Lecture 4- Homicide

Question 1

AR of Homicide

Answer 1

The unlawful killing of another person in the King’s peace

Question 2

Criteria

Answer 2

1.V must be a human being
2.Death must be caused by D’s act or omission
3.Death must occur during King’s peace

Question 3

V must be a human being

Answer 3

1. Life at birth
   Attorney-General’s Reference (No 3 of 1994) [1998] A foetus in utero cannot be a victim of a crime of violence

2.End of Life
R v Malcharek and Steel [1981] 1 WLR 690 – Death is determined by the inactivity of the brain stem

Question 4

Discontinuing Treatment

Answer 4

Bland [1993]
Lawful for doctors to discontinue treatment to a patient suffering from PVS through omission (Living death)
Depends on the act/omission distinction.
Having regard to the patient’s ‘best interest’

Question 5

Omission

Answer 5

Bland [1993] 1 AC 789 (Lord Goff)- Discounting life support= omission

Question 6

The King’s Peace

Answer 6

Maria v. Hall (1807)

What this means is that the killing of enemy aliens during war and under battle conditions is not a criminal homicide.

Adebolajo and Adebowale [2014]
Relates to jurisdiction + status of victim.

Question 7

MR of Murder

Answer 7

Intention to cause death or grievous bodily harm

Moloney [1985]
*Woollin [1999]

Question 8

GBH

Answer 8

GBH = ‘really serious harm’ (Smith (1967))
Rahman [2008]- Affirmed murder MR

Question 9

Sentence

Answer 9

Mandatory life sentence for murder
Murder now attracts a minimum tariff of 15 years before eligibility for parole, and even if released D is subject to licence for life

Question 10

Partial Defences

Answer 10

Only applicable to murder
If successfully pleaded, the D is liable for voluntary manslaughter

Question 11

Voluntary Manslaughter

Answer 11

1.Loss of Self-control (S54
of the Coroners and Justice Act 2009)
2.Diminished Responsibility (S52+S2 Homicide Act 1957)

Question 12

Old law of provocation

Answer 12

No restrictions on what words or conduct could amount to provocation (including e.g. sexual infidelity by a partner/left to the jury)

Limited to anger rather than other emotions such as fear (excluding many abused women who kill)

Required a sudden and temporary loss of control (did not fit how abused women respond to abuse – see R v. Ahluwalia (1994) + battered women’s syndrome/‘slow-burn’ anger)

Objective test: uncertainty about which, if any, of the defendant’s characteristics to include

Question 13

Loss of Self-Control

Answer 13

1.D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control

2.the loss of self-control had a qualifying trigger

3.And 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 14

Loss of self-control

Answer 14

This is subjective- it does not have to be sudden.
Jewell [2014]- A pre-planned execution does not qualify for the defence. (lapse of time)

Question 15

Revenge (Section + Case)

Answer 15

s.54(4) CJA 2009: Defence unavailable where D has ‘acted in a considered desire for revenge’

Dawson [2021]
Cannot be motivated by a desire for revenge

Question 16

Qualifying triggers

Answer 16

s.55 (3) Fear of serious violence from V

s. 55(4): Sense of being seriously wronged by things said or done which
(a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged.

Question 17

Fear of Serious Violence

Answer 17

There only needs to be a fear of violence—it does not need to be shown that there was violence. The trigger would apply even where the defendant incorrectly believed that violence was to be used against them.

The fear must be of serious violence. This suggests that fear of damage to property, or fear of minor acts of violence would not be enough.

The threat of violence can be to D or another person.

Question 18

Striking first Case

Answer 18

Dawes [2013]
Cannot rely on fear where their purpose was to create a justification

Question 19

Circumstances of an extremely grave character

Answer 19

It is suggested that the best interpretation is that the circumstances facing the defendant must have been unusual, and not part of the normal trials and disappointments of life.

The trigger can only be used where there is something said or done. So circumstances alone could not amount to a qualifying trigger.

Question 20

Justifiable sense of being seriously wronged

Answer 20

Just because the defendant feels they were wronged does not mean that in fact they were. This involves an objective test

The act must be a serious wrong to the defendant.

Question 21

Mental Disorder Case

Answer 21

The court in R v Rejmanski held that a defendant’s mental condition can be taken into account in deciding whether an act or insult was a serious wrong. This allows a defendant to say: ‘While most people might not regard this as a serious insult, because I have this condition it was justifiable for me to perceive this as a grave wrong.’

Question 22

‘Justified sense’ Objective Case

Answer 22

Dawes [2013] [conjoined appeal of Bowyer]- Justiciability requires objective assessment

Question 23

Sexual infidelity

Answer 23

s. 55(6) sexual infidelity excluded

Clinton [2012]
Sexual infidelity may be considered where it provides appropriate context

Question 24

Objective Standard

Answer 24

s. 54(3) ‘all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint’.

Question 25

Circumstances

Answer 25

Section 54(1)(c) states that the jury should consider how the person of D’s age and sex and in the circumstances of D would have reacted. The significance of this is that it allows the jury to take into account the circumstances the defendant was in.

Question 26

Intoxication

Answer 26

Asmelash [2013]
Intoxication cannot be considered as a circumstance

Question 27

Circumstances-Mental Disorder

Answer 27

Rejmanski [2017]
A personality disorder or other condition can be considered in relation to how the reasonable person would respond, but not in a way which impacts on the normal powers of tolerance or self-restraint.

Question 28

Loss of Control and Victims of Domestic Violence

Answer 28

R v Ahluwalia
‘Slow-burn’ reaction

Question 29

Diminished Responsibility

Answer 29

Homicide Act 1957 s.2 (as amended by the Coroners and Justice Act 2009 s.52)

(1)A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder 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.

Question 30

Abnormality of mental functioning

Answer 30

It must be shown that the defendant has a ‘recognised medical condition’.

R v Brennan- Medical Evidence
That question was considered in the following case, which states that the expert evidence must be accepted if there is no contradictory evidence, but if there is other contradictory evidence, the jury are entitled to reject the view of the expert

Question 31

Substantially Impaired

Answer 31

R v Mark Richard Golds- Substantially will, generally, not be defined

Question 32

Understand nature of conduct

Answer 32

A failure to understand the nature of the conduct could mean that the defendant did not know what they were doing or did not understand the nature of their acts.

Question 33

Form a rational judgement

Answer 33

The defendant relying on this ground will need to show that their ability to make an assessment of what is the right thing to do has been substantially impaired by the mental abnormality.

Question 34

Exercise self-control

Answer 34

So, diminished responsibility is appropriate in a case where a defendant suffering from a mental abnormality has lost self-control and killed.

Question 35

An explanation for the killing

Answer 35

If ‘it causes or is a significant contributory factor in causing, D to carry out the conduct.’ s. 2 (1)(B) Kay and Joyce [2017]

Question 36

DR and Intoxication + Medical Condition

Answer 36

Where the defendant does not suffer from alcohol dependency syndrome but suffers an abnormality of mental functioning due to a disease or inherent condition (e.g. depression) and is intoxicated. In such a case the jury must consider whether the impact of the abnormality of mind (and not the intoxication) was sufficient to substantially diminish their responsibility at the time of the killing

R v Joyce and Kay- Sufficient that the medical condition was activated by intoxication

Question 37

Alcohol Dependency
2

Answer 37

Where the defendant suffers from alcohol dependency syndrome then that will be treated as an abnormality of mental functioning for the purposes of the defence, if it is a severe case.

R v Dowds- Voluntary acute intoxication does not come under DR

Question 38

Involuntary Manslaughter

Answer 38

1.Unlawful Act Manslaughter
2.Gross Negligence Manslaughter

Question 39

Invol Manslaughter MR

Answer 39

The D does not have the appropriate MR

Question 40

UAM

Answer 40

1.An unlawful act
2.Dangerous on an objective test
3.Causes the death of the V
4.Relevant MR for the original act

Question 41

Unlawful Act

Answer 41

Kennedy No. 2 [2007]
The act must be unlawful

Lamb [1967]
To establish the criminal act, both the actus reus and the mens rea must be demonstrated.

Lowe [1973]
Cannot be an omission

Question 42

Dangerousness

Answer 42

Church [1966]
Establishing Test
‘[T]he unlawful act must be such as all sober and reasonably people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.’ (Edmund Davies LJ, 70)

Question 43

Objective Man

Answer 43

Dawson (1985)
The objective man must have the same knowledge as the defendant and no more.

Watson [1989]
There can be an awareness of objective danger whilst the act is carried out

Question 44

Violent Act

Answer 44

JF [2015]
Long, Bowers and Cole [2020]
Bristow [2013]
Circumstances can make an unviolent crime dangerous

Question 45

Causes Death

Answer 45

It is necessary to show that the unlawful and dangerous act caused the death of the victim. The normal rules of causation apply.

Kennedy (No 2) [2007] Voluntary, free and informed act breaks the chain of causation.

Lewis [2010]
Forseeability

Question 46

GNM

Answer 46

Adomako [1994]
1.A duty of care from the D to the V
2.If there was a breach of duty
3.A serious and obvious risk of death
4.The breach causes death
5.The breach was gross (constituted gross negligence)

Question 47

Duty of Care

Answer 47

Evans [2009]
Wacker [2003]
‘duty of care’ is usually to be given the meaning it has in the tort of negligence.
Much simplified, you owe a duty of care towards anyone who may foreseeably be harmed by your actions.

Question 48

Breach of Duty

Answer 48

In order to decide whether there is a breach of duty the jury must ask whether the defendant’s action fell below the standard expected of the reasonable person.

Where the defendant is purporting to exercise a special skill, the test is whether the defendant was exercising the skill expected of a reasonable person possessing that skill.
Adomako

Question 49

Serious and obvious risk of death

Answer 49

Rudling [2016]
On the facts, there must be an obvious risk of death and not merely life-threatening harm

Rose [2017]
The available knowledge is judged at the time of the breach- whether there was an obvious risk of death from that knowledge

Question 50

Rose [2017]

Answer 50

it must be reasonably foreseeable that the breach of duty in question gives rise to a serious and obvious risk of death … The question of available knowledge and risk is always to be judged objectively and prospectively as at the moment of the breach, not but for the breach.

Question 51

Allergy Cases

Answer 51

Winterton [2018]

Kuddas [2019]
Obvious risk of death is tied to knowledge.

Question 52

Breach causes death

Answer 52

The simplest way for the jury to consider the question would be to ask: if the defendant had acted reasonably would the victim have died when they did?

Question 53

Causes the Death-Case

Answer 53

Broughton [2020]

‘The prosecution must prove to the criminal standard that the gross negligence was at least a substantial contributory 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. It is well established that being “sure” is not the same as scientific certainty. … To be sure that the gross negligence caused the death the prosecution must exclude realistic or plausible possibilities that the deceased would anyway have died.’ (Burnett LCJ, para 23)

Question 54

Gross Negligence

Answer 54

It must be shown that the defendant’s breach of duty was gross. Lord Mackay in Adomako explained that the jury should ask themselves whether the defendant’s actions or omissions were so bad as to deserve a criminal conviction.

Sellu [2016]
It must have been so bad, so obviously wrong, that, having regard to the risk of death involved in it, it can properly be condemned as criminal

Question 55

Reckless Manslaughter

Answer 55

‘Where D kills by reckless lawful act (therefore no UAM [Unlawful Act Manslaughter] available) which he foresees might cause serious bodily harm (no gross negligence manslaughter available as no serious and obvious risk of death), this ought to be capable of being manslaughter.’ (Smith and Hogan, ‘Criminal Law’, p. 596)