This is the killing of a human being. The most serious crime is murder and the difference between it and manslaughter is in the intention of the defendant. Murder is a specific intent crime and manslaughter is a basic intent crime. MURDER Murder is a common law crime which means that it is not contained in any Act of Parliament. It is defined as: ‘Where a person of sound memory and of the age of discretion unlawfully kills any reasonable creature in being, under the Queen’s peace, with malice aforethought. ’
Murder carries a mandatory sentence of life imprisonment, which is 15 years. Sound memory—the person responsible must not be insane. Age of discretion — a child less than 10 years old is not criminally responsible for his/her actions. Since S. 34 of the Crime and Disorder Act of 1998 the presumption of doli incapax has been abolished and consequently any child over 10 years has potentially full legal capacity. Unlawfully kills — the act must be an unlawful killing.
The law recognises that in certain circumstances the killing may be either justified or authorised eg.execution or self defence. Living human being — a foetus is not deemed in law to be a living human being. However, a murder conviction may be possible if a foetus is injured and, after birth, dies as a result of injuries sustained whilst in the womb. Attorney-General’s Reference (No 3, 1994) 1996. A defendant cannot be convicted of the murder of someone who is already dead at the time of the attack. R v Maicherek and Steel 1981 The accused had seriously wounded the victim who was then artificially maintained on a respirator.
When it was discovered that irreversible brain damage had occurred the respirator was turned off M was found guilty of murder and his appeal was dismissed when he claimed the doctor had caused death. It was his act which caused death. The court appeared to favour the approach that death occurs when the victim is brain-dead. Queen’s Peace — killing an enemy during wartime is not murder. Malice aforethought — since the case of R v Moloney the mens rea of murder is the intention to kill or cause grievous bodily harm. ACTUS REUS The actus reus of murder is that the killing is unlawful, causation must be
established (A caused B’s death) and the victim must be a human being. (see causation notes from AS). MENS REA DIAGRAM MENS REA The mens rea of murder is malice aforethought which is the intention to kill or cause grievous bodily harm (GBH). There are two forms of intent: • Direct intent — this is what D desires, eg. pointing a gun at someone and shooting them because you want to kill them. It was their aim or purpose to kill. • Indirect or oblique intent — this is not necessarily what D desires but what he foresees will almost certainly happen, eg.
D sets fire to a building and killed someone, did he foresee the risk that death might occur? Four important cases must be looked at. R v Moloney 1985 A soldier shot and killed his stepfather in response to a drunken challenge. He claimed that he had not aimed the gun at the victim and had, at the time, no idea that firing it would cause injury. The judge directed the jury that intention included both desire and foresight of probable consequences and the defendant was convicted of murder. Held (HL) Appeal allowed, manslaughter substituted.
Lord Bridge did state that it was possible to intend a result which you do not actually want. He gave the example of a man who is trying to escape, who boards a plane to Manchester. Even though he may have no desire to go to Manchester — he may even hate the place — it is clearly where he intends to go. However, the appeal was allowed because foresight of consequences can only be evidence of intention — it is up to the jury to decide. R v Hancock and Shankland 1986 Two striking miners pushed concrete from a bridge onto a road, killing a taxi driver.
They claimed only to intend to block the road or frighten the taxi passenger and not to kill or cause GBH. They were convicted of murder but successfully appealed, a manslaughter conviction was substituted by the Court of Appeal and confirmed by the House of Lords. The House of Lords looked at risk and probability. A slight risk of death is not enough to infer intention: Lord Scarman stated the greater the probability that death or GBH would occur; the more likely that intention can be inferred, eg. if A cut B’s little finger is would not be very probable that death would occur, therefore A is unlikely to have intention.
However, if A stabbed B in the chest, it is much more likely that death would result, therefore it is more likely that A had intention. In both cases the defendants were convicted by the juries and appealed, first to the Court of Appeal and then to the House of Lords. In each case the House of Lords quashed the convictions for murder and substituted a verdict of manslaughter. The reason being the trial judges had misdirected the jury. The following case established the Virtual Certainty test which should always be used in indirect intention situations..
R v Nedrick 1986 The defendant set fire to a house, killing a child. He claimed that his intention was to frighten the child’s mother and not to kill or cause GBH. Convicted of murder. Held (CA) Appeal allowed, manslaughter substituted. Where direct intention is not present then the following test should be put to the jury. A jury should return a verdict of murder only where they find that the defendant foresaw death or serious injury as a virtual certain consequence of his or her voluntary actions. R v Woolin 1998 (HL).
D shook his 3-month-old son when he choked on his food and then threw him across the room, the child died, D had lied to the ambulance men and the police before admitting what happened. He claimed that he did not want his son to die. He was originally convicted of murder but the House of Lords reduced his conviction to manslaughter. The trial judge had misdirected the jury on the test to infer intention. The case has now confirmed the Nedrick test. It must now always be used when dealing with indirect intent situations. R v Matthew and Alleyne 2003 (CA).
The defendants appealed against their conviction for murder following the death of a young man (a non-swimmer) whom they had thrown from a bridge into a river. The Court of Appeal affirmed the conviction, which it did not consider unsafe in the light of the evidence, but expressed concern that the Nedrick/Woollin evidential rule should not be treated as if it were a rule of law. A defendant’s foresight of virtually certain death does not automatically require the jury to find that he intended that result: it is merely evidence from which the jury may draw that conclusion.
MURDER / MANSLAUGHTER DIAGRAM MANSLAUGHTER Manslaughter is a diverse crime which covers all unlawful homicides which are not murder. There are two types of manslaughter: 1. Voluntary manslaughter – where there is sufficient mental element (malice aforethought) for a conviction for murder but the defendant successfully pleads one of three defences under the Homicide Act 1957 e. g. provocation. 2. Involuntary manslaughter – where homicide is committed without malice aforethought. There are two types: (a) Unlawful Act manslaughter.
(b) Gross negligent manslaughter VOLUNTARY MANSLAUGHTER Voluntary manslaughter covers those killings in which the accused is charged with murder because of the presence of malice aforethought, but where the charge is reduced to manslaughter because the accused successfully raises one of three partial defences under the Homicide Act 1957. The defences of provocation, diminished responsibility and suicide pacts are available only on a charge of murder and if proved will automatically reduce the charge to manslaughter. PROVOCATION.
Section 3 of the Homicide Act 1957 states: “where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or said or by both together) to lose self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect, which in their opinion, it would have on a reasonable man”.
It is for the jury to decide whether provocation existed – the judge must ask the jury to consider two questions: (a) was the defendant actually provoked to lose his self- control (subjective test), (b) how would the reasonable person have reacted given the same set of circumstances(objective test). • SIMPLE DEFINITION OF PROVOCATION: The defendant was provoked by something said or done or a combination of both, to have a sudden and temporary loss of self control. The jury must then compare the actions of the defendant with that of the reasonable person.
If both tests are proven then the defence will be successful. (a) Subjective test Was there loss of self -control? In order for provocation to be successfully proved the defendant must have been provoked to such an extent that there was loss of self control. This provocation can be caused by something said or done. It is also up to the jury to decide whether provocation occurred. R v Doughty 1986 D was convicted of the murder of his 17 day old son. He had looked after his wife and baby since the caesarean operation. He killed the baby to stop its crying by placing a cushion on its head and kneeling on it.
The trial judge refused to allow the baby’s crying immediately prior to the killing to go to the jury as evidence of provocation. D appealed against conviction. The CA held that the issue of provocation should have been left to the jury to decide and a conviction of manslaughter was substituted. • If there is a delay between the act of provocation and the reaction, this may be evidence that there was no loss of self control. R v Ibrams 1981 D was threatened and 5 days later, after planning an attack, killed the victim who had threatened him.
Held: the delay negated any loss of self control. • The question whether D lost self control is up to the jury, not the judge to decide. R v Baille 1995 D shot drug dealer who had threatened his son and was convicted of murder. He had gone into a rage when he discovered that the dealer had put pressure on his son to buy more drugs. Trial judge said that the delay had negated the loss of self control. Appeal allowed, the question should have been put to the jury. • The loss of self-control must be due to a loss of temper. R v Cocker 1989
D suffocated his wife, who was suffering from a painful terminal illness and had repeatedly begged him to end her life. The judge withdrew the issue of provocation from the jury, who then felt they had no alternative but to convict of murder. CA held the judge had acted correctly; D had not lost his temper but succumbed to his wife’s requests. Cumulative Provocation Evidence of provocation is not confined to the last act or word before the killing. There may have been previous acts or words which, when added together, cause D to lose self-control.
It has been stated that the defence of provocation is based on male ideas of reacting instantly and does not fit with domestic violence cases where women are subjected to abuse over a long period. Helena Kennedy QC has described such women as acting on a slow burning fuse – the women may be reacting to the accumulation of years of abuse. Consequently many women have been convicted of murder. R v Ahluwalia 1992 D had endured 10 years of violence and humiliation from her husband One night he threatened to kill her the next day. She waited for him to fall asleep and then threw petrol on him and set it alight.
She was convicted of murder as her attempt to use the defence of provocation failed – there was no sudden and temporary loss of self control. The CA held that the judges direction on provocation was correct and that it was up to parliament to change the law not the courts on this issue. However, the court felt that the D should have the opportunity to plead diminished responsibility. Appeal allowed, conviction quashed and a retrial ordered. At the retrial a plea of guilty to manslaughter on the basis of diminished responsibility was accepted She was sentenced to 40 months imprisonment which was the period she had already served.
R v Thornton 1995 D was subjected to abuse by her husband, she had threatened to kill him in the past. After fresh provocation she went to kitchen and sharpened a knife and then stabbed him after he said he would kill her when she was asleep She was convicted of murder and her appeal was dismissed. Her years of provocation were ignored at the time she was not suffering a “sudden and temporary loss of self-control”. However, a retrial was ordered on the basis that the abuse had not been taken into consideration and a conviction for manslaughter on the basis of diminished responsibility was substituted.
R v Humphrey 1995 D had a history of requiring psychiatric treatment She moved in with her pimp when she was 16, he mentally, physically and sexually abused her. One evening she feared that he would rape her, she cut her wrists and he taunted her that she had not made a good job, she then stabbed him. She was convicted of murder. Her appeal was allowed in 1995 because of misdirection’s at her trial on the law of provocation. Manslaughter was substituted. The court accepted that the cumulative effects of years of abuse were relevant to provocation. Induced Provocation.
If the defendant induced the provocation in the first place this will not prevent the defence being available. R v Johnson 1989 J and R had been drinking. J had threatened R and his female companion. A struggle took place where the defendant stabbed and killed R. He appealed against his murder conviction on the ground that the judge should have directed the jury on provocation, the provocation being R’s reaction to J’s aggressive behaviour. Held: Appeal allowed and manslaughter conviction was substituted. (b) Objective test Would the reasonable person have reacted in the same way?
The objective test means that the jury must consider whether a reasonable person so provoked would have responded in the way that the accused did. DPP v Camplin 1978 D was a 15 year old boy who bad been buggered by his victim who had also laughed at him. D lost control, hit victim over the head with a chapatti pan and killed him. On appeal his conviction for murder was quashed. The jury should have been told to assess the impact of the provocation on a reasonable 15 year old boy. Relevant characteristics R v Morhall 1995 D was a habitual glue sniffer and killed a man who nagged him about his habit.
D was charged with murder and claimed he was provoked. The defence was not allowed as the characteristic that he was a glue sniffer was not taken into consideration. However, the House of Lords ruled against this and allowed the appeal. They stated the characteristic did not have to be one which society approved of. The court stated that the glue sniffing could be taken into consideration when looking at the gravity of the provocation. The test would be – how would the reasonable glue sniffer have reacted given that same set of circumstances.
There have been a number of recent major changes in the law which initially changed the reasonable person test. However, the case of R v Smith 2000 has now been overruled by the case of R v Holly 2005.. R v Smith 2000 Smith suffered from a severe depressive illness and got into an argument with a friend over some tools which had gone missing. He stabbed and killed his friend. Smith pleaded provocation and the trial judge directed the jury that his depression could not be inferred on the reasonable person. CA allowed the appeal and substituted a manslaughter conviction. This was confirmed by the HL.
Held: the medical evidence of D’s depression could be relevant to the objective test. The above case is now considered to be bad law because of the Privy Council decision of R v Holly 2005. The board for that case was made up of 9 Law Lords, 6 of which refused to follow Smith. Attorney General for Jersey v Holley 2005 A chronic alcoholic killed his girl-friend with an axe while under the influence of alcohol. He pleaded provocation to a charge of murder. There was expert evidence that the defendant was an alcoholic, had a depressive and anxious personality and was dependent on alcohol and female partners.
The trial judge in Jersey had told the jury that the fact that a person is drunk or under the influence of alcohol at the time of the killing and as a result he is provoked more easily than if he were sober, was not something to be taken into account. The Court of Appeal held this was a misdirection, as from Smith the alcoholism could be taken into account. The Privy Council stated that Smith (HL) was wrong as it departed from the legislation. They went on to state that the reasonable man test was to be judged by one standard, not a standard which varies from defendant to defendant.
The decision in Holly has been confirmed by the following case: R v James 2006 Dismissing two conjoined appeals by defendants convicted of murder, the Court of Appeal said it is the decision in Holley rather than Smith that is to be followed as the correct statement of English Law. The law on provocation following Holley is: 1. When considering whether the defendant was provoked (subjective test) the jury should take into account all the relevant evidence, including evidence of any mental or other abnormality making it more or less likely that D lost his self-control.
2. When considering “whether the provocation was enough to make a reasonable man do as he did”, (objective test) the jury must consider the effect of provocation on a person of the same age and sex as the defendant, but with ordinary powers of self-control, but the jury should not at this point take into account any individual peculiarities such as mental abnormality (which can more appropriately dealt with through a defence of diminished responsibility) or intoxication.
The statutory reasonable person has the power of self-control to be expected of an ordinary person of like sex and age. In other respects the reasonable person shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant such as in the case of Morhall. [pic] [pic] DEFENCE OF PROVOCATION DIAGRAM DIMINISHED RESPONSIBILITY This defence was introduced as a result of the narrow definition of insanity under the M’Naghten Rules 1843. Section 2 of the Homicide Act 1957 states:
“where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a part to the killing”. • SIMPLE DEFINITION: Diminished responsibility is where the defendant was suffering from an abnormality of mind, which substantially impaired his mental responsibility.
Not all defendants who successfully plead DR will receive a hospital order under the Mental Health Act 1983. The judge has discretion to award an absolute discharge, probation, suspended sentences etc. R v Martin 2001 CA D had been a victim of burglaries in the past and had been dissatisfied with the police response. He owned a pump-action shotgun. In 1999 his house was broken into by three men. D shot one of the intruders, a 16year old boy three times, once in the back. The boy died. Another intruder was seriously injured. D was convicted of murder and causing GBH.
On appeal new evidence was introduced that he was suffering from paranoid personality disorder and depression. His conviction was quashed and replaced by a conviction of voluntary manslaughter on the basis of diminished responsibility. Four elements must be considered under this defence. 1. Abnormality of mind 2. Abnormality arose from certain specified causes; 3. Abnormality was a cause of the defendants act 4. Abnormality substantially impaired mental responsibility The accused must have been suffering from an abnormality of mind. This covers all activities of the mind not just the brain.
R v Byrne 1960 D strangled and mutilated the body of a young girl. He claimed that he had suffered with perverted sexual desires from childhood which he found impossible to resist. The trial judge directed that this was irrelevant and he was convicted of murder. CA held that this was wrong and substituted a conviction for manslaughter. CA stated that the defence covered all activities of the mind, including not only the capacity to make rational judgements, but also the ability to exercise willpower. The abnormality of mind does not have to be connected with madness. R v Seers 1985
D stabbed his estranged wife, and claimed DR on the grounds of his chronic reactive depression. The trial judge directed that for the defence to be successful, the accused had to be bordering on the insane and therefore D was convicted of murder. CA held this to be a misdirection and manslaughter was substituted. Cause of the abnormality D’s abnormality of mind should be caused by one of the following: (1) arrested or retarded development of mind Mental deficiency can be an abnormality of mind. (2) any inherent cause This includes psychopath, paranoia, epilepsy, depression, pre-menstrual tension.
(3) Induced by disease This covers mental and physical diseases. Battered Woman Syndrome has been recognised as a psychological condition since Ahluwalia 1993. (4) Induced by injury This would include physical blows to the head where someone was left brain damaged. Alcoholism may injure the brain, causing gross impairment of judgement or causes the drinking to be involuntary. Therefore, a condition such as alcoholism caused by long term drinking might be covered but not an accused who was simply drunk at the time he committed the offence. R v Tandy 1988 D had been an alcoholic for a number of years.
She strangled her 11 year old daughter after she told D, her mother, that her second husband had sexually assaulted her. She was convicted of murder and her appeal was rejected. However, the CA stated that the jurors had to decide whether the first drink of the day was taken voluntarily or involuntarily as a result of the accused’s alcoholism: only if the first drink was involuntary would the defence be available. Tandy had failed to establish this. R v Wood 2008 D, an excessive drinker, went to V’s flat after consuming large amounts of alcohol during the day.
Whilst there, according to D, he had fallen asleep and had then woken up to find V attempting to perform oral sex on him. D repeatedly struck V with a meat cleaver, killing him. Four psychiatrists called to give evidence at his trial all agreed that, at the time of the killing, D was suffering from alcohol dependency syndrome. However, they disagreed about whether D’s brain had been damaged. Those for the Crown said that it had not, whereas those for D said that it had, and thus they drew different conclusions as to diminished responsibility. D was convicted of murder and appealed.
The Court of Appeal allowed the appeal. They criticised the trial judges reliance on Tandy that the drinking had to be involuntary and that there was no such thing as an irresistible craving. The Court of Appeal stated that the jury should concentrate on the effect of alcohol consumed as a result of the illness and not on that consumed voluntarily. They would have to consider whether the defendant found the craving for alcohol irresistible in the circumstances. R v Gittens 1985 D suffered from depression and had been in hospital. During a visit home, he argued with his wife and beat her to death.
He also raped and killed his stepdaughter. At the time of the killings he had been drinking alcohol and was also taking drugs for his depression. CA quashed his murder conviction and substituted one of manslaughter because of misdirection to the jury about intoxication. The jury should be told to disregard the effect of the alcohol and drugs, then consider whether D, had he been sober, would have been suffering from abnormality of mind. The abnormality was a substantial cause of the defendant’s acts The abnormality of mind must have been a substantial cause of the defendant’s acts of killing.
It need not have been the sole cause. Sometimes the defendant’s mental abnormality and drink both play a part in causing the defendant to kill. As long as the abnormality was a substantial cause of the killing, it does not matter that the drink was also a cause of the killing. R v Dietschmann 2003 HL D killed his victim in a savage attack. At the time of the killing he was very drunk and was also suffering from an abnormality of mind ( a form of depression following the death of his aunt, with whom he had been in a relationship).
House of Lords found that the defence of diminished responsibility could be successful even if the defendant would not have killed if he had been sober. The abnormality of mind could still have been a substantial cause of the killing, which impaired his mental responsibility for what had happened. Effect of the abnormality of mind The accused must prove that the abnormality of mind substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
For example, in R v Byrne it was shown that the urges were more than normal lust and were abnormally strong. BURDEN OF PROOF The defence must prove diminished responsibility on a balance of probabilities (which is normally the civil burden of proof), calling evidence from at least two medical experts. D may plead guilty to manslaughter on the grounds of DR. The judge has to decide whether to accept the plea. The judge should only do so where medical evidence is clear. A plea of guilty to manslaughter was correctly refused in the following case. R v Ahmed Din 1962
D stabbed his lodger seven times with a hacksaw and then cut off the man’s penis. D pleaded guilty to manslaughter, based on paranoia, but the judge thought that there was insufficient evidence of an abnormality of mind and left the defence to the jury, who found him guilty of murder. His appeal was dismissed, In practice 80% of all pleas of guilty based on DR are accepted. [pic] INVOLUNTARY MANSLAUGHTER DIAGRAM INVOLUNTARY MANSLAUGHTER CONSTRUCTIVE (UNLAWFUL ACT) MANSLAUGHTER The actus reus of unlawful act manslaughter must occur through an act not an omission.
Therefore neglecting to do something will not be grounds for unlawful act manslaughter even if the omission is deliberate. The mens rea of unlawful act manslaughter is that of the unlawful act, which will depend on the individual crime. Three key points must be established: • The accused committed an unlawful act • The act was dangerous in the sense that sober and reasonable people would inevitably recognise that it carried some risk of harm. • It was the unlawful act of the accused which caused the victim’s death. 1. The accused committed an unlawful act A civil wrong will be insufficient
R v Franklin 1883 D picked up a box from a refreshment stall and threw it from the pier into the sea, killing a swimmer. Trial judge stated that an unlawful criminal act must be committed, a tort was insufficient. D was found guilty of gross negligence manslaughter. Rv Lamb 1967 D pointed a gun at his friend as a joke. He did not intend to injure or alarm the friend; they both thought there was no danger in pulling the trigger. However, the friend was killed. D’s conviction was quashed as an assault requires the element of fear of force; this was not present as they both treated it as a joke.
R v Corion-Auguiste 2004 D threw an air bomb firework during the rush hour in an enclosed bus station. Other passengers panicked and rushed for the exits; an elderly lady was knocked over in the rush, struck her head, and died. D was convicted of unlawful act manslaughter. A flexible approach has been adopted by the courts in identifying the crime. R v Cato 1976 Two drug addicts injected each other several times during the night with heroin. Each made up his preferred mixture of the powder and water, loaded the syringe and then passed it to his friend to perform the injection.
By the morning, they were both extremely ill and Cato’s friend died. Cato was charged with manslaughter. The court accepted that there was no breach of OAPA 1861 or the Misuse of Drugs Act 1971. However, it was agreed that it was so close to the offence of possession that this would be sufficient to establish an unlawful act. The friends consent was no defence. He was convicted of manslaughter. Rv Dalby 1982 Two drug addicts took drugs together but they injected themselves with drugs that Dalby had obtained on prescription.
At first instance Dalby was convicted of manslaughter but on appeal the conviction was quashed as there had been no unlawful act. R v Rogers 2003 R and T spent the day drinking and then R obtained some heroin and was injected by T then T injected himself while R held the tourniquet. T overdosed and died. R pleaded guilty to manslaughter after the judge ruled that the application of the tourniquet was ‘part and parcel’ of the administration of a noxious substance (S. 23 OAPA 1861). He appealed saying that T had broken the chain of Causation when he injected himself.
C A distinguished Dias saying that he had played an active part in the injection process. R v Kennedy (2007) A man asked the defendant to supply him with heroin; D filled a syringe and gave it to the man, who injected himself and subsequently died. D was convicted of manslaughter and his first two appeals were dismissed in the Court of Appeal. However, the House of Lords allowed the appeal. They stated that a drug dealer is never responsible for the drug user’s death when the drug user is a fully informed and responsible adult who voluntarily chooses to self-administer the drug.
They took a very restrictive view and stated that it would only be possible for a drug dealer to be held liable for a death when they have been genuinely involved in the administration of the drug. Mens rea The mens rea of unlawful act manslaughter is the mens rea of the crime which has constituted the unlawful act. The mens rea will therefore vary depending on the crime involved e. g. assault, burglary, criminal damage, etc. 2. The act was dangerous in the sense that sober and reasonable people would inevitably recognise that it carried some risk of harm.