Criminal Law- Booklet 2- Fatal Offences Flashcards
Murder
Lord Coke: “unlawful killing of a reasonable person in being and under the Queen’s peace with malice aforethought, express or implied”
Actus Reus of murder:
1) Definition
[I] “Unlawful killing”
[II] “Reasonable person in being”
Not foetus= AG reference no. 3
Death means ‘brain dead’=R v Malcherek and Steel
[III] Under the Queen’s peace
Not war
2) D caused death in fact (factual causation)
[I] ‘But for’ test – R v White
[II] De minimis rule – Pagett
3) D caused death in law (legal causation)
[I] Operating and substantial – Smith, Jordan, Chesire (medical neg?)
[II] Thin skull – R v Blaue
[III] Foreseeable intervening acts – Roberts, Williams and Davies
Also issues of coincidence of AR + MR and transfer of malice
Mens rea
“Express or implied malice aforethought”
Express= intention to kill
Implied= intention to cause GBH (Vickers, Cunningham)
Oblique intent= foresight to a virtual certainty (Nedrick and Woolin)
R v Moloney (D pulled trigger as a dare and killed his father- didn’t intent to but would have foreseen it could have caused serious harm or death)
R v Matthews and Alleyne= two boys threw an 18 y/o off a bridge after being told by him he couldn’t swim. He drowned & courts ruled this was a reasonably forseeable consequence of the boy’s actions
GBH= ‘really serious harm’ (DPP v Smith)
[I] Direct intent to kill
[II] Oblique intent to kill
[III] Direct intention to cause GBH
[IV] Oblique intention to cause GBH
Murder Evaluation + Reform
Law Commission (2006) = ‘Murder, Manslaughter and Infanticide’ – examined problems of murder
1) Mandatory life sentence
2) No precise definition of what ‘death’ occurs
3) Intention includes an intention to cause GBH but the same conviction
4) No clear definition of intention. Problems with oblique intent
5) Euthanasia
LACK OF COHESION
- Law Commission report: “a rickety structure set upon a shaky foundations”
- Some parts changed while others stayed the same
- Developed through common law incrementally = Piecemeal
INTENTION
- Hyam, Moloney, Nedrick and Woolin have highlighted difficulties court faced in establishing the meaning of intention + then directing the jury
- Matthews and Alleyne – highlights = guidance given to juries is a rule of evidence rather than a rule of law
- No clear definition of intention
- Glanville Williams: “why is it that intention, one of the basic concepts of the criminal law, remain so unclear? Judges decline to define it, and they appear to adjust it from one case to another”
- Professor Clarkson: “leaves the law in a state of confusion and uncertainty and opens the door to inconsistency in jury verdicts”
- Janet Loveless in ‘Complete Criminal Law’ stated Lord Steyn’s judgment in Nedrick has lasted the test of time
- Law Commission suggests the definition should be:
1) A person should be taken to intent a result if s/he acts in order to bring it about
2) Or if judge worried justice may not be done: intention to bring about a result may be found if it is shown that the D thought the result was a virtual certainty consequence of their actions
INTENTION TO CAUSE GBH
- Vickers and Cunningham
- Debate over whether someone should be convicted of murder when they didn’t have the intention of causing death / hadn’t considered the possibility it may occur
MANDATORY LIFE SENTENCES
- Compulsory- doesn’t allow flexibility for judges
- To avoid a mandatory life sentence, many raise a partial defence (e.g. diminished responsibility) to reduce charge to voluntary manslaughter which carries a discretionary life sentence
House of Lords Select Committee on Murder and Imprisonment = believed judges could be free to sentence according to the case’s circumstances
LAW COMMISSION SUGGESTIONS FOR REFORM
- Proposed there should be new legislation, which would incorporate murder, voluntary + involuntary manslaughter
[I] Suggests offences were a ‘ladder principle’ –> murder would be ‘first degree’ and ‘second degree’
First-degree murder - intention to kill/cause serious harm when defendant is aware there is a risk of death
Second-degree murder - Intention to cause serious harm / cause some injury but not aware it would pose a serious risk of death
[II] Give intention a statutory interpretation
“A person acts intentionally with respect to a result when s/he acts either:
a) In order to bring it about
b) Knowing it will be a virtual certainty to occur
c) Knowing it would be a virtual certainty to occur if s/he were to succeed in their purpose of causing some other result
[III] Abolish mandatory life sentence (combat cases where defences being too leniently used to allow judges some flexibility- but unlikely)
Loss of control
s.54 Coroners and Justice Act 2009
a) Loss of self control - s.54(2)
b) Qualifying trigger - s.55
c) Another person of D’s sex and age might have reacted in the same way in the circumstances
a) LOSS OF SELF CONTROL
- Doesn’t matter whether it was sudden
- Doesn’t have to be at time of killing –> R v Alhuwalia (old def. failed)
R v Dawes, Hatter and Bowyer
- Temper/anger/out of character - not sufficient - R v Jewell - unwell, not sleeping, depressed, not ‘thinking straight’
b) QUALIFYING TRIGGER:
[I] s.55(3) - loss of self control attributable to D’s fear of serious violence – R v Ward. Test subjective - how def. feels, not reasonable person
[II] s.55(4) - thing or things done or said:
a) circumstances = extremely grave character R v Mohammed- daughter stabbed.
b) Cause D justifiable sense of being seriously wronged – R v Clinton, R v Parker and R v Evans
– Old law baby - R v Doughty
– R v Zebedee = killed 94 yo dad - soiled himself
– R v Hatter = killed man his gf was sleeping with - breakdown of relationship not justifiable to meet anger trigger
[III] s.55(5) - combination
s.55(6) - In determining whether loss of self-control had a qualifying trigger:
a) D’s fear of serious violence disregarded if caused by D / excuse for violence
b) Sense of being seriously wronged not justifiable if D incited thing to be done / excuse for violence
c) Sexual infidelity disregarded (s.55(6)(c) – R v Clinton - D killed wife - no definition of ‘sexual infidelity’ - ruled infidelity not a qualifying trigger
C) SAME CIRCUMSTANCES
DPP v Camplin - 15 yo boy - vic 50 yo who sexually assulted him - HoL ruled standard should be of a 15 yo boy
Confirmed in Holley - D alcoholic who killed gf drunk - ruled being drunk not a characteristic taken into account
s.54(3) – ‘circumstances of D’ = all D’s circumstances other than those that impact their tolerance / self-restraint
– R v Hill (been sexually abused as child, vic tried to sex abuse d- taken into account)
– R v Van Dongen - would have lost their self-control but not reacted as violently
Evaluation of loss of self-control
s.54 Coroners and Justice Act 2009 replaced old defence of provocation
- Widened law = ‘fear of serious violence’, ‘sudden loss of control’, ‘justifiable sense of being seriously wronged’
- Defence can only be raised if judge believes there’s enough evidence for a jury to conclude it might apply
1) Suddenness
2) Desire for revenge
- Must decide length of time goes from cumulative loss of self-control to revenge
3) Qualifying trigger - new addition - limit no. of cases - R v Doughty - wouldn’t apply now
4) Provocative conduct
5) Extremely grave character - R v Mohammed
6) Sexual infidelity
– R v Clinton
– R v Parker
– R v Evans
- No other situations covered - e.g. honour killings
7) Objective test
- Same sex + age
- Law Commission - though gender should be removed, govt wanted to keep
- Lord Gresford = “jury to conduct all sorts of difficult intellectual exercises”
- Baroness Mallalieu = “dog’s breakfast”
Diminished responsibility
s.2 Homicide Act (as amended by s.52 Coroners and Justice Act 2009)
1) Not convicted of murder if D was suffering from an abnormality of mental functioning which:
a) arose from a recognised medical condition
b) substantially impaired D’s ability to do one / more things in (1A):
(I) understand nature of D’s conduct
(II) form rational judgment
(III) exercise self-control
c) it provides an explanation for D’s acts / omissions
1) Abnormality of Mental Functioning
- Recognised by medical professionals
- Used to be ‘abnormality of mind’
– R v Bryne = D sexual psychopath. Ruled “abnormality of mind” included all aspects of mind + ability to control physical acts and make rational decisions. Did use it.
a) Recognised medial condition
- Evidence must be required from medical professionals (e.g. depression, anxiety, brain damage + illness)
- Alcohol Dependency Syndrome is a medically recognised condition.
– R v Tandy - strangled her 11 yo daughter - couldn’t rely on it because it wasn’t an injury (brain wasn’t damaged) or disease (drinking was voluntary not involuntary)
– Since Tandy they’ve been more lenient - don’t have to show it was involuntary (R v Wood) or damaged brain. Instead they must have:
- An abnormality of mental functioning
- The abnormality was caused by Alcohol Dependency Syndrome
- D was substantially impaired
b) Substantially impaired
- Jury decide amount of impairment required (R v Bryne).
–R v Lloyd = “impairment need not be total but it must be more than trivial or minimal”
Coroners and Justice Act 2009 states what must be substantially impaired:
[1] Ability to understand nature of D’s conduct
[2] Ability to form a rational judgement
[3] Ability to exercise self-control
(only 1)
c) Provides an explanation
(1B) = “if it causes, or is significant contributory factor in causing, D to carry out that conduct”
Abnormality may be reason but doesn’t have to be sole reason
Intoxication alone not enough cause it’s only transient (R v Di Duca) but can be coupled with something else
– R v Dietchmann = rel. with aunt - watch - dep. + drunk
Critical Evaluation of Diminished Responsibility
- New medical definition - ‘abnormality of mental functioning’, not ‘abnormality of mind’
- Arose from a ‘recognised medical condition’. Include:
– Psychopaths = R v Bryne
– Paranoid personality delusion = R v Martin
– PTSD = Walton v R
– Battered wife syndrome = R v Ahluwalia - But medical condition does restrict - e.g. mercy killings
- So many different medical conditions that are being discovered. R v Vinagre = court reluctant to recognise Othello syndrome
- Must be substantial and up to jury to use common sense
- Government didn’t include developmental immaturity (often suffered by neglected/abused children). Didn’t include it for fear it’d be used by all child killers
- s.2(1)(a) provided clarity on ‘substantial impairment’ - 1 of 3 things. But still no specific definition as to what is ‘substantial’. R v Lloyd = less than total but more than trivial. Could’ve given it a definition. But vagueness mean jury can make decisions for each case.
- Intoxication same, so decisions R v Dietschmann + R v Wood will stand.
- If mandatory life sentences were abolished, the defence wouldn’t be necessary
Unlawful and dangerous act manslaughter
(1 of 2 types of involuntary manslaughter)
D must have committed an unlawful + dangerous act
1) Unlawful
2) Dangerous
3) Act (caused V death)
4) Mens rea
1) Unlawful
- R v Franklin = unlawful act must be a criminal offence rather than a tort
- Drugs cases - courts have to decide what is an unlawful act
– R v Cato = D injected friend with morphine, died. Guilty of injecting a noxious substance under s.23 Offences Against the Person Act (1861).
– R v Dalby = supply alone not enough
– R v Kennedy = D supplied V with heroine, but died. Appealed but quashed- guilty- made D an accomplice of the self-injection –> 2nd appeal- ruled supply alone not enough but D had made the injection himself so did more than supply - guilty - s.23 Offences Against the Person Act (1861)
– R v Dias (similar case)- quashed conviction
– R v Rogers = applying tourniquet - guilty of constructive/uda mans.
[ If D injects V- guilty _R v Cato)
If V self-injects after D given to them, not (R v Dalby) ]
2) Dangerous
Objective test - R v Church = ordinary reasonable man would see a risk of some harm (said sober+reasonable people recognise risk of some harm)
– R v Newsbury and Jones = HoL confirmed the ‘dangerous test’ is objective as described in Church
3) Act
Can’t be an omission
– R v Lowe = deliberately neglected child- died- not guilty- omission
4) Mens rea
Doesn’t have to have MR to show they intended / foresaw a risk of death - D must have the MR required for the unlawful and dangerous act (e.g. robbery)
– R v Lamb = shot best friend - no MR cause both didn’t think it was loaded - accident
(transfer of malice applies) – R v Mitchell - 89 died after 72 fell after being punched
Gross Negligence manslaughter
Defined in R v Adomako (6 mins to realise oxygen tube became dislodged - Lord Mackay defined common law offence of gross neg. mans. and, by overruling R v Seymour, abolished objective reckless act manslaughter)
Differs from udam - can be caused by omission, risk of death not serious harm, doesn’t have to be an unlawful act
1) Duty of care
2) Breach of duty that caused death
3) Gross negligence
1) Duty of care
- Neighbour principle = Donoghue v Stevenson - owe a doc to “persons so closely and directly affected by…my acts or omissions”
- Judge must decide if there is a doc
– R v Wacker = 60 immigrants, did have a doc despite ex turpi causa
– R v Khan and Khan = D gave heroin to prostitute - no doc
– Lewin v CPS = left drunk friend to sleep in a car who died - no doc
2) Breach of duty caused death
- Must have fallen below standard of duty of care expected from the ordinary and reasonable man
- Breach must also be serious
– R v Becker = V died of overdose of prescription drugs, ruled Doc didn’t fall below standard of care expected from an ordinary reasonable doctor
3) Risk of death
– R v Singh (carbon monoxide) = a reasonably prudent person would have foreseen a serious and obvious risk of death (not injury/some harm) - objective test
- Must be an obvious / foreseen risk of death
4) Mens rea
- Lord Mackay in R v Adomako quoted Lord Heward to define MR of gross neg. mans.
- Lord Heward in R v Bateman = must have shown “such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment”
– Attorney General’s Reference No.2 = physical conduct of D may be enough to prove gross. neg. mans.
– R v Misra and another = argued lack of certainty over MR meant law on gross neg. mans. violated Article 7 ECHR - courts disagreed - said question of fact not law + up to jury to decide
