LAW 1025

04/02/2020

Intro to Homicide & Murder

Types of Homicide:
- Murder
- Manslaughter
- Infanticide
- Causing death by dangerous driving
- Assisting suicide and entering a suicide pact

Murder & Manslaughter

Two types of homicides that are differed by whether there was planning involved
and/or if the act was done in self-defence or not.
Some crimes are considered mala in se (bad in themselves) – inherently wrong and
against natural and moral law under general community standards. Murder is one of
these.
Murder is an example of this.
Others are mala prohibita (morally wrong).

Murder
“When a man of sound memory and of the age of discretion unlawfully killeth any
creature in rerum natura under the King’s peace with malice aforethought.”
Carries a life sentence wherein the accused must serve a minimum sentence,
dependant on the circumstances of the killing. More aggravating circumstances will
attract a higher sentence.
Other terms of murder:
- Genocide
- Infanticide
- Honour killing
- Euthanasia

Actus Reus:
Unlawful killing of another person under the Queen’s peace.
Unlawful – defendant can rely on an argument of self-defence to argue that the killing
was lawful (see Beckford – defendant was a police officer who believed victim had
been shooting at him and another police officer and he returned fire in self-defence.
Judgment claimed: “the honest belief in the circumstances entitle the defendant to use
force…”. Court held that the defendant used reasonable force to protect himself.)
Killing – defendant must have caused a death
Law reform (Year and One Day Rule) Act 1996 – if a victim died within a year and a day
from a defendant’s specific act that caused them some harm, the defendant could
have been prosecuted for murder. This rule was abolished due to technological
advancements in medicine to sustain the life of a victim and forensics.
See R v Kerry Young, the defendant was previously convicted of wounding with intent
and charged with murder when the victim subsequently died. He appealed the murder
charge, which was dismissed. Courts stated that where defendants have previously
been charged with wounding with intent, a subsequent prosecution of murder is
possible without double jeopardy is possible if the victim dies.
“Any reasonable creature in rerum natura” – a human being in being.

When does life begin?

According to the law, life begins at birth – therefore foetuses and unborn children
cannot be victims of murder or manslaughter because they’re not awarded full human
status or personhood. However, violence to a foetus which causes a death in utero,
while not murder, can be charged as child destruction or criminal abortion. If the child
was injured in the uterus and was born alive, subsequently dying after it is born from
its injuries, the charge will be escalated to manslaughter, mens rea.

Cases
Enoch – Baby becomes ‘alive’ when it can exist independent of its mother:
Poulton – court stated child must be wholly expelled from the mother
Reeves – umbilical cord doesn’t need to be cut for the life to begin.
If the child dies after birth due to injuries sustained while in the womb, this will become
murder or manslaughter depending on mens rea. AG’s reference (No. 3 of 1994)
wherein a defendant stabbed his pregnant girlfriend. This action caused the child to
die later after being born prematurely. Court held that the defendant could be
prosecuted for manslaughter but not murder. Also, because murder must carry
grievous intent to a person and a child in the womb is not considered a person.

When does life end?

Brain dead – Malcherek & Steel – victims of an assault who required medical treatment.
Conventional medical treatment was administered, which involved connecting victims
to life support systems. In each case, the doctors decided that each victim was brain
dead and disconnected them from the life support system, after which all bodily
functions ceased. Each of the assailants was put on trial for murder. After conviction,
the assailants appealed, which were dismissed. Courts claimed that the
discontinuation of treatment did not break the chain of causation between initial injury
and death of the victims.
Accelerating Death – every killing is an acceleration of death
Dyson – a child with meningitis, and the child’s certain imminent death was
accelerated by injuries.

‘Under Queen’s Peace’

Killing of enemy aliens during war and under battle conditions is not criminal homicide.
Adebelajo – murder of drummer Lee Rigby in London. Tried to argue that he was killing
under the sovereign’s peace, not out of war with the Queen. This appeal failed, and
the court held that an offender can generally be tried for murder wherever it was
committed (if he was or was not a British subject) and if the murder was committed
within the jurisdiction of England and Wales.

Mens Rea of Murder

‘Malice Aforethought’
Must show defendant unlawfully:
(a.) Intended to kill (express malice)
OR
(b.) Intended to cause grievous bodily harm (implied malice)

See Direct and Indirect Intention:

Direct – murder was purposeful and intended. E.g. defendant intends to kill wife, to
achieve this, he gets knife from kitchen, sharpens it, then stabs her, killing her.
Conduct achieves the desired results.
Woollin test applies for indirect intention, where killing was not planned, but was a very
likely result given the defendant’s actions.

Transferred malice
Implies Malice/Intention to Cause GBH:
Vickers – D broke into a house to perform a burglary. Came across the homeowner,
who he then attacked. The homeowner died.
Cunningham – D hit victim on the head w a chair in an unprovoked attack motivated by
sexual jealousy. Victim died because of skull fracture. Held that the malice of
forethought requisite
Meaning of GBH – DPP v Smith – “really serious harm”, even if it does not pose risk to
a victim’s life. Case was about D driving a car, and in the back he had sacks of
scaffolding clips which had been stolen. Constable noticed these sacks, and told D to
pull over. D accelerated away, constable clung to the car, D drove erratically in an
attempt to remove constable from his car. Police officer was finally shaken off, ran
over by another car and sustained fatal injuries.

The GBH Rule

Criticised –

Problems w/ Existing Law on Homicide:

 Law over-inclusive of GBH rule
o If a defendant intentionally punches a victim in the face, breaks the
victim’s nose, victim falls and dies as a result of hitting his head against
the concrete, this could be a murder charge.
 See Mitchell and Lord Goff
 Murder too narrow – under-inclusive, too generous to D who kills by reckless
conduct

Involuntary Manslaughter
When the defendant didn’t intend to kill, but did so. Insufficient fault to label the killing
as a murder. A lesser charge of homicide.
Voluntary Manslaughter – killings that are not murder due to circumstances. Will be
explored in later lectures.
There are three types:
1. Constructive manslaughter (or manslaughter by unlawful and dangerous act)
2. Goss negligence manslaughter
3. Reckless manslaughter

Constructive Manslaughter
Must prove, in order to establish liability:
 a. Defendant committed an unlawful act
b. The unlawful act was dangerous
c. The act caused death
Established in the case wherein a defendant stabbed his pregnant girlfriend and that
child was born premature and died as a result.

‘Unlawful Act’
Must be a criminal act – a tort (civil wrong). Certain acts can be a criminal offence and
a tort, in that it can go to a criminal court and then the same act can have the
defendant being sued in a civil court.
Franklin [1893] – an appeal, wherein the appellant threw a box into a pier and struck a
swimmer, who died as a result of being hit. Court held that the unlawful act itself must
be a
Scarlett – landlord of a pub (appellant) refused to serve a customer and tried to kick
him out. Man refused to leave. Eventually appellant bundled victim towards the door
using physical force and the man fell backwards, hit his head on the floor and died.
Convicted of involuntary manslaughter, appealed this conviction, the appeal was
allowed, and the conviction was quashed. Court held that jury was misdirected at trial
and that the appellant could only be guilty of assault if prosecution had proved that
appellant had intentionally and recklessly used force in those circumstances.
Dhaliwal – husband was abusive to his wife, which led to her committing suicide. No
conviction for constructive manslaughter b/c court held that reducing the wife to the
emotional/mental state did not constitute as manslaughter.
Andrews v DPP - defendant killed pedestrian while overtaking another car. Appealed a
conviction, House of Lords stated that the act must be criminal for some reason other
than that it has been negligently performed. Driving in itself is not prohibited. If the act
he was doing was unlawful and was the base act that led to the death, then it would
be a homicide charge.

Omissions…
Senior – wilful neglect of a child charge -
Lowe – CA stated that constructive manslaughter could be based on omission, as
defendant failed to call for help for a dying child.
DPP v Newbury – held that offense of manslaughter is upheld even if the accused did
an unlawful and dangerous act whether or not he knew it was unlawful and dangerous.
Defendants in this case threw a stone onto a railway, which struck the conductor and
caused his death.

Must the unlawful act be directed at the victim?

R v Dalby suggested yes, but this was later disproven in other case law. In Dalby, a
drug addict acquired prescriptions for a Class A drug and supplied his friend, also an
addict. This friend was later found dead in the morning, and the defendant was found
guilty of supplying a class A drug, but plead not guilty of manslaughter.
However…
Mitchell – defendant tried jumping a queue at busy post office, another man objected,
and a fight ensued. Defendant hit the man, man fell against an elderly woman, who
also fell, broke her femur, and later died in hospital. Held that there was no
requirement that the unlawful act must be directed at the victim, so the defendant was
charged with manslaughter.
AG Reference (No. 3)
Lamb – D and friends were playing with loaded gun, but didn’t know how it worked.
Pulled the trigger, but didn’t realise the chamber revolved. D killed their friend as a
result. The act itself was not unlawful, therefore he couldn’t be convicted of
manslaughter.
Larkin – Appellant waved a razor in an attempt to frighten his mistress’ lover. Claimed
that mistress blundered against the razor and was killed when it cut her throat.
Conviction was upheld – unlawful act had been committed (assault against mistress’
lover – a dangerous act in that a sober and reasonable person would have accepted
the risk and considered it dangerous).

‘Dangerous’
Must constitute a risk of physical injury.
Carey – D punched victim. Aggressive behaviour on the D’s part caused the victim to
run away, and victim suffered ventricular fibrillation and died. Defendant couldn’t be
convicted of unlawful manslaughter because h – “the unlawful act must be such as all
sober and reasonable people would recognise that it subjects the other person to at
least the same risk of some physical harm”.
Church -
DPP v Newbury – held that the test for dangerousness is objective. Not necessary to
prove foresight.

Peculiarity of the victim…

R v Dawson – defendants tried robbing petrol station with imitation firearms. Victim
was 60-y/o attendant who suffered a heart attack and died. Would a reasonable
person in the defendant’s shoes realise their actions would have brought about the
victim’s death.
Watson – D committing burglary of a flat. They abused the victim verbally, but not
physically. Unknown to them, victim had a heart condition and died within 90 minutes
of the burglary. Courts held that a sober and reasonable bystander would have
recognised this, and that the death resulted from the criminal act of the burglary which
would have been regarded as dangerous = manslaughter.
Mistaken Belief…
Ball – D shot and killed victim, and his defence was that he thought he’d loaded the
gun with blank cartridges which he kept in his pocket along with live cartridges. He
was convicted and appealed, arguing that the objective assessment of whether the act
was dangerous must be based on the act that the defendant himself believed he was
committing. Court dismissed this, saying “it is impossible to impute into his
[reasonable man’s] appreciation the mistaken belief of the appellant…]

Causation…
R v Carey – victim was punched by defendant during a fight, victim ran away (stated
before)
R v Johnston – defendant spat at and insulted a victim, leading to an arrest. These
actions are not dangerous.

Criticism of Constructive Manslaughter

 Too broad
 Breaches principle of fair labelling and correspondence
 Extreme form of constructive liability
 Gives too much weight to chance

Gross Negligence Manslaughter

Must prove, per Adomako:
a. Defendant owed a duty of care to the victim
b. Defendant breached that duty
c. The duty has been breached in such a way that caused death
d. Breach of duty amounted to gross negligence

Litchfield & Watts – defendant owned a ship which crashed. D breached that duty to
care for his crew by crashing it, and found guilty of gross negligence manslaughter.
Adomako – leading authority on when a duty is owed. Defendant failed to notice for six
minutes that a tube supplying oxygen was disconnected from patient’s ventilator.
Convicted of GNM, and appealed under the appeal that the jury had been misdirected.
This was dismissed.
“The ordinary principles of the law of negligence apply to ascertaining whether the
defendant owed a duty of care.”
Wacker – Ex turpi causa not part of ordinary rules of negligence. Wacker was a Dutch
driver who appealed against his conviction for the manslaughter of 58 Chinese illegal
migrants concealed in the back of his lorry who suffocated after he closed off the only
ventilation point. Argued that he owed the immigrants no duty of care, and therefore
should not be responsible for their deaths.

Where a duty has been found:

Doctor and patient – Adomako
Proximity - Singh (landlord’s tenants died of carbon monoxide poisoning. Landlord
owed a duty of care via tenancy agreement, which he breached, and caused the
deaths of the victims.)

Existence of a Duty

Breach of Duty
Once duty has been established, we then ask if this duty has been breached. Did
defendant’s conduct fall below standard expected of a reasonable person?
Expert skill – Adomako
Standard applied was the standard of a reasonably competent doctor. He argued that
he had been exhausted after a long shift, his training wasn’t adequate, but he still
breached that duty of care.
Whether or not that breach of duty is categorised as ‘gross’ will depend on many
factors – court will look at to what extent the defendant’s actions departed from that of
what’s expected of them.

Causation
Breach of duty must cause death.
Objective test – was the defendant’s conduct so bad in all circumstances it ought to
amount to as criminal?

Bateman – There must be negligence over ad above that which is sufficient to cause
death.
Andrews v DPP – overtaking car case. Insufficient to constitute a base criminal act for
a manslaughter conviction.
In criminal cases, the standard of proof must be beyond a reasonable doubt (100%)
whereas in civil law, it is based on the balance of probability (above 50% chance).

Must be a risk of death, and must be serious and obvious.

Adomako
Stone & Dobinson – elderly widower partially deaf and almost totally blind. Lived with
his partner who wasn’t properly capable of administering a caregiver role. Sister moved
in and didn’t alert social services or seek medical attention. Sister later died from
toxaemia.
R v West London Coroner ex parte Gray – man held in custody, and shortly afterwards
became ill, taken to hospital, and died.
Singh (Gurphal) [1999]
Misra [2005] Only risk of death suffices

Negligence vs Gross Negligence:

Depends on the seriousness of the breach of duty committed by defendant.
Negligence: mere failure to exercise reasonable care
AG’s Reference (No. 2 of 1999) – relevance of defendant’s state of mind.
R v Mark – court reiterated that Adomako clearly stated the law and the aforementioned
foresight was not

Criticism of GNM:
 Test is circular
 Behaviour should only be convicted of a crime if their actions are criminal
 Incompatible w/ Art 7 of the ECHR

Subjective Reckless Manslaughter

1. D foresaw risk of death or injury from their actions,
2. He took the risk nevertheless
3. Unreasonable for him to take the risk
4. The risk caused the victim’s death