DPP v Newbury [1976] UKHL 3

House of Lords
Between
DPPAppellantNewburyRespondent
My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Salmon, and for the reasons given by him, I would dismiss the appeal.

Lord Simon of Glaisdale

my lords.I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend. Lord Salmon. I agree with it, and I would therefore dismiss the appeal.

Lord Kilbrandon

My Lords,I too have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Salmon. I agree with it, and I would therefore dismiss the appeal.

Lord Salmon

My Lords,On the llth October 1974 the train travelling from Pontypridd to Cardiff was approaching a bridge which crossed the railway line. The guard was sitting next to the driver of the train in the front cab. The driver noticed the heads of three boys above the parapet of the bridge. He saw one of the boys push something off the parapet towards the oncoming train. This proved to be part of a paving stone which some workmen had left on the parapet. It came through the glass window of the cab in which the driver and the guard were sitting, struck the guard and killed him. There was2ample evidence that just as the train was about to reach the bridge the two appellants, who were each about 15 years of age, were jointly concerned in pushing over the parapet the piece of paving stone which killed the guard. They were jointly charged with manslaughter and after a very fair and lucid summing up, each was found guilty. Both of them appealed against conviction and sentence and their appeals against conviction were dis- missed. The appellants now appeal to this House. The point of law certified to be of general public importance is " can a defendant be properly " convicted of manslaughter, when his mind is not affected by drink or drugs, " if he did not foresee that his act might cause harm to another?"The learned trial judge did not direct the jury that they should acquit the appellants unless they were satisfied beyond a reasonable doubt that the appellants had foreseen that they might cause harm to someone by pushing the piece of paving stone off the parapet into the path of the approaching train. In my view the learned trial judge was quite right not to give such a direction to the jury. The direction which he gave is com- pletely in accordance with established law, which, possibly with one exception to which I shall presently refer, has never been challenged. In R. v. Larkin 29 Cr. App. R. 18, Humphreys J, said at page 23 " Where the act which " a person is engaged in performing is unlawful, then if at the same time " it is a dangerous act, that is, an act which is likely to injure another person, " and quite inadvertently the doer of the act causes the death of that other " person by that act, then he is guilty of manslaughter." I agree entirely with Lawton L.J. that that is an admirably clear statement of the law which has been applied many times. It makes it plain(a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and(b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of man- slaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence and sometimes to little less than murder.I am sure that in Reg. v. Church [1966] 1 QB 59 Edmund Davies J. (as he then was), in giving the judgment of the court, did not intend to differ from or qualify anything which had been said in R. v. Larkin. Indeed he was restating the principle laid down in that case by illustrating the sense in which the word " dangerous " should be understood. Edmund Davies J. said " For such a verdict" (guilty of manslaughter) " inexorably to follow, the " unlawful act must be such as all sober and reasonable people would " inevitably recognise must subject the other person to, at least, the risk " of some harm resulting therefrom, albeit not serious harm ". The test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger.Mr. Esyr Lewis in his very able argument did not and indeed could not contend that the appellants' act which I have described was lawful but he did maintain that the law as stated in Larkin's case had undergone a change as a result of a passage in the judgment of Lord Denning M.R. in Gray v. Ban [1971] 2 Q.B. 554 at 568 which reads as follows:
"In manslaughter " of every kind there must be a guilty mind. Without it the accused must " be acquitted: See Reg. v. Lamb [1967] 2 Q.B. 981. In the category of " manslaughter relating to an unlawful act, the accused must do a dangerous " act with the intention of frightening or harming someone or with the " realisation that it is likely to frighten or harm someone, and nevertheless " thereafter, in unbroken sequence .cause the death of another, he is guilty " he goes on and does it, regardless of the consequences. If his act does " of manslaughter"
. I do not think that Lord Denning was attempting to revolutionise the law relating to manslaughter if his judgment is read in the context of the tragic circumstances of the case, which I must now shortly recite. James Gray and his wife had been married about eight years when they met and became very friendly with the Barrs, who lived close by. Both marriages were happy. Unfortunately Mr. Gray became infatuated3with Mrs. Barr and she fell in love with him. This naturally caused great distress to Mrs. Gray and Mr. Barr and put a terrible strain on Mrs. Barr, who was torn between her devoted sense of duty to her husband and children and her deep love for Mr. Gray. The association between Mr. Gray and Mrs. Barr continued. This was too much for Mrs. Gray, and her husband set her and their children up in a home under a deed of separation. Mr. Gray continued to live at the old family home. Mrs. Barr left her home but did not go to live with Mr. Gray. She lived with her mother a few miles away. Mr. Barr was doing his best to persuade his wife to come back and live with him and their children. On the 13th June 1967 Mr. Barr took his wife out to dinner. She promised to give up Mr. Gray. He drove her home but when he had put his car away, he discovered that his wife had run away and assumed that she had gone to spend the night with Mr. Gray. Mr. Barr was beside himself. He took his 12 bore shotgun, loaded both barrels, and set off for Mr. Gray's house, which he found in darkness. He entered the house and found Mr. Gray standing at the top of the stairs. Mr. Barr believed that his wife was in the bedroom. She was not; she was later found unconscious in a field where she had attempted to commit suicide. Mr. Barr started to mount the stairs holding his gun at the high port and threatening Mr. Gray with it to force him to get out of the way. Mr. Gray refused to move. Two shots were fired, one into the ceiling and the other killed Mr. Gray. According to Mr. Barr's account, and he was the only person left alive who knew what happened, Mr. Gray grappled with him, the gun went off and fired one shot into the ceiling; Mr. Barr then slipped on the stairs and accidentally the gun fired another shot which killed Mr. Gray. There was much sympathy for Mr. Barr when he was tried at the Old Bailey for murder. The summing-up read like an invitation to acquit him of both murder and manslaughter—an invitation which the jury accepted no doubt gratefully. Mrs. Gray then sued Mr. Barr for damages in respect of her husband's death to which he in reality had no defence. Mr. Barr, however, in the third party proceedings which he had brought against the Prudential, claimed an indemnity under a '' hearth and home" policy covering him against all sums he became liable to pay as damages in respect of bodily injury to any person caused by accident. The learned trial judge gave judgment against Mr. Barr in Mrs. Gray's favour for some £6,668 in all. He dismissed Mr. Barr's claim for an indemnity on grounds of public policy having come to the conclusion that, in spite of the jury's verdict. Mr. Barr was clearly guilty of manslaughter. Mr. Barr appealed, amongst other things, against the judgment in favour of the Prudential. That appeal was dismissed. Every member of the Court of Appeal, agreeing with the learned trial judge, found that in spite of Mr. Barr's acquittal at the Old Bailey he had been, on his own story, undoubtedly guilty of manslaughter. They also agreed with the learned trial judge that on grounds of public policy a man is not entitled to be indemnified against damages for which he became liable as a result of committing a crime of violence.I have taken a little time dealing with the facts of Barr's case to show that the Court of Appeal was in a very different position from that of a Court of Appeal (Criminal Division). It was not considering whether a conviction could be upheld but whether an acquital could be justified. It was concerned to decide whether the facts established by Mr. Barr's own evidence proved that he was guilty of manslaughter which, of course, they did ; but this does not mean that nothing short of such facts can prove manslaughter. Lord Denning's judgment is certainly capable of being read in a contrary sense, and indeed has been so understood by some judges, but I doubt whether he intended that it should be. If he did, then I am afraid I cannot agree with him. Neither of the other members of the court in Gray v. Barr said anything in support of the proposition which some believe that Lord Denning intended to propound. Indeed, the second member of that court cited Larkin's case with approval, see page 576.Reg. v. Lamb [19671 2 Q.B. 981 was referred to by Lord Denning for the proposition that in manslaughter there must always be a guilty mind. This is true of every crime except those of absolute liability. The guilty4mind usually depends on the intention of the accused. Some crimes require what is sometimes called a specific intention, for example murder, which is killing with intent to kill inflict grievous bodily harm. Other crimes need only what is called a basic intention, which is an intention to do the acts which constitute the crime. Manslaughter is such a crime, see R. v. Larkin and Reg. v. Church. Reg. v. Lamb is certainly no authority to the contrary. Two young men were playing about with a revolver which, to their know- ledge, had two shells in chambers, neither of which was opposite the barrel. The defendant in jest and with no intention to harm or frighten pointed the revolver at his friend, who was also treating the incident as a joke. The revolver fired and the friend was killed. The defendant was charged with manslaughter on two grounds(a) killing by doing an unlawful and dangerous act and(b) killing by criminal negligence. The defendant was convicted hut his conviction was quashed on appeal because, luckily for him, there had been a series of serious misdirections by the learned trial judge.Lord Justice Lawton had observed that in manslaughter cases, some judges are now directing juries not in accordance with the law as correctly laid down in R. v. Larkin and Reg. v. Church but in accordance with the observa- tions of Lord Denning M.R. in Gray v. Ban taken in their literal sense. For the reasons I have already given they should cease to do so.My Lords,I would dismiss the appeal.

Lord Edmund-Davies

My Lords,For the reasons developed in the speech of my noble and learned friend, Lord Salmon, I concur in holding that these appeals against conviction should he dismissed.Reg. v. Church [1966] 1 QB 59 . which the learned trial judge adopted for the purpose of his direction to the jury, marked no new departure in relation to the offence of involuntary manslaughter. Insofar as the charge was based on the commission of an unlawful act causing death, the Court of Criminal Appeal was there concerned to demolish the old notion (which the direction to the jury in that case was thought to have resurrected) that, when- ever any unlawful act is committed in relation to a human being which causes his death, there must at least be a conviction for manslaughter. In delivering the judgment of the Court, I therefore said (p. 70B):
" Stressing that we are here leaving entirely out of account those " ingredients of homicide which might justify a verdict of manslaughter " on the grounds of (a) criminal negligence, or (b) provocation, (c) " diminished responsibility, the conclusion of this court is that an " unlawful act causing the death of another cannot, simply because it " is an unlawful act, render a manslaughter verdict inevitable."
The key sentence which followed has often been quoted. I would respect- fully say that Lord Widgery C.J. (who was a member of the Court in Church) was perfectly correct in observing in Reg. v. Lipman [1970] 1 Q.B. 152, at 159D that, " The development recognized by Reg. v. Church relates to the " type of act from which a charge of manslaughter may result, not in the " intention (real or assumed) of the prisoner ".But, insofar as Church has been regarded as laying down that for the proof of manslaughter in such circumstances what is required is no more than the intentional committing of an unlawful act of the designated type or nature, it followed a long line of authorities which the court there cited.5Of there the best known is possibly R. v. Larkin [1943] 1 K.B. 174, dealt with in detail in the speech of my noble and learned friend, Lord Salmon. Accordingly, if Church was wrong, so was its long ancestry.I believe that Church accurately applied the law as it then existed. I believe, further, that, since it was decided, nothing has happened to change the law in relation to the constituents of involuntary manslaughter caused by an unlawful act. The Criminal Justice Act 1967 has certainly effected no such change, for, as I sought to show in D.P.P. v. Majewski [1976] section 8 thereof has nothing to do with when intent or foresight or any other mental state has to be established, but simply how it is to be determined where such determination is called for.That is not so say that a change in the law may not be opportune. If I may be permitted to introduce a personal note into a judgment, I have the best reason to know that the forthcoming working paper of the Criminal Law Revision Committee on offences against the person will afford those concerned in such important matters an opportunity to assess the cogency of the argument for a drastic change in the law applicable to such cases as the present. But, unless and until such argument prevails and so leads on to legislation, the existing law has to be applied. I hold that the direction of the learned trial judge, Tasker Watkins J., was in strict accordance with the settled law and that these appeals should therefore be refused.

(329843) DJ 896296 120 4/76 StS