Bristow & Ors, R. v

A burglary may constitute the dangerous unlawful act required for manslaughter where its planned circumstances, including a foreseeable intervention and vehicular escape, would make sober and reasonable people inevitably recognise a risk of some physical harm to an intervener. The question is assessed when the participants embark on the continuing burglary, which may include their escape.

The dangerous-act test in R v Church [1966] 1 QB 59 does not require foresight of the particular physical harm that caused death. An accessory’s liability depends on foresight of what the principal might do, rather than the principal’s intention in doing it.

Four appellants were convicted at Lewes Crown Court of conspiracy to commit burglary, unlawful act manslaughter, and conspiracy to pervert the course of justice. During a planned night-time burglary of farm workshops, the occupier intervened and was fatally struck and/or run over by vehicles used by the burglars. The prosecution could not identify the driver or occupants of the relevant vehicles.

The appellants challenged their manslaughter convictions, contending that the burglary was not dangerous until the deceased intervened and dangerous driving began. The Bristow brothers also challenged their sentences, principally on disparity grounds. The central issue was whether the circumstances of the planned burglary made it a dangerous unlawful act from its inception.

1. The appeals against conviction and sentence were dismissed. The burglary remained a continuing offence when the deceased was killed. Escape from burgled premises may form part and parcel of the crime, particularly where the burglars have been interrupted.

2. Unlawful act manslaughter requires an intentionally performed unlawful act, circumstances rendering that act dangerous, and causation of death. Under R v Church [1966] 1 QB 59, as approved in DPP v Newbury [1976] 62 Cr App R 291, the act is dangerous if all sober and reasonable people would inevitably recognise that it exposed another to at least some risk of harm.

3. Burglary is not inherently dangerous. However, this planned burglary was capable of satisfying that test from its inception. The secluded site, nearby residential buildings, single route of access and escape, restricted manoeuvring space, and planned use of powerful vehicles made intervention foreseeable. A jury could find that an intervener faced a risk of physical harm during the burglary or escape. The court rejected the contention that danger and foresight had to be assessed only after the deceased arrived.

4. The test did not require the reasonable bystander to foresee the particular kind of physical harm that caused death. The deceased’s fatal injuries materialised the pre-existing and foreseeable risk when he intervened during the continuing burglary.

5. The judge’s directions correctly required the jury to determine each participant’s foresight of intervention, the objective danger of the venture, and whether the fatal conduct fell within what that participant foresaw. An accessory’s liability turns on foresight of what the principal might do, not on foresight of the intention with which the principal performed the act. The jury directions were not confusing.

6. The differing sentences did not create a disparity requiring intervention. The Bristow brothers were the prime movers and had substantially worse criminal records. Their total sentences, including consecutive terms for conspiracy to pervert the course of justice, were appropriate.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 1540, the court dismissed the appeals against manslaughter convictions and the sentence appeals.
• Lewes Crown Court: Following trial before HHJ Scott-Gall, the four appellants were convicted of conspiracy to commit burglary, manslaughter and conspiracy to pervert the course of justice. The Bristow brothers received total sentences of 11 years’ imprisonment; Dunn and Delay received total sentences of seven years.