C4: Homicide Flashcards
1
Q
What is the definition of murder?
A
The unlawful killing of a reasonable person who is in being under the King’s peace and with malice aforethought.
2
Q
What is different about the sentence for murder?
A
It is the only offence that carries a mandatory life sentence.
3
Q
What are the elements of murder?
A
The elements of murder are now therefore as follows. The defendant must:
- unlawfully;
- kill;
- a living human being;
- within the King’s peace; and
- with malice aforethought.
4
Q
Which elements of murder are the AR and MR?
A
- unlawfully; - AR
- kill; - AR
- a living human being; - AR
- within the King’s peace; and - AR
- with malice aforethought. - MR
5
Q
What are the two things that must be determined for MR of murder to be proven?
A
The defendant:
(i) must know that the relevant circumstances existed at the time; and
(ii) the killing must be carried out with malice aforethought, that is with an intention to kill or cause GBH.
6
Q
What relevance does premeditation of murder have on the murder offence?
A
It is not relevant to the word ‘aforethought’. Just because someone was not premeditated does not mean that it will not be murder. If it is premeditated, the defendant is more culpable of the offence and therefore may have a longer minimal period before parole is considered.
7
Q
In a murder offence, what does AR of unlawfulness really mean?
A
It means the defendant does not have a valid defence. It will need to be considered last, after establishing the AR and MR of the offence.
8
Q
What are the three elements that make up an AR for murder? Give the other elements in the definition of murder as examples.
A
The conduct element (whether D’s conduct led to the victim’s death, e.g. a positive act or omission)
The circumstance element(s) (whether the victim was a living human being and it was in the King’s peace)
The result element (whether there is a causal link between the conduct and the death)
9
Q
What is the conduct element for murder?
A
Whether D’s conduct led to the victim’s death, e.g. a positive act or omission.
10
Q
What are the circumstance elements for murder?
A
Whether the victim was a living human being and it was within the King’s peace.
11
Q
What is the result element for murder?
A
Whether there is a causal link between the conduct and the death.
12
Q
If a defendant tries to kill an already dead person, will they be liable for murder? Why?
A
No, because they are not killing a living human being. All elements of the offence must coincide in time in order for the defendant to be held criminally liable for what happened
13
Q
According to A-G’s Reference (No. 3 of 1994) [1997], is a foetus classified as a living human being? When will it be classified as a living human being?
A
No, it is not. Also, it is not murder to kill a child who is ‘being’ born. An existence independent from its mother is required, although the placenta and umbilical cord need not have been expelled from the mother or severed from the child in order for it to be deemed a human being.
14
Q
Is killing a ‘brain-dead’ person considered murder?
A
No, because they are not classed as a living human being. See Airedale NHS Trust v Bland [1993], the House of Lords had to determine whether the applicants, that is the doctors who were looking after Bland, could lawfully stop feeding him and therefore allow him to die. The House of Lords acknowledged that if the victim had reached the point of ‘brain death’, then in the eyes of the criminal law he would not be a ‘living human being’. A victim who had not reached that stage though, would be regarded as a ‘living human being’ who can be murdered.
15
Q
Is it murder to kill someone during action in pursuance of war or an official conflict?
A
No, because that is not within the King’s peace.
16
Q
What is the leading case about whether murder is applicable to defendants who believe they are killing outside of the King’s peace?
A
Adebolajo and Adebowale [2014]. The defendants had both been convicted for the murder, on a London street, of Lee Rigby, a British soldier who had served in Afghanistan. The defendants had waited outside a barracks in London for a suitable victim. When they saw the victim walking down the road and recognised that he was a soldier, they ran him over from behind in a car and then stabbed and hacked him to death with weapons that they had brought with them. Both defendants had converted to Islam, and had become radicalised. Both of them thought that the killing would further their extremist cause. The plan included getting themselves killed by armed officers who would attend the scene so that they would gain martyr status as a result.
On appeal, both defendants sought to argue that the killing was not ‘within the Queen’s peace’, because they honestly believed that they were at war with the Queen, in a people’s struggle against forceful occupation in Afghanistan and Iraq. In dismissing their appeal, it was held that the term ‘within the Queen’s peace’ referred to the status of the victim, not the status of the killer. The victim in this case was not in a state of war with the defendants.
17
Q
What is the rule around the victim and ‘within the King’s peace’?
A
The term ‘within the King’s peace’ referred to the status of the victim, not the status of the killer.
18
Q
What is the exception for soldiers’ fighting abroad to ‘within the King’s peace’?
A
The importance of this circumstance element lies in the fact that under s9 Offences Against the Person Act 1861, murder and manslaughter committed outside the UK by a British citizen can be tried as if it had been committed here. If it was not for this circumstance element, British soldiers fighting abroad could be charged with murder or manslaughter.
19
Q
What kind of crime is murder? What does that mean?
A
It is a ‘result’ crime, which means issues of causation may arise.
20
Q
What does ‘malice aforethought’ mean?
A
It is the MR for murder. This simply means that the defendant must intend either death or serious bodily harm, that is GBH, (Cunningham [1982]).
21
Q
What does malice aforethought NOT mean?
A
Aforethought does not mean murder requires premeditation on the part of the defendant. Spur of the moment killings can still have the MR of murder.
Malice does not mean the defendant has to hate the victim, many murders are domestic and defendants kill loved ones.
22
Q
What are the two types of intention that can be used for murder?
A
Direct intention or oblique intention. In the case of murder, direct intention is whether it was the defendant’s purpose/aim/desire to kill or cause GBH to the victim. If not, it will be whether the defendant obliquely intended to do so.
According to Woollin [1998], when can oblique intention be inferred?
Woollin [1998] stated that an oblique intention can be inferred if:
- the proscribed result was a virtual certainty (this is an objective limb);
- the defendant foresaw the proscribed result as a virtually certain consequence of their conduct (this is a subjective limb); and
- the jury choose to find an intention.
23
Q
What are the four chances the prosecution has to prove that the defendant had the required MR for murder?
A
In effect, the prosecution has four chances to prove that the defendant had the required MR:
- there was a direct intention to kill;
- the defendant obliquely intended to kill;
- there was a direct intention to cause GBH; or
- the defendant obliquely intended to cause GBH.
24
Q
Is duress a defence to murder?
A
No, it is not.
25
Is ‘mercy killing’ or euthanasia of a sick person a defence to murder?
No, it is not. See Inglish [2010] where a mother killed her recently-disabled son as a mercy killing. There was no change to the charge, only a change to the minimum term.
26
What is the difference between ’mercy killing’ or euthanasia and assisted suicide?
Mercy killing/euthanasia should be distinguished from assisted suicide, which occurs where a person does an act capable of assisting or encouraging the suicide or attempted suicide of another person. Assisted suicide is an offence under s2(1) Suicide Act 1961.
27
What was the courts’ decision in Conway v Secretary of State for Justice [2018] where a man argued that the offence of assisted suicide clashed with his Art 8 ECHR rights (right to private and family life)?
It was held that the right of an individual to decide how and when to end their life was an aspect of the right to respect for private life protected by Art 8 ECHR. s2(1) Suicide Act 1961 clearly and deliberately interfered with those rights. The court declined to adopt the appellant’s scheme, which would be better determined by Parliament.
28
What is voluntary manslaughter?
Voluntary manslaughter applies where a defendant is charged with murder, but successfully pleads one of the partial defences to murder thereby reducing murder to manslaughter.
29
What does the ‘voluntary’ of ‘voluntary manslaughter’ mean?
It refers to the fact that the defendant had full MR for murder. It doesn’t have anything to do with the murder being done voluntarily, as if the defendant did not complete the conduct element of the AR voluntarily, then there will be no liability for what happened.
30
What are the two types of manslaughter and when might they arise?
Voluntary manslaughter: where the defendant has completed the AR and MR of murder and they might be able to successfully rely on one of the three partial defences to murder. If successful, the defendant will be liable for voluntary manslaughter.
Involuntary manslaughter: where the defendant has completed the AR of murder, but lacked the required MR. For instance, the defendant might have completed the AR of murder whilst being reckless as to the possibility of causing GBH to the victim. In this case, the defendant might be liable for involuntary manslaughter.
31
When can the partial defences to murder be raised?
Only where the defendant is charged with murder. These defences are not available for any other charges, including involuntary manslaughter.
32
Why are partial defences a way of arguing against the fact that the defendant did not commit the AR or possess the MR for murder?
Because to be tried for murder, the defendant will have the AR and MR for murder. Instead, the defendant is simply arguing that, whilst they are actually guilty of murder, there was something about the killing that makes it partially excusable and therefore less blameworthy. Because the killing is only partially excusable, the defendant only gets the benefit of a partial defence, and is convicted of manslaughter instead.
33
Where is the loss of self-control defence contained?
ss54 and 55 CorJA 2009 (Coroners and Justice Act)
34
What are the three points for the definition of the loss of self-control for the partial defence of voluntary manslaughter found in s54(1) CorJA 2009?
‘Where a person (D) kills or is a party to the killing of another (V), D is not to be convicted of murder if:
- D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control;
- the loss of self-control had a qualifying trigger; and
- a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D’.
35
In order for someone who has completed the AR and MR of murder to be able to successfully raise loss of self-control, which conditions must be met?
- one of the two qualifying triggers applies;
- this caused the defendant to lose self-control;
- this led to an act or omission resulting in the defendant killing or being party to a killing;
- a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and, in the circumstances of the defendant, might have reacted in the same or in a similar way to the defendant; and
- the defendant must not have acted in a considered desire for revenge.
36
What will happen if the loss of self-control defence is successful?
A successful defence means that the defendant is not convicted of murder, but instead manslaughter (s54(7).
37
Where is the burden of proof once the evidential burden has been met for loss of self-control?
The burden of proof is on the prosecution to disprove the defence once the evidential burden has been met (s54(5)).
38
What does s54(6) CorJA 2009 state about trial judges and the loss of self-control defence?
Under s54(6), trial judges are required to undertake a rigorous evaluation of whether the defence of loss of self-control should be left to the jury, and provided that is done, an appeal court will not interfere with their decision.
39
When dealing with the loss of self-control defence, what should trial judges do?
- They should have the power to leave the defence to the jury, even where the defence case does not raise the defence, as long as the judge feels that the test in s54(6) is satisfied; and
- the judge must decide whether there is ‘sufficient evidence’. As a result, the judge needs to assess the evidence closely and be satisfied that there is sufficient evidence in respect of each of the elements of the defence. If there is insufficient evidence in respect of at least one element of the defence, the judge should not leave the defence to the jury. The judge will have to consider the weight and quality of the evidence in order to reach a conclusion about whether the defence should be put to the jury.
40
Should a judge explain ss54 and 55 CorJA 2009 to the jury in simple terms?
No, the court said that the language used in ss54 and 55 CorJA 2009 is simple and easy for juries to understand.
41
What are the two qualifying triggers for the loss of self-control defence in ss55(3) and 55(4) CorJA 2009?
s55(3): where the defendant’s loss of self-control is caused by the defendant’s fear of serious violence from the victim against the defendant or another identified person.
s55(4): where the defendant’s loss of self-control was caused by things done or said which:
(a) constituted circumstances of an extremely grave character; and
(b) caused the defendant to have a justifiable sense of being seriously wronged.
42
Can the trigger in s55(3) CorJA 2009 (fear of serious violence) be a fear that the victim will use serious violence in the future generally?
No, it cannot. This was originally meant for women who fear violence at the hands of an abusive partner who subsequently kills or where a person overreacts to a fear of serious violence and kills.
43
Is the ‘fear of serious violence’ trigger in s55(3) CorJA 2009 a subjective or objective test?
It is a subjective test, on whether the defendant fears serious violence - it just has to be genuine, but does not have to be reasonable.
44
Can a defendant use s55(3) (fear of serious violence) trigger as a defence if the defendant has deliberately incited the fear of violence by something they themselves have said or done in order for them to have the excuse to use violence?
???
45
If the defendant did instigate the attack, but did not deliberately incite the fear of violence by something they themselves said or did in order for them to have the excuse to use violence, could the loss of self-control trigger still apply?
Yes, it could.
46
What is the trigger under s55(4) CorJA 2009?
This trigger requires that the things done or said were of an extremely grave character and that the defendant’s feeling of being seriously wronged is justifiable.
47
Is the ‘grave character/justifiable’ trigger in s55(4) CorJA 2009 a subjective or objective test?
It is an objective test, meaning a reasonable person would have to think that the circumstances are extremely grave and that the defendant had a justifiable sense of being seriously wronged.
48
Is sexual infidelity a possible basis for a qualifying trigger under s55(4) CorJA 2009?
No, it is not, with one exception. Sexual infidelity in itself does not qualify under s55(4), but if it is mixed up with other facts that were relevant to whether the defendant’s loss of self-control had a qualifying trigger, it is unrealistic and potentially unjust to exclude the sexual infidelity when it was integral to the facts as a whole.
49
Can the loss of self-control be caused by a combination of both triggers?
Yes, it can.
50
Can the defendant still be able to plead a loss of self-control even when they are mistaken as to the existence of a qualifying trigger?
Yes, by s55(3), the defendant only needs to have a genuine or honest fear of serious violence. The defendant does not have to have reasonable grounds for that fear. Similarly with the grave character, they just need a genuine or honest belief that it is justifiable.
51
Is a sense of being seriously wronged is ‘justifiable’ if the defendant incited it in order to provide an excuse to use violence?
No, it is not.
52
Once the qualifying trigger has been identified, what would be assessed next?
It must be assessed whether this led to a loss of self-control. This isn’t eliminating the MR for murder, but just acknowledging that the defendant had ‘the loss of ability to act in accordance with considered judgement or a loss of normal power of reasoning’.
53
Would there be grounds for the loss of self-control if the defendant acted out of a considered desire for revenge?
No, there would not.
54
Can the loss of self-control defence apply to a secondary participant?
Yes, due to the words ‘ resulting in the defendant killing or being party to a killing’ in s54(1).
55
Is the test for the third point ‘a person of D’s sex and age, with a normal degree of tolerance etc’ of the loss of self-control (s54(1) CorJA 2009) a subjective or objective test?
An objective test - it requires a uniform standard of self-control from the defendant.
56
What are the four points of s54(1)(c) for the test for loss of self-control?
The test is objective and requires a uniform standard of self-control from the defendant. Following s54(1)(c), the jury has to be satisfied that:
- ‘a person of the defendant’s sex and age;
- with a normal degree of tolerance and self-restraint;
- and in the circumstances of the defendant;
- might have reacted in the same … way to the defendant [and killed] or in a similar way [and killed]’.
57
What are the only facts that should be relevant to the reasonable person who has the normal powers of tolerance and self-restraint?
Age, sex and the circumstances of the defendant.
58
What are the ‘circumstances’ that need to be judged according to s54(1)(c) and consequently in s54(3)?
All of the defendant’s circumstances - e.g. being in an abusive relationship. N.B. characteristics apart from age and sex will not be taken into account.
59
Why will characteristics apart from age and sex not be taken into account to the circumstances in s54(3) or the capacity of tolerance or self restraint on s54(1)(c)?
Characteristics like mental disorders will not be taken into account because the wording of the legislation is clear - the person must be judged against a reasonable person of the age/sex and in the circumstances. Mental disorders are already taken into account in the law under s2 HA 1957 and are not ignored.
60
Can the voluntary consumption of alcohol form part of the circumstances for consideration under ss54(1)(c) and 54(3)?
No, they cannot bolster their partial defence to murder through voluntary drunkenness. They can still use the loss of self-control defence, but they will be judged against a reasonably sober person, with normal levels of tolerance and self-restraint.
61
When is the exception of when a mental disorder or an alcohol problem will be taken into account as a circumstance under ss54(1)(c) and s54(3)?
When the specific taunts were aimed specifically at the disorder or alcohol problem to the extent that it could be a qualified trigger.
62
Which part of CorJA 2009 does it say that the defendant must not have acted in a considered desire for revenge?
s54(4) CorJA 2009.
63
Does the loss of self-control have to be sudden for the defence to apply?
No, but s54(4) CorJA 2009 about the ‘considered desire for revenge’ suggests that a time gap or cooling-off period between the qualifying trigger and the killing may be fatal to the defendant’s claim of loss of self-control.
64
Which piece of legislation does diminished responsibility sit in?
s2(1) HA 1957 as amended by s52(1) CorJA 2009.
65
For diminished responsibility, where is the burden of proof?
On the defendant to satisfy the court that they were suffering from an abnormality of mental functionality. This is not in breach of Art 6(2) ECHR.
66
For diminished responsibility, what is the standard of proof?
On the balance of probabilities.
67
What was the decision taken by the courts after the jury convicted the defendant in Brennan [2014] of murder, even though he claimed the partial defence of diminished responsibility?
TLDR: Unchallenged medical evidence of diminished responsibility, murder charge should be withdrawn from jury and D should be convicted of manslaughter.
In Brennan [2014], the defendant, a male escort, brutally killed one of his clients. At his trial for murder, the defendant raised the defence of diminished responsibility, based on personality and mental health issues, which he had suffered from since childhood. The defendant called, as a witness, a consultant forensic psychiatrist, who considered all four limbs of the defence in detail and was firmly in favour of the defendant being successful with the defence. This evidence was not challenged by the prosecution. The jury, however, did not accept the defence of diminished responsibility and convicted the defendant of murder. It was held that, where there is unchallenged medical evidence of diminished responsibility, and where there was no other evidence capable of rebutting the defence, then the correct course of action for the trial judge was to withdraw the murder charge from the jury. In such cases, the defendant should, therefore, be convicted of voluntary manslaughter. As a result, the defendant’s murder conviction was quashed and he was convicted of manslaughter.
68
What are the elements of the partial defence of diminished responsibility?
The elements of the partial defence of diminished responsibility are as follows. The defendant:
- must be suffering from a recognised medical condition;
- which caused them to suffer an abnormality of mental functioning;
- which substantially impaired their ability to understand the nature of their conduct, form a rational judgment or exercise self-control; and
- the abnormality of mental functioning provides an explanation for the defendant’s acts and omissions in doing or being a party to the killing.
69
Who can raise the defence of diminished responsibility?
Generally, only the defendant can raise the defence (Campbell [1986]), although by s6 Criminal Procedure (Insanity) Act 1964, where the defendant is charged with murder and pleads insanity the prosecution may adduce evidence of diminished responsibility. Conversely, where the defence raises the defence of diminished responsibility, if the prosecution has evidence that the defendant is insane, the prosecution may elicit evidence tending to show that this is so.
70
For the first element of diminished responsibility (must be suffering from a recognised medical condition), what kinds of things are medical conditions that are recognised by law?
Organic or physical injury or disease of the body (including disease of the brain) amounts to a medical condition.
Clinical depression
Schizophrenia
Paranoia
Epilepsy
Personality disorder
Adjustment disorder as a result of serving in Afghanistan
Alcoholism
Syphilis
71
For the third element of diminished responsibility, what are the three things that must have substantially impaired the defendant’s abilities? Is it one of these three or all?
- to understand the nature of their conduct
- to form a rational judgment
- to exercise self-control
It is one of the above.
72
If the defendant has a recognised medical condition, but does not meet all three things that substantially impair the defendant’s ability, will they still be able to use diminished responsibility as a partial defence?
No, they must meet all three impairments. The jury will look at all the facts, including the medical condition, but if that medical condition did not cause this lack of self-control, they will still be liable for murder.
73
How important is the word ‘substantially’ in ‘Which substantially impaired the defendant’s ability to do one or more of the things listed in s2(1A)’?
It must be more than trivial, so important or weighty. ‘The judge should explain that while the impairment had to pass the merely trivial before it needed to be considered, it was not the law that any impairment beyond the trivial would suffice.’
74
Does the addition of being under the influence of drugs or drink mean that the impairment of D’s responsibility is greater?
No, it will be judged on what it was like without drugs or drink. If their condition was of such severity that, even without intoxication, it would have substantially impaired responsibility, then the defence can apply.
75
Is medical evidence for diminished responsibility required?
Although medical evidence is not actually required by CorJA 2009, it is a practical necessity, and if none is called there will be a suspicion that it was sought and found unfavourable.
76
What is involuntary manslaughter?
Where the defendant has the AR for murder, but not the MR.
77
What is voluntary manslaughter?
Where the defendant has both AR and MR for murder, but is able to rely on one of the partial defences.
78
What are the three types of involuntary manslaughter covered?
gross negligence manslaughter (GNM);
unlawful act manslaughter (UAM); and
reckless manslaughter.
79
What is the leading case for GNM?
Adomako [1994]. In Adomako, the appellant was an anaesthetist who had failed to notice for six minutes during an operation that the oxygen supply to a patient had become disconnected. The patient died. The defendant’s conviction was upheld by the House of Lords.
80
What does GNM stand for?
Gross negligence manslaughter (a type of involuntary manslaughter)
81
What are the elements of GNM?
The elements of GNM are as follows:
- The defendant must owe a duty of care to the victim;
- The defendant must have breached this duty of care;
- The defendant’s conduct must pose a serious and obvious risk of death to the victim;
- A causal link must be established between the defendant’s negligence and the death of the victim; and
- The defendant’s conduct must be grossly negligent.
82
How can you find out whether you have a duty of care in criminal law?
The starting point for establishing whether a duty of care exists is to ask whether the defendant would owe the victim a duty in the law of tort.
83
Give examples of duty situations?
duty created by statute;
duty created by contract;
duty because of special relationship between the defendant and the victim;
duty because of public office;
duty where the defendant assumes responsibility to take care of the victim; and
duty where the defendant creates a dangerous situation.
All these duty situations could be the basis of a duty of care for GNM purposes.
84
Who decides whether a duty of care arises?
According to Evans [2009], it is for the judge to decide as a matter of law whether a duty of care is capable of arising. If the judge is of the view that a duty is capable of existing on the facts, it is for the jury to decide the factual question of whether a duty actually does exist.
85
When does a defendant breach the duty of care?
If they fail to live up to the standards of the reasonable person in the same situation or the same occupation.
86
Is the test for breach of duty objective or subjective?
It is objective, based on a reasonable person.
87
When asking ‘did the defendant’s conduct pose a serious and obvious risk of death to the victim?’, explain the outcome in Rose [2017]?
The defendant in Rose won her appeal due to the judge carrying out an objective test on if the defendant breached her duty of care. However, in order for something to qualify as GNM, the defendant’s conduct must pose a serious and obvious risk.
88
What kind of test must be used when considering GNM due to a breach of duty of care?
A prospective test, which focuses only on information that would have been obvious to a reasonable person when the breach of the duty of care occurred. Not just an objective test which is just a breach of the duty of care of a reasonable person.
89
What is the drawback of GNM in terms of medics doing investigation into a condition?
The medic who does less in terms of patient care (referral for further tests etc.) is less likely to be found guilty of GNM than a medic who goes further in terms of patient care. Where the defendant negligently does less for the patient, then it is less likely that a serious risk of death will be obvious to a reasonable practitioner of that type.
90
What is negligence?
The failure to reach the standards of a reasonable person.
91
When determining whether there is a causal link for GNM, what must be found?
Legal and factual causation.
92
What is the difference between ordinary and gross negligence?
Gross negligence is outside the realms that one might expect to see in a civil case. In order for someone to be convicted of GNM, the breach of the duty of care owed to the victim must be so blameworthy/bad that it justifies a conviction for manslaughter.
93
Would a minor lapse in concentration be GNM?
No, it would need to be so blameworthy/bad that it justified a conviction of manslaughter.
94
Why was Adomako [1994] guilty and Rose [2017] not guilty?
Adomako was gross negligence because there was a risk of death and it was more than a lapse in concentration.
Rose was not guilty because there was not a serious and obvious risk of death to the victim at the time she inspected the wrong scans.
95
Why was the owner of the restaurant not guilty of GNM in Kuddus [2019], but the employee was?
Because the employee saw that the customer had written ‘nuts, prawns’ on the order, but this wasn’t passed on to the owner. The owner therefore did not see an obvious and serious risk of death and their duty of care breach was not gross, just ordinary for not putting in appropriate systems.
96
What does UAM stand for?
Unlawful act manslaughter
97
What is UAM also known as?
Constructive manslaughter, because the defendant’s liability is constructed out of a lesser offence, which is sometimes referred to as the base offence.
98
What is UAM?
Where the defendant has killed someone although it came out of a lesser offence (base offence).
99
What is the leading case on unlawful act manslaughter?
???
100
What are the elements of unlawful act manslaughter?
The elements of the offence were clarified in A-G’s Reference (No. 3 of 1994) [1998]:
- The defendant does an unlawful act;
- the act is a dangerous one; and
- the act causes the victim’s death.
101
Can an omission cause UAM?
No, it must be an act (unlawful ACT manslaughter).
102
What kind of act can cause liability for UAM?
It has to be an unlawful act, so it cannot just be any act.
103
Can a civil wrong cause liability for UAM?
No, a civil wrong, such as a tort or breach of contract, will not be enough.
104
What does the unlawful act need to have in order to qualify for UAM?
It must have a subjective MR - a UAM charge cannot be constructed from a negligence-based offence, such as careless or dangerous driving, or from a crime of strict liability.
105
If a friend points a loaded gun at his friend and shoots him dead, can he be convicted of UAM?
No, because there is no MR in the unlawful act (battery). He didn’t intend to cause battery, because he didn’t know how the gun worked (Lamb [1967]).
106
What does it mean that ‘the unlawful act must be a dangerous one’?
An act is dangerous if a reasonable person would have appreciated that it would have created a risk of harm to someone, whether for the person who dies or another.
107
Is the rule that ‘the unlawful act must be a dangerous one’ an objective or subjective test?
This is an objective test, and so it is irrelevant that the defendant is unaware that his act was unlawful or dangerous. This does not conform to the general requirement in criminal law for knowledge or recklessness regarding surrounding circumstances.
108
Can causing shock which could result in injury count as a ‘dangerous’ act?
Yes, it can. However, it is the act which is the important part here, not whether the act caused the consequences in question (e.g. giving someone a heart attack). A different part of the charge will deal with the causation.
109
If there is a case of mistaken belief, e.g. thinking they are loading in blanks into a gun, would the reasonable person be aware of that?
Yes, because the reasonable person has knowledge of the background to the offence, including preparatory acts by the accused.
110
Is an unlawful act dangerous if it is reasonably foreseeable that somebody might intervene, confront the defendant, and injure themselves in the process?
Yes, it is. E.g. stealing of heavy vehicles in the dark on a single track, run victim over. Bristow [2013]
111
Is UAM a result or conduct crime?
It is a result crime.
112
What is meant by ‘the act results in the victim’s death’ - what principle does that bring up?
Causation - It must be shown that the defendant’s unlawful act was both a factual and legal cause of the victim’s death. If there is a break in the chain of causation between the unlawful act and the death of the victim, then the defendant is not guilty of UAM.
113
Does the act need to be directed at the victim to be convicted for UAM?
No, it can be ‘transferred malice’, so the act can still be UAM. E.g. setting fire to a caravan and accidentally killing others, still guilty of UAM.
114
Are GNM and UAM mutually exclusive?
No, a defendant could be guilty by both routes. Imagine a situation where a surgeon was carrying out an operation and dangerously waved the scalpel around, cutting the throat of the patient as a result. Clearly, this would be a gross breach of duty as well as an unlawful act (battery). The surgeon could be guilty of either gross negligence manslaughter or UAM.
115
What is reckless manslaughter?
Where the act of killing is caused by recklessness.
116
What are the elements for reckless manslaughter?
In order to establish liability for this offence
- the defendant must kill by an act or omission;
- which does not have to amount to an offence; and
- where the defendant is aware that it is highly probable that they will cause serious bodily harm.
117
How is reckless manslaughter different from UAM?
In contrast to the UAM, the act or omission that results in death for reckless manslaughter does not need to amount to an offence.
118
What must the defendant be aware of for reckless manslaughter?
The defendant must be aware that it is highly probable that they will cause death or at least serious bodily harm.
119
Give an example of reckless manslaughter?
In Lidar [1999] 4 Arch News 3, the defendant had a dispute with a man in a pub; the man followed him out to his car and proceeded to fight with the defendant’s passenger. The defendant drove off in his car with the man’s head still in the window. The defendant was guilty of reckless manslaughter because he was aware of a significant risk of serious injury to the victim.
120
How common is reckless manslaughter?
Whilst the existence of reckless manslaughter is still recognised, it should be noted that this offence is very rarely charged.
121
Why would it be easier to prove GNM or UAM than reckless manslaughter?
GNM is an offence without a subjective MR requirement, which is easier than proving that the defendant is aware of the risk of death or serious bodily harm. Similarly, where appropriate, UAM will often be an easier charge to prove, provided that the defendant can be shown to have committed an initial unlawful act.
122
Which of the killing offences carries a sentence of mandatory life imprisonment (though the full sentence may not all be served in prison)?
Only murder - manslaughter can carry a max life term sentence if required.
