Week 3- Manslaughter

Question 1

What is the mens Rea difference between voluntary and involuntary manslaughter?

Answer 1

• The distinction is based off of the mens rea of intention at the time of acting (ie no intention to kill or cause GBH falls within involuntary manslaughter).
• For voluntary manslaughter there may be an intention to kill or cause GBH but there is a defence to murder

Question 2

What is the first (and main) defence for voluntary manslaughter as per Coroners and Justice act 2009 s54 and 55?

Answer 2

Loss of self control- where d kills with the mens rea of murder but at the time he had lost his self-control and one of the statutory qualifying triggers applies as per Coroners and justice act 2009

Question 3

What defence did the new law on LOSC abolish and why did it need abolishing?

Answer 3

Abolished the common law defence of provocation
-Anything said or done could constitute grounds for provocation, and many scholars held that it unfavourably discriminated against women, as men were often more easily provoked by a range of things which could lead to them intentionally killing someone but using the defence of provocation to ignore a murder charge.

Question 4

What is the second defence for voluntary manslaughter in Coroners and justice act s52?

Answer 4

2) D kills with mens rea of murder but is established on the balance of probability that he was suffering diminished responsibility (s52 of 2009 act)

Question 5

What is the third defence for voluntary manslaughter?

Answer 5

Killing in the pursuance of a suicide pact

Question 6

What does s54 of the coroners and justice act say are the necessary conditions to bring a defence of LOSC?

Answer 6

Where D kills or is a party to the killing of another victim, D is not convicted of murder if

a) Ds act or omissions in doing or being the party to the killing resulted from Ds loss of self-control (LOSC)
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 similar way as D

Question 7

What does s55 of Coroners and justice act say about the nature of the LOSC and the qualifying triggers available??

Answer 7

• The nature of LOSC may not be sudden
• a) D’s fear of serious violence from V against D or another identified person, and/or
  b) things said or done (or both) which: i) constitute circumstances of an extremely grave character, and ii) cause D to have a justifiable sense of being seriously wronged
  3) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D.

Question 8

What does the Coroners and Justice act say with regards to revenge killings and why is it said to be beneficial?

Answer 8

• Under the 2009 statute, if D acted in a considered desire for revenge the defence is denied whether or not the desire for revenge exists before any potential qualifying trigger- fear of serious violence or things said or done. It is enough that having been taunted, D goes away for a period of time to brood and returns to stab v.
• “the expression ‘considered desire for revenge’ achieves the right balance in ensuring that thought-out revenge killings are excluded without automatically barring every case where revenge may be part of a complex range of motivations”.

Question 9

Is LOSC a subjective or objective test??

Answer 9

It is a SUBJECTIVE TEST. It doesn’t matter if the reasonable person in one’s situation with all circumstances considered might’ve lost their self-control, if D did not lose his self-control then the objective test of the reasonable person does not aid D. No loss of self-control=no defence. (following Dawes)

Question 10

What does the CJA 2009 say with regards to D inciting a reaction from V?

Answer 10

• Finally, if D brought the qualifying trigger upon themselves, eg inciting a fight then the qualifying trigger is to be disregarded as per s55(6)
• 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 said or done is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence.

Question 11

What are the differences between self-defence and LOSC?

Answer 11

• The jury must deal with self-defence before LOSC; self-defence orders an acquittal of the charge whereas LOSC constitutes manslaughter. Therefore if there is grounds for self-defence due to a threat of imminent attack, it should be considered. Whereas with LOSC, D can rely on a fear of future non-imminent serious attack
• self-defence can be considered in the case of fear of any imminent use of violence (eg sexual violence) whereas LOSC must be in response to serious violence.
• where there is a LOSC on a genuine mistake of the facts that amount to the qualifying trigger of serious violence in the eyes of D, LOSC should still remain as a defence,

Question 12

What does CJA 2009 say about the degree of tolerance and the circumstances of D when raising a defence of LOSC?

Answer 12

-Provides another objective requirement of the defence.
‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way”
The ‘circumstances of D’ refer to all other circumstances of D other than his degree of tolerance and self-restraint
-Therefore anything which may have affected Ds ability to exercise tolerance and self-restraint are not to be considered solely as the evidence for which LOSC rests on.

Question 13

Morhall [1996] 1 A.C. 90 (cases for provocation under old common law)

Answer 13

Facts-D was convicted of murder after stabbing V, who criticised him for his solvent abuse. Under the 1957 Homicide act the judge directed the jury to apply the test of the reasonable man’s reaction but were told to exclude his solvent abuse addiction

Significance- -as shown by this case, the intention of this [HA 1957] statute was to allow characteristics of the defendant to be given weight in assessing the gravity of his provocation and subsequent reaction. Not merely assessing the reactions of the reasonable man, but that this reasonable man shares characteristics of the defendant which may change the effect of provocation to said defendant

Question 14

Smith [2001] facts and significance?

provocation under the common law

Answer 14

Facts-S was convicted of murder after he stabbed M during a violent row. S appealed successfully to get the verdict substituted with manslaughter on the basis of provocation since he had many unresolved grievances against M, and Ms repeated denials in the face of allegations that M had stolen tools had inflamed his anger

Significance- the court were to take into account all the characteristics of the defendant, in addition to their age and sex. In this case, Smiths clinical depression should’ve been considered by the courts to determine whether someone of a similar age, sex and mental health issue might have reacted in the same way.

Question 15

Attorney general for Jersey v Holley [2005] 2 AC 580 (provocation under the common law)

Answer 15

Facts- D and V were both alcoholics who often got into arguments when they drank together. V made comments about Ds self-esteem and taunted him as he held an axe saying ‘you haven’t got the guts’. D struck V and she died. D was originally charged with murder in the court of appeal of jersey and then substituted for manslaughter in the UK AC.

Significance- Privy council ruled that Smith was wrongly decided and that there was a distinction to be drawn between those characteristics of D which affect the gravity of the provocation that he faced (characteristics were important) and the characteristics relating to the ability to exercise self-control (not relevant).

If the defendant was taunted of his condition (as in Morhall) it may be taken into consideration by the jury as to the gravity of the provocation, but his actual state of intoxication should not be taken into account when deciding if he exercised the ordinary levels of self-control.

Question 16

What did the 3 cases related to the provocation under common law establish in the end regarding the characteristics/ circumstances of d?

What is the main principle in the recent cases?

Answer 16

• Smith was wrongly decided and there was a difference to be drawn between characteristics of D which affect the gravity of the provocation (relevant to evidence), and the characteristics of D which affect his ability to exercise self-control (not relevant).
• The ability to exercise self control is taken to be an objective test under the CJA 2009.
• The gravity of the provocation was a subjective test, as different actions or words against an individual may affect people in different ways because of their personal circumstances.
• The CJA 2009 dictates that all characteristics other than those whose only relevance to Ds conduct is that they bear on Ds general capacity for tolerance or self-restraint are to be considered as to whether someone with similar characteristics might have reacted in the same way.

Question 17

What sort of test was the old provocation defence under s3 of the Homicide act 1957

Answer 17

the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

An objective test

Question 18

What does CJA 2009 s55 say with regards to sexual infidelity??

Answer 18

Any action taken to murder kill someone resting solely on the discovery of sexual infidelity is to be disregarded as a qualifying trigger for LOSC.

Question 19

Clinton [2012] EWCA Crim 2; [2013] Q.B.

Voluntary manslaughter under new laws

Answer 19

Facts- Clinton killed his wife because of her sexual infidelity, convicted of murder and arson (life imprisonment).

Significance- Sexual infidelity as the sole cause of a killing is to be disregarded as per s55 of CJA 2009, however if it plays part of a more complex set of motivations or context eg abuse, it should not void the defence of LOSC.

Question 20

Asmelash facts and significance

Voluntary manslaughter under new laws

Answer 20

Facts-X stabbed V in the chest, both were intoxicated at the time of the attack, and V was physically abusive towards X, and this had caused him to lose self-control. The jury had to decide whether a person of X’s sex and age with a normal degree of tolerance and self-restraint would not react similarly, whilst sober.

Significance- The self-intoxication of someone does not diminish the ability to exercise control or self-restraint (although it may be considered in the actual intent of the crime, but in this case it didn’t constitute a defence of this crime.

Question 21

Dawes [2013] EWCA Crim 322

Voluntary manslaughter under new laws

Answer 21

Facts- Dawes has stabbed V after an altercation when finding him asleep on a sofa with his wife. The judge found that the defence of LOSC did not qualify because D had incited the conflict with V, and so no trigger was applicable to him, as expressly put in section 55 6(b)
-His appeal against the murder conviction was not allowed.

Significance- There was a lack of evidence on which it could be said that D had incited the violence, just on account of him behaving badly, but similarly, there was a lack of evidence as to whether he had in fact lost control.
-LOSC is to be considered subjectively, even if the reasonable person might have lost control in Ds situation, the fact that D himself did not lose control does not provide him with the defence.

Question 22

What test is a ‘justifiable sense of feeling wronged’ and how is it better than the old law of provocation?

Answer 22

-This is required to be an objective test, narrower than the test for provocation. It doesn’t allow for any justifiable sense to D for his actions to kill in reaction, it must be for the jury to decide whether the reasonable man would be able to justify this sense of being wronged. It is not, under this clause, to be contended whether killing was justifiable, but whether D was justified in feeling seriously wronged.

Question 23

What are the 3 things that diminished responsibility must be/have done under the CJA 2009?

Answer 23

(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.

Question 24

What are the 3 things that diminished responsibility must have impaired ones ability to do under s52 of CJA 2009?

Answer 24

(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.

Question 25

Dowds [2012] EWCA Crim facts and principle? (Diminished responsibility)

Answer 25

Facts- D stabbed V 60 times, attempting to rely on diminished responsibility under his acute intoxication which was a recognised medical condition. Murder upheld and appeal dimissed

Significance-Acute intoxication did not suffice as a ‘recognised medical condition’ nor was it parliaments intention to replace the law on voluntary intoxication with a lower threshold of diminished responsibility

Question 26

Brennan [2014] EWCA Crim 2387 Facts and principle?

Answer 26

Facts-D had worked as a male escort and violently killed one of his customers. B had had personality and mental health issues since childhood. He was charged with murder despite the unchallenged medical evidence from an expert

Significance- unchallenged medical evidence of diminished responsibility and no other evidence which, looked at in the round, was at least capable of rebutting the defence, the trial judge should withdraw a charge of murder from the jury.

Question 27

Golds [2016] UKSC 61 facts and principle?

Answer 27

Facts- G had admitted killing, the only issue being whether he had a defence of diminished responsibility

Significance- The word ‘substantial’ relating to substantially impairing ones ability to do the mentioned actions, was not merely something more than trivial, it had to be a ‘weighty reason’ according to the court.

Question 28

What did the Suicide act 1961 do and why?

Answer 28

-SUICIDE ACT 1961- decriminalised suicide. Firstly, the felon was dead and out of the reach of the law, secondly a legal sanction was not an effective deterrent. Finally, it was important that in repealing suicide as a crime, attempted suicide was too repealed impliedly.

Question 29

What did the CJA 2009 s 59 do with regards to encouraging or assisting suicide?

Answer 29

Coroners and justice act s59 replaced s2(1) of the suicide act with the following:

1)A person commits an offence if
a)D does an act capable of encouraging or assisting the suicide or attempted suicide of another person and,
b)D’s act was intended to encourage or assist suicide or an attempted suicide
1A)the defendant referred to in 1a) need not be a specific person known to or identified by D.
1B)D may commit an offence under this section whether or not a suicide or attempt occurs
1C)An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years.

Question 30

How did the Suicide act 1961 affect transferred malice?

Answer 30

As suicide is no longer a felony, transferred malice no longer applies, so one who kills another in the attempt to kill themselves is bound by the principles of manslaughter and murder. If the death of V was unforeseeable it would be accidental death, if it was down gross negligence as to causing death or recklessness as to whether death or serious bodily harm was caused it would be manslaughter, and in most cases if death or serious bodily was foreseen by D as virtually certain, it would likely be murder.

Question 31

What is the law on UAM?

Answer 31

-D guilty of unlawful act manslaughter (UAM) if he kills by an unlawful and dangerous act. The only MENS REA required is the intent to do the unlawful and dangerous act, THERE IS NO FORESIGHT REQUIRED OF THE ACT BEING UNLAWFUL AND DANGEROUS, or likely to cause merely some harm (just must objectively pose the threat of some harm)

Question 32

Is UAM an objective or subjective test and why?

Answer 32

There is an objective test which means that it is enough that a sober and reasonable person would have been aware of the danger in the sense of a risk of some harm (NOT SERIOUS HARM) to a person.

Question 33

What criticisms are there of UAM?

Answer 33

• It is a constructive crime in which someone may be guilty of manslaughter without having any mens Rea more than that of the unlawful and dangerous crime they commit; only risk of SOME remote harm must objectively be present, with no further mens Rea on behalf of the defendant required than intention to do the unlawful act.
• -CRITICS OF THIS OFFENCE rely on the fact that this crime relies on whether death is to occur; as he may not foresee the outcome or the risk, it rests on ‘luck’ as to whether his dangerous and unlawful act leads to death or not. The base crime that they carry out may, whilst seen to pose the risk of some harm when performed dangerously (by the reasonable and sober person), be quite minor in comparison to the charge of manslaughter that they receive, contingent on whether the death is to occur or not

Question 34

What are the 4 components of UAM?

Answer 34

The crime comprises of 1) an unlawful act 2) intentionally performed 3) in circumstances rendering it dangerous 4) causing death. If these 4 requirements are not all met, UAM is not the guilty verdict.

Question 35

How does UAM differ to reckless manslaughter?

Answer 35

• In UAM, there need not be any foresight of death occurring from the unlawful act (performed dangerously). It does not even need to be a likely outcome of death, just resting on whether death has occurred as a result of the unlawful act.
• Reckless manslaughter requires foresight of serious bodily harm against V, which suggests there is a higher mens Rea available than that of GNM and is perhaps more justified in warranting an offence of manslaughter.

Question 36

How is the ‘dangerous nature’ of the unlawful act tested for?

Answer 36

-It is an objective test in that the sober and reasonable person must recognise SOME risk of harm to V, albeit not serious bodily harm as in RM

Question 37

Lamb 1967 2 QB facts and principle?

Answer 37

Facts- -L, in jest, pointed a revolver at V. he had no intention to kill V. There were two live bullets in the 5 chambers, and unaware of the mechanics of the gun he ended up shooting and killing V.
-L was convicted on grounds of both UAM and negligent/ carelessness in relation to manslaughter.

Principle- UAM requires mens Rea of the unlawful act (assault in this case). with no intended assault, there was no unlawful act committed, and therefore UAM could not be the guilty verdict
-Ds mistake as to being able to pull the trigger without firing a bullet was a reasonable mistake to make under expert evidence and therefore objectively did not pose a serious and obvious risk of death, which meant it could not be negligent manslaughter.

Question 38

Newbury 1977 AC 500

UAM train

Answer 38

Facts- Two boys pushed a paving stone off of a railway bridge into the path of a train, smashing through the glass window and killing the security guard inside. They were convicted of manslaughter, with their appeals rejected.

Principle- )the two boys intentionally performed an act which was unlawful and dangerous in the way in which it was performed.

2) the intention unlawful and dangerous act led to the death of the security guard.
3) It was not necessary whether or not the boys foresaw the danger of their acts; an objective test was to be applied as to whether the reasonable sober person would have recognised a risk of harm to the security guard on the train from the intentional acts of the boys.

Question 39

Dawson 1985

UAM and garage attendant

Answer 39

Facts- 2 men robbed a 60 YO garage attendant with a fake gun. He had a pre-existing heart condition unknown to the 2 men, and died. Convicted of manslaughter but later quashed.

Principle- reinforces the idea that the unlawful act must be objectively viewed to have been performed dangerously. The reasonable person would have the knowledge of an outside, and therefore be unaware of the heart condition of V and therefore in the absence of these facts, UAM was not the guilty verdict.

Question 40

Goodfellow [1986]83 Cr App R 23 facts and principle?

Answer 40

Facts- G planned to be rehoused and to do so he douses his house in petrol and lit it, to burn his house down and reclaim. He’d planned to rescue the other inhabitants in the house, but they had died due to the speed by which the flames had spread.

Principle- The Unlawful act need not be aimed at a specific person, so long as it is objectively viewed as being performed dangerously because there was a risk of SOME harm.

Question 41

Kennedy no 2 facts and principle?

Answer 41

Facts- Heroin was prepared by D and subsequently self-administered by V, who died as a result.
-Manslaughter was given by the court of appeal, but this was quashed on appeal

Principle- D couldn’t be convicted of UAM as he had not jointly administered the heroin with V. V was an adult of sound mind exercising autonomy and a free, willing and voluntary decision. (No OAPA s23 committed)

• D must be proved to have committed the unlawful act before building a case for UAM.
• This is the same principle in R v Lamb, where D had not assaulted his friend before accidentally firing the pistol and killing his friend. He was not subjectively reckless as to making his friend apprehend immediate and unlawful violence, and therefore couldn’t be guilty.

Question 42

What are the 5 elements of GNM which Sir Leveson stated based on Adomako??

Answer 42

• There are therefore 5 elements which the prosecution must prove for a person to be guilty of an offence of GNM
  a) the defendant owed a duty of care to the victim
  b) the defendant negligently (failed to properly care for) breached that duty of care
  c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death
  d) the breach of duty CAUSED the death of the victim
  e) the circumstances of the breach were truly exceptionally bad and so reprehensible (deserving censure or condemnation) as to justify the conclusion that it amounted to GN and required criminal sanction.

Question 43

Is the serious and obvious risk of death in GNM objective or subjective and why?

Answer 43

Objective, the sober and reasonable person must recognise that the breach of duty towards V would cause a serious and obvious risk of death (it is not enough that, upon further investigation, the risk of death becomes more serious and obvious).

Question 44

What obvious and less obvious duties of care exist for GNM?

Answer 44

• there are obvious duties of care eg tenant and landlord, and parent and child, but also duties between people involved in hazardous or illegal activities eg smuggling cocaine or illegal immigrants.
• For the purposes of gross negligence, a duty could arise if, inter alia, D had created or contributed to the creation of a state of affairs (V’s danger) which D knew, or ought to reasonably have known, had become life threatening. The duty on D was to act be taking reasonable steps to save the other person’s life by calling medical assistance.

Question 45

How does RM still exist alongside GNM and UAM?

Answer 45

-Manslaughter by advertent recklessness still exists alongside UAM and GNM. -Where D kills by a RECKLESS ACT (therefore no UAM available) which he FORESEES MIGHT cause serious bodily harm (no GNM available as no serious and obvious risk of death), this ought to be capable of being manslaughter. Similarly, when D kills by a reckless omission (No UAM) which does not pose a serious and obvious risk of death (no GNM) reckless manslaughter may apply if D foresaw a risk of serious injury to V. Unlike GNM the mens rea requires foresight and is therefore a subjective test as to whether it was foreseen by the defendant, with all his circumstances and characteristics considered

Question 46

Why does RM still exist satisfactorily alongside GNM and UAM despite law coms recommendations to cease its existence?

Answer 46

-It serves a justifiable purpose for when the fault elements of homicide cannot fall within UAM or GNM, and there is no intention to cause GBH or death as in murder.

Question 47

Adomako 1995

Answer 47

Facts-D was an anaesthetist, performing eye surgery, when a tube became detached from a ventilator, leading to V suffering cardiac arrest and dying. D was convicted of manslaughter under the breach of duty. Appeals dismissed

Principle-The question for the jury was ‘was the defendants conduct so bad in all circumstances that it ought to amount to criminal’?.
-3 questions of 1) Was there a duty of care owed? 2)Whether there was a breach of that duty? 3)Had that breach of duty caused death? And therefore should this be treated as gross negligence warranting criminal liability.

Question 48

R v Willoughby [2005] 1 WLR 1880

Answer 48

Facts- W was the owner of a disused pub and employed V to help him set fire to the premises using petrol. There was an explosion and the building collapsed, killing V.
He was charged with UAM but there was contention as to whether GNM applied too,

Principle- GNM could also be the guilty verdict if it was decided that D, in enlisting V to help him burn down the pub, owed a duty of care to V (there was no statutory duty owed but one that the jury may find)

Question 49

R v Evans 2009 facts and principle? (heroin half sister)

Answer 49

Facts- E had bought heroin and handed some to her half-sister V, who died later. E thought V looked like she’d taken an overdose and spent the night with her but didn’t call for medical assistance as she didn’t want to get in trouble.

Principle- Someone in the position of E would or ought to have known that they had created this life-threatening state of affairs, and therefor failed to take reasonable steps to divert away from this danger.