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Source: p 57, Criminal Law: The Basics, 1 ed (2009), by Herring

As already explained, to convict the defendant of constructive manslaughter it must be shown that the defendant committed an unlawful and dangerous act. By ‘unlawful’ the courts mean that the act must be a criminal offence. A breach of contract or a tort will not be enough. Further, a criminal offence to which the defendant has a complete defence cannot be used as the basis for a constructive manslaughter charge. It does not have to be a serious offence: theft or battery would do. However, it must require a mens rea of more than negligence. So an offence of careless driving, for example, could not form the basis of a constructive manslaughter charge. Nor, it seems, can a crime of omission.

What does the bold, NON-italicised relative clause mean? A criminal offence against which the defendant has successfully defended? Or one for which a defendant has a possible defense, but might still be guilty?

The italicised worsens my confusion, because it implies that constructive manslaughter requires a criminal offence. But then the bold, NON-italicised relative clause states the opposite?

  • It just means that even if the defendant did in fact commit the "criminal offence", the fact of having done so cannot form the basis for an additional charge (of constructive manslaughter) if he has a "complete defence" for that crime (that's to say, even though it's accepted that he did whatever he was accused of, he had legally acceptable "reasons" for not being found culpable of the crime). – FumbleFingers Dec 1 '14 at 15:09
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The temporal ambiguity of "has" in the bolded clause is inconsequential. The person "has" a complete defense when he is deemed to be completely innocent of the criminal offense. The mere assertion of a defense is not the same as "having" it, at least not in the context of criminal law.

For a person to be convicted of constructive manslaughter, he must have committed a criminal act, and he must not have been found completely innocent of that criminal act.

"Innocent" there means only that there are facts or circumstances which preclude his being found guilty and which require the case against him to be dismissed.

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As I understand this, a complete defence here is anything which would cause the charge to be dropped entirely. For example, self-defence can be a complete defence in some circumstances. A partial defence would be something which lessened the severity of the charge (for example, from murder to manslaughter).

Here they also, I would think, only mean proven complete defence, not just a potential one (anybody can argue they have a defence, after all).

Here the bolded phrase is defining a subset of criminal offences which cannot be used:

a criminal offence to which the defendant has a complete defence cannot be used as the basis for a constructive manslaughter charge

It does not mean:

a criminal offence cannot be used as the basis for a constructive manslaughter charge

The whole sentence starting Further is basically adding additional requirements to the previous statement that what was needed was a criminal offence. To turn it around, since one either has or does not have a complete defence, you could also say this means:

A criminal offence to which the defendant does not have a complete defence can be used as the basis for a constructive manslaughter charge.

This sort of structure is quite common with words such as which, who, where, that to identify a subset of a category to which a statement applies to.

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