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Peter is a member of a small environmental pressure group that believes passionately in the need to take direct action to stop cruelty to animals. He places a bomb on a boat in order to prevent it sailing out to kill baby seals. He believes the boat to be empty, and he hides on the quay to prevent anyone from going on board. Cecil, a member of the crew, approaches and Peter jumps on him, bringing him to the ground and breaking his leg. At that moment the bomb explodes, killing Saphire, an engineer who was on board carrying out repairs. Discuss Peter's criminal liability.


In the English law, the offence of murder contains two necessary elements: killing of a person and intention (or recklessness or negligence) of the accused. In case killing occurs but the defendant has a justified defence, such as provocation, or diminished responsibility, the offence is not indictable as murder, but may be indictable as manslaughter. The difference between murder and manslaughter hinges entirely on intention of the defendant. It is a fine line and there is no statutory direction on this point. There is however, much caselaw on this issue and this can be used to understand the criminal liability of Peter in this situation.

The offence of murder is defined by the common law as the unlawful killing, with malice afterthought, resulting in the death of the victim.13 Accordingly two necessary elements are, actusreus (unlawful act) and mens rea (guilty mind). Manslaughter is also an unlawful killing but without malice afterthought. Therefore, for manslaughter, the defendant has committed the act but without mens rea.

In R v Hyam,14 the House of Lords held that the foresight on part of the accused that the actions were likely, or highly likely, to cause death or grievous bodily harm was sufficient mens rea for murder. Therefore, even if the defendant did not intend to cause the death and only wanted to scare the residents, she is guilty because she ought to have known the high degree of possibility of death by her actions. Peter has foresight that the action of putting a bomb in the coat may lead to death, but his culpability for murder has to be seen in the context of the Nedrick decision.


In R v Nedrick,15 the defendant was convicted of manslaughter and not murder for throwing a petrol bomb to scare the owner of the house and killing a child. The House directed that two questions must be asked by the jury to establish whether the defendant has intention to kill: (1) The probability of consequence resulting from the defendant's voluntary act; (2) Did he foresee that consequence? 16 The court laid down the ‘virtual certainty test’ to hold that the jury must not infer intention to kill unless death or grievous injury is a virtual certainty and this should be seen from all of the evidence in the case. 17 In this case, virtual certainty cannot be proved because evidence also shows that Peter tried his best to avoid death or grievous injury to anyone.

Another aspect here is the recklessness of Peter in putting a bomb on the boat. In MPC v Caldwell,18 recklessness was held to be adjudged by the defendant not giving any thought to the possibility of such a risk when he carried out the act in question, or where the defendant had recognised the risk involved and still acted the way he did. The test is that whether such a risk will be considered to be there in the mind of the reasonable man.19 Peter’s action in placing the bomb in the boat althoughreckless in itself has to also be seen in the light of evidence that proves that he tried to avert death or injury to anyone approaching the boat.

In light of caselaw, it is clear that Peter did not have intention to kill when he placed the bomb in the boat. Therefore, Peter should not be tried for murder, but because he has caused death he should be tried for manslaughter.20

Unlawful act manslaughter is where a person causes death while committing an unlawful act intentionally in circumstances rendering it dangerous.21 Also called constructive manslaughter, this offence does not require the defendant’s foreseeability to be proved, as was laid down in DPP v Newbury.22 Mens rea in unlawful act homicide is seen only in the context of intention to commit the unlawful act as laid down in R v Lamb23 . In this case, Peter has intentionally put a bomb in the boat, which by itself is an unlawful offence. This is enough to charge him with unlawful act manslaughter for the death of Saphire, as the death is a result of Peter’s unlawful act.

In R v Fenton,24 the defendant was held guilty of manslaughter where he caused an overturning a wagon leading to the death of the person driving it, by throwing stones at the wagon. Recently, in R v Kennedy (No.2),25 the House of Lords held that in order to establish the offence of unlawful act manslaughter, the prosecution must be able to show that: (a) the defendant committed an unlawful act; (b) the unlawful act was a crime; and (c) the defendant’s unlawful act was a significant cause of the death of the victim.26 In this case, Peter put a bomb in the boat (unlawful act) and this act is alsoan offence. Moreover, Peter’s unlawful act has caused Saphire’s death. Therefore, all the requirements of Kennedy (No.2) are present in this case and Peter can be tried for manslaughter. The Law Commission in its report27 on the unlawful act manslaughter has pointed at the non- uniform application of principles. The report says that there are two ways in which liability is restricted: firstly, by imposing stricter tests of causation and, secondly, by requiring that the accused’s act must have been “directed at” the deceased.28 Ultimately, Peter’s case will have to be left to the court to see whether he is guilty of the offence of unlawful act manslaughter (commonly called as ‘constructive manslaughter’).


In this case, Peter has put a bomb in the boat. This act is unlawful and an offence by itself. Moreover, the bomb is the substantial cause of the death of Saphire. Peter did not have the intention to kill anyone. On the contrary, he did his best to avoid that outcome by hiding on the quay to prevent anyone from going on board. Therefore, this case is not of murder. However, Peter caused Saphire’s death by an unlawful criminal act (bombing). Therefore, Peter can be tried for unlawful act manslaughter.

List of Cases

    1. DPP v Newbury, [1977] AC 500.
    2. MPC v Caldwell [1982] AC 341
    3. R v Adomako, [1994] 3 WLR 288
    4. R v Church, [1965] 2 WLR 1220
    5. R v Hyam, [1975] AC 55.
    6. R v Hancock and Shankland [1986] 2 WLR 257.
    7. R v Fenton, (1830) 1 Lew CC 179.
    8. R v Kennedy (No. 2), [2007] UKHL 38.
    9. R v Lamb, [1967] 2 QB 981.
    10. R v Nedrick (1986) 83 Cr App 267
    11. R v Seymour [1983] 2 AC 493.


    1. Cherkassky L, ’Kennedy and Unlawful Act Manslaughter: An Unorthodox Application of the Doctrine of Causation’, The Journal of Criminal Law vol. 72 no. 5, pp. 387-408.
    2. Elliot C, Quinn F, Criminal Law (10th ed, Pearson Education, 2014)
    3. Morris T, Blom-Cooper L, Fine Lines and Distinctions: Murder, Manslaughter and the Unlawful Taking of Human Life (Waterside Press, 2011)
    4. Ormerod D, Smith JC, Hogan B, Smith and Hogan's Criminal Law (OUP, 2011) The Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, (Law Com No 237).

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