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 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.
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
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 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 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.
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.
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.
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.
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.
DEFENCE OF PROVOCATION DIAGRAM
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.
INVOLUNTARY MANSLAUGHTER DIAGRAM
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.
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.
R v Church 1966
C and a woman went to his van for sexual purposes, he was unable to satisfy her and she slapped his face. A fight ensued where the woman was knocked out. C thought that he had killed her and threw her body in a river to hide the evidence. The cause of death was drowning C was convicted of manslaughter as he had acted unlawfully towards the woman in a way that sober and reasonable people would appreciate involved a risk of some harm to the woman.
R v Watson 1989
W burgled the house of a frail 87 year old man, who died of a heart attack as a result. The courts held that the accused’s unlawful act became a dangerous one for the purposes of the Church test as soon as the old man’s frailty and old age would have been obvious to a reasonable observer W’s conviction was quashed because it was not proved that the shock of the burglary caused the heart attack.
• The result of this case is that where there are peculiarities of the victim which make an act dangerous when it might otherwise not be, they will only make the act a dangerous one if they would have been apparent to a reasonable observer.
• In order to be considered “dangerous” in this context, the unlawful act must be sufficient to cause actual physical injury. Emotional or mental shock are not enough on their own, though they will be relevant if they cause physical injury - by bringing on a heart attack, for example.
• Whether an act was dangerous or not should be decided on a reasonable person’s assessment of the facts, and not on what the defendant knew. Therefore, a defendant who makes an unreasonable mistake is not entitled to be judged on the facts as he or she believes them to be.
R v Ball 1989
D had argued with neighbours who came over to his house he loaded a live cartridge into his gun believing it to be blank. As a neighbour was climbing over a wall he shot and killed her. He was convicted of unlawful act manslaughter.
R v Woolley and Campbell 2003
Two women harassed an elderly man in the street, demanding money and threatening to accuse him of rape. The man had a weak heart and was so frightened that he had a heart attack and died. The defendants were charged with manslaughter and the judge told the jury they should convict only if they were satisfied that the defendants harassment was the cause of death, and that a reasonable person would have seen their behaviour as carrying a risk of injury. They were both convicted.
3. It was the unlawful act of the accused which caused the victim’s death.
The unlawful and dangerous act must cause the death. Note that in Kennedy the court did not consider the fact that the victim injected himself to amount to an intervening act that broke the chain of causation.
The act need not be aimed at the victim.
R v Goodfellow 1986
G wanted to move from his council house but could see no prospect of exchanging it he set it on fire, attempting to make it appear that the cause was a petrol bomb. His wife, friend and her child died in the fire. G was convicted of manslaughter and the court held that it was immaterial that the unlawful act was not directed at them as the fire was the cause of their deaths.
R v Carey 2006
Three girls started a fight with a fourth girl who suffered minor bruises. She later ran away but collapsed after running about 100m and died from an inherent heart disease aggravated by the running. The defendants were convicted of unlawful act manslaughter based on the unlawful act of affray. These convictions were quashed on appeal. The girl had not been running to escape from a threat but to get home. The only dangerous act on the victim (a single punch) was not the cause of her death.
R v D 2006
The CPS brought a test prosecution for manslaughter following the suicide of a woman after a lengthy period of domestic abuse. On the evening of the suicide, her husband had struck her on the forehead, causing a cut from the bracelet he was wearing. He was subsequently prosecuted for manslaughter and inflicting GBH under S.20 OAPA 1861. In the crown court the trial judge ruled that the case should not proceed to trial as there was no basis on which a reasonable jury could convict the defendant of either offence. The CPA appealed unsuccessfully and the case did not proceed.
GROSS NEGLIGENCE MANSLAUGHTER
As a result of the case of R v Adomako 1994 reckless manslaughter no longer exists and gross negligence manslaughter has become established.
R v Adomako 1994
An anaesthetist failed to realise that a patient’s oxygen supply had been disconnected as a result of which the patient died. He was convicted of manslaughter and appealed. The House of Lords held that the following had to be proved for gross negligence manslaughter.
• A duty of care
• A breach of that duty causing the victims death and
• The breach was so grossly negligent as to warrant a criminal conviction
R v Watts 1998
D was the mother of a child who had been born with disabilities. D was suspected of causing the child’s death while she was in hospital. The tube from her throat was removed/ dislodged. D was charged with murder but was convicted of manslaughter. D appealed CA allowed the appeal due to the misdirection of the judge. It confirmed that the correct direction was that outlined in Adomako.
DUTY OF CARE
• Lord Mackay stated in the Adomako case that the ordinary principles of the law of negligence can be used in order to establish whether a duty of care is owed. Therefore the rule established in Donoghue v Stevenson 1932 can be used i.e. the neighbour test - reasonable foresight.
• Following Caparo Industries PLC v Dickman 1990 account will sometimes be taken of issues of public policy and whether the imposition of a duty would be just and reasonable. This was followed in:
R v Singh 1999
A tenant was killed by carbon monoxide poisoning from a gas heater and D was convicted of manslaughter. It was stated that is was up to the judge, not the jury, to decide whether a duty of care was owed as this was a question of Law. This was approved of by the CA and HL.
R v Wacker 2003
The Court of Appeal accepted that the ordinary principles of the law of negligence apply, but excluded one specific aspect of these rules as being inappropriate in the criminal law context. D was a lorry driver who had been involved in a criminal conspiracy to bring illegal immigrants into the UK. He was driving a lorry from Holland to the UK. The lorry was airtight, with a vent that could be opened to allow air to enter. 60 Chinese citizens were hidden inside the lorry. D shut the vent for over 5 hours to try and prevent detection during the Channel crossing. When the lorry was searched by customs officials 58 people were found dead due to suffocation. D was convicted of gross negligent manslaughter and appealed. He claimed that one of the ordinary principles of negligence was that a person did not owe a duty of care to another person when they were both carrying out a joint unlawful activity. CA rejected this argument and excluded this principle as being inappropriate in a criminal law context.
R v Khan& Khan 1998
D’s supplied victim with drugs saw her take them and then left her. If they had called a doctor she would have survived. They then returned and disposed of the body. They were convicted of manslaughter and appealed. The appeal was allowed as the judge had misdirected the jury. If the jury had been properly directed the jury could have been convicted of gross negligence manslaughter. Case confirms the authority of Adomako.
BREACH OF DUTY OF CARE WHICH CAUSES DEATH
Two areas need to be considered:
1. The defendant’s conduct must have gone below the standard of care expected of a reasonable and sober person.
2. The rules of causation will need to be applied to decide whether the breach caused death.
THE BREACH WAS SO GROSSLY NEGLIGENT AS TO WARRANT A CRIMINAL CONVICTON.
This amounts to the mens rea.
Lord Mackay approved the following definition in R v Bateman 1925:
“in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to crime against the State and conduct deserving punishment”.
The Court of Appeal gave the following guidance in R v Prentice 1994:
We consider proof of any of the following states of mind in the defendant may properly lead a jury to make a finding of gross negligence:
• Indifference to an obvious risk of injury to health;
• Actual foresight of the risk coupled with a determination nevertheless to run it;
• An appreciation of the risk coupled with an intention to avoid it but also coupled with such a high degree of negligence in the attempted avoidance as the jury consider justifies conviction;
Recently the CA held that a jury could convict D of gross negligence manslaughter in the absence of any evidence as to his state of mind. They can just look at the conduct of the defendant. This will assist future juries to return verdicts in corporate manslaughter cases.
A-G Reference (No2 of 1999) 2000
Southall train crash killed 7 people. Manslaughter prosecutions were brought against the train company responsible for the passenger train, but the trial judge decided it was a prerequisite for conviction in such a case that a guilty mind be established against an identifiable human being. The manslaughter prosecutions collapsed. However, the CA decided that the trial judge had made a mistake. It is not essential that the jury know what D was thinking at the time of the killing. A jury can convict where they find the conduct has been sufficiently negligent to justify criminal liability.
R v Lidar 1999
CA favoured an approach where gross negligence could be proved either by satisfying an objective or subjective criterion. In this case there had been a dispute between two groups of young men in a pub. In the pub car park the appellant got into the driving seat of his Land Rover and his brother was the passenger in the front seat. The victim lent through the passenger window and a fight started. The appellant drove off with the victim still half in the car. He was then crushed when his feet caught in the rear wheel. The trial judge referred to recklessness in his direction to the jury and the appellant was convicted
On appeal the CA stated that the judge was right to direct the jury as he did i.e. had the driver been reckless - was he aware of the degree of risk of serious injury to the victim and nevertheless chose to ignore it.
NB: The concept of gross negligence appears to have a broad definition based on the above two cases. Gross negligence appears to cover both objective and subjective risk taking, and where an individual’s conduct has fallen below the standards expected of a reasonable person so as to justify criminal liability.
1.Did the defendant appreciate there was a risk- subjective test.
2.Would the reasonable person have appreciated the risk? – objective test. The risk must be of death not just a risk to health, comfort or injury. This point was confirmed in the following case.
R v Misra 2004
A patient died due to the negligence of two doctors and they were both convicted of manslaughter. They appealed stating that the elements of the offence were uncertain. The conviction was upheld on appeal and the court stated that the jury had to decide as a matter of fact whether the Defendants’ negligence amounted to gross negligence. The offence was compatible with human rights; Adomako had clearly laid down the elements of the offence. The test in gross negligence manslaughter involves consideration of the risk of death. It is not sufficient to show a risk of bodily injury or injury to health.
CRIMINAL LAW DEFENCES
• Under this defence the accused claims that because of his mental state at the time he committed the offence, he was not truly responsible for his actions.
• The defence bears the burden of proving on the balance of probabilities that the defendant was insane. If the defence is successful the verdict must be “not guilty by reason of insanity”. The prosecution may also raise insanity as an issue.
• In a murder charge case the accused will be committed to a mental hospital where his release can only be secured with the consent of the Home Secretary.
• For other offences the judge has discretion.
Criminal Procedure (insanity and Unfitness to Plead) Act 1991
Where the offence is murder, the court must still make a hospital order; under which the accused can be detained for an indefinite period. For other crimes the court may make:
1. a hospital order and an order restricting discharge either for a specified time or for an indefinite period;
2. a guardianship order under the Mental Health Act 1983;
3. a supervision and treatment order;
4. an order for absolute discharge.
Under theDomestic Violence and Victims Act 2004 the question of fitness to plead is to be left to the judge alone.
The rules on the defence of insanity were laid down in the M’naghten case 1843. D was obsessed with the then Prime Minister, Sir Robert Peel, and tried to kill him. He actually killed Peel’s secretary instead, and was charged with murder. He was found not guilty by reason of insanity. The following rules were established:
The accused must show three things:
• he was suffering from a defect of reason
• caused by a disease of the mind
• so that he did not know the nature and quality of his act or he did not know that what he was doing was wrong in law.
Defect of reason
A defect of reason means being deprived of the power to reason, rather than just failing to use it.
R v Clarke 1972
D was charged with shoplifting and argued that she had been acting absentmindedly because she was suffering from depression. At first instance the court held that this was the defence of insanity. Held: The Court of Appeal allowed the appeal. Whilst depression might amount to a disease of the mind, the defendant was not suffering from a defect of reason because she retained her ordinary powers of reason but momentarily acted as she did by failing to concentrate properly.
It does not matter whether the defect of reason was temporary or permanent e.g when someone is having an epileptic fit. R v Sullivan 1984
Disease of the mind
This is a legal definition and not a medical one and therefore covers states of minds which doctors would not necessarily treat as a disease of the mind. It covers a wide range of situations e.g. arteriosclerosis - Kemp 1957; epilepsy - Sullivan 1984; diabetes - Hennessy 1989; sleepwalking - Burgess 1991.
R v Kemp 1957
D hit his wife with a hammer causing GBH. He was suffering with arteriosclerosis, which caused temporary blackouts. He was devoted to his wife and could not remember picking up the hammer or attacking her. Held: D insane because hardening of the arteries was a disease of the mind. The law does not distinguish between diseases of mental and physical origin.
The courts are now using a distinction between disease of the mind caused by internal and external factors. Caused by internal factor - insanity (insane automatism), external factor e.g. someone is knocked on the head, hypnotised - automatism.
R v Sullivan 1984
D kicked and injured a friend during an epileptic fit and was charged with GBH. House of Lords held that epilepsy was a disease of the mind because during a fit mental faculties could be impaired to the extent of causing a defect of reason.
R v Burgess 1991
D attacked his girlfriend whilst sleepwalking. They had been watching videos and they both fell asleep he hit her over the head with a bottle and the video recorder and then grasped her throat. He then came to his senses and was charged with s.18 GBH. He argued that the appropriate defence was automatism, however the Court of Appeal held that this amounted to insanity because the cause was internal.
R v Quick 1973
The diabetic defendant was a nurse at a psychiatric hospital, who attacked a patient. He claimed that due to hypoglycaemia, brought on by not eating after taking insulin, he had acted without knowing what he was doing. The judge ruled that this was a plea of insanity, upon which Quick changed his plea to guilty. On appeal, it was held that the alleged mental condition was not caused by diabetes, but by the insulin used to treat it, appeal was allowed. (External causes).
R v Hennessy 1989
The accused was a diabetic, charged with taking a vehicle and driving while disqualified. He gave evidence that at the time of the offence, he had failed to take his usual dose of insulin due to stress and depression and as a result was suffering from hyperglycaemia which put him in a state of automatism. After the trial judge directed that this was insanity D changed his plea to guilty. He then appealed. The Court of Appeal dismissed his appeal and held that unlike Quick, it was the disease itself, uncontrolled by insulin, which had produced the malfunctioning of the mind and so constituted insanity. (Internal cause).
Did not know the nature and quality of the act or that what he was doing was wrong.
This basically means that the defendant did not intend to do what he did. For example, the man who cut a woman’s throat thinking that it was a loaf of bread, or the nurse who put a baby on the fire, thinking it was a log of wood. In Kemp he had no real memory of hitting his wife with the hammer.
This is also known as non-insane automatism, it occurs where a crime is committed by an involuntary act caused by an external factor.
Bratty v A-G of Northern Ireland 1963
Lord Denning said - Automatism means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking.
Examples: Severe blows to the head, hypnotism, anaesthetic, swarm of bees.
In some cases the courts have been prepared to rule that a “dissociative state” caused by an extraordinary event may be classed as automatism.
R v T 1990
T pleaded automatism to charges of robbery and ABH. She had been raped three days earlier. A psychiatrist diagnosed that she was suffering post-traumatic stress disorder and had entered a dissociative state. Plea was successful.
Broome v Perkins 1987
D was in a hypoglycaemic state and when driving home hit another car. Afterwards he could remember nothing about the journey. Held: as the accused was able to exercise some voluntary control over his movements he had not been acting in an entirely involuntary manner and therefore was unable to plead automatism.
Attorney-General’s Reference (No.2 of 1992)
D was driving a lorry down a motorway, when he crashed into a car parked on the hard shoulder, killing two people. Evidence showed that D had not fallen asleep at the wheel but was in a trance-like state by the repetitive vision of the long flat motorway, which reduced, but did not eliminate awareness of what he was doing. D was acquitted, but the prosecution raised the case as an issue of law in the Court of Appeal. It was held that this state does not amount to automatism.
The defence may not be available if the automatism was caused by the accused’s own fault e.g. through taking drugs or alcohol. If the automatism is brought about by some other way then it may still be used depending on whether the defendant knew there was a risk.
R v Bailey 1983
D was convicted of wounding with intent. He claimed to have been in a state of automatism caused by hypoglycaemia. He had felt unwell before the attack but had only eaten some sugar.
The Court of Appeal held that self-induced automatism (other than that caused by drink or drugs) can provide a defence if the accused’s conduct does not amount to recklessness. This meant that in this case he would only have a defence if he did not realise that failing to eat would lead him to get into a state where he could attack someone. Appeal was dismissed as he had been reckless.
• Where a defendant takes drugs which normally have a soporific or sedative effect, and then commits a crime involuntarily, the defence may be available if the reaction was unexpected.
R v Hardie 1984
It was held that a person whose condition of automatism was due to taking Valium could rely on the defence, even though the drug had not been prescribed by a doctor. He did not understand the effects of the drug.
DIAGRAM ON INTOXICATION
Intoxication can be caused by alcohol or drugs or a combination of the two, the same legal principles apply whichever the cause.
If the defendant did actually have the mens rea of the crime, then intoxication cannot be a defence.
R v Kingston 1994
D was attracted to young boys, but he normally managed to control these tendencies and prevent himself from acting on them. However, his business associates decided to set him up so that he could be blackmailed. D was invited with a l5year old boy to a flat where their drinks were laced with drugs; when they were both intoxicated D indecently assaulted the boy. D admitted that at the time of committing the assault, he intended it, but argued that he would not have committed the offence if he had been sober. The House of Lords held that an intoxicated intent was still an intent and the fact that the intoxication was not voluntary made no difference to that. He had the mens rea and so the intoxication was no defence.
Generally intoxication will be a defence to crimes of specific intent if the intoxication resulted in a lack of mens rea. If the offence is one of basic intent then intoxication will be no defence.
DPP v Majewski 1977
The accused had spent 24 hours getting drunk and taking drugs and then smashed windows and attacked a police officer. He argued that he had been so intoxicated that he could not remember the incidents at all and therefore could not have formed the mens rea. Held; intoxication was only a defence to crimes of specific intent and since the accused was charged with offences of basic intent, his intoxication gave him no defence. This decision was approved by the House of Lords.
• Offences of specific intent include: Murder, S.18 OAPA 1861, Theft.
• Offences of basic intent include: Involuntary manslaughter, Rape, S.20 OAPA 1861, ABH, A