Unlawful Act Manslaughter on Secondary Liability: Context Can Cure Imperfect Identification of the Base Offence in a Route to Verdict

1. Introduction

In Jamal & Ors v R [2026] EWCA Crim 951, the Court of Appeal (Criminal Division) considered whether convictions for unlawful act manslaughter were unsafe because the trial judge’s written route to verdict did not expressly identify the “base offence” (the unlawful act) and included wording suggesting a joint plan “to expose [the victims] to an obvious risk of harm”.

The appellants were passengers in a vehicle involved in a plan to lure the deceased to a meeting place and then pursue them when they fled. Following a high-speed pursuit, the victims’ car crashed and the victims died. At trial, the appellants were acquitted of murder but convicted of manslaughter. On appeal, they argued that the jury might have convicted them without being sure they intentionally assisted or encouraged the unlawful act that caused death.

2. Summary of the Judgment

The Court of Appeal dismissed the appeals. It held that, on the facts and the way the case was opened and summed up, the jury would have understood the common plan alleged: a plan to use unlawful violence against the deceased (at least to cause some injury). Although the phrase “to expose [them] to an obvious risk of harm” in the manslaughter route to verdict was questionable, its inclusion did not, in context, render the convictions unsafe.

The court emphasised that it was not undermining the importance—stressed in R v Grey [2024] EWCA Crim 487—of identifying and directing on the constituent elements of the base offence in unlawful act manslaughter cases. Rather, this was a case where the base offence was sufficiently clear from the overall directions and the evidence.

3. Analysis

3.1 Precedents Cited

R v Grey [2024] EWCA Crim 487

Grey was relied upon by the appellants for the proposition that, in unlawful act manslaughter, it is “vital” to identify the base crime and direct the jury on its actus reus and mens rea—an approach reflected in the Crown Court Compendium warning that failure to do so risks an unsafe conviction.

The Court of Appeal accepted the principle in Grey, but distinguished the present case on its facts and trial dynamics:

  • In Grey, proper identification of the base offence would have exposed an evidential deficiency; here, the court considered the evidence of a plan involving unlawful violence to be “overwhelming”.
  • In this case, the jury were repeatedly directed to focus on what the defendants contemplated when attending the meeting—namely, a plan to attack the victim— and the pursuit and collision were treated as a continuation/escalation of that plan.

3.2 Legal Reasoning

(a) The alleged “unlawful act” and secondary liability

The appellants argued the unlawful act causing death was the deliberate ramming of the victims’ car—characterised as criminal damage or an assault—and that the judge failed to identify that base offence and its elements. They also argued the route to verdict wrongly allowed conviction merely for joining a plan to expose the victims to a risk of harm.

The court approached the issue by looking at the summing-up and route to verdict in the context of the case as presented:

  • The prosecution’s opening made “the real issue” the defendants’ intention when they attended the meeting place: a premeditated plan to attack the victim (at least to cause some harm; possibly to cause really serious harm or death).
  • The judge’s directions covered murder, manslaughter, joint participation, and “overwhelming supervening event”, with a route to verdict requiring the jury to consider whether the fatal outcome was something nobody in the defendant’s position could have contemplated.
  • The court held that, if a joint plan is to assault a victim, joining that plan is itself “an unlawful act” for these purposes; and the fatal collision was treated as occurring in the course of executing the plan (or its contemplated escalation to prevent escape).

(b) The “overwhelming supervening event” safeguard

The route to verdict required the jury to acquit if the deaths were caused by an “overwhelming supervening act” that nobody in the defendant’s position could have contemplated. The court treated this as an important control mechanism: even if the fatal crash was not precisely how matters were intended to unfold, liability depended on whether the outcome fell within what could be contemplated in carrying out the joint venture (including escalation during a pursuit).

(c) The problematic phrase “expose to an obvious risk of harm”

The court accepted that a plan merely “to expose [the victims] to an obvious risk of harm” would not necessarily amount to a plan to assault (and said it was unsure why this wording was included). However, the court held the convictions safe because:

  • The trial was not run on a “risk-only” theory; it was run on a plan to use unlawful violence to cause at least some injury.
  • The judge’s evidential summing-up directed the jury to the defendants’ contemplation of violence at the meeting place and during the events that followed.
  • The evidence that the common plan involved inflicting unlawful violence was, in the court’s view, overwhelming.

3.3 Impact

This decision is significant for three practical reasons:

  1. Routes to verdict in unlawful act manslaughter: the court discouraged over-technical challenges where, taken as a whole, directions clearly anchored liability to participation in a plan involving unlawful violence; but the judgment implicitly warns against including ambiguous “risk-only” phrasing.
  2. Relationship with Grey and the Compendium: the court reaffirmed the Grey principle—identify and prove a base offence—while recognising that, in a violence-led joint venture case, the base offence may be sufficiently clear from the way the case is framed and left to the jury.
  3. Escalation and foreseeability during a joint enterprise: the judgment underscores that an attempted escape and ensuing pursuit do not necessarily break the chain of liability where the pursuit is a continuation of enforcing the original unlawful plan, subject to the “overwhelming supervening event” test.

4. Complex Concepts Simplified

  • Unlawful act (constructive) manslaughter: killing caused in the course of committing an unlawful act that is dangerous—i.e., all sober and reasonable people would recognise it exposes another to the risk of some harm.
  • Base offence: the specific unlawful act underpinning unlawful act manslaughter (often an assault). Jurors should normally be directed on what that offence requires (what was done and what state of mind is required).
  • Secondary liability / joint participation: liability of those who intentionally assist or encourage a principal offender, or who participate in a common plan where the relevant criminal act occurs in carrying it out.
  • Overwhelming supervening event: an intervening event so extraordinary and unforeseeable that it breaks the chain of legal responsibility from the earlier unlawful conduct.

5. Conclusion

Jamal & Ors v R confirms that, although courts must normally identify and direct on the base offence in unlawful act manslaughter (as stressed in R v Grey), a conviction will not inevitably be unsafe where the base offence is not expressly labelled, provided the case was clearly and consistently left to the jury as one involving participation in a plan of unlawful violence and the directions, taken as a whole, required the jury to confront contemplation/foreseeability and intervening acts. The decision also highlights the risks of “risk-only” wording in routes to verdict and the importance of keeping jury questions tightly aligned to the elements of the alleged base offence and the prosecution’s actual case theory.