Herring Ch 5 - Homicide

Question 1

Categories of homicide

Answer 1

1. Murder
2. Manslaughter
3. Infanticide
4. A number of specific offences concerned with causing death while driving

Question 2

Murder - definition

Answer 2

> AR: the unlawful killing of another person in the Queen’s peace.
MR: an intention to cause death or GBH.
A person convicted of murder must be given a sentence of life imprisonment.

Question 3

Murder - Actus Reus - A person

Answer 3

> When does life begin?
-Law says human life begins at birth.
-However, murder/manslaughter is allowed if child injured while in womb then born alive, but dies shortly after. (Senior 1832 1 Mood CC 346).
-Foetus = human when born alive completely outside mother (umbilical cord doesn’t need cutting - Poulton (1832).)
-Can be convicted of causing or procuring a miscarriage or child destruction.
When does life end?
-Law accepts medical definition of death.
-Person dies once brain ceases to function - ‘brain dead’ : Malcherek and Steel [1981] 1 WLR 690 (CA).

Question 4

Murder - Actus Reus - unlawfully

Answer 4

Not unlawful if for self-defence.

Question 5

Murder - Actus Reus - Queen’s peace

Answer 5

The killing of enemy aliens during war and under battle conditions isn’t a criminal homicide.

Question 6

Murder - Actus Reus - killed

Answer 6

> Need to show D caused V’s death.
Show that D accelerated V’s death by more than a negligible amount.
Excludes doctors administering pain relief drugs which shorten patient’s life.

Question 7

Murder - mens rea

Answer 7

> Established in Cunningham [1982] AC 566.
HoL upheld conviction of D who had killed V by hitting him on head with chair even though there was no intent to kill, there was intent to cause GBH and that was sufficient for a murder conviction.
MR of murder is a product of common law.
Most important statutory provision = s. 1 of the Homicide Act 1957:
-“Where a person kills in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required dor a killing to amount to murder when not done in the course or furtherance of another offence.”

Question 8

Murder - Mens Rea - Intention

Answer 8

> Intention is to be given its ordinary meaning or purpose.
If D didn’t act with purpose of killing or causing GBH, but it was an extremely likely result of D’s actions then the jury should be given the Woollin direction.
Hence, ‘virtually certain’ result of D’s actions & D realised this was so.

Question 9

Murder - Mens Rea - Kill or cause GBH to the victim

Answer 9

> Some commentators think nothing less than intention to kill should suffice.
Doctrine of transferred mens rea means if D intended to kill a certain person, but killed someone else instead, they are still convicted of murder.
Doctrine of transferred mens rea can’t apply in murder if D intended to kill an animal or damage property - would be manslaughter.

Question 10

Manslaughter: An Introduction - types

Answer 10

1. Voluntary manslaughter

2. Involuntary manslaughter

Question 11

Voluntary manslaughter - definition

Answer 11

> These are killings which would be murder but for the existence of defined extenuating circumstances.
In some circumstances even though D had the MR and AR of murder, they don’t deserve the label ‘murderer’.
E.g. a D who pleads either loss of control, diminished responsibility or suicide pact to a charge of murder.

Question 12

Involuntary manslaughter - definition

Answer 12

> There are killings where D doesn’t intend to kill or cause GBH but there’s sufficient fault to justify criminal liability.
Courts have found difficulty in defining how little fault is sufficient to justify a manslaughter conviction.
E.g. reckless manslaughter, gross negligence manslaughter, constructive (or unlawful act) manslaughter.

Question 13

Loss of control - general

Answer 13

> Defence to murder ONLY & will be convicted of voluntary manslaughter instead.
D must show:
1. They had lost self-control.
2. Loss of self-control was caused by a ‘qualifying trigger’; and
3. A person of D’s age & sex with a normal degree of tolerance & self-restraint would have reacted in the same way.
Prosecution carried burden of proving that the defence of loss of control is not made out beyond all reasonable doubt.
Defence of loss of control is in s. 54 of the Coroners and Justice Act 2009.
3 limbs to the defence.

Question 14

Loss of control - 3 limbs to the defence

Answer 14

1. D must show their acts/omissions resulted from loss of self-control.
2. Must result from a ‘qualifying trigger’.
3. A person of D’s age & sex, with normal degree of tolerance & self-control, in D’s circumstances would have responded to trigger in same/similar way.
   >All these requirements must be satisfied.

Question 15

Loss of control - D lost self-control

Answer 15

> Need to show D lost control is a subjective question.
Did the D lose his self-control not whether reasonable person would have lost his self-control.
D knows what they are doing but has severely impaired powers to restrain themselves from acting.
In Jewell, loss of self control = “loss of ability to act in accordance with considered judgment or a loss of normal powers of reasoning.”
Unlike under the 2009 Act, the loss of self-control needn’t be “sudden and temporary” anymosre.
In Dawes, Lord Judge CJ explained:
-“Provided there was a loss of control, it does not matter whether the loss was sudden or not. A reaction to circumstances of extreme gravity may be delayed. Different individuals in different situations do no react identically, nor respond immediately.”
Can’t act out of desire for revenge.

Question 16

Loss of control - the loss of control was a result of a qualifying trigger - overview

Answer 16

> D needs to show they were provoked by a qualifying trigger into losing self-control.
To be a qualifying trigger the thing said or done must fall within one of the 3 categories in S.55:
1. Fear of serious violence.
2. An extremely provocative act.
3. A combination of fear of violence and an extremely provocative act.
S. 55 of the Coroners & Justice Act 2009 defines a ‘qualifying trigger’.

Question 17

Loss of control - the loss of control was a result of a qualifying trigger - fear of serious violence

Answer 17

> Fear of violence - there doesn’t to be shown that actually was violence.
Must be fear of SERIOUS violence.
Threat of violence is to D or another person
V must be the person posing the serious threat of violence.
Can’t be used (s. 55(6)(a) if D incited the fear of violence for the purpose of providing an excuse to use violence.
NB something D said/did for purpose of providing an excuse for violence, so defence still applicable if D insulting V for fun.
Must be loss of control, self-defence may otherwise be applicable so D will want to use defence of loss of self-control under fear of violence trigger when the killing isn’t reasonable in the circumstances.
Self-defence only available where degree of force used is reasonable.
Also if there was a case where D could have prevented threat by a lesser force than killing, D won’t be able to use self-defence but may be able to use loss of control.

Question 18

Loss of control - the loss of control was a result of a qualifying trigger - fear of serious violence - circumstances government has identified where they believe the trigger may be relevant

Answer 18

> Ministry of Justice (2009: para. 27):
1. Where a victim of sustained abuse kills his or her abuser in order to thwart an attack which is anticipated but not immediately imminent; and
2. Where someone overreacts to what they perceive as an imminent threat.
Don’t believe the partial defence will be used regularly. In 2005, the government didn’t find any case where a murder conviction appeared to have resulted inappropriately as a result of the absence of such a partial defence.

Question 19

Loss of control - the loss of control was a result of a qualifying trigger - being seriously wronged as a trigger

Answer 19

> Requirements:

1. D must have been facing circumstances of ‘extremely grave character.’
   - So not normal ups/downs of life, e.g. in Dawes, the CA explained ending of relationship wouldn’t normally amount to a qualifying trigger.
2. D must have a justifiable sense of being seriously wronged.
   - Objective test.
   - Under old law, in Doughty, it was assumed crying baby could constitute a provocative act. That decision wouldn’t be followed under new provisions.
   - Restricts defence to narrow range of cases.
3. In R v Rejmanski, court held that D’s mental condition can be taken into account in deciding whether an act or insult was a serious wrong.
   - Personality disorders, religion, background may be relevant.
4. The serious wrong must be to the D. Not straightforward though.
5. Something must have been said or done. The circumstances alone can’t amount to the qualifying trigger.
6. S. 55(6)(b): D can’t rely on it for something said or done if they incited it for purpose of providing an excuse.
7. S. 55(6)(c) - sexual infidelity is not a thing said or done that can amount to a qualifying trigger.
   - Ministry of Justice, 2009: “It is quite unacceptable for a D who has killed an unfaithful partner to seek to blame the victim for what has occurred. We want to make it absolutely clear that sexual infidelity on the part of the V can never justify reducing a murder charge to manslaughter. This should be the case even if sexual infidelity is present in combination with a range of other trivial and commonplace factors.
   - Proved problematic, e.g. Clinton.

Question 20

Coroners and Justice Act 2009, section 55(6)(c) - example of why it is problematic - case

Answer 20

> R v Clinton [2012] EWCA Crim 2:

• Clinton’s wife, Dawn, admitted she had an affair and described the various sexual encounters she has had.
• He said he was going to commit suicide and she said he didn’t have the ‘balls’ to do it.
• He killed her by beating her around the head with a baton & strangling her.
• Trial judge didn’t allow him to rely upon evidence relating to sexual infidelity and he appealed against conviction.

Question 21

Coroners and Justice Act 2009, section 55(6)(c) - example of why it is problematic - Clinton - Lord Bingham - general

Answer 21

> Lord Bingham of Cornhill CJ:

37. “In section 54(1)(c) and (3) the legislation further acknowledges the impact of sexual infidelity as a potential ingredient of the 3rd component of the defence… sexual infidelity is not subject to a blanket exclusion when the loss of control defence is under consideration. Evidence of these matters may be deployed by the D and therefore the legislation proceeds on the basis that sexual infidelity is a permissible feature of the loss of control defence.
38. “…the circumstances must be extremely grave and the defendant must be subject to a justifiable sense of having been seriously wronged. These are fact specific questions requiring careful assessment, not least to ensure that the loss of control defence does not have the effect of minimising the seriousness of the infliction of fatal injury.
39. “…to seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts as a whole is not only much more difficult, but is unrealistic and carries with it the potential for injustice…In our judgement, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”

Question 22

Coroners and Justice Act 2009, section 55(6)(c) - example of why it is problematic - Clinton - Lord Bingham - The responsibilities of the judge

Answer 22

A) At the conclusion of evidence:
46. “…whether the circumstances were sufficiently grave and whether the D had a justifiable grievance because he had been seriously wronged. These are value judgments. They are left to the jury when the judge concludes the evidential burden has been satisfied.”

B) The Summing Up:
49. “…if the only potential qualifying trigger is sexual infidelity, effect must be given to the legislation. There will be no qualifying trigger, and the judge must act accordingly. The more problematic situations will arise when D relies on an admissible trigger(s) for which sexual infidelity is said to proved an appropriate context for evaluating whether the trigger relied on is a qualifying trigger for the purposes of subsection 55(3) and (4).

77. “We have reflected whether the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife’s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to leave to the jury. In our judgment they were. Accordingly the appeal against conviction will be allowed.”

Question 23

Lord Judge CJ on problems arising from exclusion of sexual infidelity as a trigger for loss of control

Answer 23

> The definition of sexual infidelity is unclear.
Judge CJ stated infidelity assumed there was a continuing relationship, but then where would this leave a stalker who killed his prey’s partner out of jealously? Surely, he wouldn’t find it difficult to show there was a justifiable sense of being seriously wronged in such a case.
Could it allow D facing a less serious wrong better able to present the defence?
Sexual infidelity is well-known cause of loss of control - it’s artificial to exclude it from evidence.
Sexual infidelity can be considered as a factor when considering the defence of diminished responsibility. If plead both then it’s confusing for jury to be able to consider it for one defence and not the other.
Often allegations of sexual infidelity are aspects of the provocative circumstances.

Question 24

Court of Appeal, Clinton, para 39

Answer 24

“Where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls with the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”

> Sexual infidelity can be used only to provide the context for a permitted trigger and not itself become the trigger.

Question 25

Sexual infidelity - Stark

Answer 25

“Given the heated circumstances in which most killings take place, it might not be clear what triggered the defendant’s loss of self-control: was the victim’s infidelity a context for the defendant’s loss of control, or the cause of it?”

Question 26

Sexual infidelity exclusion supporters

Answer 26

> Reveals outdated views on ownership and possessiveness over sexual partners.

> CA response = “…nothing to do with any notional “rights” that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams.”

Question 27

Loss of control - would a person with normal tolerance and self-restraint have acted as D did?

Answer 27

> Objective test for the jury.

Question 28

Loss of control - would a person with normal tolerance and self-restraint have acted as D did? The normal degree of tolerance and self-restraint

Answer 28

> Even if D has lower levels of tolerance and self-restraint through no fault of their own, for example because they have a mental illness, they are still required to show the levels of tolerance and self-restraint of an ordinary person of their age and sex.
Self-restraint = acknowledgement that law expects people to show self-control.
If a person is intoxicated they must show level of self-control of a sober person.
If the jury are unsure whether the normal person would have responded in the way they did the should allow D to use the defence as all that D needs to show is that a person of normal tolerance and restraint might have reacted in the same way.

Question 29

Loss of control - would a person with normal tolerance and self-restraint have acted as D did? The reference to D’s circumstances

Answer 29

> S. 54(1)(c) jury should consider circumstance in which D reacted.
Nature of trigger must be seen in light of the D’s history: Hill [2008] - accepted that a person who had suffered sexual abuse as a child might find a sexual assault more provoking than another D.
Therefore minor wrong, seen in light of D’ history, is in fact a grave wrong.
‘Cumulative provocation/impact’ = where a long series of incidents, each minor in itself, cause the D to lose self-control after being provoked by the ‘last straw’. (Dawes).
Circumstances of character allowed to show particular wrong was very serious for them but they can’t use their circumstances or characteristics to affect level of self-control.
In Rejmanski, a personality disorder/condition can be considered in relation to how reasonable person would respond, but not in a way which impacts on normal powers of tolerance or self-restraint.
Leads to awkward conclusion that jury might have to decide how a person with personality disorder but normal powers of tolerance & self-restraint would respond. Not an easy task!

Question 30

> Loss of control - would a person with normal tolerance and self-restraint have acted as D did? The reference to D’s circumstances - Rejmanski

Answer 30

> R v Rejmanski [2017] EWCA Crim 2061.
Hallett LJ:
26. “…The disorder would be a relevant circumstance of the defendant, but would not be relevant to the question of the degree of tolerance and self-restraint.”
29. “Finally, the exclusionary effect of subsection (3) is consistent with, and reinforced by, the availability and scope of the partial defence of diminished responsibility in section 2 of the Homicide Act 1957, as amended by section 52 of the 2009 Act. The amended section 2 applies where a mental disorder substantially impairs the ability of the defendant to exercise self-control. The two defences may be presented together as alternatives. The law does not therefore ignore a mental disorder that, through no fault of a defendant, renders him or her unable to exercise the degree of self-control of a ‘normal’ person.

Question 31

> Loss of control - would a person with normal tolerance and self-restraint have acted as D did? The reaction of the hypothetical person

Answer 31

> Requires jury to decide whether if a normal person might have lost self-control, would they have reacted in the same way?
In Goodwin [2018], D hit a much older man repeatedly for over 5 minutes and the jury held that even if a reasonable person might have reacted violently to a provocation, they wouldn’t engage in such a prolonged attack.

Question 32

Diminished Responsibility - definition

Answer 32

> A defence only to murder and, if successful, reduces the charge to manslaughter.
Partial defence.
D must show that they suffered from an abnormality of mental functioning, arising from a recognised medical condition, which provides an explanation for committing the killing.
It must be shown that the other abnormality substantially impaired their ability to understand the nature of their conduct, from a rational judgment, and exercise self-control.

Question 33

Diminished responsibility - chain of reasoning

Answer 33

> Did D have a medically recognised condition?
Did the condition substantially impair D’s ability to:
-understand the nature of the conduct?
-form a rational judgment?
-exercise self-control?
Did this provide an explanation for D’s acts or omissions?

Question 34

Diminished responsibility - how is it proven?

Answer 34

> Burden of proof of establishing the defence of diminished responsibility is on the defendant, but only on a balance of probabilities.
Consistent with Article 6(2) of the ECHR.
Judge shouldn’t direct jury about diminished responsibility unless D has consented to it being raised.

Question 35

Diminished responsibility - requirements

Answer 35

> 4 requirements for D to rely on diminished responsibility:

1. They suffered from an abnormality of mental functioning.
2. Abnormality of mental functioning was caused by a recognised medical condition.
3. As a result of the abnormality, D’s ability to understand the nature of their conduct, form a rational judgment, or exercise self-control, was substantially impaired.
4. The abnormality of mental functioning provided an explanation for D’s conduct, in that it was a significant contributory factor in carrying it out.

Question 36

Diminished responsibility - ‘Abnormality of mental functioning’

Answer 36

> Old law only needed to prove an abnormality of mind.
In Byrne [1960] it was held that it was enough for D’s mind to be sufficiently different from a normal mind to be classified as abnormal.
New law is much stricter as must be shown that D has a ‘recognised medical condition.’
Ministry of Justice/Gov. said they would bring the “terminology up-to-date in a way which would accommodate future developments in diagnostic practice and encourage defences to be grounded in a valid medical diagnosis linked to the accepted classificatory systems which together encompass the recognised physical, psychiatric and psychological conditions.” (2008: para. 49).
Doesn’t have to be a serious illness.
D must have evidence from an expert witness.
Do jury have to accept the view of the expert? Question considered in Brennan.

Question 37

Diminished responsibility - ‘Abnormality of mental functioning’ - expert advice

Answer 37

> R v Brennan [2014] EWCA Crim 2387.
The expert evidence must be accepted if there is no contradictory evidence, but if there is other contradictory evidence, the jury are entitled to reject the view of the expert.
Could Brennan rely on partial defence of diminished responsibility?
Michael Brennan killed Paul Simmons.
Troubled childhood & mental health issues.
He introduced evidence from an experienced consultant forensic psychiatrist, which supported defence, saying he suffered from Schizotypal Disorder and Emotionally Unstable Personality Disorder, both recognised medical conditions.
Jury convicted him of murder and Brennan appealed, arguing that in light of the unchallenged medical evidence the jury had to accept the defence.
Davis LJ:
43. “criminal trial cases are decided by juries not experts… they decide on the entirety of the evidence… directions conventionally given to juries not to speculate and not to allow their views to be swayed by feelings of distaste or emotion.”
44. “…Where there simply is no rational or proper basis for departing from uncontradicted and unchallenged expert evidence from then juries may not do so.”
49. “…it appears one purpose of the amendments was to ensure a “a greater equilibrium between the law and medical science”. The new wording gives significantly more scope to the importance of expert psychiatric evidence…”

Question 38

Diminished responsibility - The Effect of Abnormality of mental functioning - requirements

Answer 38

> Must substantially impair either D’s ability to understand the nature of his conduct, his ability to form a rational judgment, or his ability to exercise self-control.

Question 39

Diminished responsibility - The Effect of Abnormality of mental functioning - requirements - D’s ability to understand nature of his conduct

Answer 39

> E.g. D didn’t know what they were doing or understand the nature of their acts.
Rarely will D not understand acts and still have necessary intent.
Plus D who is suffering a disease of the mind could use defence of insanity, which is a complete defence.
Law Commission gave example of 10yr old boy playing a violent video game.

Question 40

Diminished responsibility - The Effect of Abnormality of mental functioning - requirements - impairment of D’s ability to form a rational judgment

Answer 40

> In R v Conray a man living in care home had learning difficulties and had autism spectrum disorder.
Strangled V and tried to drag V to his room to have undisturbed sex with her.
Was he able to form a rational judgment?
Judge misdirected jury by focusing on the ‘outcome’ and saying that was ‘on any view’ irrational. However, the misdirection favoured D so appeal unsuccessful.

Question 41

Diminished responsibility - The Effect of Abnormality of mental functioning - requirements - D’s ability to exercise self-control

Answer 41

> Similar to loss of control but different:

1. In diminished responsibility one needs to show there was an abnormality of mental functioning, but not in loss of self-control.
2. For loss of self-control, D must show normal degree of tolerance or self-restraint, which isn’t required in diminished responsibility.

Question 42

Diminished responsibility - The Effect of Abnormality of mental functioning - requirements - important point

Answer 42

> Show a ‘substantial impairment’ in D’s ability to understand nature of conduct, form a rational judgment or exercise self-control.
Doesn’t need to be a total impairment.
However, in Osborne [2010], fact D suffered from ADHD didn’t necessarily mean that the impairment of responsibility was substantial.
Leading case on meaning of substantial = R v Mark Richard Golds [2016] UKSC 61.

Question 43

Diminished responsibility - The Effect of Abnormality of mental functioning - requirements - meaning of substantial - Golds

Answer 43

> R v Mark Richard Golds [2016] UKSC 61.
Killed partner at family barbeque.
Only Q for jury = was it murder or manslaughter by virtue of diminished responsibility because expert evidence showed he had psychosis and depression, for which he received medication.
Appealed, one ground being that judge hadn’t adequately directed jury on meaning of the word substantial.
Lord Hughes:
27. “…‘substantial’ is capable of meaning either (1) “present rather than illusory or fanciful, thus having some substance” or (2) “important or weighty”… The first meaning could fairly be paraphrased as “having any effect more than the merely trivial”, whereas the second meaning cannot…”
28. “to be used in the second of the sense identified above.”
38. “Where, however, as here, there are 2 identifiable & different senses in which the expression in question may be used, the potential for inconsistent usage may need to be reduced. The existence of the 2 sense of the word ‘substantially’ identified above means that the law should, in relation to diminished responsibility, ne clear which sense is being employed. If it is not, there is, first, a risk of trials being distracted into semantic arguments between the two. Secondly, there is a risk that different juries may apply different senses. Thirdly, medical evidence has always been a practical necessity where the issue is diminished responsibility…. It is therefore important that if they use the expression, they do so in the sense in which it is used by the courts.”
43. “the judge need not direct the jury beyond the terms of the statute & should not attempt to define the meaning of substantially…the judge should explain that whilst the impairment must indeed pass the merely trivial before it need be considered, it is not the law that any impairment beyond the trivial will suffice.”

> Surely however, if judges don’t give clarification of the meaning, juries are may use more inconsistent understandings of the term?

Question 44

Diminished responsibility - The Effect of Abnormality of mental functioning - requirements - explanation for the acts

Answer 44

> Abnormality needs to be cause of killing.

Question 45

Diminished responsibility and intoxication

Answer 45

> What if D at time of killing was suffering from both abnormality of mind & intoxication?

1. D doesn’t suffer from alcohol dependency syndrome but another abnormality of mental functioning as is intoxicated. Can still rely on defence as long as abnormality was a ‘significant contributory factor in causing D to carry out that conduct.’
   - E.g. R v Joyce & Kay [2017]: Kay’s appeal was unsuccessful because his schizophrenia on its own wasn’t substantially impairing his responsibility. It was his intoxicated state that was. By contrast, in Joyce’s case evidence was that his paranoid schizophrenia was the ‘main’ or ‘significant’ factor in impairing his responsibility so he could use diminished reponsibility.
2. If D suffered from alcohol dependency syndrome then that will be treated as an abnormality of mental functioning for the purposes of the defence, if it’s a severe case.
   - E.g. R v Dowds [2012]: was the judge correct to rule that transient acute intoxication was insufficient to raise the partial defence of diminished responsibility?
   - WHO lists acute intoxication as a recognised mental condition.
   - Appeal dismissed. It was voluntary not involuntary acute intoxication.

Question 46

Suicide Pact

Answer 46

> S.5 of the Homicide Act 1957 provides that if D kills another in pursuance of a suicide pact they are guilty of manslaughter, not murder.
“A common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.”
Burden of proof is on the accused.
S.2(1) of the Suicide Act 1961 has an offence with max penalty of 14yrs for enouraging/assisting suicide so usually convicted of this.
Suicide pact is only a defence to murder.

Question 47

Mercy Killing and Euthanasia

Answer 47

> D kills person who is suffering from a terminal illness.
No defence in English law.
It is also murder to do an act which significantly shortens a person’s life, even if that person is in agony & asks to be killed.

Question 48

Mercy Killing and Euthanasia - Nicklinson - Lord Sumption’s judgment

Answer 48

> R (Nicklinson) v Ministry of Justice [2015].
Lord Sumption:
-255.
(2) “A person who is legally & mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes.
(5) “Whatever may be said about the clarity or lack of it in the Director’s published policy, the fact is that prosecutions for encouraging or assisting suicide are rare. Between 1998 and 2011, a total of 215 British citizens appear to have committed suicide with medical assistance at the Dignitas clinic in Switzerland. Not one case has given rise to prosecution.”

Question 49

Infanticide

Answer 49

> Both an offence & defence.
Described in S.1(1) of the Infanticide Act 1938.
“balance of the mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”
The offence concerns the voluntary killing of a child under the age of one year by her mother.
In Tunstill [2018], CA stated it wasn’t necessary to show that the disturbance of the mind was solely caused by birth. It was sufficient if the birth was an operative cause - it didn’t need to be the sole or even main cause.

Question 50

Constructive Manslaughter - definition

Answer 50

> To be guilty of constructive manslaughter, D must be proved to have performed an act which was:

1. unlawful;
2. dangerous; and
3. caused the death of V.

> Crime constructed from liability for a lesser crime.

Question 51

Constructive Manslaughter - key case

Answer 51

> Attorney-General’s Reference (No. 3 of 1994).
[1998] AC 245 (HL).
D stabs M, pregnant GF who gives birth to grossly premature child and who dies after 121 days in ICU.
D charged with murder, but HL said couldn’t be convicted of murder, but consider constructive manslaughter instead.

Question 52

Constructive Manslaughter - A-G Reference No. 3 of 1994, [1998] AC 245 HL - judgment

Answer 52

> Lord Hope:

• “No difficulty in finding all the elements which were needed to establish the AR both of murder and manslaughter.”
• “MR for murder was not present in this case.”
• “The present case is an example of unlawful act manslaughter. But the placing of it into this category does no more than touch the surface of the problem where the ultimate V of that act was not the intended V, and. moreover, was not even alive when the unlawful act was perpetrated.”
• “Dangerousness in this context is not a high standard. All it requires is that it was an act which was likely to injure another person.”
• “Although the D must be proved to have intended to so what he did, it is not necessary to prove that he knew that his act was likely to injure the person who died as a result from it.”
• “All that needed to be proved is that he intentionally did what he did, that the death was caused by it and that, applying an objective test, all sober and reasonable people would recognised the risk that some harm would result.”
• “The death of the child was unintentional, but the nature & quality of the act which caused it was such that it was criminal and therefore punishable.”

Question 53

Constructive Manslaughter - requirements

Answer 53

> 3 elements of constructive manslaughter:

1. D must have done an unlawful act.
2. Unlawful act must have been dangerous.
3. The unlawful & dangerous act must have caused the death of V.

Question 54

Constructive Manslaughter - requirements - an unlawful act

Answer 54

> Must be a criminal act.
D must be shown to have committed both the AR and MR of and not have a defence to the crime.
Don’t need to show that D intended or foresaw death or even injury to the V - only MR required is that needed for the unlawful act.
Need clarification from CA as to whether an offence of strict liability or an offence of negligence can form basis of constructive manslaughter. Seems the courts are moving to position that commission of any criminal offence is sufficient for constructive manslaughter.

Question 55

Constructive Manslaughter - requirements - dangerous act

Answer 55

> Dangerous = act constitutes a risk of some physical injury.
Risk of emotional harm = insufficient, unless it’s likely that emotional distress will lead to a physical injury, e.g. causing a heart attack.
Carey [2006]: dangerous stretched to include shock yet in Johnston [2007] it was held spitting & insulting V not dangerous even if it led to cardiac arrest and death.
Jury should consider whether there’s a risk the act might cause injury.
Objective test - would a reasonable person in D’s shoes (with any special knowledge D has) appreciate it was dangerous?
E.g. Dawson (1985), D didn’t know petrol man had weak heart so wouldn’t have realised V might suffer a physical injury - not guilty.
Contrast to JM and SM where conviction for constructive manslaughter upheld as got into fight and one of bouncers suffered a heart aneurism & died: didn’t matter that the harm risked was not harm of the kind that actually occurred.
Lamb [1967]: although act was a dangerous (reasonable person would have known that gun might go off), there was no unlawful act (he lacked MR) so couldn’t be convicted for unlawful act manslaughter.
R v Carey [2006]: Where D did a number of acts to V, it must be shown that the act that caused the death of V was unlawful & dangerous.

Question 56

Constructive Manslaughter - requirements - causation

Answer 56

> Unlawful & dangerous act caused the death of V.

>Doesn’t have to have been ‘aimed at’ V.

Question 57

Gross Negligence Manslaughter - definition

Answer 57

> For gross negligence manslaughter it must be shown that:

1. D owed V a duty of care.
2. D breached that duty of care.
3. Breach of duty caused V’s death.
4. No obvious risk of death at time D breached duty.
5. Breach was so gross as to justify criminal conviction.

> NB constructive manslaughter & gross negligence manslaughter aren’t mutually exclusive - can be guilty of both kinds at same time.

Question 58

Gross Negligence Manslaughter - Adomako

Answer 58

> R v Adomako [1995] 1 AC 171 (HL):

• Anaethetist who failed to notice for 6 mins that tube supplying oxygen to patient had become disconnected and as a result, the patient died.
• Appeal dismissed.
• Issue raised: in cases of manslaughter by criminal negligence not involving driving but involving a breach of duty, is it sufficient to direct the jury to adopt the gross negligence test without reference to the test of recklessness?
• Jury must “consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend upon the seriousness of the breach of duty committed by D in all the circumstances in which D was placed when it occurred.”
• “The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the D was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.”

Question 59

Gross Negligence Manslaughter - requirements - a duty

Answer 59

> CA in Wacker and in Evans (Gemma) confirmed ‘duty of care’ has same meaning as in the tort of negligence.
CA in R v Evans (Gemma) [2009] confirmed that whether or not there is a duty of care is for the judge to decide.

Question 60

Gross Negligence Manslaughter - requirements - a breach of duty

Answer 60

> Did D’s action fall below standard expected of a reasonable person?
If D purports to exercise a special skill, the test is whether D was exercising the skill expected of a reasonable person possessing that skill.

Question 61

Gross Negligence Manslaughter - requirements - causing the death

Answer 61

> In Hayward (1908), D was driving a horse & cart without holding reins when he hit a young girl, killing her.
Although he clearly caused death of girl, the court found that his negligence did not because it was found that even if he had been driving with all due care wouldn’t have avoided hitting her: she ran out in front of him without warning.
If D had acted reasonably would the victim have died when they did?

Question 62

Gross Negligence Manslaughter - requirements - serious & obvious risk of death

Answer 62

> Serious & obvious risk of death at time they acted or failed to act.
Would a reasonably prudent person in D’s position at time of breach of duty be aware of the serious & obvious risk of death?
R v Rose [2017] EWCA Crim 1168:
-5 years after eye test, a boy died of acute hydrocephalus, which if Rose, an optometrist, had noticed doing eye test, could have been treated.
-Appealed on basis that judges direction to the jury to consider whether that risk would have been obvious to a reasonably competent optometrist with the knowledge that the appellant would have had ‘if she hadn’t acted in breach of her duty to investigate the true position.’
-Appeal allowed.
-“A mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death: an obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.”
-“We conclude that, in assessing reasonable foreseeability of serious & obvious risk of death in cases of gross negligence manslaughter, it is not appropriate to take into account what the defendant would have known but for his or her breach of duty.”
-“It was not reasonably foreseeable that failure to carry out such tests would carry an obvious & serious risk of death.”

Question 63

Gross Negligence Manslaughter - requirements - serious & obvious risk of death - Kuddus [2019]

Answer 63

>The jury should consider whether there was an obvious & serious risk of death for 'the class of persons to whom D owed a duty.'
>V placed order for an Indian takeaway stating that she was allergic to nuts, but restaurant still provided food containing nuts, which caused an allergic reaction & death.
>Also raised point that a risk may be obvious & serious to one D and not another.
>Manager knew as he took order but he didn't pass this on to owner who cooked the food so the manager was convicted and not the owner.

Question 64

Gross Negligence Manslaughter - requirements - serious & obvious risk of death - Karl Laird 2018

Answer 64

> Objection: “the optometrist who carried out an examination of the internal eye, but fails to perceive the obvious symptoms of hydrocephalus may be guilty, but the optometrist who fails even to attempt an examination of the internal eye will not commit the offence.”

Question 65

Gross Negligence Manslaughter - requirements - gross negligence

Answer 65

> Breach of duty must be gross.
Establishing D negligent will mean D could be required to pay compensation to V’s family but the jury must ask whether the law should go further & also require punishment for the wrong.
Lord Mackay in Adomako said jury should ask themselves whether D’s actions/omissions were so bad as to deserve criminal conviction.
CA in A-G’s Reference (No. 2 of 1999) made it clear it was NOT necessary to show D foresaw risk of death for conviction of gross negligence manslaughter.
However, if D did foresee, it’s more likely jury will find negligence to be gross.
R v Sellu [2016]:
-“It must have been so bad, so obviously wrong, that, having regard to the risk of death involved in it, it can properly be condemned as criminal, not in some technical sense of the word like somebody might be regarded as a criminal if they didn’t have a light on the back of their bicycle, but in the ordinary language of men and women of the world.”
-“…fell so far below the standard to be expected of a reasonably competent GP”
-“…truly exceptionally bad”

Question 66

Subjective Reckless Manslaughter

Answer 66

> Subjective reckless manslaughter: D killed V foreseeing a risk of death or serious injury.
Very rare as whenever there’s subjective reckless manslaughter it will be possible to charge constructive or gross negligence manslaughter & these will be easier to prove.
Generally accepted to exist as a form of manslaughter, but Findlay Stark argues that it doesn’t exist.

Question 67

Causing or allowing the death or serious physical harm of a child or vulnerable adult

Answer 67

> S. 5 of the Domestic Violence, Crime & Victims Act 2004 created the offence of causing/allowing death of a child or vulnerable adult.
S.5:
1. V has died as a result of an unlawful act of a person who was in the same household as the victim & had frequent contact with them.
2. There was a significant risk of serious physical harm being caused to V by the unlawful act;
3. either:
a) D was the person whose act caused V’s death or serious physical harm; or
b) D was or ought to have been aware that there was a significant risk of serious physical harm being carried out to V by an unlawful act & D failed to take such steps as he or she could reasonably have been expected to take to protect V from the risk;
4. the killing or serious physical harm of V occurred in circumstances which D foresaw or ought to have foreseen.
MR = negligence.
Test focuses on what D knew or ought to have known and what D could reasonably be expected to have done to protect the victim.