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Manslaughter through an unlawful and dangerous act

R v JF and NE [2015] EWCA Crim 351

The Court of Appeal was asked to modify the objective test within unlawful act manslaughter to reflect the defendants’ age and mental capacity. Both appeals against conviction were refused but the appeals against sentence were allowed.

Appeal against conviction

JF and NE, aged 14 and 16, had entered a derelict building and used lighters to start a fire in the building, leaving once it was smoking. Within minutes the smoke filled the basement rooms and killed a homeless man who was in the building. Following a trial, they were convicted of (i) manslaughter through an unlawful and dangerous act and (ii) simple arson. They were acquitted of arson being reckless as to whether life was endangered.

Neither gave evidence at their trial but both gave accounts in their police station interviews stating that they didn’t think anyone was in the building at the time. Medical evidence was produced at trial that JF had a low IQ, his reasoning skills were poor and that he was exceptionally childlike such that his police interviews should be judged as if he were a six year old.

It was argued that the court should adapt the objective test to take into account the foreseeability of children of similar ages and, in relation to JF, mental capacity. The appellants relied on the case of R v G [2004] 1 AC 1034 and in particular on the observations in the speeches that

“…it was unacceptable to ignore the special position of children in the Criminal Justice System particularly in light of the Convention on the Rights of the Child” [para 29].

Both appeals were refused. On the facts of the case it was not clear that the verdict would have been different if the requirement in respect of the dangerous act was modified to a subjective test that some harm was required.  The court conceded that although the law is well established in this area, it was for Parliament to decide whether the law needs to be changed. The Law Commission1 has recommended reform that “would require subjective foresight of the risk of causing some injury” [paragraph 30].

Appeal against sentence

The sentences of three years’ custody were quashed for both defendants and replaced with 24 month Detention and Training Orders (DTOs). NE had made very significant progress at the secure facility in which she had been detained. The court reduced her sentence so she would not be moved into an adult prison when she turned 18 and would continue to make progress and be supervised by the Youth Offending Service on her release.

“It was plainly in the interests of rehabilitating her and protecting society from the commission of further offences by her that she not be moved, given the very significant progress made and the obvious risks to her continued progress by the different environment of an institution for those over the age of 18.” [paragraph 35]

As both children had played equal roles, the court also reduced JF’s sentence.

  1. Law Commission Report (Murder, Manslaughter and Infanticide (2 Law Com 304)   (back)