CRIMINAL LAW GENERIC

SKELETAL PLANS
 Problem Solving Questions
 Essay Questions
MURDER WITH VOLUNTARY MANSLAUGHTER

Introduction

 State the Cardinal Principle – “Actus Non Facit Reum, Nisi Mens Sit Rea”:
A person cannot be made criminally liable for their outward conduct
alone; such conduct must be accompanied by a blameworthy state of
mind
 The burden is on the prosecution to prove the case against the
defendant beyond all reasonable doubt. Woolmington v DPP (1935)
 Issues raised: the potential offence of Murder and potential defence of
Diminished Responsibility or/and Loss of Control. Also mention potential
relevant legal concepts such as Transferred Malice or Causation

Main Body

OFFENCE

 The defendant’s act/conduct must be voluntary. Hill v Baxter (1958);

Bratty v AG for Northern Ireland (1963)
 The defendant must have capacity i.e. must be of the age of legal
responsibility, must be sane etc

Define Murder. Coke CJ:

“...When a man of sound memory and of the age of discretion unlawfully

killeth...any reasonable creature in rerum natura under the King’s Peace, with
malice aforethought, either expressed by the party or implied by law...”

CAU

1. Apply the Factual Test of Causation i.e. the ‘But For’ Test. White (1910)
If satisfied
2. Apply the Legal Test of Causation i.e. the ‘Significant Cause Test. Pagett
(1983) or Cheshire (1991) & the DiMinimis Principle. Cato (1976). After
this, consider whether there has been a Novus Actus Interveniens

Note: May need to consider one or more of the following potential NAI (or
debating points):

 Poor medical treatment. Jordan (1956) contrasted with Smith

(1959)/Cheshire (1991)
 ‘Egg Shell Skull Rule’. Hayward (1908), Blaue (1975)
 Victim refuses medical treatment. Wall (1802), Holland (1841), Blaue
(1975)
 Victim dies trying to escape. Pitts (1842)
  The ‘Daftness Test’. The victim’s actions are unreasonable and
unforeseeable. Roberts (1971), Marjoram (1999), Williams and Davis
(1992), Dear (1996)
 Doctors switching off life support when the victim is brain dead.
Malcherek, Steel (1981)
 A third party reacts instinctively in either self-defence or self preservation
to the defendant’s conduct which directly leads to the victim’s death.
Paggett (1983)

AR

Unlawful killing of a human being under the Queen’s Peace. Law Reform (Year
and a Day Rule) Act (1996)

Note:

 The ‘unlawful killing’ must not be in self defence

 A ‘human being’ must have been expelled from the mother’s womb.
Poulton (1832)
 ‘Under the Queen’s Peace’ means that the victim must not have been an
enemy soldier killed in the defence of the realm or while putting down a
public insurrection

MR

Intention to kill or intention to cause GBH. Cunningham (1981)

Intention
1. Test for Direct Intention. Mohan (1976)
or
2. Test for Oblique Intent. Nedrick (1986)/Woollin (1998)

Note:

The test is subjective in nature. Criminal Justice Act (1967) s.8

Also, the determination of whether virtual certainty amounts to intent is a

question of fact –not of law. Matthews and Alleyne (2003)

CON

The principle of contemporaneity must be established. Both Actus Reus and

Mens Rea must coincide in time.

BUT

1. Transaction Theory. (Series of Acts Test). Thabo Meli (1953); Church

(1966) Division into stages. If Mens Rea at any stage contemporeinity
 would be satisfied
2. Continuing Act Theory. Fagin v MPC (1969)

Note that with regard to SAT, the forming of MR precedes the completion of the
AR while in CAT, the AR is completed before the MR is formed.

If murder is established, then a potential defence must be considered.

DEFENCE

Diminished Responsibility. Coroners and Justice Act (2009) s.52

A partial defence is available if the following can be shown:

1. There was an Abnormality of Mental Functioning

2. Caused by a Recognised Medical Condition. (Medical conditions include
physical, psychological and psychiatric conditions. The jury is not bound
to accept medical evidence. Sanders (1991). However, the amendment to
the old law gives more importance to expert psychiatric evidence. Also,
where there is unchallenged medical evidence and no other available
evidence able to rebut such medical evidence, the trial judge should
withdraw a charge of murder. Brennan (2014)).
3. Which Substantially Impaired the defendant’s Mental Ability to:
 Understand the nature of their conduct or
 Form a rational judgement or
 Exercise self-control
(“Substantial” means there is an “impairment of consequence or
weight” and not “any impairment which is greater than merely trivial”. Golds
(2016) UKSC 61)
4. Explains the defendant’s Acts or Omissions

Note that the burden of proof is on the defence to prove on the balance of
probabilities.

Or/and

Loss of Control. Coroners and Justice Act (2009) s.54

1. The accused must have suffered from a Loss of Self Control (LOSC).
Defined in Jewell (2014) as “the loss of the ability to act in accordance
with considered judgement or a loss of normal powers of reasoning.”
2. The LOSC must have had a Qualifying Trigger
 LOSC was attributable to the defendant’s Fear of Serious Violence
against D or another identified person or
 LOSC was attributable to a thing said or done (or both) which –
(a) Constituted circumstances of an extremely grave character,
and
(b) Caused the defendant to have a justifiable sense of being
 seriously wronged. Excludes ‘Infidelity’, but note Clinton (2012)
and Dawes (2013)
3. The Normal Person Test. A person of the defendant’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 the defendant

Conclusion

State overall liability

MURDER WITH INVOLUNTARY MANSLAUGHTER – Unlawful and
Dangerous Act Manslaughter

Introduction

 State the Cardinal Principle – “Actus Non Facit Reum, Nisi Mens Sit Rea”:
A person cannot be made criminally liable for their outward conduct
alone; such conduct must be accompanied by a blameworthy state of
mind
 The burden is on the prosecution to prove the case against the
defendant beyond all reasonable doubt. Woolmington v DPP (1935)
 Issues raised: the potential offence of Murder, but and since the facts
raise doubts as to the presence of intent in relation to the killing, a
potential alternate offence of Unlawful and Dangerous Act Manslaughter
should be considered. Also mention potential relevant legal concepts
such as Transferred Malice or Causation

Main Body

OFFENCE

 The defendant’s act/conduct must be voluntary. Hill v Baxter (1958);

Bratty v AG for Northern Ireland (1963)
 The defendant must have capacity i.e. must be of the age of legal
responsibility, must be sane etc

Define Murder. Coke CJ:

“...When a man of sound memory and of the age of discretion unlawfully

killeth...any reasonable creature in rerum natura under the King’s Peace, with
malice aforethought, either expressed by the party or implied by law...”

AR

Unlawful killing of a human being under the Queen’s Peace. Law Reform (Year
and a Day Rule) Act (1996)

Note:

 The ‘unlawful killing must not be in self defence

 A ‘human being’ must have been expelled from the mother’s womb.
Poulton (1832)
 ‘Under the Queen’s Peace’ means that the victim must not have been an
enemy soldier killed in the defence of the realm or while putting down a
public insurrection

MR
Intention to kill or intention to cause GBH. Cunningham (1981)

Intention

1. Test for Direct Intention. Mohan (1976)

or
2. Test for Oblique Intent. Nedrick (1986)/Woollin (1998)

Note:

The test is subjective in nature. Criminal Justice Act (1967) s.8

Also, the determination of whether virtual certainty amounts to intent is a

question of fact –not of law. Matthews and Alleyne (2003)

CON

The principle of contemporaneity must be established. Both Actus Reus and

Mens Rea must coincide in time.

BUT

1. Transaction Theory. (Series of Acts Test). Thabo Meli (1953); Church

(1966) Division of events into stages. If Mens Rea is present at any stage
contemporeinity would be satisfied
2. Continuing Act Theory. Fagin v MPC (1969)

Note that with regard to SAT, the forming of MR precedes the completion of the
AR while in CAT, the AR is completed before the MR is formed.

If the defendant’s Mens Rea falls short of having an intention in relation to

homicide, then Involuntary Manslaughter must be considered.

(A). Unlawful & Dangerous Act Manslaughter

AR

1. Unlawful Act. Lamb (1967)

Note:
The unlawful act must not be a tort (Franklin 1883), can only be a positive act
and not an omission (Lowe 1973) and need not be directed at the victim
(Goodfellow 1986).

The unlawful act may be assault, battery, ABH, s.2o GBH, arson Goodfellow
(1986), criminal damage Newbury and Jones (1976), burglary Watson (1989),
Robbery Dawson (1985) etc
2. Causation

1. Apply the Factual Test of Causation i.e. the ‘But For’ Test. White (1910)
If satisfied
2. Apply the Legal Test of Causation i.e. the ‘Significant Cause’ Test. Pagett
(1983) or Cheshire (1991) & the DiMinimis Principle. Cato (1976). After
this, consider whether there has been a Novus Actus Interveniens

Consider also the principle enunciated in Kennedy (No2) (2007)

Note: May need to consider one or more of potential NAI

3. Death

MR

1. Intention or recklessness in regard to the initial unlawful act

Note:
Intent. DI or OI. Mohan or Nedrick/Woollin respectively
Or
Recklessness. Cunningham (1957)

2. Dangerousness Test. Church (1966)

“...the unlawful act must be such as all sober and reasobable people would
inevitably recognise must subject the other person to, at least, the risk of some
harm resulting there from, albeit not serious harm.”

Note that the Test of dangerousness is an objective one.

CON

The principle of contemporaneity must be established. Both Actus Reus and

Mens Rea must coincide in time.

BUT

1. Transaction Theory. (Series of Acts Test). Thabo Meli (1953); Church

(1966) Division into stages. If Mens Rea is present at any stage
contemporeinity would be satisfied
2. Continuing Act Theory. Fagin v MPC (1969)

Note that with regard to SAT, the forming of MR precedes the completion of the
AR while in CAT, the AR is completed before the MR is formed.

Conclusion
Overall liability
MURDER WITH INVOLUNTARY MANSLAUGHTER - Gross Negligence
Manslaughter

Introduction

 State the Cardinal Principle – “Actus Non Facit Reum, Nisi Mens Sit Rea”:
A person cannot be made criminally liable for their outward conduct
alone; such conduct must be accompanied by a blameworthy state of
mind
 The burden is on the prosecution to prove the case against the
defendant beyond all reasonable doubt. Woolmington v DPP (1935)
 Issues raised: the potential offence of Murder, but and since the facts
raise doubts as to the presence of intent in relation to the killing, a
potential alternate offence of Gross Negligence Manslaughter should be
considered. Also mention potential relevant legal concepts such as
Transferred Malice or Causation

Main Body

OFFENCE

 The defendant’s act/conduct must be voluntary. Hill v Baxter (1958);

Bratty v AG for Northern Ireland (1963)
 The defendant must have capacity i.e. must be of the age of legal
responsibility, must be sane etc

Define Murder. Coke CJ:

“...When a man of sound memory and of the age of discretion unlawfully

killeth...any reasonable creature in rerum natura under the King’s Peace, with
malice aforethought, either expressed by the party or implied by law...”

AR

Unlawful killing of a human being under the Queen’s Peace. Law Reform (Year
and a Day Rule) Act (1996)

Note:

 The ‘unlawful killing must not be in self defence

 A ‘human being’ must have been expelled from the mother’s womb.
Poulton (1832)
 ‘Under the Queen’s Peace’ means that the victim must not have been an
enemy soldier killed in the defence of the realm or while putting down a
public insurrection

MR
Intention to kill or intention to cause GBH. Cunningham (1981)

Intention

1. Test for Direct Intention. Mohan (1976)

Or
2. Test for Oblique Intent. Nedrick (1986)/Woollin (1998)

Note:

The test is subjective in nature. Criminal Justice Act (1967) s.8

Also, the determination of whether virtual certainty amounts to intent is a

question of fact –not of law. Matthews and Alleyne (2003)

CON

The principle of contemporaneity must be established. Both Actus Reus and

Mens Rea must coincide in time.

BUT

3. Transaction Theory. (Series of Acts Test). Thabo Meli (1953); Church

(1966) Division into stages. If Mens Rea at any stage contemporeinity
would be satisfied
4. Continuing Act Theory. Fagin v MPC (1969)

Note that with regard to SAT, the forming of MR precedes the completion of the
AR while in CAT, the AR is completed before the MR is formed.

(B). Gross Negligence Manslaughter

AR

1. Duty of Care. Adomako (1994), Wacker (2002), Singh (1999), Litchfield

(1998), Evans (2009)

2. Breach of Duty. Adomako

3. Causation

1. Apply the Factual Test of Causation i.e. the ‘But For’ Test. White (1910)
If satisfied
2. Apply the Legal Test of Causation i.e. the ‘Significant Cause’ Test. Pagett
(1983) or Cheshire (1991) & the DiMinimis Principle. Cato (1976). After
this, consider whether there has been a Novus Actus Interveniens
4. Death. The Law Reform (Year and a Day Rule) Act (1996)

5. Gross. The defendant’s level of negligence must:

 “go beyond a mere matter of compensation”

 have “a high degree of negligence”
 display “criminal disregard for others safety”
 arise from “ignorance or criminal inattention”

See judicial pronouncements in cases such as Adomoko, Andrews (1937),

Bateman (1925)

MR

The defendant must have foreseen the risk of death and not merely the risk of
injury or serious injury.

“The circumstances must be such that a reasonably prudent person would have
foreseen a serious and obvious risk not merely of injury or even serious injury
but death.”

Singh (Gurpal) (1999); Misra, Srivastava (2004)

Note the level of experience of the accused. Attorney General’s Reference (No2
of 1999) (2000)

Also note:

Test is objective

CON

The principle of contemporaneity must be established. Both Actus Reus and

Mens Rea must coincide in time.

BUT

1. Transaction Theory. (Series of Acts Test). Thabo Meli (1953); Church

(1966) Division into stages. If Mens Rea at any stage contemporeinity
would be satisfied
2. Continuing Act Theory. Fagin v MPC (1969)

Note that with regard to SAT, the forming of MR precedes the completion of the
AR while in CAT, the AR is completed before the MR is formed.

Conclusion

Overall liability
Essay structure

Introduction

• Definition(s)

• Interpret the question

• Raise the relevant issues: Concepts and/or legal principles which will
be part of the response

Main Body

• Explanation:

Expansion of points outlines in the introduction along with

relevant authorities i.e. source of law such as Act of
Parliament or Case law; quotations of eminent academic
theorists or judges

• Analysis:

The process of comparing and contrasting; pointing out strengths and

weaknesses. May include comparisons with foreign legal systems.
Must refer to any proposed law reform within the English legal system.

Conclusion

• Summing up
• Evaluation
Notes:

1. The rationale for starting with the cardinal principle in problem solving
questions.

As an advisor you need to start with the basic, underlying, fundamental

precept of ANY subject area. Whatever the topic: homicide (murder,
involuntary manslaughter), non-fatal offences (GBH, ABH etc) or offences
against property (Theft, robbery, fraud etc) – the whole idea is that the
accused must satisfy outward and mental elements.

Going back to the short exercise undertaken in the first tutorial, we dealt
with three situations in which a person driving a motor car kills a pedestrian.

Outwardly all are the same result (death)...but does the criminal law treat
them in the same way? Of course not! Each person had a different state of
mind which determined their liability...thus the cardinal principle that a man is
not made guilty of an offence only on his outward conduct. He must also have
a mind which is blameworthy.

This has two key implications:

(i) A person has no liability i.e. is not guilty of an offence if he has no mens
rea. E.g through lack of capacity, involuntary acts.

(ii) A person’s liability depends on the degree of mens rea. Thus, an intent is
different from negligent or reckless conduct. The former is punished more
severely than the latter in instances regarding homicide.

2. Start every problem question involving homicide (killing of another) with

murder. Introductions to involuntary manslaughter should make a reference to
murder (killing with intent) to contrast it with situations such as UDAM and
GNM where there is no intent. You must apply the mens rea of murder to the
situation concerning the death to justify your consideration of involuntary
manslaughter.

3. Essays must make some reference to proposed law reform suggested by

the Law Commission or academics. It can be helpful –where relevant- to
contrast the English legal system with a foreign legal system to make a point
of analysing whether the law is in a satisfactory state or not.

4. Further tips on essays:

Interpret the question in your introduction. This sets out the basis of
what you will cover in the essay and also what you will not cover. Do
not simply repeat the question or merely put it in different words.
 Try to ensure that specific words used in the question; both from the
quote and the follow up, are used in your answer as this will demonstrate
that you are addressing the specific needs of the question.

Adeyinka Makinde (2017)