Homicide

Question 1

HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344.

Legal causation (murder)

Answer 1

The act or omission : Must have ‘more than minimally negligibly or trivially contributed to the death.’

Question 2

Airedale National Health Service Trust v Bland [1993] AC 789

Double-effect doctrine - murder & causation

Answer 2

‘The established rule that a doctor may…lawfully administer painkilling drugs, despite the fact he knows that an incidental effect of that application will be to abbreviate the patient’s life’ as long as the doctor doesn’t have an intention to kill

=> Removal of life support is permitted as it did not amount to murder
=> The actus reus of actively causing death would not be present

Tony Bland was a persistent vegetative state and had no hope of recovery
Hospital with parents applied for a declaration that it might lawfully discontinue life sustaining treatment and life support
Official solicitor appealed against Court of Appeal order permitting it

Question 3

R v Adebolajo and Adebowale [2014] EWCA Crim 2779:

Murder (under the King’s peace)

Answer 3

-Held: ‘[Queen’s Peace] … can only go to the status of the victim; it has nothing whatsoever to do with the status of the killer.’

-D believed he was a soldier fighting a war. He targeted a soldier because they were ‘engaged in fighting an unjust war on behalf of the State’.

= under the king’s peace did apply

Question 4

R v Hyam [1975] AC 55

intention - murder - intent

Answer 4

The conviction was upheld by the house of Lords (3:2)

Lord Hailsham’s dissent:
I do not believe that knowledge or any degree of foresight is enough. Knowledge or foresight is at the best material which entitles or compels a jury to draw the necessary inference as to intention.

House of Lords

The appellant had been having a relationship with a Mr Jones. Mr. Jones then took up with another woman Mrs Booth and they were soon to be married. On hearing this news, the appellant drove to Mrs Booth’s house at 2.00am and poured petrol through the letter box and ignited it with matches and newspaper. She then drove home and did not alert anyone of the incident. Mrs Booth and her young son managed to escape the fire but her two daughters were killed. The trial judge said that : “If you are satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause (death or) serious bodily harm then the prosecution will have established the necessary intent.” => convicted of murder

Question 5

R v Woollin [1999] AC 82

intent (oblique) - virtual certainty

in that case, Lord Steyn discussed the liability of the terrorist who telephones a warning, and he concluded that is an example of recklessness, but not intention. The reasoning is that the terrorist would not foresee death or grievous bodily harm as virtually certain.

In R v Matthews and Alleyne,[4] the Court of Appeal concluded that the Woollin test was an evidential rather than substantial rule of law: judges ought to instruct jurors that they may interpret what they would see as certain knowledge on the defendant’s part of the virtually certain consequence of death as evidence of intention,

Answer 5

House of Lords : Murder conviction was substituted with manslaughter conviction. There was a material misdirection which expanded the mens rea of murder and therefore the murder conviction was unsafe.

Where D is charged with murder and the simple direction (that it is for the jury to decide whether D intended to kill or do serious bodily harm) is not enough, the jury should be directed that they are not entitled tofind (not infer as in Nedrick) the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of D’s actions and that D appreciated that was the case, the decision being one for them to reach on a consideration of all the evidence.

The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. The trial judge directed the jury that if they were satisfied the defendant “must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder.” The jury convicted of murder and also rejected the defence of provocation. The defendant appealed on the grounds that in referring to ‘substantial risk’ the judge had widen the definition of murder and should have referred to virtual certainty in accordance with Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty.

Question 6

R v Powell and Anor [1997] UKHL 45).

intention to cause GBH

Answer 6

“defendants being classified as murderers who are not in truth murderers” (per Lord Steyn)
=> dissatisfaction with the current law of homicide

Question 7

R v Hancock & Shankland [1985] 3 WLR 1014

intent - foreseeability

ultimately convicted of manslaughter

Answer 7

The appropriate direction should include a reference to the degree of probability and in particular an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.

The appellants were convicted of murder for the death of a taxi driver. The appellants were miners on strike. They wanted to block the road to the mine to prevent works breaking the picket line. They had dropped lumps of concrete and a post from a bridge on to the carriageway below as the convoy of workers approached. The taxi was struck by two lumps of concrete resulting in death of the driver. The prosecution contended that the appellants conduct meant that they intended nothing less than serious bodily harm. The appellants argued they only intended to block the road and no harm was intended to result from the actions. The jury were directed in acordance with the Maloney guidelines of:

“First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that
consequence.”

The jury asked further guidance on the issue of intent with regards to foresight and the judge repeated the direction given. The jury convicted of murder. The Court of Appeal quashed the conviction and certified a point of law to the House of Lords as to whether the Maloney direction was misleading.

Question 8

R v Moloney [1985] AC 905

murder - manslaughter - intent

Answer 8

Held:

The defendant’s conviction for murder was substituted for manslaughter. It was not a case of oblique intent and the judge should not have issued a direction relating to further expansion of intention.

The defendant shot his step father killing him. Evidence was produced that the pair had a good relationship. They had been celebrating the defendant’s grandparents’ ruby wedding anniversary and had consumed a quantity of alcohol. The rest of the family had retired to bed and the two stayed up drinking. The defendant told his step father that he wanted to leave the army. The step father was not happy at the news and berated the defendant. He told him he could load, draw and shoot a gun quicker than him and told him to get the guns. The defendant returned with two guns and took the challenge. The defendant was first to load and draw and the step father said, “I don’t think you have got the guts but if you have pull the trigger”. The defendant pulled the trigger but in his drunken state he did not believe the gun was aimed at the step father. The trial judge directed on oblique intent and the jury convicted. The Court of Appeal dismissed the appeal and the defendant appealed to the House of Lords.

Question 9

R v Ball [1989] Crim LR 730

murder - constructive/unlawful act manslaughter - objective dangerosity

Answer 9

When considering unlawful act manslaughter, the jury must assess whether the act was ‘dangerous in the sense that all sober and reasonable people would inevitably realise that it would subject the victim to the risk of some harm, albeit not serious harm.’

The hypothetical reasonable and sober person has the knowledge and beliefs of a person ‘present at the scene of and watch[ing] the unlawful act being performed’. They are not attributed any mistaken beliefs which the defendant possesses about the situation. The defendant’s knowledge, foresight and intention is irrelevant to whether the act is objectively dangerous.

Conviction upheld

The appellant was involved in a dispute with a neighbour over her parking her car on his land. The neighbour’s car then disappeared and she and two men went to the appellant’s house to question him about it. Things got out of hand and the appellant went and grabbed his shot gun and what he believed to be blank cartridges. He fired a shot at her intending to frighten her. In fact the cartridge was live and she died from her injury. He was convicted of manslaughter and appealed on the basis that the jury should have been directed that his mistaken belief that the cartridges were blank should be taken into account in assessing whether the sober and reasonable man would have regarded his actions as dangerous.

Question 10

R v Dawson, Nolan & Walmsley (1985) 81 Cr App R 150

involuntary manslaughter/ constructive / unlawful act (foreesability)

Answer 10

Wrong to include facts known to jury but not to reasonable bystander.
=> convictions quashed

armed robbery, imitation firearm, V apparently healthy, behind bullet proof glass but had a weak heart.

Question 11

R v Watson [1989] 2 All ER 865Watson

involuntary manslaughter( foreseable dangerous act)- UDM

Answer 11

Act became dangerous as soon as a reasonable person in D’s shoes would have realised danger. => continuing the burglary while knowing that it is an elderly man you can foresee that they are more vulnerable

NB: however in that case conviction quashed bc could not be established that the break was the cause of the heart attack.

D burgled elderly man, died from heart attack.

Question 12

Dhaliwal [2006] EWCA Crim 113

suicide

Answer 12

D not guilty

The defendant had verbally abused his wife for many years. The wife committed suicide as a result of this abuse.

Question 13

R v Adomako [1995] 1 AC 171

gross negligence manlaughter / involuntary manslaughter

Answer 13

=> appeal rejected

set out the criteria for a conviction of gross negligence manslaughter :
1.A duty of care

2.A breach of the duty

3.That the breach caused (or significantly contributed to) the death

4.That the breach of the duty was so gross as to justify a criminal conviction

NB: two criteria were added by later cases

D, an anaesthetist, did not notice that a tube had been disconnected from the ventilator during an operation
V, the patient, suffered a cardiac arrest and died
D was convicted of gross negligence manslaughter
D appealed in relation to the basis of gross negligence manslaughter

Question 14

Donoghue v Stevenson (1932)

Question 15

R v Wacker [2003] 1 Cr App R 329

criminal liability.

Answer 15

still liable in criminal law

: bringing undocumented people into the country = stowaways suffocated in lorry.

Question 16

Evans

GNM ( the breach caused death)

Answer 16

=> the court focused on the lack of action post-injection
V’s half-sister supplied heroin, self-administered. D stayed with her after the overdose but did not call an ambulance. D need not have created danger; contribution to it suffices. Focus on action post self-injection => convicted of gross negligence manslaughter

Question 17

Broughton

Answer 17

‘the prosecution must prove to the criminal standard that the gross negligence was at least a substantial contributary cause of death. That means that the prosecution must prove that the deceased would have lived in the sense that life would have been significantly prolonged
= conviction was quashed on appeal because could not establish that she would noe have died = it must be certain

Question 18

Kuddus

Answer 18

V ordered online and put a comment peanut allergy. The manager passed the oreder to the cheff without mentioning the allergy. V has a serious reaction to peanut and died: The court clarified that:
■Would a reasonable chef with the knowledge about customer’s peanut allergy have foreseen the serious and obvious risk of death (knowledge of restaurant not the same as knowledge of K) = procedures against the restaurant but not the cook who didn’t know.
■Risk to class of persons to whom D owed duty (can’t argue V had not had previous severe reaction)
■Knowledge of restaurant not the same as knowledge of chef

Question 19

R v Rose [2017] EWCA Crim 1168

gross negligence manslaughter

Answer 19

■Optometrist who negligently failed to perform her statutory duty to conduct an intra-ocular examination on 7 yr old patient. V’s cause of death (hydrocephalus) was recognisable by any competent optometrist at the time of D’s eye-test through a specific examination

■D had performed the examination at the time, but when looking at the tests, she accidentally viewed the images from the previous year

D was convicted and appealed:

“Put at its highest, what a reasonably prudent optometrist would or should have known at the time of the breach was that, if he or she did not carry out a proper examination of the back of Vincent’s eyes, there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed. This is not enough to found a case of gross negligence manslaughter since there must be a ‘serious and obvious risk of death’ at the time of breach”: [86]

“The fact that the cause of the defendant’s lack of knowledge of a serious and obvious risk of death to the victim was the defendant’s own breach of duty to carry out a requisite examination or inspection is not to the point”: [91]

=> if ppl don’t know something because they didn’t do their job properly = gives a bit of a way out=> What did D know at the time.

Question 20

R v Bateman (1927) 19 Cr App R 8

gross negligence manslaughter

Answer 20

Conviction quashed => high treshold for gross negligence manslaughter

The defendant was a medical practitioner. In the course of delivering a stillborn baby, he accidentally removed part of the woman’s uterus in addition to the placenta and ruptured several of her organs. The woman’s condition began to degrade, but the defendant delayed in sending her to the infirmary. The woman later died.

The defendant was convicted of gross negligence manslaughter. The defendant appealed, saying the judge had wrongly directed the jury that he would be guilty if he had been negligent to more than a minor degree.

Question 21

R v Misra & Srivastava [2005] 1 Cr App R 328 Court of Appeal

gross negligence manslaughter - medical intervention

Answer 21

Held:

Conviction upheld. The Adomako test did not infringe Convention Rights.

The two appellant doctors were convicted of gross negligence manslaughter following the death of a post-operative patient under their care. The patient developed an infection in the wound which was undiagnosed and therefore untreated despite obvious symptoms. The patient died of toxic shock as a result of the untreated infection. The appellants sought to challenge the test of gross negligence manslaughter laid down in Adomako (ie. 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 the jury’s opinion to a criminal act or omission.)The appellants argued that this test was circular and required the jury to set their own level of criminality which essentially should be a question of law. The appellants raised Articles 6 & 7 of the European Convention of Human Rights in that the uncertainty created by the Adomako test meant they had been deprived of the right to a fair trial and the uncertainty also meant that at the time the action was committed it was not possible to determine whether the actions were criminal.

Question 22

AG ref No: 2 of 1999 3 All ER 182.

gross negligence manslaughter - objective test

Answer 22

a defendant can be properly convicted of manslaughter by gross negligence in the absence of evidence as the defendant’s state of mind. The Adomako test is objective, but a defendant who is reckless may well be the more readily found to be grossly negligent to a criminal degree.

his case arose from the Southall train crash in which 7 people died. The driver was an experienced driver, but no second competent person was with him. Two safety devices were fitted to prevent the train passing a signal, however, both were turned off. The driver failed to notice two yellow signals and consequently was travelling too fast to be able to stop in time at the red signal. The train driver and the train company were prosecuted on 7 counts of manslaughter. The trial judge, Scott Baker J, ruled that it was a condition precedent to a conviction for gross negligence manslaughter, for a guilty mind to be proved. Also where the defendant was a company, the company could only be convicted via the guilt of a human being. The Attorney General referred the following questions to the Court of Appeal:

Question 23

Lidar [1999]

reckless manslaughter

Answer 23

The prosecution have to prove an obvious risk of serious harm from D’s conduct and either D’s indifference to that risk, or foresight of it with a determination nevertheless to run it.

D drove away from a fight with one of the antagonists, V, hanging from the passenger window of his car, still fighting with one of D’s passengers inside. D accelerated and V fell under the wheels of D’s car. D was convicted of reckless manslaughter and the Court of Appeal upheld his conviction.

Question 24

R v Lowe [1973] QB 702 Court of Appeal

unlawfula act manslaughter - gross negligence manslaughter

Answer 24

Appeal allowed. For constructive manslaughter there must be an unlawful ‘act’. The offence could not be committed by an omission.

The appellant’s child died from neglect. The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act. The jury convicted him of both neglect and manslaughter.

Question 25

R v Newbury and Jones [1977] AC 500Appeal dismissed – it is unnecessary to prove subjective foresight by Ds

unlawful act manslaughter

Answer 25

Appeal dismissed – it is unnecessary to prove subjective foresight by Ds => objective test

Two 15 year old boys threw a paving slab off a railway bridge as a train approached. The paving slab went through a glass window on the cab of the train and struck the guard killing him. The boys were convicted of manslaughter. The Court of Appeal dismissed the boys’ appeals. The boys appealed to the Lords

Question 26

R v Inglis [2011] 1 WLR 1110

mercy killing - murder - consent to murder

Answer 26

conviction upheld => MR + AR are present = the mercy is only relevant at the sentencing stage.

The appellant, Frances Inglis (F), was convicted of murdering her son Thomas (T). T was in a vegetative state due to serious head injuries. T’s family were advised that T may be able to live an independent life. F, who suffered from depression and post-traumatic stress disorder, did not believe the medical opinion and wished to end her son’s suffering. F made two attempts to kill her son by injecting him with heroin, the second succeeded. She appealed against her conviction and sentence.

Question 27

R v Dyson [1908] 2 KB 454

causation - murder

Answer 27

When determining whether causation exists, it is enough to show that without the defendant’s acts or omissions, the proscribed result would not have happened at that particular time.
=> a conduct (act or omission) that causes or hastens death

The defendant beat his child, causing a skull fracture and brain injury. These injuries would have, in the normal course of things, eventually killed the child. After serving his sentence for assaulting the child, he beat the child again. There was evidence that this second beating may have accelerated the child’s death from the original skull fracture.

The defendant was charged with manslaughter. He argued that the second beating had not caused the child’s death. This was because the child would have died from the original injury in due course.

Question 28

R v Nedrick [1986] 1 WLR 1025

oblique intent - virtual certainty

Answer 28

Held that there was a clear misdirection
=> manslaughter

set out the test of virtual certainty : virtually certain csq + D aware

The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night poured paraffin through her letter box and set light to it. A child died in the fire. The trial was held before the judgment was delivered in Moloney. The judge directed the jury as follows:

“If when the accused performed the act of setting fire to the house, he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty or murder.”

The jury convicted of murder and the defendant appealed on the grounds of a mis-direction.

Question 29

R v Smith (Morgan James) [2001] 1 AC 146

manslaughter - reasonable standard

Answer 29

The HOL held that mental characteristics can be taken into account in assessing both the gravity of the provocation and the reaction of the defendant in relation to a reasonable man.

S stabbed B in a fight about B stealing his carpentry tools and killed him. He had a medical condition that made him react angrily to small provocations.

The judge applied the Diplock test, saying that the medical condition was relevant to deciding how serious the provocation was to him, but that it did not excuse him from exercising the self control of a reasonable man.

Question 30

Attorney General for Jersey v Holley [2005] 3 WLR 29

reasonable standard - objective

Answer 30

The appeal was allowed.

NB: The decision in Smith (Morgan) allowing mental characteristics to be attributed to the reasonable man in assessing the standard of self-control expected of the defendant is no longer good law

D had a stormy relationship with the deceased. They were both alcoholics and he had a history of violence towards her for which he had spent time in prison. On his release from prison she indicated that she did not want to continue the relationship. However, they continued to live together having constant rows. On the day in question they had both been to the pub in the afternoon. He returned early because of an argument. She returned in the evening and announced that she had had sex with another man. He hacked her to death with an axe. At his trial he raised the defence of provocation. He wished to rely on his alcoholism, depression and other personality traits. The jury convicted him of murder. The defendant appealed to the Court of Appeal who quashed the conviction and ordered a retrial. He was again convicted at the retrial and again appealed. His conviction was again quashed and a manslaughter conviction was substituted. The Attorney General sought leave to appeal arguing the decision in Smith (Morgan) was wrong and should not apply in Jersey.

Question 31

R v Thornton [1996] 1 WLR 1174

provocation defence - pre 2009 - gender biased

Answer 31

The appeal was allowed and the murder conviction was quashed. In accordance with Morhall, Ahluwalia and Humphreys, the jury should have been directed that they could take into account her mental characteristics in assessing the standard of control expected of the defendan

this position rejected in ag.v holley

The appellant killed her alcoholic, abusive and violent husband.. She went to the kitchen got a knife and sharpened it then returned to the living room. Woke her husband and again asked him to come to bed. He made further abusive comments. She plunged the knife into his stomach which killed him. At her trial she raised the defence of diminished responsibility based on a personality disorder.

Question 32

R V CLINTON [2012] EWCA CRIM 2

voluntary manslaughter - loss of control

Answer 32

Held: The Court of Appeal said the Coroners and Justice Act 2009 is designed to prevent the misuse of sexual infidelity as an excuse to kill people. In other words, sexual infidelity (e.g. being cheated on) cannot be a qualifying trigger in loss of control cases. Nevertheless, even where the existence of sexual infidelity does not prevent reliance on the defence of loss of control where there exist other qualifying triggers. For example, if she assaults him as well that may be the qualifying trigger.

Facts: Here there were three defendants with breaking down relationships (Clinton, Parker, and Evans). (1) Clinton’s wife left him saying she was having an affair, but his response was to beat her and send the photos to her lover. Clinton argued he was feeling depressed and had financial problems. (2) Parker stabbed his wife because she wanted to leave him. Parker argued he lost is because she had been planning it behind his back and realised he would lose his children too. (3) Evans had been married for 41 years, but his behaviour suddenly changed leading to his wife wanting to leave the marriage. Evans suggested his behaviour had changed due to the trauma of recently finding his neighbour dead. Evans killed her in response to her want to leave.

Question 33

R V DAWES, HATTER, AND BOWYER [2013] EWCA CRIM 322

loss of control - manslaughter (voluntary)

*‘the fact of the break-up of a relationship, of itself, will not normally constitute circumstances of an extremely grave character and entitle the aggrieved party to feel a justifiable sense of being seriously wronged’ (Hatter)

Answer 33

Held: To rely on loss of control it must be shown that the defendant was in a situation of an extremely grave character and had been seriously wronged. Thus, the judge was correct in not putting the defence of loss of control to the Jury.

Facts: The defendant, Mark Dawes, went to his estranged wife’s (i.e. they no longer lived together) house and found her asleep on the sofa with Graham Pethard. He awoke him and started punching him in the face and hitting him with a bottle. According to the defendant, Pethard took the bottle off him and attacked him. The defendant then grabbed a knife from the kitchen and fatally stabbed him in the neck. At trial he raised the defence of self-defence which was not accepted by the jury. The judge held that the defence of loss of control could not be put to the jury under s.55(6)(a) of the Coroners and Justice Act 2009) as he had incited the violence. He was convicted of murder and appealed contending the defence of loss of control should have been put to the jury.

Question 34

R v Rejmanski and others [2017] EWCA Crim 2061

loss of control

Answer 34

Held that ptsd as excuse wasn’t significant enough to contribute to loss of control ( a mental disability coulfd be relevant only if it has csq on D capacity for self restraint)

Question 35

R v Golds [2016] UKSC 61

diminished responsibility

Answer 35

Under s2(1)(b) Homicide Act, substantial means significant or important, not just more than trivial

After an argument, the appellant violently attacked his partner with a knife at their home, inflicting 22 stab wounds with blunt impact internal injuries, which resulted in her death.
As a defence, it was raised that he had a history of mental illness that required him to receive treatment and medication as an outpatient. Two consultant forensic psychiatrists provided testimony indicating that his mental functioning was abnormal due to a medically recognized condition.
The issue was whether he was under the influence of a psychotic condition at the time of the incident, thereby meeting the criteria for the partial defence of diminished responsibility under section 2 of the Homicide Act 1957.

Question 36

R V DIETSCHMANN [2003] 1 ALL ER 89

‘Significant Contributory Factor’ - diminished responsibility

Answer 36

Held: The court held that it is possible to use the defence of diminished responsibility even though he was drunk, as long as the media condition was the substantial cause of what he did. Although this case was decided under the old law (pre-2009) it seems likely the outcome of this case would be the same today.

The defendant was drunk when he killed the victim. Medics said that he had a “depressed tried reaction”; in other words, he was depressed following the death of his aunt.

Question 37

R v Stewart [2009] 1 WLR 2507

diminished responsibilty - intoxication

Answer 37

Held: The appeal was allowed. Lord Judge CJ said that in such cases the jury should consider “the extent and seriousness of the defendant’s dependency”, whether D’s “ability to control his drinking or to choose whether to drink or not, was reduced”, whether he could abstain from drinking, and whether D was drinking more than usual because it was a special occasion. Although this case is decided under the old law it is likely a similar approach would be followed under the current law.

Facts: The appellant was a chronic alcoholic sleeping rough. One time when drunk he killed a man. He raised the defence of diminished responsibility. The jury rejected the defence and convicted him of murder. He appealed.

Question 38

Andrews v DPP [1937] AC 576

Unvolontary manslaughter - unlawful act manslaughter - negligence

udm requires a proper crime, not merely act act whic is done with such a degree of carelessness that the legislature makes it criminal.

Answer 38

Decision
The House of Lords upheld the defendant’s conviction. The judge’s direction was open to criticism. However, the judge had properly asked the jury to consider whether the defendant had been highly negligent. This was correct. On the evidence, a conviction was inevitable.

Decision
The House of Lords upheld the defendant’s conviction. The judge’s direction was open to criticism. However, the judge had properly asked the jury to consider whether the defendant had been highly negligent. This was correct. On the evidence, a conviction was inevitable.

This Case is Authority For…
To establish manslaughter by dangerous driving, the jury must believe that the driver was so negligent that the case goes beyond mere civil compensation. The defendant must have demonstrated such disregard for life that it is properly a crime.

Question 39

R v Lamb [1967] 2 QB 981

Unvoluntary manlaughter - unlawful act - constructive

Answer 39

Court held that: base offence incomplete as mens rea for the unlawful act (assault / battery) missing (no intention / foresight of harm)

L pointed revolver at friend as a joke. I didn’t know how revolver worked. Knew bullets not in chamber opposite barrel.

Question 40

R v Church [1966] 1 QB 59

unlawful act manslaughter - unvoluntary manslaughter

Answer 40

The court held that: ‘The unlawful act must be such as all sober and reasonable people would inevitably recognise that it must subject the other person to, at least, the risk of some (= not necessarily certain) harm resulting therefrom, albeit not serious harm’

knocked woman unconscious. Could not revive her so threw her into river -> drowning.

Question 41

R V CAREY [2006] EWCA CRIM 17

unlawful act mansalughter - unvoluntary manslaughter

Answer 41

Held: The manslaughter convictions were quashed. The physical assault on Aimee was not the cause of death. The cause of death was Aimee running away in fear.

Aimee Wellock, aged 15, and three friends went out for an early evening walk. They came across the three appellants who had been drinking. The appellants started making fun of Aimee and her friends and then became physically violent. Aimee had her head pulled back and was punched in the face. Two passing motorcyclists stopped and shouted at the appellants and they ran off. Aimee then ran off. She ran just over 100 metres but then unfortunately she collapsed and died. It transpired that she had a severely diseased heart and the run had induced a ventricular fibrillation which resulted in her death. The three appellants were convicted of affray and constructive manslaughter. They appealed against the manslaughter conviction.

Question 42

Attorney-General Ref No 3 of 1994 [1997] 3 ALL ER 936

unlawful act mansalughter - unvoluntary/constructive manslaughter

Answer 42

Held: The House of Lords said he could not be charged with murder of the baby. However, his actions could amount to constructive manslaughter. There was no requirement that the foetus be classed as a human being provided causation was proved. The attack on the mother was an unlawful act which caused the death of the baby. There is no requirement under constructive manslaughter that the unlawful act is aimed at the actual victim or that the unlawful act was directed at a human being.

Facts: The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave birth to a live baby. The baby died 121 days later due to the premature birth. The defendant was charged with wounding and GBH on the mother and convicted for which he received a sentence of 4 years. On the death of the baby he was also charged with murder and manslaughter.

Question 43

R V DHALIWAL [2006] EWCA CRIM 113

unvoluntary manslaughter/ constructive / unlawful act manslaughter

foreseeability

Answer 43

Held: The defendant was not guilty as he did not cause the death of his wife; whilst mental harm by way of a recognised mental condition can be classed as harm, mere emotions are not enough to qualify. The defendant’s wife did not commit suicide as an immediate and reasonable response to the verbal abuse, but acted voluntarily.

Facts: The defendant had verbally abused his wife for many years. The wife committed suicide as a result of this abuse.

Question 44

R v Kuddus [2019] EWCA Crim 837

gross negligence manslaughter

Answer 44

the Court of Appeal allowed the appeal on the basis that it had not been shown that Kuddus himself was aware of the allergy. He had bought the restaurant from Rashid, who continued to cook in the restaurant and manage it. Rashid was also convicted of gross negligence manslaughter, but Kuddus had no knowledge of the allergy or indeed of allergies more generally.

‘the question to be answered is whether the defendants’ breach gave rise (as an objective fact) to a serious and obvious risk of death to the class of people to whom the defendant owed a duty. Thus, in the present case, where the duty was to take reasonable steps not to injure members of the class of nut allergy sufferers (of whom Megan was one), the question to be answered would be whether any proved breach by the appellant would give rise to a serious and obvious risk of death for members of that class. (para. 69)’

Megan Lee ordered a takeaway curry from the Royal Spice restaurant, owned by Mohammad Kuddus who relied on a Mr Rashid to manage it. She stated in her order that she was allergic to peanuts and prawns. However, the curry delivered to her did contain peanuts. Megan suffered an allergic reaction and died. Kuddus and Rashid were convicted of gross negligence manslaughter. Kuddus appealed.

Question 45

R v Rose [2017] EWCA Crim 1168

gross negligence manslaughter

Answer 45

=>it needs to be reasonably foreseeable that breach of duty gave rise to such a risk ( serious and obvious risk of death)for conviction for GNM

Optometrist who failed to see a brain condition in one of his patent when she neglgently performed the relevant tests.

Question 46

A-G ref no 2 of 1999 [2000] 2 Cr App R 207

gross negligence manslaughter

Answer 46

Held:

On question 1 - yes a defendant can be properly convicted of manslaughter by gross negligence in the absence of evidence as the defendant’s state of mind. The Adomako test is objective, but a defendant who is reckless may well be the more readily found to be grossly negligent to a criminal degree.

Lord Justice Rose:
“Although there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a pre-requisite to a conviction for manslaughter by gross negligence.”

This case arose from the Southall train crash in which 7 people died. The driver was an experienced driver, but no second competent person was with him. Two safety devices were fitted to prevent the train passing a signal, however, both were turned off. The driver failed to notice two yellow signals and consequently was travelling too fast to be able to stop in time at the red signal. The train driver and the train company were prosecuted on 7 counts of manslaughter. The trial judge, Scott Baker J, ruled that it was a condition precedent to a conviction for gross negligence manslaughter, for a guilty mind to be proved. Also where the defendant was a company, the company could only be convicted via the guilt of a human being. The Attorney General referred the following questions to the Court of Appeal:

1. can a defendant be properly convicted of manslaughter by gross negligence in the absence of evidence as to that defendant’s state of mind?

Question 47

AG for Northern Ireland v Gallagher [1963] AC 349.- (The ‘Dutch courage rule’).

intoxication - mens rea

Answer 47

Appeal allowed. The conviction restored. Where a person forms the intention to kill and drinks in order to give themselves Dutch courage, they can not then rely on their intoxication to demonstrate they did not have the necessary mens rea.

The Respondent was an aggressive psychopath and prone to violent outbursts. This was particularly so if he had taken alcohol. He was frequently violent towards his wife. He had spent some time in a mental hospital for which he blamed his wife. On his release he went out and brought a bottle of whiskey and a knife. He intended to use the knife to kill his wife and brought the whiskey as he knew that this would make him aggressive to the extent that he would be able to kill. He drank the whiskey and killed his wife with the knife and a hammer. He was convicted of murder and appealed to the Court of Criminal Appeal N.I on the grounds of a mis-direction. His conviction was quashed. The Attorney General appealed to the House of Lords.

Question 48

R v Dowds [2012] EWCA Crim 281

volontary intoxication - murder - diminished responsibility

Answer 48

Appeal dismissed. Voluntary acute intoxication, whether from alcohol or other substance, is not capable of founding diminished responsibility.

was convicted for murder as he still had the MR

The appellant, a 49 year old college lecturer, killed his partner in a frenzied knife attack whilst he was heavily intoxicated. Both he and his partner were habitual binge drinkers and there had been numerous violent exchanges between the couple, most of which had been initiated by her and most occurred whilst they were intoxicated. He reported her death to the police two days after the killing and claimed that he had no recollection of the events but accepted that he had killed her. He did not assert that he was alcohol dependant. He could exercise choice over when he drank and would not drink during the week. However, once he had started drinking he was unable to stop. The trial judge ruled that his voluntary and temporary drunkenness was not capable of founding the defence of diminished responsibility. The appellant appealed contending that the World Health Organisation lists acute intoxication in its International Classification of Disease and it was therefore a medically recognised condition and thus satisfied the requirement in s.2(1)(a) Homicide Act 1957 as amended by s.52 Coroners and Justice Act 2009.

Question 49

R v Jewell [2014] EWCA Crim 414

Voluntary manslaughter - loss of self control

Answer 49

The Court rejected his LoSC because Planning undermined claim of LoSC (prepared firearms & survival kits,12 hours before driving to V’s home (Jewell)

Jewell been bullied by a colleague and killed him.

Question 50

R v Squelch
R v Conroy

diminished reponsibiliy - murder - MR

Answer 50

in both case, they had a recognised medical condiction but still formed a rational decision
=> meaning of the term ‘substantially’ in the C&J Act

Question 51

R v G and R [2003] UKHL 50

recklessness (subjective)

Answer 51

The HL rejected the Caldwell approach => Ds were not guilty of arson as they had not been reckless; they had been unable to appreciate the risk due to their immaturity

overrules R v Caldwell

Two boys (Ds) set fire to newspapers in the back of a shophouse, and burnt down supermarket and adjoining buildings
They were charged under s1 Criminal Damage act 1971 for reckless arson

Question 52

R v Pittwood [1902] TLR 37

Gross negligence manslaughter - duty to act under a contract

Answer 52

A contract can create a duty to act in criminal law => manslaughter conviction

D was employed by a railway company to operate a level crossing
He lifted the gate to allow a cart to pass across but failed to put it back when he went on his lunch break
In his absence, a second horse and cart crossed the railway and the driver was killed

Question 53

R v Malcherek

death - actus novus - medical intervention

Answer 53

The test of death is where the brain stem has died. Thus at the time of switching off the machine, the victims were already dead. The doctors could not therefore be the cause of death.

Question 54

R v Matthews and Alleyne [2003] EWCA Crim 192

murder - Woollin test - virtual certainty

Answer 54

The test in R v Woollin [1999] 1 AC 82 is a rule of evidence – this means that appreciation of virtual certainty of death or serious harm does not necessary amount to intention for murder in law

= Appeal dismissed; although there was a misdirection by the judge, the conviction was safe

Ds threw the victim into a river, who drowned and died
Ds argued although they knew the victim could not swim, they did not intend for the victim to die
The judge gave the direction to the jury that it must find Ds guilty of murder if they found that they had foresight that the victim was ‘virtually certain’ to die or suffer serious harm