CRIMINAL HOMICIDE:

 Homicide means killing of a human being.

 Homicides include killing accidently, negligently, in self defence or killing as an
executioner. Hence not every homicide is criminal.
 Criminal homicide includes murder, manslaughter and infanticide.

COMMON ELEMENTS IN CRIMINAL HOMICIDE:

A KILLING:

 A killing requires actus reus as well as mens rea.

 It requires an act in cases of murder and gross negligence manslaughter, but not in
constructive manslaughter and omission in breach of duty.

AN UNLAWFUL KILLING:

 A killing is lawful if it is accidental or if a valid defence, such as self defense operates.

 Killing cannot be justified by the consent of the victim: there is no defence of euthanasia.
Case ex. (Nickleson 2014): Nickleson suffered from locked in syndrome. He sought a
declaration that it would be lawful for his wife or doctors to terminate his life, because the
illness made his life intolerable, as well as the right to terminate his life was under his
human rights and rights of autonomy. Appeal was rejected by Supreme Court and this
decision was later affirmed in the European Court of Human Rights.
 This law is however conflicting with the law that doctors cannot be held responsible for
death of V, if medical treatment was refused by V.
Case ex. (St George’s Healthcare NHS Trust v S 1999): it was unlawful for a doctor to
perform an emergency caesarian on V without her consent even though it was
necessary to save and the baby’s life.

A HUMAN VICTIM:

 The law of criminal homicide gives protection to humans only.

 To kill a foetus does not constitute the crime of criminal homicide, because legally
human life begins at birth. Although it may come under a separate offence of abortion.
 Criminal homicide cannot be charged if the acts are directed against a dead person.

MURDER:

 Unlawful killing of a human being is the actus reus of murder. Mens rea for murder will
be discussed further.

INTENTION TO KILL OR CAUSE GBH:

 Known as malice aforethought.

 Murder includes killing done in the heat of the moment as well as by compassion.
 Case ex. (Inglis 2011): conviction of D was upheld for murder, who killed her son
suffering persistent vegetative state, out of compassion.
 Mens rea for murder is in intention to kill (express malice), or to cause gbh (implied
malice).
 If one commits the actus reus, along with mens rea for murder or gbh, failure of death of
V will be considered as the failure of D’s actions.
Case ex. (Duff 1990)
 Judges must give juries standard direction for deciding the mens rea.
 Direction does not instruct the jury that it is bound to find intention where there is a
foresight of certainty of harm. It only has to find intention where it is entitled to.
 Jury may also not find necessary intention unless there is a virtual certainty of death or
gbh.
 The jury must reach it’s decision by taking into account all the evidence as per directions
by the judge.
 Jury’s natural humanity can be relied upon to reach a verdict of not guilty.
 The mens rea for murder is intention to kill or cause GBH and this was clarified in
(Vickers 1957), where D appealed that intent to cause GBH was not sufficient for mens
rea of murder. His conviction of murder was upheld. This was confirmed in
(Cunningham 1982), where D repeatedly hit V over the head with chair, resulting in V’s
death. D argued that intent to kill was necessary. (Vickers) was reaffirmed and
conviction for murder was upheld.

VOLUNTARY MANSLAUGHTER:

 There are three partial defences to murder, which, if successful reduce the murder
conviction to voluntary manslaughter conviction.
 It is called voluntary manslaughter because even though the prosecution can prove that
the killing was intended, but the degree of action committed by D would render the
sentence of murder unlawful.

PARTIAL DEFNCES TO MURDER:

 The two partial defences which shall be discussed are loss of self control (known as
provocation previously until 2010) and diminished responsibility.

PROVOCATION:

 Many principles of provocation are similar to those of loss of self control.

 The subjective element of provocation was that killing should result from loss of self
control, triggered by provocative deeds or actions. If not. D’s actions could not be
covered by the defense.
Case ex. (Acott 1996)
 Requirement of defense excluded revenge and other preplanned killings.
Case e. (Ibrams 1982):
  Defence would not be successful if there was a time lapse between the provocating act
and the killing.
Case ex. (Duffy 1949): D attacked her abusive husband with a hammer whilst he was
asleep. D was convicted of murder, since D’s reaction was not immediate to the abuses.
Case ex. (Ahluwalia 1992): (Duffy) was reaffirmed in this case and D was charged with
murder.
 The objective approach of the act required D’s conduct to be consistent with that of a
reasonable person in the same situation.
 In order to decide this, the jury is to take into account the power of the provocative acts
or words, ex. race, size, weight, colour, sexuality etc.
 The jury is not to take into account any characteristic which may have reduced D’s self
control below that of a reasonable person (ex. their intoxication, mental illness,
aggressive temperament).
 Cases of objective approach:
 (R v Willocks 2016): a question in the court was to determine whether mental
disorders of D should be considered. Courts refused to take such disorders into
account and the only circumstances to be taken into account are the
circumstances to which any ordinary person may be subject ex. race, gender,
religion, physical appearance. A person cannot rely on this defence due to his
mental illness.
 (Asmelash 2013): it was held that a person cannot rely on this defence if D’s
reaction was triggered by a character flaw such as intolerance, short temper or
being intoxicated.

LOSS OF CONTROL:

 The Justice and Coroner’s Act 2009, limits the application of defence of loss control by
having the requirement of triggers, upon which the defendant must rely.
 This defence, if successful, justifies defendant’s act partially.
 Guiding principles are stated under s. 54 of the act:
1. Where a person kills or is a party to the killing of another, D is not to be convicted
of murder if:
a) D’s acts or omissions in doing or being a party to the killing resulted from
D’s loss of self control
b) The loss of self control had a qualifying trigger
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 in a similar manner to D.
2. For the purposes of subsection (1)(a), it does not matter whether or not the loss
of self control was sudden.
 Similar to provocation, this defence requires the a subjective requirement of loss of self
control caused by a qualifying trigger.
 In the case of (Duffy 1949), Devlin J gave the classic definition of loss of control as the
accused being ‘so subject to passion as to make or her for the moment not master of his
or her mind’. This clarifies that loss of self control is not merely losing temper.
 A frenzied killing is not a sufficient evidence of loss of control (R v Goodwin 2018).
 This defence is not available to D who commits the murder for the purpose of revenge.
 Although, consolidating (Ahluwalia), loss of self control does not have to sudden but the
time lapse affects the application of the defence. The longer the time lapse between the
provocative act and the killing, the weaker the evidence of loss of self control (R v Davis
and Hatter 2013).

QUALIFYING TRIGGERS FOR THE DEFENCE:

 The qualifying triggers must be sufficiently serious to justify the loss.

 The first qualifying trigger is fear of serious violence.
 Under s.54(1) and (4) of the act, loss of self control must be triggered by fear rather than
a desire to be avenged.
 Case examples of first qualifying trigger:
 (Ahluwalia 1992): D suffered abuse and violence from her husband for years.
The last violent act turned out to be provocative one for D however there was a
time lapse between the act and the killing. D was held guilty of murder.
 (Clegg 1995): D, a soldier was patrolling when a vehicle approached and failed
to stop at the check point. D shouted but failed to stop the car. D fired 3 shots at
V’s car but missed the target. D then shot the fourth time after the vehicle had
passed the checkpoint by 50 yards, killing one of the passengers. D was
convicted of murder.
 (Martin [Anthony] 2001): D killed one of the 2 men trying to burgle his house
and seriously wounded the other. D was convicted of murder and wounding with
intent.
 In the defence of self defence fails, jury may consider the defence of loss of self control
as an alternative, given that the evidence is sufficiently compelling (R v Goodwin 2018).
 The second trigger has the underlying principles of the previous defence of provocation.
However there are two requirements:
1. Was the loss of self control triggered by things said or done which constitute
circumstances of extremely grave character?
2. Did these grave circumstances cause D to have a justifiable sense of being
seriously wronged?
 Trivial triggers such as nagging or crying babies do not constitute circumstances of
extremely grave character.
 Sexual infidelity or sexual jealousy is explicitly excluded from the range of qualifying
triggers under s.55(6).
 Case examples of sexual infidelity:
 (Clinton): D killed his wife after finding out she was unfaithful. It was held that a
breakup of relationships does not constitute circumstances of extremely grave
character.
  (Dawes and Hatter 2013): Decision given in (Clinton), was reaffirmed in this
case.
 The trigger must cause D to feel seriously wronged. Apart from that, D must be justified
in feeling that they have been seriously wronged.
 Case examples of second qualifying trigger:
 (Bowyer 2013): D, a friend of V, was burgling V’s house. V upon discovering
this, made some extremely insulting comments about D’s girlfriend. D lost self
control and killed V. Court of Appeal confirmed that defence was not available to
D since his status as a burglar blew apart his claim of losing self control.
 There are certain restrictions on the use of qualifying triggers. Under s.55(6) of the
Coroners and Justice Act 2009,if the fear of violence or the sense of being seriously
wronged by things said or done, is incited or encouraged by D, the defence will not be
applicable.
 Case examples of restrictions on qualifying triggers:
 (Edwards): D blackmailed V who in response tried to attack D with a knife. As a
result, D killed victim as a result of his own loss of control. Court held that that
since D initiated the provocative incident, he was guilty of murder.
 (Johnson 1989): A conflicting decision to (Edwards) was reached in this case.
It was held that even if D initiated a provocative incident, it did not disable him
from using the defence. This decision was confirmed in (Bowyer 2013).

EVIDENCE AND PROCEDURE:

 The relative functions of judge and juries are contained in s.54(5) and (6) of Coroners
and Justice Act 2009:
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with
respect to the defence under subsection (1), the jury must assume that the defence
is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue
with respect to the defence if evidence is adduced on which, in the opinion of the trial
judge, a jury, properly directed, could reasonably conclude that the defence may
apply.
 If sufficient evidence is provided by the defence council, capable of application of the
defence, the burden of proof is on the prosecution to prove otherwise.
 In each case, the judge must review the evidence to make sure it is strong enough to put
before the jury.

DIMINISHED RESPONSIBILTY:

 Under s.2 of the Homicide Act, the partial defence of diminished responsibility as been
described as follows:
(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 recognized mental 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 judgement
c) to exercise self control

ABNORMALITY OF MENTAL FUNCTIONING ARISING FROM A RECOGNISED MENTAL

CONDITION:

 Abnormality of mental functioning is not defined, however it is regarded as an objectively

significant deviated behavior from the behavior termed as normal.
 The test for this defence is given in s.52(1A). If D’s mental condition effect the 3 things
given in the mentioned section, the defence would be applicable.
 Recognized medical conditions can be found in authoritative classificatory lists, including
World Health Organization’s International Classification of Diseases and the
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders.
 The following disorders are likely to be accepted as recognized mental condition:
 Arrested or retarded mental development.
 Depression (Gittens 1984).
 Bipolar (Inglis 2010).
 Paranoid schizophrenia (Sutcliffe 1981).
 Brain damage.
 Psychopathy (Byrne 1960).
 Paranoid personality disorder (Martin [Anthony] 2001).
 Postnatal depression (Reynolds 1988).
 A testimony of an expert witness will be required if D’s relied defence is contested or
ambiguous.
 Case examples of contested conditions of diminished responsibility:
 (Ahluwalia; Hobson 1998): battered women’s syndrome was accepted as a
basis for the defence of diminished responsibility.
 (Smith [Sandie] 1982): premenstrual syndrome was accepted as a basis for the
defence of diminished responsibility.
 (Osborne 2010): a contrasting case where Court of Appeal rejected the appeal
against conviction on grounds of attention deficit hyperactivity disorder on the
basis of diminished responsibility.

ALCOHOL AND DRUGS:

 Intoxication is not a medical condition, hence it will not ground the defence of diminished
responsibility.
  Voluntary acute intoxication from alcohol or any other substance does not amount to
diminished responsibility.
 Defence may be available to D if he commits the crime due to combined effect of
intoxication and a recognized medical condition.
 Defence may be available to D if he is a chronic alcoholic, as chronic alcoholism is a
recognized medical condition.
 In order for the defence to be successful, the mental condition must be triggered when
committing the act of killing. D’s mind must be under the influence of the condition.
 A difference has been distinguished between binge drinking and chronic alcoholism.
 The defence only operates if D’s mental abnormality has a substantial effect on his
ability to control or understand himself.
 Case examples regarding intoxication as a basis for diminished responsibility:
 (Fenton 1975): D, suffering from number of conditions including paranoid
psychopathy shot four victims. Jury rejected the defence of diminished
responsibility. D appealed on the basis that jury was not allowed to consider his
heavy intoxication as a base for establishing diminished responsibility. Conviction
was upheld as the effect on the mind of voluntary intoxication could not give rise
to diminished responsibility.
 (Dowds 2012): courts concluded that voluntary acute intoxication does not give
rise to the defence of diminished responsibility.
 (Dietschmann 2003): D’s conviction of murder was substituted with a
manslaughter conviction. Defence of diminished responsibility was successful
due to the combined effect of intoxication and a recognized medical condition.
 (Egan 1992): appropriate directions to a jury regarding diminished responsibility
as defence of murder were considered in this case. This case was disapproved
in (Dietschmann 2003)
 (R v Kay 2017): D failed to prove that his schizophrenia was triggered at the time
he committed the murder. Diminished responsibility did not apply and D was
convicted of murder.
 (R v Wood 2009): D’s murder conviction was quashed on the basis of trial judge
giving misdirection to the jury that alcohol consumption had to be entirely
involuntary to count as chronic alcoholism. Appeal was accepted and defence of
diminished responsibility was allowed.
 (Stewart 2009): similar case to (R v Wood 2009). Defence was applicable and
murder conviction changed to manslaughter.
 (Golds 2014): courts held that in order for diminished responsibility to operate,
the mental illness must have substantial effect on D’s ability to control or
understand himself.

INVOLUNTARY MANSLAUGHTER:

 Involuntary manslaughter can be one of the three types:

1. Foresight or reckless manslaughter
2. Unlawful act or constructive manslaughter
 3. Gross negligence manslaughter (causing death through lack of care).

RECKLESS MANSLAUGHTER:

 Reckless manslaughter is rarely charged as acting with foresight of death or grievous

bodily harm usually constitutes a crime.
 Reckless manslaughter is charged when the jury is convinced that there was no
necessary intention however death or gbh was probable.
 Cases where charge of reckless manslaughter would have been suitable include:
 (Hyam 1975): D poured petrol through V’s letterbox which resulted in the death
of V’s children. D was convicted of murder even though she had no intention to
kill.
 (Goodfellow 1986): D set his house to fire, disguising it as it was petrol bombed,
in order to get re-housed. His wife, son and son’s girlfriend all died as a result of
fire. He was convicted of manslaughter.
 (Hancock and Shankland 1985): Ds were miners on strike who threw a
concrete block on a carriageway. The rock struck a taxi and the driver was killed.
Ds were convicted of manslaughter.

CONSTRUCTIVE MANSLAUGHTER:

 Constructive manslaughter is the correct charge when, as a result of an unlawful and

objectively dangerous act of D, death occurs. However, the evidence is insufficient in
regards to the facts that D had intended or foreseen death or gbh, or was grossly
negligent.
 The main essence of this form of manslaughter is that it results from acts of D which are
already illegal i.e burglary, assault, theft, criminal damage.
 Constructive manslaughter can be committed through omissions.
 Acts inherently criminal can only form the basis of constructive manslaughter. Acts which
are only criminal because of the way they are committed do not constitute to
constructive manslaughter, i.e. dangerous driving.
 If D has a defence to the core defence, i.e self defence, conviction of constructive
manslaughter will not arise.
 To be guilty of constructive manslaughter, death must be caused by an act.
 The prosecution bears the burden of proving the following points to have the defendant
charged of constructive manslaughter:
1. The elements of the core (basic) offence (i.e assault, criminal damage etc).
2. The objective likelihood that harm would harm would result from the commission
of that offence
3. A casual connection between the core offence and death.
 In order for the constructive manslaughter to arise, the core offence/act must be
dangerous and criminally unlawful.
 The mens rea for constructive manslaughter is the intention of doing the core crime i.e.
assault, robbery etc.
  The prosecution has to prove that D had the actus reus as well as the mens rea of the
core offence which eventually resulted in death.
 Case examples of constructive manslaughter:
 (Lowe 1973): D was charged with constructive manslaughter of his child on the
basis of willful neglect of the child.
 (Franklin 1883): a swimmer was killed by D, who threw a wooden crate into the
sea. Conviction was quashed on the basis that throwing a crate in the sea was
not a criminal wrongdoing, hence D was not held guilty of constructive
manslaughter.
 (Jennings 1990): it was held that the burden of identifying the core crime was on
the prosecution.
 (Larkin 1943) and (Lamb 1967): these are the authority cases for the theory that
prosecution must be able to prove all the elements of the criminal offence to
support a conviction of constructive manslaughter.
 (Scarlett 1993): D forcefully threw out V, who was drunk, from a public house. V
fell on the steps, fractured his skull and died. D was not held guilty of constructive
manslaughter because he feared that V would attack him and he justified his use
of force on the basis of self defence.
 (Andrews 1937): HOL ruled that crimes which are inherently criminal can only
form a basis of constructive manslaughter.
 (Church 1966): definition of dangerous act forming the basis of constructive
manslaughter was given by Edmund Davies Lj.
 (Mitchell 1983): D pushed a man who fell on an elderly woman resulting in her
death. D was held guilty of manslaughter.
 (Dawson 1985): D pointed a replica gun in the course of robbery at V, who died
of a heart attack as he had a history of heart conditions. Conviction of
constructed manslaughter was squashed on the basis that pointing the gun was
not objectively dangerous.
 (Watson 1989): D committed a burglary on a house of 87 year old man. V
suffered a heart attack died as a result of the encounter between him and D.
Courts confirmed the definition in (Church) and held the situation to be
objectively dangerous.
 (Rafferty 2007)
 (Kennedy 2007): If V self injects the drugs provided by D, and the drug causes
his death, D will not be held guilty.

GROSS NEGLIGENCE MANSLAUGHTER (MANSLAUGHTER BY BREACH OF DUTY):

 This is charged when a death occurs due to the gross negligence of D, when there is a
breach of legal duty.
 D may be held guilty of death through omission for a duty that he voluntarily assumed.
 The prosecution bears the burden of proving three elements in order to prove D guilty of
gross negligence manslaughter:
1. D owed a duty of care
2. D was in gross violation of this duty
 3. Death occurred as a result of breach of duty.
 It has been argued that offence of gross negligence manslaughter breaches Article 7 of
the ECHR since there is no clarity between negligence and gross negligence. Whether a
person’s conduct falls into negligence or gross negligence is not decided by law but jury.
 Cases of gross negligence manslaughter:
 (Wacker 2002): D transported illegal immigrants in an airless container, leading
to deaths of most of them. D was convicted of gross negligence manslaughter.
 (Willoghby 2004): D and V torched D’s building in order to commit insurance
fraud and V died as a result. D was guilty of manslaughter.
 (Adomako 1995): D, an anaesthetist was charged with manslaughter because
he failed to efficiently supervise V, a patient, who died as a result of oxygen
cutoff. D failed to notice the oxygen was cutoff.
 (Miller): HOL held that D would be guilty of manslaughter if he creates a
dangerous situation or contributes to and fails to act reasonably to save V, he
shall be charged with manslaughter.
 (R v Rose 2017): D, an optometrist, failed to conduct a proper examination of V’s
eye. V died of a life threatening condition, which if examined properly would have
been discovered and treated. Conviction of gross negligent manslaughter was
based on the grounds that there was serious and obvious risk of death.