Homocide

Question 1

What is the definition of murder?

Answer 1

The unlawful killing of a human being under the Kings’ Peace, with malice aforethought.

Question 2

What is voluntary manslaughter?

Answer 2

This is where the defendant has satisfied the actus reus and mens rea of murder, but murder conviction is reduced to voluntary manslaughter by way of diminished responsibility or loss of control.

Question 3

What is involuntary manslaughter?

Answer 3

This is where the defendant has killed the victim, but lacks the mens rea of murder.

Question 4

What are the special defences for murder?

Answer 4

Loss of control and diminished responsibility

Question 5

What happens if a partial defence for murder is successful?

Answer 5

The accused will be convicted of voluntary manslaughter

Question 6

What is the sentence for murder?

Answer 6

Murder carries a mandatory life sentence. The judge has no discretion in sentencing other than to recommend a minimum term before a prisoner can be released on licence.

Question 7

What is the burden to prove diminished responsibility?

Answer 7

The burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility

Question 8

What are the requirements to prove diminished responsibility?

Answer 8

If D was suffering from an abnormality of mental functioning which-
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in
subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the
killing.
(1A) Those things are—
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

Question 9

What is an ‘abnormality of mental functioning’?

Answer 9

‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’

Question 10

How does Alcohol Dependency Syndrome relate to diminished responsibility?

Answer 10

ADS is a medically recognised condition as the ICD and DSM recognised a number of medical conditions that would give rise to significant problems if raised as issues in legal cases, including ‘unhappiness’, ‘irritability and anger’, and ‘intermittent explosive disorder’.

Question 11

What does substantial impairment mean?

Answer 11

It had a more than merely trivial effect on D’s ability to understand the nature of D’s conduct, to form a rational judgment, to exercise self-control.

Therefore, a causal link between the abnormality of mental functioning arising from a recognised medical condition and the killing must be established.

Question 12

What does diminished responsibility not apply to?

Answer 12

Attempted murder

Question 13

Where does the burden of proof for loss of control lie?

Answer 13

The prosecution need to prove that only one of the components is absent for the defence to fail.

Question 14

What are the requirements for a loss of control offence?

Answer 14

Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of
murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) 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 in a similar way to D.

Question 15

What does a loss of self-control constitute?

Answer 15

Although there need not be a complete loss of control so that defendants do not know what they are doing, defendants must be unable to restrain themselves, a mere loss of temper would not be enough.

The loss of control need not be sudden (s 54(2)) but the defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’

Question 16

What is a qualifying trigger?

Answer 16

(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.

(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which-
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence

Question 17

What is unique about the fear trigger?

Answer 17

The first trigger (s 55(3)) ‘attributes’ the loss of self-control to the defendant’s fear of serious violence.

Question 18

What constitutes things said of done under the anger trigger?

Answer 18

This is objective and the circumstances could not be events which ordinary people
would regard as trivial.

Limitations
D cannot rely on the anger trigger if:
* D incited it as an excuse to use violence (s 55(6)(b)); or
* The thing said/done constituted sexual infidelity (s 55(6)(c)).

Question 19

Is a justifiable sense of being seriously wronged an objective or subjective test?

Answer 19

This is judged according to the normative standards of a normal person communally situated in Britain so is objective.

Question 20

What is the normal person test?

Answer 20

For loss of control to be established, 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 in a similar way to D.

The test for determining the proportionality of D’s reaction remains a wholly-objective one.

The normal person will have ordinary powers of tolerance and self-restraint.

Characteristics or circumstances likely to be excluded in assessing the normal person’s capacity for tolerance and self-restraint:
* Bad temper
* Intoxication
* Extreme sensitivity
* Post-traumatic stress disorder (R v Rejmankski)
* Personality disorder (R v Rejmankski)

Question 21

What about mental health and loss of control?

Answer 21

If a mental disorder has a relevance to the defendant’s conduct other than a bearing on is general capacity for tolerance or self-restraint, it is not excluded by subs, e.g. if someone is taunted about their mental health.

Question 22

When can the defence of loss of control NOT be used?

Answer 22

(a) In an act of ‘considered desire for revenge’;
(b) As an excuse to use violence;
(c) If the thing said/done constituted sexual infidelity;
(d) If the defendant is charged with attempted murder

Question 23

When does the sexual infidelity limitation apply?

Answer 23

It is likely that in most cases where sexual infidelity has caused the defendant to lose their selfcontrol, there will be other factors which could make up a qualifying trigger such as the threat that the defendant will lose the children, as was the case in R v Clinton, or that they will lose their home. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the ‘whole story’.

In our judgment, 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 55(4), the prohibition in section 55(6)(c) does not operate to exclude it.

Question 24

How can intoxication impact the mens rea for murder?

Answer 24

If D is intoxicated loss of control and/or diminished responsibility can still be potentially argued as partial defences to murder, reducing the conviction to voluntary manslaughter if successful.

If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence just because he was not sober.

Question 25

How does intoxication impact the loss of control defence?

Answer 25

(a) Defendant is not precluded from using the defence just because he is drunk;
(b) His intoxication will be ignored in accordance with the CJA 2009, s 54(3) (as a circumstance whose only relevance to D’s conduct is that it bears on D’s general capacity for tolerance or self-restraint), if it has no connection to the things said or done which make up the qualifying
trigger; and
(c) If there is a connection between the things said or done which make up the qualifying trigger eg when the defendant is taunted about his intoxication, then the jury can take that intoxication into account in assessing the gravity of the qualifying trigger.

Question 26

How does intoxication impact the diminished responsibility defence?

Answer 26

If the defendant was intoxicated at the time of the killing, the jury should then ask themselves:
has the defendant satisfied you that, despite the drink,
(1) he was suffering from mental abnormality; and
(2) his mental abnormality substantially impaired his mental responsibility for his fatal acts?

Note that, in these circumstances, the jury may still find that the defence operates, even if they consider that the alcohol may have played a part in the defendant’s inability to do one of the factors in the HA 1957, s 2(1A).

The jury must decide whether the ADS was a significant factor in leading the defendant to consume the alcohol, even if there was an element of voluntary choice either to start drinking or not to stop at some point. If they decide that it was a significant factor,
they can conclude that the defendant’s responsibility was impaired as a result of the abnormality of mental functioning.

First, they pointed out that the jury must be
satisfied that there was an abnormality of mind (which would now be an abnormality of mental functioning). Evidence of ADS may well assist the jury here. Second, if the jury are satisfied that the defendant was suffering from an abnormality, they then
need to be satisfied that this arises from a recognised medical condition. Third, under the old law, the Court of Appeal directed that the jury must consider whether the ADS substantially impaired the defendant’s mental responsibility. The Court of Appeal suggested a number of factors that may assist the jury in deciding this:
(a) The extent and seriousness of the defendant’s dependency;
(b) The extent to which his ability to control his drinking was reduced;
(c) Whether he was capable of abstinence and if so;
(d) For how long; and
(e) Whether he was choosing for some particular reason (such as a birthday) to decide to get
drunk or to drink more than usual.

Question 27

What are the requirements for unlawful act manslaughter?

Answer 27

(a) The defendants intentionally (voluntarily) did an act;
(b) The act was unlawful;
(c) The unlawful act was dangerous; and
(d) The unlawful act caused the death of the victim.

Question 28

What does it mean that the defendant’s act was unlawful?

Answer 28

• A criminal act;
• An intrinsically unlawful act; and
• An act rather than an omission.

The unlawful act cannot be based on a lawful act, which becomes unlawful only because of the negligent or reckless manner in which it is performed eg driving.

Question 29

How must the act have been dangerous?

Answer 29

Whether the act is dangerous is an objective test and depends not on the accused’s appreciation of the likely harm, but on what the sober and reasonable person would appreciate.

The Court of Appeal said that the type of harm likely to result from the unlawful act must be physical and not emotional harm.

The Court of Appeal said that the type of harm a reasonable person would have foreseen does not have to be that actually caused.

The dangerousness of the act is judged from the viewpoint of a sober and reasonable person. The reasonable person will have knowledge of the circumstances that they would have had if they had been in the accused’s shoes at the time of the offence.

The defendant could become liable if they became aware of a fact during the commission of the offence which would make the act dangerous.

Question 30

What constitutes causation in unlawful act manslaughter?

Answer 30

In order to understand the rules relating to this issue, it is helpful to distinguish between two situations, where D:
(a) Directly administers the drug to V, for example by taking a syringe and injecting V with it; and
(b) Merely supplies V with the drugs, or assists V, such as by mixing a particular ‘cocktail’ of drugs, or filling the syringe before passing it on to V, who then takes the drugs themselves.
Previously, the courts, through some ingenious mental gymnastics, successfully managed to bring cases falling under (b) into the ambit of unlawful act manslaughter.

The Court of Appeal upheld Cato’s conviction for unlawful act
manslaughter, holding that, by injecting the deceased with heroin, Cato had acted unlawfully by administering a noxious thing.

Where the deceased is deceived, or is otherwise unaware of what they are taking,
the supplier of the drug may still be guilty of an offence under s 23 OAPA. This offence could form the basis of a conviction for unlawful act manslaughter.

Kennedy supplied a dose of heroin in a syringe, which he handed to the victim, who injected himself, and almost immediately suffered an adverse reaction. The victim later died of the consequences of intoxication by opiates and alcohol. Kennedy was convicted of unlawful act
manslaughter and his conviction was upheld by the Court of Appeal on two separate occasions.

The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case.

Question 31

What are the requirements for gross negligence manslaughter?

Answer 31

(a) The existence of a duty of care;
(b) Breach of that duty;
(c) That the breach causes death;
(d) That there was a risk of death; and
(e) That the breach of duty was so bad as to amount to ‘gross negligence’.

Question 32

Where does a duty of care arise for gross negligence manslaughter?

Answer 32

Duty of care is essentially given the same meaning it has in the law of tort, and a defendant will owe such a duty towards anyone where harm caused by their acts was foreseeable.
In certain situations, this can be easy to establish as it is now settled in the law of tort that everyone has a general duty to take care to avoid injury by a positive act to their neighbour.
You also know that liability can arise for an omission in circumstances where the defendant is under a specific duty to act. This duty can arise by statute or by contract. It can also arise as a result of a special relationship between the defendant and the victim, as a result of the
defendant’s voluntary assumption of a duty of care, or as a result of the defendant creating a dangerous situation.

Examples:

The deceased tenant had died from carbon monoxide poisoning as a result of a faulty gas fire. The defendant was the maintenance man for the lodging house where the deceased had been staying and he was in charge of the lodging house while his father, the owner, was away in India.

In this case R had supplied drugs to the victim who had clearly suffered a severe adverse reaction to the drugs. R did various things, such as putting the V in a cold bath, to try to revive him. The next day R rang the V’s mother and said he was going to work, and she would find her son outside R’s house. The mother asked R to bring V in and cover him with a blanket. R agreed, but left V outside. It was very cold weather and V died from a combination of hypothermia and the drugs.

The appellant, a lorry driver, was convicted of killing by gross negligence after 58 illegal
immigrants were suffocated while being transported in his lorry. The defendant argued that the law of negligence did not recognise a duty of care arising between parties to a criminal enterprise. The Court of Appeal upheld his conviction stating that it was inappropriate to apply the tortious
principle of ex turpi causa non oritur actio in a criminal action.

Question 33

When does a breach of duty arise in gross negligence manslaughter?

Answer 33

The appellant, a lorry driver, was convicted of killing by gross negligence after 58 illegal
immigrants were suffocated while being transported in his lorry. The defendant argued that the law of negligence did not recognise a duty of care arising between parties to a criminal
enterprise.
The Court of Appeal upheld his conviction stating that it was inappropriate to apply the tortious principle of ex turpi causa non oritur actio in a criminal action.

Question 34

How is risk of death determined?

Answer 34

There must ‘be an obvious and serious risk not merely of injury or even serious injury, but of death’.

A mere possibility that an assessment might reveal something life threatening was not the same as an obvious risk of death: an obvious risk was a present risk which
was clear and unambiguous not one which might become apparent on further investigation.

Question 35

When is the risk so serious that it amounts to gross negligence manslaughter?

Answer 35

According to the trial judge ‘with his vast experience of sailing, he must have appreciated the obvious and serious risk of death to his crew in navigating his ship in the way he did’.

Adomako is perhaps unusual in that it involved a single, terrible mistake leading to liability (though Lord MacKay emphasises that A missed several opportunities to spot what was wrong).

In order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State
and conduct deserving punishment. The Court of Appeal held that proof of gross negligence did not require proof of any particular state of mind, and did not require evidence as to the accused’s state of mind.

. Despite numerous signs of
significant post-operative problems (raised temperature, low blood pressure, high pulse) they took little action. They did not check blood tests that had been ordered, ignored advice from senior nurses and other doctors, recorded the patient as being fine and basically did nothing to treat the patient. Such a catalogue of errors could not realistically be anything other than grossly negligent.

Question 36

What constitutes gross negligence?

Answer 36

• Where the defendant is responsible for a series of acts/omissions rather than a single event, this may make it easier for the jury to find gross negligence (Misra, Litchfield).
• A single devastating act can be grossly negligent (Adomako).
• Where the defendant’s mistakes are themselves in part or in whole brought about by mistakes of others, this may be a reason for not convicting (Prentice and Sullman).
• There can be gross negligence by the defendant, even if others are also responsible for the circumstances leading up to the death, for example where, despite the involvement of others, the defendant has a clear personal responsibility and the ability to discharge it (Singh).
• If the defendant has knowledge/experience that should alert them to the danger, this may be a helpful fact for the jury to take into account: contrast Singh and Litchfield with Prentice and Sullman.
• There is no requirement for any mental state, Adomako. However the defendant’s state of mind is not irrelevant eg it was a key point in Litchfield that Litchfield would have seen the serious risk of death.
• If someone has seen a high risk of death or has a ‘couldn’t care less’ attitude to a high risk of death, it seems clear that they are highly likely to be convicted.
• The defendant’s state of mind may also work in their favour: if the defendant genuinely did not believe there was a risk, this is a factor that the court can take into account.