Homicide

Question 1

Murder
Common Law Offence

Answer 1

Definition Of Murder

• Unlawful
• Killing
• Of a reasonable person in being (i.e. another human
  being)
• Under the Queen’s peace
• With malice aforethought — i.e. the intention to either:
• Kill; or
• Cause grievous bodily harm (GBH).

Question 2

THE ELEMENTS OF THE DEFINITION OF MURDER

Answer 2

UNLAWFUL
* When will a killing be carried out lawfully.
KILLING
* Establishing the chain of causation;
* Intervening acts; and
* The operation of the but for test.
For a fuller discussion of the intervening acts please visit the Criminal Conduct module.
A REASONABLE PERSON IN BEING
* Examining the importance of establishing an independent existence.
UNDER THE QUEENS PEACE
* Examining killing in the context of warfare.
MALACE AFORETHOUGHT
The need to establish the intention to either kill or cause GBH.

Question 3

Unlawful

Answer 3

Definition Of An Unlawful Killing
Actively causing
the death of another
without justification.

Actively Causing
The cause of the death can emanate from either:
*A positive act; or
*An omission to act in breach of a duty of care -
e.g. failure to act to mitigate a dangerous
situation that they have created

Question 4

Killing
Establishing A Causal Link

The Chain Of
Causation

Answer 4

Establishing A Causal Link
It is necessary to prove a causal link between:
The act / omission > The relevant consequence (death)

The “But For” Test
You must ask yourself:
“But for (if it wasn’t for)
the defendant’s act or omission
would the consequence (death) have arisen?”

Does The Act / Omission Need To Be
The Sole Cause Of The Death?
No
It just needs to be the
operating and substantial (main)
cause of the death.

Question 5

THE EGGSHELL SKULL RULE - SCENARIO

Answer 5

SCENARIO
A attacks B punching him in the head.
A did not know that B had a thin skull due to a birth defect.
The blow, which would not have killed a person with a normal thickness of skull, kills B.

QUESTION
Will the thinness of B’s skull break the chain of causation?

ANSWER
No - the blow to the head is still the main cause of death - therefore the chain of causation has not been broken and the actus reus of murder is present.
A must take the victim B as they find them - even if they are unaware of a susceptibility that made them more vulnerable.
This is the eggshell skull rule.

Question 6

Reasonable Person
In Being

Answer 6

Definition
The person in being
must have been born alive
and have an
existence independent
of its mother.

A baby must have been
fully expelled from the womb
and must have
drawn breath before dying.
It is unnecessary for the
umbilical cord to have been cut.

Question 7

REASONABLE PERSON IN BEING - SCENARIO

Answer 7

SCENARIO
A attacks B - his pregnant wife.
The foetus dies in utero as a direct consequence of the blow and is expelled stillborn.
QUESTION
Will A have committed the actus reus of unlawful act manslaughter?
ANSWER
No - as there was never a reasonable person in being.
For the actus reus of unlawful act manslaughter to be present - the foetus would have had to have had an independent existence prior to death - which was not the case in the scenario as it died in utero.

SCENARIO 2

A attacks B his pregnant wife.
The foetus is injured in the attack and B goes into premature labour.
The baby is expelled alive and has drawn breath.
However the baby dies from their injuries prior to the umbilical cord being cut.
QUESTION
Will A have committed the actus reus of unlawful act manslaughter?
ANSWER
Yes.
The assault is the main cause of death of the baby, as there is no intervening act - therefore the chain of causation is present.
The baby is a reasonable person in being - as they have maintained an independent existence prior to death - by drawing breath.
The fact that the umbilical cord has not been cut is a red herring - it is irrelevant in determining the presence of an independent existence.

Question 8

UNDER THE QUEEN’S PEACE

Answer 8

Killing During A Legitimate Act
Of Warfare
Not murder.

Illegitimate Killing In Breach Of
The Geneva Convention
Murder

Question 9

WITH MALICE AFORETHOUGHT

Answer 9

Nature Of The Intent?
Malice aforethought involves
an intention to either:
*Kill; or
.Cause GBH.

Attempted Murder
Intention
to kill only.

Question 10

TRANSFERRED MENS REA - BABIES INJURED IN THE WOMB

Answer 10

GENERAL PRINCIPLE
As a general rule - the principle of transferred mens rea applies where the actus reus committed against an unintended victim and the mens rea committed against an intended victim relate to the SAME OFFENCE.

LEGAL UPDATE - EXCEPTION - BABIES INJURED IN THE WOMB
The principle of transferred mens rea does NOT apply in respect of babies injured in the womb.
If a blow is landed upon the mother and the baby sustains injuries, is expelled alive and having drawn breath, dies from the injuries sustained in the womb - the principle of transferred mens rea does NOT apply - and therefore will not support a charge of murder. This will be irrespective of whether the intention is to either kill the mother or cause the mother GBH.
However, in such circumstances the appropriate charge will be that of unlawful act manslaughter - Attorney-General’s Reference (No3 of 1994) [1998] AC 425.

Question 11

Murders Committed
Abroad
Section 9 OAPA 1861

Answer 11

Can A British Citizens Who
Murders Abroad Be Tried In
England & Wales?
Yes
The country the British Citizen killed the victim in,
and nationality the victim are irrelevant.

Question 12

Is Authority Required
To Prosecute For
Murder?
Section 2(2) Law Reform Act 1996

Answer 12

General Rule
No consent
is required to
prosecute for murder.

2 Exceptions
Consent to prosecute
for murder is required from the
Attorney General
in 2 situations.

Situation 1
The injury
that caused the death
was sustained more than 3 years
before death occurred.

Situation 2
The defendant
has already been convicted
for an offence connected
with the death.
NB — not charged!

Question 13

Manslaughter
2 categories

Answer 13

Voluntary Manslaughter
Due to one of the special defences to murder
being raised:
* Diminished responsibility;
* Loss of self-control; or
* Suicide pact.

Involuntary Manslaughter
*Manslaughter by unlawful act —
constructive manslaughter; and
*Manslaughter by gross negligence.

Question 14

Voluntary
Manslaughter
3 Special Defences

Answer 14

The mens rea and actus reus
for murder are both present
— but the accused can rely on one of
3 special defences
to reduce their culpability
and broaden the sentencing options.

Question 15

3 Special Defences
To Murder

Answer 15

• Diminished responsibility - section 2 Homicide
  Act 1957
• Loss of self-control - section 54 Coroners &
  Justice Act 2009
  *Suicide pact - section 4 Homicide Act 1957

Are The Special Defences
Available For Attempted Murder?
No

Question 16

Who Bears The
Burden Of Proof?

Answer 16

Initial Burden Of Proof Rests
With The Prosecution
The prosecution initially bears
both the legal burden and evidentiary burden
to prove each element of the murder offence
beyond reasonable doubt.
If the prosecution is unable
to discharge this burden
— then there is no case to answer.

Subsequent Burden Of Proof
Shifts To The Defence
If the prosecution is able to
discharge their burden
- the burden of proof shifts to the defence
to prove the special defence
on the balance of probability.

Question 17

Diminished
Responsibility
Section 2 Homicide Act 1957

Establishing An
Abnormality Of
Mental Functioning

Answer 17

Establishing An Abnormality Of
Mental Functioning
The person who either kills or is party to
the killing of another
(with the intent to kill or cause GBH)
was suffering from an
abnormality of mental functioning.

Definition Of An Abnormality Of
Mental Functioning
..a state of mind
so different from that
of ordinary human beings
that the reasonable man
would deem it abnormal
R v Byrne (1960) 2 QB 396

Examples
* Pre-menstrual symptoms - R v Reynolds [19881
Crim LR 679)
* Battered wives syndrome - R v Hobson [19981
1 CrApp R 31)
* Being overcome by grief - R v Dietschmann
[2003] 1 AC 1209)

Need The Abnormality Of The
Mind Be The Sole Cause For The
Defendant Killing The Victim?
No

Question 18

3 Further Steps In
Respect Of The
Abnormality

Answer 18

Step 1 - Basis
The abnormality
of mental functioning
arose from a
recognised medical condition.

step 2 - Effect
The abnormality of mental functioning
substantially impaired
their ability to either:
* Understand the nature of their conduct;
* Form a rational judgement; or
* Exercise self-control.

The Impairment Must Be
Substantial In Nature
This is a question of fact for the
jury to decide.
Minor lapses Of lucidity will be
insufficient.

Step 3 - Cause
The abnormality of mental functioning explains
their act or omission in either carrying out the
killing or being party to the killing - as it either:
*Caused; or
*Was a significant contributory factor
.to their conduct.

Question 19

Loss of Self Control
Section 54 Coroners & Justice Act 2009

Killing With Intent

Answer 19

The person either kills or is party to
the killing of another
(with the intent to kill or cause GBH)
and 3 further steps
are satisfied.

step 1 - The Loss Of Self-control
Their conduct resulted from
a loss of self control.
This is the subjective element of the test — i.e.
they personally lost it.
NB the loss of self-control
need not be sudden.

step 2 - The Cause Of The Loss
Of Self Control
The loss of self-control
is attributable to the presence of
one or both
of two qualifying triggers.

Qualifying Trigger 1
The defendant’s fear of serious violence
from the victim - against either:
*Themselves; or
*Another identified person.

Establishing Fear
The test is subjective in nature.
The reasonableness of the fear
is not relevant
— the defendant need only prove that
the subjective fear of serious
violence was genuinely held.

Fear Of Serious Violence Being
Directed Against Whom?
The fear can relate to serious violence
being used against either
the defendant or another identifiable person.

When Will The Trigger Not Be
Available?
If the defendant’s fear of serious violence
was caused by a thing that the
defendant incited
to be done or said for the
purpose of providing an excuse
to use violence.

Qualifying Trigger 2
To a thing or things said or done
which constituted circumstances of an
extremely grave character
and caused the defendant to have
a justifiable sense of
being seriously wronged.

Test To Determine Whether The
Defendant’s Sense Of Being
Seriously Wronged Is Justifiable?
The test is objective in nature
— it is a question of fact
for the jury.

When Will The Trigger Not Be
Available?
The sense of being seriously wronged
is not justifiable
if was caused by a thing that the
defendant incited for the
purpose of providing an excuse
to use violence.

Infidelity?
The fact that the
thing said or done
is infidelity
is to be disregarded.

Step 3
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 either:
* In the same way as the defendant; or
*In a similar way to the defendant.

What Circumstances Will Be
Relevant?
All of the defendant’s
circumstances
will be relevant.

What Circumstances Will Not Be
Relevant?
Circumstances whose only
relevance to the defendant’s
conduct is that they
affect their general capacity
for tolerance and self-restraint.

Put the reasonable even-tempered person Of the
same age and sex as the defendant who has been
through the same experiences as the defendant in the
defendant’s shoes.
Ask yourself - would that reasonable person, if faced
with the qualifying trigger - also have lost their self-
controP
If yes - the defence will succeed.
If no - the defence fails.

Voluntary Consumption Of
Alcohol
Will not be
taken into consideration
in establishing the
circumstances.
R vAsmelash (2013) EWCACrim 157.

Revenge
The special defence will
not be available
if the defendant acted in a
considered desire for revenge.
Section 54(4) Coroners & Justice Act 2009

Question 20

Suicide Pact
Section 4 Homicide Act 1957

Answer 20

• A common agreement between two or more persons;
• Having the object of the death of all parties to the pact -
  by either
• Each individual killing themselves; or
• A member to the pact killing another member of the
  pact; and
• At the time of the killing the survivor had the settled
  intention of dying themselves.

Is A Written Agreement
Necessary?
No

Who Must Carry Out The Killing?

Key Point
A pact was entered into
and at the time of the death
of the pact member
the survivor had the
settled intention of dying themselves.

Question 21

INVOLUNTARY MANSLAUGHTER

Answer 21

When Will An Involuntary
Manslaughter Situation Arise?
Where the accused has committed
the actus reus Of murder..
…but lacks the requisite mens rea for
murder — i.e. the intention to either:
* Kill; or
* Cause grievous bodily harm.

2 Categories Of Involuntary
Manslaughter
* Manslaughter by unlawful act — constructive
manslaughter.
* Manslaughter by gross negligence.

Question 22

Manslaughter By
Unlawful Act —
Constructive
Manslaughter
Common Law Offence

Answer 22

• The accused does not have the mens rea for murder,
• The accused has committed the actus reus Of murder -
  by causing the death of the victim by a positive act; and
• The positive act that caused the victim’s death was
  inherently unlawful; and
• The unlawful act was dangerous — i.e. exposed the victim
  to a risk of some physical harm: and
• The accused had the mens rea for the unlawful act.

Step 1 - The Accused Lacks The
Mens Rea For Murder
The accused does not have the
mens rea for murder — i.e. lacks
the intention to either:
*Kill; or
.Cause GBH.

Step 2 - The Actus Reus Of
Murder Has Been Committed
The accused
has committed the actus reus
Of murder.
Their positive actions
caused the death Of the victim
i.e. the chain of causation is present.

step 3 - The Act That Caused The
Victim’s Death Was Inherently
Unlawful In Nature
An act will not be
inherently unlawful
if it can be carried out lawfully
-but only attracts criminal
liability by virtue of the way that
it is carried out.

Driving — General Rule
The act of driving a vehicle
is not an inherently unlawful purpose.
Andrews v DPP (1937) AC 576

Driving — Exception
Where a vehicle is used deliberately as a
weapon to cause injury or fright.
R v 510.

What Can The Unlawful Act Be
Directed Towards?
The unlawful act can be directed towards either:
* Persons (e.g. an assault): or
* Property (e.g. arson).
R v Goodfellow (1986)83 Cr App R 23

Step 4 - The Unlawful Act Must Be
Dangerous Likely To Cause Some
Bodily Harm
The unlawful act
must be dangerous
— i.e. must involve the risk of
some bodily harm.
NB it need not be of
serious harm

The Nature Of The Harm?
Some physical harm.
Pychological or emotional
harm is insufficient.
R v Dawson (1985) 81 Cr App R 150.

Assessing The Risk Of Some
Physical Harm - The Objective
“Reasonable Person” Test
Would the unlawful act be recognised by a
sober, reasonable person as both:
* Dangerous; and
* Likely to lead to the risk of some physical
harm.
R v Carey (2006) EWCACnm LR 17

What If The Person Did Not
Foresee The Risk Of Some Harm
Due To Intoxication?
Doesn’t matter!
The question is whether the
sober reasonable person
would have foreseen the risk
of some harm.

Step 5 - The Mens Rea For The
Unlawful Act Was Present

Accidental Shooting
R v Lamb (1967) 2 QB 981

Question 23

MANSLAUGHTER BY GROSS NEGLIGENCE

Answer 23

A death results from a negligent breach
Of a duty of care by the defendant..
-and the breach of the duty of care,
having regard to the risk of death involved,
was so bad that it amounted to a
criminal act or omission
which constitutes gross negligence.
R v Mistra and Srivastava (2004) EWCA crim 3275

Source Of The Negligence?
The negligence can arise from either:
*A positive act; or
*An omission to act - where there is a duty to do
so.

Who Defines The Degree Of
Negligence That Will Qualify As
Gross?
The trial judge
-this is a
question of law.

Who Determines Whether The
Conduct Has Breached The
Gross Negligence Threshold Set
Out By The Judge?
This is a question of fact
for the jury to decide
based upon the evidence.

Question 24

Checklist —
Manslaughter By
Gross Negligence

Answer 24

Step 1
Has the accused committed
the actus reus of murder
by causing the death
of the victim?

Step 2
Did the accused possess the mens rea for
murder?
* If yes — guilty of murder - unless they can
establish a special defence to reduce their
conviction to voluntary manslaughter.
* If no — proceed to step 3.

Step 3
Did the accused
owe a duty of care
to the victim?

Step 4
Did the accused breach
their duty of care
via an
act or omission?

Step 5
Was the death of the victim
caused by the
breach of the duty of care?

Step 6
Was the breach of the duty of care,
having regard to the risk of death involved,
so bad that it that amounted to
a criminal act or omission
which constitutes gross negligence?

Question 25

Causing Or Allowing
the Death of a Child or
Vulnerable Adult
Section 5
Domestic Violence Crime & Victims Act 2004

Categories Of Victims?
2 categories

Answer 25

Victim - Category 1
Child
Under 16

Victim - Category 2
Vulnerable adult
* A person aged 16 or over;
* WI violence, abuse or neglect is
* Physical disability;
* Mental disability;
* Illness;
* Old age; or
* Other factors.

Step 1 - What Happened To The
Victim?
They have either:
* Died; or
* Suffered serious physical harm (GBH);
…as a result of an unlawful:
. Act; or
* Omission
…of the defendant.

Step 2 - Nature Of The Relationship
Between The Defendant & Victim?
At the time of the act the defendant:
* Was a member of the same household as the victim;
and
* Had frequent contact with the victim.

What If The Victim Lived In
Multiple Locations?
Where the victim lived at multiple locations — the same
household criteria will apply to the house where the
victim was living at the time they were either:
* Killed; or
* Suffered serious physical harm.

Do The Parties Need To Be Living
Together To Be In The Same
Household?
No
As long as the defendant visits the victim often and for
sustained periods it is sufficient.

step 3 - The Risk Factor
At the time there was significant risk of serious
physical harm (GBH) being caused to the victim by an
unlawful act or omission.

step 4 - The Cause Of Death
Either of 2 causes

Cause 1 — Direct Cause
The defendant’s:
* Act; or
* Omission
…caused the victim’s:
* Death; or
* Serious physical harm.

No additional points to
prove

Cause 2 — Indirect Cause
Another person’s:
* Act; or
* Omission
…caused the victim’s:
* Death; or
* Serious physical harm.

3 additional points to
prove

Point 1
The defendant either:
* Was aware of the risk; or
* Ought to have been aware of the risk.

Point 2
The defendant failed to take reasonable steps to
protect the victim from the risk.

Point 3
The defendant either:
* Foresaw the act; or
* Ought to have foreseen the act.