R v M (J) and another [2012] EWCA Crim 2293

Unlawful act manslaughter and foreseeable harm


JM and SM had been involved in a fight with a few doormen in a nightclub. One of the doormen, who had no signs of health problems, had a renal artery aneurysm and died. JM and SM were charged with affray and manslaughter caused by an unlawful act (affray being the unlawful act). The judge held that without the prosecution proving that the victim’s death resulted from harm that any reasonable person would unquestionably recognise as affray capable of causing, a conviction for manslaughter could not be achieved. In the present case, even taking the evidence at its highest, the jury could not be satisfied of this. The prosecution appealed.


The prosecution argued that the trial judge had erred in his finding that it was a necessary element of manslaughter resulting from an unlawful act that any reasonable person should inevitably see that the victim’s death occurred due to the “sort of harm” the risk of which the unlawful act carried.


Allowing the prosecution’s appeal, the Court of Appeal held that it was not a requirement of unlawful act manslaughter that the accused should have foreseen any specific harm or that any reasonable person would have realised the sort of harm that had in fact occurred and caused the victim’s death. What actually mattered was whether a reasonable person would recognise that an accused’s unlawful act necessarily subjected the victim to the risk of at least some harm resulting from that act. A jury, if adequately and correctly directed, could have concluded based on the evidence that a reasonable person would have foreseen that the victim had been at a risk of suffering some harm as a result of the defendants’ unlawful acts of affray.