Carey & Ors, R v

For unlawful act manslaughter, the dangerous unlawful act must subject the deceased to a foreseeable risk of physical harm and that harm must cause the death. A group affray cannot be treated as making every participant liable for every act of violence within it. The statutory aggregation of conduct applies only when deciding whether a hypothetical person of reasonable firmness would fear for personal safety.

The dangerousness inquiry under the Church test is objective, but the reasonable person has the knowledge available to the offender, including attributes of the victim learned during the unlawful act. But-for causation does not suffice. A death following an affray does not found manslaughter where the only dangerous assault did not cause the death and no other conduct was dangerous as against the deceased.

The appellants were convicted at Leeds Crown Court of manslaughter and affray after an unprovoked group attack on Aimee Wellock and her friends. C assaulted Aimee, who then ran from the scene and died shortly afterwards from ventricular fibrillation caused by an unknown congenital heart condition.

The prosecution alleged that the affray was the unlawful and dangerous act causing death. The trial judge permitted the jury to aggregate violence against all three victims when considering dangerousness and causation. The appellants challenged both the affray convictions and the manslaughter convictions, and sought to appeal their sentences.

The central issue was whether participation in the affray could amount to an unlawful dangerous act causing Aimee’s death for each appellant.

1. The appeals against the manslaughter convictions were allowed. The appeals against the affray convictions were dismissed. The court held that the trial judge should have withdrawn the manslaughter count at the close of the prosecution case.

2. The court upheld the affray convictions. Public Order Act 1986 section 3 has plain language and is not to be glossed by the former common-law definition or Law Commission commentary. It was open to the jury to find that the group’s aggressive conduct, violence and threats would have caused a person of reasonable firmness at the scene to fear for personal safety.

3. For unlawful act manslaughter, the court applied the dangerousness test in Church [1966] 1 QB 59. The reasonable person is credited with the knowledge the offenders had. Accordingly, Aimee’s unknown heart condition could not make the affray dangerous by reference to a risk of shock or heart failure. Although C’s punch was a dangerous act because it created a risk of bodily injury, the slight injury caused by that assault did not cause Aimee’s death.

4. Section 3(2) permits aggregation of participants’ conduct only to decide whether the objective bystander would fear for personal safety. It does not make a participant liable for the violent acts of others. The unlawful dangerous act causing death must instead be an assault or other act for which the defendant is personally liable, including under ordinary secondary-party principles where applicable. The other acts and threats within the affray were not dangerous as against Aimee in the relevant sense, and the court rejected but-for causation as an unwarranted extension of manslaughter.

5. The court noted that an offender may cause injury suffered during a victim’s reasonable escape, as illustrated by Roberts (1971) 56 Cr App R 95. The prosecution did not rely on that basis here, and it did not preserve the manslaughter convictions.

6. The court reconsidered the affray sentences on the footing that the appellants were not criminally responsible for the death. Applying Lang [2005] EWCA 2864, Carey did not present a significant risk of serious harm for the dangerous-offender provisions. Her extended sentence was replaced by two years’ custody. F’s detention and training order was reduced to 12 months. In C’s exceptional circumstances, including her pregnancy and early guilty plea, the court imposed a three-year supervision order with 12 months’ intensive supervision and surveillance.

• Court of Appeal (Criminal Division): By [2006] EWCA Crim 17, allowed the appeals against manslaughter convictions, dismissed the appeals against affray convictions, and varied the affray sentences.
• Leeds Crown Court (Field J): Convicted all three appellants of manslaughter and affray, save that C had pleaded guilty to affray. Sentences were imposed on 19 October 2005.