
set
her and their children up in a home under a deed of separation.
Mr.
Gray continued to live at the old family home. Mrs. Barr left
her home
but did not go to live with Mr. Gray. She lived with her
mother a few
miles away. Mr. Barr was doing his best to persuade
his wife to come
back and live with him and their children. On the
13th June 1967 Mr.
Barr took his wife out to dinner. She promised
to give up Mr. Gray. He
drove her home but when he had put his car
away, he discovered that his
wife had run away and assumed that
she had gone to spend the night with
Mr. Gray. Mr. Barr was beside
himself. He took his 12 bore shotgun, loaded
both barrels, and set
off for Mr. Gray's house, which he found in darkness.
He entered
the house and found Mr. Gray standing at the top of the stairs.
Mr.
Barr believed that his wife was in the bedroom. She was not; she
was
later found unconscious in a field where she had attempted to
commit suicide.
Mr. Barr started to mount the stairs holding his
gun at the high port and
threatening Mr. Gray with it to force him
to get out of the way. Mr. Gray
refused to move. Two shots were
fired, one into the ceiling and the other
killed Mr. Gray.
According to Mr. Barr's account, and he was the only
person left
alive who knew what happened, Mr. Gray grappled with him,
the gun
went off and fired one shot into the ceiling; Mr. Barr then
slipped
on the stairs and accidentally the gun fired another shot
which killed Mr.
Gray. There was much sympathy for Mr. Barr when
he was tried at the
Old Bailey for murder. The summing-up read
like an invitation to acquit
him of both murder and
manslaughter—an invitation which the jury accepted
no doubt
gratefully. Mrs. Gray then sued Mr. Barr for damages in respect
of
her husband's death to which he in reality had no defence. Mr.
Barr,
however, in the third party proceedings which he had brought
against the
Prudential, claimed an indemnity under a '' hearth and
home" policy
covering him against all sums he became liable
to pay as damages in respect
of bodily injury to any person caused
by accident. The learned trial judge
gave judgment against Mr.
Barr in Mrs. Gray's favour for some £6,668
in all. He
dismissed Mr. Barr's claim for an indemnity on grounds of
public
policy having come to the conclusion that, in spite of the
jury's
verdict. Mr. Barr was clearly guilty of manslaughter. Mr.
Barr appealed,
amongst other things, against the judgment in
favour of the Prudential.
That appeal was dismissed. Every member
of the Court of Appeal, agreeing
with the learned trial judge,
found that in spite of Mr. Barr's acquittal at the
Old Bailey he
had been, on his own story, undoubtedly guilty of manslaughter.
They
also agreed with the learned trial judge that on grounds of
public
policy a man is not entitled to be indemnified against
damages for which he
became liable as a result of committing a
crime of violence.
I have taken a little time
dealing with the facts of Barr's case to show
that the Court of
Appeal was in a very different position from that of a Court
of
Appeal (Criminal Division). It was not considering whether a
conviction
could be upheld but whether an acquital could be
justified. It was concerned
to decide whether the facts
established by Mr. Barr's own evidence proved
that he was guilty
of manslaughter which, of course, they did ; but this does
not
mean that nothing short of such facts can prove manslaughter.
Lord
Denning's judgment is certainly capable of being read in a
contrary sense,
and indeed has been so understood by some judges,
but I doubt whether he
intended that it should be. If he did, then
I am afraid I cannot agree with
him. Neither of the other members
of the court in Gray v. Barr said
anything in
support of the proposition which some believe that Lord
Denning
intended to propound. Indeed, the second member of that
court cited
Larkin's case with approval, see page 576.
Reg. v. Lamb [19671
2 Q.B. 981 was referred to by Lord Denning for
the proposition
that in manslaughter there must always be a guilty mind.
This is
true of every crime except those of absolute liability. The guilty
4
mind usually depends on the
intention of the accused. Some crimes require
what is sometimes
called a specific intention, for example murder, which is
killing
with intent to kill inflict grievous bodily harm. Other crimes
need
only what is called a basic intention, which is an intention
to do the acts
which constitute the crime. Manslaughter is such a
crime, see R. v. Larkin
and Reg. v. Church.
Reg. v. Lamb is certainly no authority to the
contrary.
Two young men were playing about with a revolver which,
to their know-
ledge, had two shells in chambers, neither of which
was opposite the barrel.
The defendant in jest and with no
intention to harm or frighten pointed the
revolver at his friend,
who was also treating the incident as a joke. The
revolver fired
and the friend was killed. The defendant was charged
with
manslaughter on two grounds (a) killing by doing an
unlawful and dangerous
act and (b) killing by criminal
negligence. The defendant was convicted
hut his conviction was
quashed on appeal because, luckily for him, there had
been a
series of serious misdirections by the learned trial judge.
Lord Justice Lawton had observed
that in manslaughter cases, some judges
are now directing juries
not in accordance with the law as correctly laid
down in R. v.
Larkin and Reg. v. Church but in accordance with
the observa-
tions of Lord Denning M.R. in Gray v. Ban taken
in their literal sense.
For the reasons I have already given they
should cease to do so.
My Lords, I would dismiss the appeal.
Lord Edmund-Davies
MY LORDS,
Reg. v. Church [1966] 1 QB 59. which the learned trial judge adopted
for the purpose
of his direction to the jury, marked no new departure in
relation
to the offence of involuntary manslaughter. Insofar as the charge
was
based on the commission of an unlawful act causing death, the Court
of
Criminal Appeal was there concerned to demolish the old notion
(which the
direction to the jury in that case was thought to have
resurrected) that, when-
ever any unlawful act is committed
in relation to a human being which
causes his death, there must at
least be a conviction for manslaughter. In
delivering the judgment
of the Court, I therefore said (p. 70B):
" Stressing that we are
here leaving entirely out of account those
" ingredients of
homicide which might justify a verdict of manslaughter
" on
the grounds of (a) criminal negligence, or (b) provocation,
(c)
" diminished responsibility, the conclusion
of this court is that an
" unlawful act causing the death of
another cannot, simply because it
" is an unlawful
act, render a manslaughter verdict inevitable."
The key sentence which followed
has often been quoted. I would respect-
fully say that Lord
Widgery C.J. (who was a member of the Court in Church)
was
perfectly correct in observing in Reg. v. Lipman [1970] 1 Q.B.
152,
at 159D that, " The development recognized by Reg. v.
Church relates to the
" type of act from which
a charge of manslaughter may result, not in the
" intention
(real or assumed) of the prisoner ".
5
Of there the best known is
possibly R. v. Larkin [1943] 1 K.B. 174, dealt
with
in detail in the speech of my noble and learned friend, Lord
Salmon.
Accordingly, if Church was wrong, so was its long
ancestry.
I believe that Church
accurately applied the law as it then existed. I
believe,
further, that, since it was decided, nothing has happened to
change
the law in relation to the constituents of involuntary
manslaughter caused by
an unlawful act. The Criminal Justice Act
1967 has certainly effected no
such change, for, as I sought to
show in D.P.P. v. Majewski [1976] section 8
thereof
has nothing to do with when intent or foresight or any other
mental
state has to be established, but simply how it is to
be determined where
such determination is called for.
(329843) DJ 896296 120 4/76 StS