8.5.1 Unlawful Act Manslaughter

On 16 December 2020, the Court of Appeal handed down its judgment in R v Long & Ors [2020] EWCA Crim 1729. This concerned several applications for leave to appeal relating to the convictions of, and sentences imposed on, Henry Long, Albert Bowers and Jessie Cole, three individuals convicted for the manslaughter of PC Andrew Harper (Long having pleaded guilty and all three having been acquitted of murder). At the same time, the Attorney General (who appeared in person) applied for leave to refer the sentences of Long, Bowers and Cole to the Court as being unduly lenient. Numerous commentaries have already been made regarding the applications relating to sentence; this update will relate to the application for leave to appeal against conviction.

The facts of this case are likely well-known to readers and a brief summary only shall be provided. On 15 August 2019, Long, Bowers and Cole conspired to steal a quadbike. The trio tied a long strap to the back of their car and attached the quadbike to it. The trio now intended to return home with the quadbike but were stopped by police, including PC Harper. The quadbike was detached with the intention of abandoning it and escaping. Unfortunately, PC Harper’s feet were caught up in the strap and he was dragged along by the car. PC Harper unfortunately died as a result of injuries suffered from being dragged by the car.  

At trial, the main issue was that of murder: in order to prove that Long, Bowers and Cole were guilty of murder, it had to be proven that Long (who drove the car) knew that a person was being dragged by the car and, if so, that he intended to cause that person really serious harm. It was accepted that Bowers and Cole could not be guilty of murder unless Long was convicted of that offence (due to the nature of secondary liability). The jury returned a verdict of not guilty on the murder charge, clearly being unsure that Long had the requisite knowledge. In the alternative, the jury found Bowers and Cole guilty of manslaughter (Long having already pleaded guilty to manslaughter). At first instance, the trial judge provided the jury with a route to verdict, part of which included the following question (at [23]): 

3. [Are we sure that] A reasonable person sharing D’s knowledge of the circumstances would have realized that the unlawful act might cause a risk of some physical harm to any person on the road at that time, that is to say the unlawful act was a dangerous one which carried an obvious risk of injury. If No, Not Guilty. If Yes, go to question 4.

This question also gives rise to the principal ground raised by Bowers and Cole. The applicants contended that theft (and therein conspiracy to steal), whilst unlawful, was not an objectively dangerous act which could form the base offence for unlawful act manslaughter. Furthermore, and in any event, the act of appropriation was complete at the time the quadbike was detached from the car; the act of escape in of itself was not unlawful. The applicants contended that the only unlawful basis that could have been relied upon was that of the driving itself. Driving is normally a lawful act, unless it is rendered unlawful by the manner of its commission (Andrews v DPP [1937] AC 576). The trial judge, and the Court of Appeal, rejected this submission on account that Lord Atkin in Andrews was concerned with manslaughter by negligence; this was not a case of gross negligence manslaughter (at [34]). 

Dame Victoria Sharp P provided the sole judgment of the Court. Her Ladyship identified that the real issue before the Court was whether theft (and therein conspiracy to steal) could be considered an objectively dangerous act such to form the base offence for unlawful act manslaughter. At first instance, the trial judge relied upon R v JF [2015] EWCA Crim 351, [2015] 2 Cr App R 64 for the proposition that the base offence need not, in general, be a particularly dangerous or serious offence. The circumstances in which the offence was committed may make the base offence objectively dangerous. Indeed, Dame Sharp P agreed with this approach and (at [36]) cited R v Bristow [2013] EWCA Crim 1540 with approval. In Bristow, Treacy LJ explained that:

Whilst burglary of itself is not a dangerous crime, a particular burglary may be dangerous because of the circumstances surrounding its commission. We consider that the features identified by the Crown … were capable of making this burglary dangerous when coupled with foresight of the risk of intervention to prevent escape.”

At [38], her Ladyship adopted the same reasoning to the instant case. In particular, Bowers and Cole had accepted that if they were ever chased by the police, they would drive away very fast and understood that driving at speed was dangerous and somebody might get hurt (at [9]). Her Ladyship would explain that (at [43]) ‘[t]he escape and the dangerous manner in which it was carried out were part and parcel of the conspiracy to steal’ and the terms of the agreement between Bowers and Cole made the theft, and the circumstances in which it was committed, a dangerous act. 

Finally, at [44], her Ladyship refused the application for leave to appeal against conviction identifying that the applications were ‘wholly unarguable’.

Comment:

The application for leave to appeal against sentence, and the personal appearance of the Attorney General in the Court of Appeal, has been the forefront of public commentary. Indeed, the question of whether the sentences imposed on these individuals were lenient or excessive is of vital importance and it is right that the sentencing aspect of this judgment is in the public domain. A relatively untouched aspect of the judgment, however, is that of the application for leave against conviction. The judgment of the President of the QBD is a helpful reaffirmation of the principle in Bristow, in that an unlawful act which, in general, may not be objectively dangerous can be categorised as such according to the circumstances in which it was committed. This provides a clear statement of law that when considering the base offence, one must not only consider the inherent dangerousness of the offence, but also the manner and circumstances in which it is committed.

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