JM & Anor, R v

For unlawful-act manslaughter, the objective test of dangerousness requires a risk of some physical harm. It does not require the defendant to foresee harm, or the reasonable and sober bystander to foresee the precise type, mechanism or severity of the harm that causes death. Causation must nevertheless be proved.

In a violent affray involving the deceased, whether a reasonable and sober observer would recognise a risk of physical harm, including shock, is ordinarily a question of fact for the jury. A case may therefore be left to the jury where there is evidence capable of establishing that risk and causation.

The Crown appealed, under section 58 of the Criminal Justice Act 2003, from a pre-jury ruling at Newcastle upon Tyne Crown Court that the prosecution evidence could not support convictions of JM and SM for unlawful-act manslaughter.

During an affray at a nightclub, the respondents fought with doormen. Peter Jopling, an apparently fit and experienced doorman, became involved and shortly afterwards died from a ruptured, previously unknown renal artery aneurysm. For the ruling, it was accepted that the affray was a substantial cause of death.

The trial judge held that the prosecution also had to prove that a reasonable and sober person would have foreseen the sort of physical harm from which Mr Jopling died. The central issue was whether that additional requirement formed part of unlawful-act manslaughter.

1. Appeal allowed. The trial judge added an unjustified fourth ingredient to unlawful-act manslaughter. The prosecution did not have to prove that a reasonable and sober person would have foreseen the particular physical harm, or the physiological mechanism, which caused death.
2. The governing test, stated in Church [1966] 1 QB 59 and consistent with DPP v Newbury [1977] AC 500, requires an unlawful act, an objectively recognisable risk of some physical harm, and causation. The defendant's personal foresight is immaterial. The objective observer need not anticipate specific harm, serious harm, or fatal consequences.
3. The court explained that neither Dawson [1985] 81 Cr. App. R. 150 nor Carey, Cyoel and Foster [2006] EWCA Crim 17 supported the additional requirement. Those authorities concerned whether the relevant conduct created an objectively recognisable risk of physical harm, assessed by reference to characteristics apparent to the defendant or reasonable observer. They did not require foresight of the injury actually suffered.
4. The decision was confined to an affray in which the deceased was personally involved in the fighting. Whether a reasonable and sober observer would recognise a risk of physical harm in the form of shock was a factual question. On the prosecution case, a properly directed jury could find that all doormen attempting to control the respondents were exposed to a risk of some harm, and that Mr Jopling sustained fatal injury during the affray or its immediate aftermath.

• Court of Appeal (Criminal Division) — in [2012] EWCA Crim 2293, allowed the Crown's appeal under section 58 of the Criminal Justice Act 2003 and held that the manslaughter count could be left to a properly directed jury.
• Crown Court at Newcastle upon Tyne — on 13 March 2012, Christopher Clarke J ruled before the jury was sworn that the prosecution case could not support convictions for manslaughter.