UNLAWFUL HOMICIDE: MURDER AND MANSLAUGHTER

Murder: life imprisonment (mandatory). Judge may recommend to the House Secretary
the minimum period which should elapse before the D may be released on License.

 Murder and manslaughter have the common Actus Reus (death), differ with
regards to the Mens Rea. Involuntary Manslaughter requires proof of a less
culpable state of mind or fault, where as the MR for murder is intention to
kill or cause GBH(specific intent).
 A charge of Murder reduces to one of Voluntary Manslaughter if the following
defences apply: Loss of Control and Diminished Responsibility (Partial and
Specific)
 IMPORTANT: distinction between voluntary manslaughter and involuntary
manslaughter is very important.
 Sir Edward Coke’s definition: murder is when a man of sound memory and
of the age of discretion, unlawfully killeth within any country of the realm
any reasonable creature in rerum natura under the King’s peace, with
malice aforethought, either expressed by the party or implied by law - (R v
Moloney)
 The day and a year has been abolished – R v Clift – R v Harrison

ACTUS REUS MENS REA

 Unlawfully Malice aforethought:
 Killeth Outdated and misleading term -
 Human Being modern formulation is as follows:
 Intention to kill
 Intention to cause GBH – (R v
Vickers)

UNLAWFULLY:

 Excludes killing by reasonable force, e.g: in self defence (reasonsable force)

 If the defendant is able to rely on the defence of self-defence he or she has not
killed unlawfully (Beckford (1988)).
 Re A: the operation to separate the conjoined twins to save the life of the
stronger one was not regarded as ‘unlawful’.
 R v Nicklinson: consent is not a defence to a liability for criminal homicide
by affirmative action. (Euthanasia)
 St. George’s NHS Health Care Trust v S
 R v Purdy

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KILLETH: legal cause of death:

 Accelerating the time of death (A suffering from a fatal disease, B stabs A and A
dies. B will be held liable) R v Dyson – Irrespective of D’s health or state
 Killing means to ‘cause death’. Murder is a result crime and as such liability is
dependent upon proof that the D caused the Victim’s death.
 Adams: acceleration of V’s death more than a negligible amount.
 There are 3 stages to establishing causation:
1. Factual causation – but for cause
2. Legal causation – substantial & operative
3. The absence of any intervening event or events that may
break the chain of causation.
 Re A: conjoined twins.
 Requires an act or an omission. (Capable of commission by omission)
 Issue of death: Conference of royal medical colleges held that once there has
been ‘irreversible’ cessation of the brain stem, the person is regarded as
Medically dead.
 So death is where the brain stem has died
 Airdale NHS Trust v Bland
 R v Malcherek: brain stem dead and thus removing from life support will not
constitute a NOVUS ACTUS INTERVENIENS.
 R v Steel: test of death is where the brain stem has died!

Human Being/ Human Victim: (R v Davis)

 A foetus becomes a human being when the 2 conditions are satisfied:

1. The entire body of the child must have emerged from the body of
the mother. Complete exclusion requires that no part of the child
remains in the birth canal. (Poulton)
2. The child must be alive and have an existence independent of the
mother (Vo v France/Enouch)
 Burton v Islington Health Authority: an unborn child is not a distinct human
personality, whose extinguishment gives rise to penalties at common law.
 Attorney General’s Ref (No.3): where ‘original’ injuries are targeted against the
foetus and not against the mother, the D may be convicted of Manslaughter.
 Read Senior and West from the subject guide.

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MENS REA: malice aforethought is a misleading and outdated term but is
still used. The modern formulation of the MR of Murder is an: intention to
kill/express malice (Woollin, Mathhews and Alleyne) OR intention to
casue GBH/implied malice (R v Vickers,R v Cunningham, R v Moloney)

 In a straightforward case the Jury is not to be directed upon the

meaning of ‘intention’ and it should be left to their ‘good sense’ –
standard direction.
 A direction to the Jury should only be given in exceptional
circumstances where there is evidence that the accused may have
acted for a purpose other than to kill or cause GBH (Woollin direction
–the Jury is not entitled to find the necessary intention, unless they
feel sure that death or GBH was virtually certain – the jury must
consider all the evidence).

Important: if the chain of causation linking the D’s act to the death of the
Victim is broken - for example A stabbed B but B died because of the
independent act of the Doctor which was grossly negligent then A will only
be held liable for a non- fatal assault. The doctor on the other hand may be
liable for Gross Negligence Manslaughter.

REFORMING MURDER:

 General dissatisfaction regarding law on murder.

 Mandatory life sentence? Same for: cold blooded serial killer,
someone who performs euthanasia on a terminally ill partner and
someone intending GBH.
 Can this amount to a breach of the correspondence principle?
 Many commentators believe that intention to cause GBH should not
be sufficient MR for murder since it is a form of ‘constructive’
liability.
 The law commission published a consultation paper in Decemebr
2005. It sought to negotiate the obstacle of mandatory life sentence
by constructing a framework of offences reflecting different degrees

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 of culpability – first degree murder (killing intentionally or killing
where there was intention to do injury coupled with awareness),
second degree murder (killing where the offender intended to do
serious injury, killing where the offender intended to cause serious
injury or fear of risk of serious injury and was aware of a serious risk
of causing death) and manslaughter (killing through gross
negligence, killing through criminal act).
 Sentences:
First degree murder – mandatory life penalty
Second degree murder – discretionary life maximum penalty
Manslaughter – discretionary maximum life penalty

 R v Clarke & Morabir (2013): whether the D’s act caused the V’s
death is a matter of fact for the Jury rather than one of law for
the Judge.

 R v Goodwin: the COA affirmed that a person who unsuccessfully

raises the defence of self-defence in answer to a charge of
murder may still rely on the defence of loss of control if the
evidence placed before the court on the former defence
supports the latter.

INVOLUNTARY MANSALUGHTER
This category includes all varieties of homicide which are unlawful at common law but
committed without Mens Rea for murder – (basically the same AR as murder but MR is a
less culpable state of mind).

Manslaughter is considered to be a ‘dustbin category’ with ill-defined boundries.

Under the current law there are 3 situations where an unintentional killing can give rise
to criminal liability for involuntary manslaughter.

1. MS by an unlawful and dangerous act -‘CONSTRUCTIVE MANSLAUGHTER’

2. MS by Gross Negligence
3. Reckless MS – redundant category

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  The three types of Involuntary largely overlap and at the same time each one is
very specific in its application. The Prosecution will try and prove the easiest
possible charge.

CONSTRUCTIVE MANSLAUGHTER: (killing in the course of doing something illegal

and dangerous) – Unlawful Act MS

D is guilty of MS if he kills by an‘unlawful’ and ‘dangerous’ act. The Mens Rea required is
intention to do that act and any fault required to render it unlawful.

Under this head, liability does not derive, as it usually must, from the combination
of the AR and MR which match a consequence with an equivalent mental state.
Rather liability is CONSTRUCTED out of the elements of another less serious
offence.

 DPP v Newbury and Jones; Lord Salmon – objective test in determining whether
the act was dangerous. It is irrelevant that the D is unaware that the act is
unlawful and dangerous.
 R v Watson
 Rickie Joseph Mount v The Queen [2010]
4 elements that need to be proved: Lord Hope

1. Unlawful act
2. The unlawful act was ‘dangerous’
3. The unlawful act caused the death
4. MR for the base crime

ACTUS REUS MENS REA

 Unlawful act (base crime)  The Mens Rea for any criminal
 Objectively Dangerous offence – Base crime
 Caused death

The essence of the constructive crime is based on the commission of another ‘less
serious offence’.

UNLAWFUL Act: omissions not included.

 R v Franklin: act must be a crime – ‘intrinsically criminal’

 The act must be criminal; need not be an act of Violence.
 Andrews: offence whose basis is ‘negligence’ is not an unlawful act for the
purposes of constructive manslaughter – the HOLs ruled that only acts which are
inherently criminal can form the basis of constructive manslaughter. If they are
criminal only because they are performed in a careless or dangerous manner
then the Prosecution must charge Gross Negligence Manslaughter, which will

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 necessitate the P proving not merely the carelessness or dangerousness required
by the core crime but also gross negligence as to death.
 The generally accepted view seems to be that a strict liability offence or an
offence of negligence (e.g dangerous driving) cannot form the basis of
constructive manslaughter. However, obiter, in Meeking (2012) the COA
suggested that a negligent act could form the basis of a constructive MS charge.
The issue needs a clear ruling from the COA.
 The defendant must be shown to have committed both the actus reus and the
mens rea and not have a defence to the crime (Slingsby [1995])
 R v Lowe: omissions are not sufficient.
 Usually base crime = assault or battery. R v Goodfellow: criminal damage
sufficed.
 R v Watson: liability may be constructed upon burglary s. 9(1)(a)
 Lamb: for an act to be unlawful, it must constitute at least a technical assault.
 Jennings: there can be no ‘unlawful act’ unless the D has committed the AR
of an identified offence with the requisite MR for that offence. The crime
must also be identified.
 R v Larkin and R v Lamb: authorities for the proposition that the P must prove
ALL the elements of the criminal offence.
 Horder and McGowan: if a defence successfully applies to the core offence
then there is no conviction. Similar principle in R v Scarlett.
 Lord Atkin sought to distinguish between acts which become unlawful when
performed negligently and acts which are unlawful for some other reason.

Unlawful Act Authority

Assault Larkin

Criminal Damage DPP v Newbury & Jones

Arson Goodfellow

Robbery Dawson

Burglary Watson

DANGEROUS:

 R V Church: ‘ all sober and reasonable people’.

 It does not mean threatening but simply of a nature to cause harm.

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 Edmund Davis: ‘the act must be such that ALL SOBER AND REASOANBLE
PEOPLE would inevitably recognize must subject the other person to, at
least, the risk of some harm resulting therefrom, albeit not serious harm.”
R v Church
 The test is an objective one; it is not necessary to prove that the D knew that
his conduct carried the risk of harm - Lipman
 Carey: constitutes a risk of some physical injury. Shock could be included.
 The unlawful act must be a dangerous one, in the sense that it must expose the
victim to the risk of some bodily harm resulting therefrom. The fact that an act is
unlawful does not necessarily mean that it is dangerous. The requirement of
dangerousness is a separate matter requiring proof (Scarlett (1994)).
 (R v Bristow (Terrence) (2013)): It is important to note that the question is not
whether the offence on which the manslaughter charge is based is dangerous
generally, but whether it was dangerous in the particular circumstances of the
case.
 In R v M (2013) it was made clear that the sober and reasonable bystander does
not have to foresee the specific sort of harm caused.
 R v Dawson: objective test should be applied in the context of the circumstances
known to D. If the D is unaware of the V’s vulnerability then a Reasonable man is
also taken by the lack of knowledge in assessing whether the conduct is
objectively dangerous or not.
 JM and SM (2014): Dawson can be contrasted. In this case, the conviction of
constructive manslaughter was upheld. The defendants acts did create a risk of
some harm and so was dangerous. It did not matter whether the harm risked
was not harm of the kind that actually occurred.
 In R v JF and NE (2015), the COA confirmed the law as set out in Dawson, but did
suggest Parliament might consider whether the reform of the law was needed. It
might be argued, for example, that the offence should require that the D foresaw
a risk of death or serious harm to the victim. However, that is clearly not the
current law.
 Carey (2005): applied the case of Dawson
 R v Ball: The reasonable man cannot be endowed with D's mistaken belief.
 R v Watson: knowledge of the D is attributed to the Reasonable Man. Knowledge
is not limited to the knowledge when he entered the house but includes
knowledge gained during the course of burglary. The COA made it clear that D’s
encounter with V was objectively dangerous as soon as it became clear that V
was old and frail. Continuing with the burglary after this realization would
therefore satisfy the dangerous act requirement.
 The reasonable man will also be aware of the background to the unlawful act
which includes preparatory acts done by D as this sets the act in context for the
purpose of determining its objective dangerousness.

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  Mitchell: it does not matter whether the unlawful and dangerous act was
directed against V – as long as the harm was caused.
 Lord Hope in A-G Reference No.3: “…it is unnecessary to prove that he knew his
act was likely to injure the person who died as a result of it. All that need be
proved is that he intentionally did what he did, that the death was caused by it..”

CAUSE DEATH OF THE V:

Apply the ordinary rules of causation:

1. Causation of fact – But for test

2. Causation in law – substantial and operative
3. The chain of causation must not be broken by an intervention.
 R v Charles James Brown (2005)

MANSLAUGHTER BY ADMINISTRATION OF DRUGS

R v Cato D injects V with a drug V = died

and injected V with D = guilty of MS
consent
R v Dalby The act of supplying a
D = supplied scheduled drug was not
V = had it on his own an act which caused
direct harm. In order to
establish criminal liability
it must be directed at the
Victim and likely to cause
immediate injury,
however slight.

Not guilty of Unlawful Act

MS.

R v Kennedy D = prepared the syringe If V self-injects and this

V = self injected causes V’s death, D (who
has supplied the drugs) is
not guilty of MS. V’s free
and informed act breaks
the chain of causation.

R v Cato D = injects If D is injecting then he

will be liable for

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R v Kennedy (no.2)
V = self injects
Constructive
Manslaughter if this
results in V’s death.
The supply will not form
the basis of the claim but
the administration of
drugs.
The V’s free and informed
act breaks the chain of
causation.

Established principle in criminal law = free voluntary act of a person with full
capacity is not regarded as having been caused by another and thus the D is not to
be treated as causing V to act.
Thus where V self injects, it is not appropriate to regard the supplier of the drugs
as having caused the drug to be administered.
Where a person freely and deliberately injects himself, neither that act nor its
consequences are attributable to the supplier.

As far as drug abuse cases are concerned, the usually fall under the head of Constructive
Manslaughter. So if D does the injecting then D will be liable for constructive manslaughter if this
results in V’s death. Here, however, it is not the act of supply which will form the basis of the
charge, but the administration of the drug (an offence under s.23 OAPA 1861).

MENS REA: constructive liability involves the D being liable for crime A on the basis of
their liability for committing crime B. so basically the D needs to prove mens rea for the
Base Crime.

GROSS NEGLIGENCE MANSLAUGHTER

 William Wilson terms this as manslaughter by breach of duty (of care) – (R v
Adomako)
 Herring and Palser: “Criminal proceedings are not about balancing the
responsibility between the defendant and the victim, but in determining
whether the activity engaged in by the defendant is sufficiently harmful
and blameworthy in the eyes of the state to justify a criminal conviction”

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 ‘it must be shown that the negligence of the D went beyond a mere matter
of compensation between subjects and showed such a disregard for life and
safety of others as to amount to a crime against the state and conduct
deserving punishment’ (R v Bateman).
 Overlaps with constructive manslaughter.
The concepts of constructive manslaughter and gross negligence manslaughter
are not mutually exclusive (Willoughby [2004]).
In other words it is possible for a person to be guilty of manslaughter of both
kinds at the same time.
 It is appropriate to charge this form where the conduct causing death was not
‘criminally unlawful’ and in cases of omissions.
 Modern approach = high degree of negligence is required.
 It is a matter of law for the judge to decide whether the D owed a duty of care to
the V. While the Jury’s function is to decide whether the duty is breached and if
the death caused is by the breach of duty. (R v Singh(Ghurpal))
 Andrew v DPP: cause of death by any lack of due care will amount to MS.
 Over a period of time the Judges found the Bateman approach to be
unsatisfactory. Today negligence is governed by the case of Adomako.
 Important: R v Adomako; Lord Mackay
 How negligent does a person have to be to breach their duty of care? Very!! In Adomako
the standard of care was described as follows:

 ‘responsibility will depend upon the seriousness of the breach of duty committed by the
D in all the circumstances in which the D was placed when it occurred…(the jury must
consider) whether, having regard to the RISK OF DEATH involved, the conduct of the D
was so bad in all the circumstances as to amount in their judgment to a criminal act or
omission.’

 Learn the above statement by heart and must quote it while discussing the offence
of gross negligence MS.

 Ordinary principles of negligence apply. The modern law of Gross Negligence

Manslaughter derives from the leading case of - R v Adomako – Lord Mackay)
Much simplified, you owe a duty of care towards anyone who may forseeably be
harmed by your actions.
 Bowler (2015): The case concerned an omission and the duty arose from putting
the victim into a position where he was helpless and at risk of death. The fact
that the victim wanted to be put in that position was irrelevant to the defendant
having to take reasonable steps to look out for him.

1. D = owed a duty of care to V

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 2. D = breached that duty
3. The breach involves an obvious risk of death – (R v Rose)
4. Breach caused the death of V
5. D’s negligence was gross – the breach was serious enough to be a crime.

DUTY OF CARE:
 Examples: Doctor-patient (Adomako,Misra)
Transport- carrier(Litchfield)
Employment (R v DPP)
Neglect in the case of carer (Stone and Dobinson)
 Categories are limitless and involve duties arising in the course of hazardous
activity.
R v Ruffell: taking heroin
R v Wacker: smuggling illegal immigrants.
 R v Willoughby: new situation of duty in cases of MS by omission.
 R v Wacker
 Lewin v CPS
 R v Ruffell
 R v Evans – created a new duty of ‘contributing to a dangerous situation’. This
was an extension of the Miller Principle.

BREACH OF DUTY AMOUNTING TO GROSS NEGLIGENCE:

 Attorney General’s Ref (no2): D need not foresee the risk of death. Test is
objective.
 How negligent does does a person have to be? Very!
 R v Adomako: jury must be directed to convict the D
 R v Misra
 For the purposes of Gross Negligence Manslaughter, the central focus is not on
the D’s state of mind but rather on his conduct which fails, to a gross degree, to
measure up to an objective standard determined by the jury.
 The courts will not attempt to specify the degree of negligence required with any
greater precision, as they recognize it is not possible to do so. The reach of the
criminal law, therefore, in this area of homicide is left to be determined by the
jury who have to assess whether the negligence was gross.
 In making this assessment the Jury will be asked to consider what a reasonable
person of D’s age and experience would have foreseen; the issue is not whether D
foresaw the particular danger – R v S (2015)

Important: liability for Gross Negligence Manslaughter requires there

to be a risk of death. There is no liability if the risk is simply of
harm/serious harm.
Although this requirement was clear from Adomako itself, it is now
clear that the defendant can only be guilty of gross negligence

11
manslaughter if there is an obvious risk of death at the time they
acted or failed to act.

R v Misra and Srivastava: only a risk of death will be sufficient to establish the
offence; a risk of bodily injury or injury to health is not sufficient.

Gross negligence manslaughter – R v Rose [2017] – pre-exam update:

An optometrist failed to conduct a full examination of the deceased eyes during a sight test. If she had done so she
would have discovered the deceased had a life-threatening condition and would have sent her for urgent specialist
attention. The upshot was that the patient died.
The optometrist was charged with gross negligence manslaughter. The prosecution argued that she was guilty of gross
negligence manslaughter by omission since it was reasonably foreseeable that her breach of duty at the time the eye
examination was concluded would have resulted in a serious and obvious risk of death to the reasonably prudent
optometrist. The jury convicted. She appealed against conviction arguing that the serious and obvious risk of death
could only be assessed on the basis of what she knew at the time of the breach. The question that should have been
asked was whether a reasonably prudent optometrist would have recognised a serious and obvious risk of death
resulting from the defective examination, the answer to which was obviously no. The Court of Appeal, quashing the
conviction, agreed. The fact that a proper examination might have revealed a serious abnormality or, even in some
cases, serious life-threatening problems, did not mean that there was a ‘serious and obvious risk of death’ if such an
examination was not carried out. It might have been different if the patient had presented with symptoms that
themselves had either pointed to the risk of a potentially lifethreatening condition or provided a sign that alerted a
competent optometrist to that risk. However, that had not been so in the present case, which was a routine eye
examination with no relevant preexisting history.
The Court emphasised that ‘this decision does not, in any sense, condone the negligence that the jury must have found
to have beenestablished at a high level in relation to the way that [the defendant] examined [the deceased] and failed
to identify the defect which ultimately led to his death. That serious breach of duty is a matter for her regulator; in the
context of this case, however, it does not constitute the crime of gross negligence manslaughter’.

BREACH CAUSED DEATH:

Normal principles of causation apply (factual and legal)

Bawa-Garba (2016): It was not clear whether if he doctor had acted it would have saved
the victim’s life, but it was clear that ‘that death occurred significantly sooner’ because
the victim was not given the necessary treatment, and that was sufficient to show
causation.

Negligence Usually driving offences are covered under this head.

Certain activities are lawful if done properly, but unlawful if done dangerously or negligently
e.g: Driving offences.

RECKLESS MANSLAUGHTER:

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 Direct
intentio
n /aim,
purpose,
desire =
MURDE
R

Oblique intention/Foresight of a
virtual certainty = Murder

Foresight of an obvious risk and serious harm but less than

foresight of a virtual certainty = Reckless manslaughter.

 Following Hyam, a person who killed having foreseen that death or serious
injury was a highly probable result of his actions was guilty of murder.
 Moloney: the HOLs held that foresight, in the absence of an intention to kill or
cause serious harm would no longer suffice for murder. It follows that it will
suffice for Manslaughter
 The uncertainty exists because it is, in fact, very rare for a case explicitly to
rely on subjectuive reckless manslaughter (rare example: R v Lidar 2000).
Whenever there is subjective reckless manslaughter it will be possible to
charge Constructive MS or Gross negligence MS and these will be easier to
prove. It is generally accepted to exist as a form of manslaughter, although
Findlay Stark argues that it does not exist (Stark (2017))

MANSLAUGHTER BY MANSLAUGHTER BY RECKLESS

UNLAWFUL AND
DANGEROUS ACT:
Requires proof of an
unlawful act which caused
death and which carried an
objective risk of harm
GROSS NEGLIGENCE
Is committed where death
has resulted from a serious
breach of duty of care
MANSLAUGHTER
The basis of liability for
reckless MS is the foresight
of the risk of death or
serious injury

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