Farnon & Anor, R v

For unlawful act manslaughter, the prosecution must prove the mental element required for the underlying unlawful act. It need not prove that the defendant recognised that act as dangerous or foresaw harm.

Dangerousness remains objective. The question is whether all sober and reasonable people, equipped with the defendant’s knowledge of the circumstances, would recognise a risk of some physical harm. The subjective approach to recklessness under the Criminal Damage Act 1971, including the defendant’s age, does not alter that test. Any wider reform of unlawful act manslaughter is for Parliament.

The appellants, aged 14 and 16 when the events occurred, started a fire in a derelict building. The fire spread to tyres and caused the death of a man who had been living there.

At the Crown Court at Croydon, both appellants were convicted of unlawful act manslaughter and simple arson. They were acquitted of arson reckless as to whether life was endangered. Each received three years’ detention on each count.

They appealed against their manslaughter convictions on the ground that the jury should have been directed to assess dangerousness by reference to their age and, for one appellant, his limited mental capacity. They also appealed against sentence.

1. The appeals against conviction were dismissed. The judge correctly directed the jury on unlawful act manslaughter. The prosecution had to establish the mens rea for the underlying criminal damage to the building: intention to cause damage or subjective recklessness as to that damage.

2. The separate requirement that the unlawful act be dangerous is objective. The question is whether all sober and reasonable people would recognise that the act exposed another person to the risk of some physical harm, however slight. That notional person is attributed the circumstances known to the defendant. The prosecution need not prove that the defendant personally appreciated the act’s dangerousness or intended harm.

3. The judge’s additional direction that the appellants must have foreseen or contemplated that a person might be in the building was more favourable to them than the established law required. It did not create a misdirection adverse to them.

4. R v G [2004] 1 AC 1034 established a subjective test of recklessness for criminal damage. It did not alter the objectively assessed dangerousness element of unlawful act manslaughter. The court could not recast that settled common-law rule merely because the appellants were young or because one had limited intellectual functioning. Any change of that kind required legislative consideration.

5. The appeals against sentence were allowed. The sentences of three years’ detention on each count were quashed and replaced with 24-month Detention and Training Orders on each count. The court acted on the significant rehabilitative progress of one appellant and the risk posed by transfer to an adult institution; parity required the same course for the other appellant.

• Court of Appeal (Criminal Division): In [2015] EWCA Crim 351, dismissed both appeals against conviction for manslaughter but allowed both appeals against sentence.
• Crown Court at Croydon: On 27 June 2014, convicted both appellants of unlawful act manslaughter and simple arson, while acquitting them of arson reckless as to whether life was endangered. On 18 August 2014, imposed three years’ detention on each count.