Homicide

Question 1

Murder—Common Law

Answer 1

• Life imprisonment (mandatory)

Murder is committed when a person unlawfully kills another human being under the Queen’s Peace, with malice aforethought.

Question 2

Murder

Answer 2

A conviction for murder carries a mandatory sentence of life imprisonment (if the offence is committed by a person aged 18 but under 21, the sentence is ‘custody for life’ (also mandatory) and in the case of a defendant who is under 18, ‘detention at Her Majesty’s pleasure’: Powers of Criminal Courts (Sentencing) Act 2000, s. 90).

Under the provisions of the Offences Against the Person Act 1861 (s. 9), any British citizen who commits a murder anywhere in the world may be tried in England or Wales. It does not matter what nationality the victim was or where in the world the act took place—all that matters is that at the time the offence was committed, the defendant was a British citizen.

It should be noted that the only state of mind or mens rea that will support a charge of attempted murder is an intention to kill. Nothing less will suffice.

Question 3

‘Unlawful killing’

Answer 3

means actively causing the death of another without justification. ‘Unlawfully’ can be taken to exclude killings for which the accused has a complete and valid justification, such as killing (reasonably) in self-defence. It also includes occasions where someone fails to act after creating a situation of danger (see chapter 1.2).

Question 4

‘Another human being’

Answer 4

includes a baby who has been born alive and has an existence independent of its mother. ‘Existence independent of its mother’ means that the child is fully expelled from the womb; the umbilical cord need not be cut. If a defendant intended to kill or cause serious injury to the mother, that intention cannot support a charge of murder in respect of the baby if it goes on to die after being born alive. It may, however, support a charge of manslaughter (Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245). It would certainly be appropriate to charge a person with the murder of the child if he/she intended the child to die after having been born alive.

Question 5

‘Under the Queen’s Peace’

Answer 5

appears to exclude deaths caused during the legitimate prosecution of warfare (War Crimes Act 1991).

Question 6

Malice Aforethought

Answer 6

The cases of R v Moloney [1985] AC 905 and R v Hancock [1986] AC 455 identify the mens rea required for murder as an intention:

• to kill; or
• to cause grievous bodily harm.

Murder is therefore a crime of ‘specific intent’.

The term ‘malice aforethought’ is often associated with some form of premeditation; this is not required.

Question 7

Year and a Day

Answer 7

Section 1 of the Law Reform (Year and a Day Rule) Act 1996 abolished the limitation that death had to occur within a year and a day of the infliction of injury.

However, by s. 2 of the Act, the consent of the Attorney-General is required before proceedings can be instituted for a ‘fatal offence’ where either:

(a) the injury alleged to have caused the death was sustained more than three years before death occurred; or
(b) the person has previously been convicted of an offence committed in circumstances alleged to be connected to the death.

Question 8

Voluntary Manslaughter and ‘Special Defences’

Answer 8

As a conviction for murder leaves a judge no discretion in sentencing a defendant, a number of ‘special defences’ have developed around the offence (diminished responsibility, loss of control and suicide pact). Rather than securing an acquittal, they allow for a conviction of ‘voluntary manslaughter’ instead of murder (hence, they are also termed ‘partial’ defences to murder). Consequently, voluntary manslaughter is more a finding by a court than an offence with which a person can be charged. It should be noted that these ‘special defences’ are only available to a defendant who is charged with an offence of murder—they cannot be used in answer to any other charge, e.g. attempted murder.

Question 9

Diminished Responsibility

Answer 9

The definition requires that the abnormality substantially impaired the defendant’s ability to do one (or more) of three things and also provides that the defendant’s abnormality of mental functioning should be at least a significant contributory factor in causing the defendant’s acts or omissions. Whether the ‘impairment of mental responsibility’ is ‘substantial’ or not will be a question of fact for the jury to decide. Minor lapses of lucidity will not be enough.

The abnormality must arise from a recognised medical condition. ‘Abnormality of mind’ has been held to be ‘a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’ (R v Byrne [1960] 2 QB 396). This includes the mental inability to exert control over one’s behaviour and to form a rational judgement.

There may be any number of causes of the ‘abnormality’ of the mind. Examples include post-natal depression and pre-menstrual symptoms (R v Reynolds [1988] Crim LR 679) and ‘battered wives’ syndrome’ (R v Hobson [1998] 1 Cr App R 31). In R v Dietschmann [2003] UKHL 10, the House of Lords accepted that a mental abnormality caused by a grief reaction to the recent death of an aunt with whom the defendant had had a physical relationship could suffice. In that case, their lordships went on to hold that there is no requirement to show that the ‘abnormality of mind’ was the sole cause of the defendant’s acts in committing the killing.

The burden of proving these features lies with the defence and the standard required is one of a balance of probabilities.

Question 10

Loss of Control

Answer 10

In R v Asmelash [2013] EWCA Crim 157, the Court of Appeal confirmed that in considering the question under s. 54(1)(c) of whether ‘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 similar way to D’, the fact that the accused had voluntarily consumed alcohol was not to be included in D’s circumstances.

The loss of control need not be sudden (s. 54(2)). Although subs. (2) in the partial defence states that it is not a requirement for the partial defence that the loss of self-control be sudden, it will remain open for the judge (in deciding whether to leave the defence to the jury) and the jury (in determining whether the killing did in fact result from a loss of self-control and whether the other aspects of the partial defence are satisfied) to take into account any delay between a relevant incident and the killing.

Section 54(3) supplements s. 54(1)(c) by clarifying that the reference to the defendant’s circumstances in that subsection means all of those circumstances except those whose only relevance to the defendant’s conduct is that they impact upon the defendant’s general level of tolerance and self-restraint. Thus, a defendant’s history of abuse at the hands of the victim could be taken into account in deciding whether an ordinary person might have acted as the defendant did, whereas the defendant’s generally short temper could not. Consequently, when applying the test in s. 54(1)(c) the jury will consider whether a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the defendant’s specific circumstances (in the sense described earlier in this paragraph) might have acted as the defendant did.

Those acting in a considered desire for revenge cannot rely on the partial defence, even if they lose self-control as a result of a qualifying trigger.

Question 11

Qualifying Trigger

Answer 11

Section 55 of the Coroners and Justice Act 2009, explains the phrase ‘qualifying trigger’ mentioned in s. 54(1)(b). The loss of self-control must be attributable to:

• The defendant’s fear of serious violence from the victim against the defendant or another identified person. This will be a subjective test and the defendant will need to show that he/she lost self-control because of a genuine fear of serious violence, whether or not the fear was in fact reasonable. The fear of serious violence needs to be in respect of violence against the defendant or against another identified person. For example, the fear of serious violence could be in respect of a child of the defendant, but it could not be a fear that the victim would in the future use serious violence against people generally.
• To a thing or things done or said (or both) which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged. Whether a defendant’s sense of being seriously wronged is justifiable will be an objective question for a jury to determine. This sets a high threshold for the circumstances in which a partial defence is available where a person loses self-control in response to words or actions. It effectively restricts the potential availability of a partial defence in cases where a loss of control is attributable to things done or said.
• A combination of the above two factors.
  Section 55(6) states that in determining whether a loss of self-control had a qualifying trigger:
• the defendant’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which the defendant incited to be done or said for the purpose of providing an excuse to use violence;
• a sense of being seriously wronged by a thing done or said is not justifiable if the defendant incited the thing to be done or said for the purpose of providing an excuse to use violence;
• the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Question 12

Suicide Pact

Answer 12

The burden of proof that the defendant was acting in the pursuance of a suicide pact is placed on the accused. He/she must show that:

• a suicide pact had been made; and
• he/she had the intention of dying at the time the killing took place.

‘Suicide pact’ is defined by the Homicide Act 1957, s. 4(3) as:

a common agreement between two 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.

An example of a suicide pact can be seen in R v Sweeney (1986) 8 Cr App R (S) 419. The offender was prone to depression and had married the deceased when she was suffering from advanced muscular dystrophy. They decided to commit suicide together by taking tablets and then setting fire to their car while they were inside it. Once the fire started, both tried to escape, but the wife was killed. The offender suffered serious burns. He pleaded guilty to the manslaughter of his wife.

Question 13

Manslaughter—Common Law

Answer 13

• Triable on indictment
• Life imprisonment

Manslaughter, like murder, is the unlawful killing of another human being; it does not require the intention to kill or to cause grievous bodily harm.

Question 14

Involuntary Manslaughter

Answer 14

Involuntary manslaughter occurs where the defendant causes the death of another but is not shown to have had the required mens rea for murder.

Involuntary manslaughter—that is, those cases which do not involve the ‘special defences’ under the Homicide Act 1957 or Coroners and Justice Act 2009—can be separated into occasions where a defendant:

• kills another by an unlawful act which was likely to cause bodily harm; or
• kills another by gross negligence.

Question 15

Manslaughter by Unlawful Act

Answer 15

There are three elements to the offence of manslaughter by an unlawful act (also called constructive manslaughter).

You must prove:

(1) an unlawful act;
(2) that the unlawful act is likely to cause bodily harm; and
(3) the defendant had the mens rea for the unlawful act.

Question 16

An Unlawful Act

Answer 16

The accused’s act must be inherently unlawful, in that it constitutes a criminal offence in its own right, irrespective of the fact that it ultimately results in someone’s death. An act that only becomes unlawful by virtue of the way in which it is carried out will not be enough. For instance, ‘driving’ is clearly not an inherently unlawful act but becomes so if done dangerously or carelessly on a road or public place. If someone drives dangerously and thereby p. 352↵causes the death of another, the act of driving, albeit carried out in a way that attracts criminal liability, is not an ‘unlawful act’ for the purposes of unlawful act manslaughter (Andrews v DPP [1937] AC 576). Hence, the existence of statutory offences addressing most instances of death that are caused by poor standards of driving. If a defendant uses a motor vehicle as a means to commit an ‘unlawful act’ (e.g. an assault), he/she can be charged with manslaughter as long as the ‘act’ goes beyond poor driving. The CPS has published a policy document which sets out the way in which it will deal with cases of bad driving. Unlawful act manslaughter will be considered the most appropriate charge when there is evidence to prove that the vehicle was used as an instrument of attack (but where the necessary intent for murder was absent), or to cause fright, and death resulted. There are, however, reasons of policy (R v Lawrence [1982] AC 510) why, in all but the most deliberate of cases, the offences under the Road Traffic Act 1988 should be used. The inherently unlawful act need not be directed or aimed at anyone and can include acts committed against or towards property, such as criminal damage or arson (R v Goodfellow (1986) 83 Cr App R 23). Generally, if the actions of the victim break the chain of causation between the defendant’s unlawful act and the cause of death, the defendant will not be responsible for the death of that victim (see chapter 1.2). This is why drug dealers who supply controlled drugs cannot generally be held liable for the ultimate deaths of their ‘victims’ unless they have done far more than just supply a drug (R v Dalby [1982] 1 WLR 425 and R v Armstrong [1989] Crim LR 149). This view was affirmed in the case of R v Kennedy [2007] UKHL 38. The circumstances were that the defendant had prepared a dose of heroin for the deceased and had given the syringe to the deceased before leaving the room they were both in. The deceased injected the drug and as a result died. The House of Lords ruled that a supplier of a drug is not guilty of manslaughter where the deceased freely and voluntarily self-administered the drug. An omission to do something will not suffice as manslaughter by unlawful act requires an act.

Question 17

The Unlawful Act is Likely to Cause Bodily Harm

Answer 17

The unlawful act must involve a risk of some bodily harm (albeit not serious harm). That risk will be judged objectively; that is, would the risk of harm be foreseen by a reasonable and sober person watching the act (R v Church [1966] 1 QB 59)? Such acts might include dropping a paving stone off a bridge into the path of a train (DPP v Newbury [1977] AC 500), setting fire to your house (Goodfellow) or firing a gun at police officers and then holding someone else in front of you when the officers return fire (R v Pagett (1983) 76 Cr App R 279).

The ‘harm’ likely to result from the act must be physical; the risk of emotional or psychological harm does not appear to be enough (R v Dawson (1985) 81 Cr App R 150). In R v Carey [2006] EWCA Crim 17, the Court of Appeal observed that the law of unlawful act manslaughter required the commission of an unlawful act which was recognised, by a sober and reasonable person, as being dangerous and likely to subject the victim to the risk of some physical harm which in turn caused the victim’s death.

Question 18

The Defendant had the Mens Rea for the Unlawful Act

Answer 18

The defendant must possess the mens rea for the unlawful act which led to the death of a victim. If he/she did not have that mens rea, the offence of manslaughter by unlawful act will not be made out. For example, in R v Lamb [1967] 2 QB 981 the defendant pretended to fire a revolver at his friend. Although the defendant believed that the weapon would not fire, the chamber containing a bullet moved round to the firing pin and the defendant’s friend was killed. Lamb was charged with manslaughter by unlawful act (the unlawful act being assault) but it could not be proved that Lamb had the mens rea required (an intent or recklessness to cause a person to apprehend immediate unlawful violence) for an assault (see chapter 2.7) and his conviction for manslaughter was quashed.

The accused cannot rely on his/her lack of mens rea induced by voluntary intoxication as manslaughter is a crime of basic intent (R v Lipman [1970] 1 QB 152). This was an extreme p. 353↵case in many ways, in which the accused killed his girlfriend while suffering LSD-induced hallucinations that he was at the centre of the earth being attacked by snakes. If the unlawful act alleged were to be a crime of specific intent, then the accused’s intoxication should be relevant.

Question 19

Manslaughter by Gross Negligence

Answer 19

Manslaughter is the only criminal offence at common law capable of being committed by negligence.

A charge of manslaughter may be brought where a person, by an instance of gross negligence, has brought about the death of another. The ingredients of this offence essentially consist of death resulting from a negligent breach of a duty of care owed by the defendant to the victim in circumstances so reprehensible as to amount to gross negligence (R v Misra and Srivastava [2004] EWCA Crim 2375). The most difficult task in defining the degree of negligence that will qualify as ‘gross’ falls to the trial judge when addressing the jury. Whether a defendant’s conduct will amount to gross negligence is a question of fact for the jury to decide in the light of all the evidence (R v Bateman (1925) 19 Cr App R 8).

What is clear from the decided cases is that civil liability, although a starting point for establishing the breach of a duty of care, is not enough to amount to ‘gross negligence’ (R v Adomako [1995] 1 AC 171). The test in Adomako as summarised by Lord Mackay seems to provide the leading authority on the area—that test for the jury being: ‘. . . whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission’.

It is not possible to bring proceedings for gross negligence manslaughter against a company or other organisation to which the offence under the Corporate Manslaughter and Corporate Homicide Act 2007 applies (s. 20 of the Corporate Manslaughter and Corporate Homicide Act 2007).

Question 20

Causing or Allowing a Child or Vulnerable Adult to Die or Suffer Serious Harm—Domestic Violence, Crime and Victims Act 2004, s. 5

Answer 20

• Triable on indictment
• Where the child or vulnerable adult dies, 14 years’ imprisonment or a fine or both
• Where the child or vulnerable adult suffers serious physical harm, 10 years’ imprisonment or a fine or both

Question 21

Causing or Allowing a Child or Vulnerable Adult to Die or Suffer Serious Physical Harm

Answer 21

This offence deals with the situation where a child or other vulnerable person dies or suffers serious physical harm as a result of an unlawful act (or omission) of one of several people but it cannot be shown which of them actually caused the death or allowed it to occur.

‘Child’ means a person under the age of 16 and ‘vulnerable adult’ means a person aged 16 or over whose ability to protect him/herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise (s. 5(6)).

It is necessary to prove that the victim died or suffered serious physical harm as a result of the unlawful act of a person who fits a number of criteria. For these purposes, ‘act’ includes ‘omissions’ and an act or omission will generally only be ‘unlawful’ if it would have amounted to an offence (s. 5(5) and (6)). It must be shown that the defendant was, at the time of the act, a member of the same household as the victim and had frequent contact with the victim. For these purposes, people will be a member of a particular household if they visit it so often and for such periods of time that it is reasonable to regard them as a member of it even if they do not actually live there (s. 5(4)(a)). Where, as often happens, the victim lived in different households at different times, the ‘same household’ criterion will mean the household in which the victim was living at the time of the act that caused the death or serious physical harm (s. 5(4)(b)).

Unless the defendant is the mother or father of the victim: (a) he/she cannot be charged with an offence under this section if aged under 16 at the time of the act; and (b) restrictions will be made on what steps would have been reasonable for a defendant to have taken while under that age (see s. 5(3)).