Homicide Essentialities

Objective v Subjective standard of MR:

Objective:

• Standards are set regardless of D’s belief, set by standard of reasonable person

Subjective:

• Considers what D was thinking at the time of the AR

Direct intention:

A result is intended if it is the aim or purpose of an act or omission

Oblique intention:

D did not want or aim to produce the outcome but they did foresee the result as very likely to occur due to their actions.

Duff’s test of failure:

A result is intended if the defendant would regard the outcome of his conduct a failure if the result did not occur

Hyam 1974:

• Set fire to the house of love rival

• Killed her 2 children

• Claimed she didn’t know people were in the house

• Convicted of murder: foresight of high probability of murder

Moloney 1985:

• D & V had been drinking, betting on who could shoot better

• Loaded 2 guns, D shot not aiming and V died

• ‘I did not aim the gun, I just pulled the trigger and he was dead’

• ‘Did D foresee the consequence as a natural consequence of his act’

• Jury to decide mental element/intent

R v Nedrick 1986:

• Appellant poured paraffin through letterbox of house and set it alight

• House caught fire, child died

• Claimed he didn’t want anyone to die

• Charged w murder

Nedrick judgement:

Lord Lane: jury are ‘not entitled to infer necessary intention unless they feel sure that foresight of death or serious bodily harm was a virtual certainty… as a result of D’s actions and that D appreciated that such was the case’

R v Matthews and Alleyne 2003

• Group of boys threw boy off bridge into river

• Victim stated he couldn’t swim

• Threw him anyway & convicted murder

• ‘drowning was a virtual certainty and defendants appreciated that, and in the absence of any desire or attempt to save him… they must’ve had the intention to kill’

But:

• ‘the law has not yet reached a definition of intent to murder in terms of appreciation of a virtual certainty’

Even so:

• Rix LJ: ‘it is impossible to see how the jury could not have found that the appellants intended jonathon to die’

Recklessness:

D is reckless when they have foreseen ‘the particular type of harm that might be done and yet has gone to take the risk of it’

Subjective recklessness, cunningham 1957:

• Leading case

• D removed a gas meter to get cash from the inside

• Caused a gas leak, which leaked into a home and caused her to get gas poisoned

• Charged with unlawfully and maliciously endangering life

• Appealed as ‘malice’ entails proof that D intended to do the harm and foresaw the harm might be done

• D’s appeal allowed, subjective test on D’s intent

Objective recklessness, caldwell/lawrence 1981:

• Criminal damage to hotel

• Endangered life but was drunk

• D is also reckless if they give no thought to an obvious and serious risk, Lord Diplock

Elliot v C 1983:

• D= 14y/o with learning difficulties

• Set fire to flammable liquid and burned down shed

• Didn’t foresee risk due to incapabilities

• Diplock: reckless for taking objective and serious risk of damage

• Convicted of arson

• CRITICISED HEAVILY, inconsistent to R v G?

Negligence:

A person is negligent when he ‘fails to exercise such care, skill of foresight as a reasonable person in his situation would exercise’

Adomako 1995:

• D operated on patient and during operation, patient got very ill

• A tube had been disconnected and D didn’t know why

• Failure to know lead to liability

• Convicted of gross negligence manslaughter

Thabo Meli 1954:

• D attacked victim and threw him down a cliff

• V didn’t die from that, he died from being left at the bottom of the cliff

• They appealed claiming their MR and AR didn’t coincide, as when they formed the intention to kill, there was no AR as he was still alive

• Court rejected the appeal, ‘it is impossible to divide up what was really one transaction’ Lord Reid

Fagan 1969:

• Parked on police foot accidentally, no MR

• Police asked to move & he didn’t, developed MR

• Liable, as it was a continuous act therefore he developed the MR and by ceasing to move the car it was a continuing act of battery

Constructive liability:

D can be held liable for a more serious crime than they intended, because their lesser crime resulted in a greater harm, even if they didn’t intend or foresee that harm.

Transferred malice:

Doctrine applied when a defendants intent is transferred from the intended target to the actual victim

Saunders v Archer 1573:

• Husband gives wife a poisoned apple with intent for her to die

• Wife gives to child and child dies

• Husband’s malice transferred and was liable for child’s death

Pemblition 1874:

• D throws stone at V but misses and smashes a window

• MR for offence against person cannot be transferred to a property offence

• House of Lords: TM only possible when the action D does towards V was the action intended to do toward someone else

Woollin 1999:

• Threw 3 month old son with force

• Hit head on something hard and died

• Appellant admitted he realised there was a risk of serious injury

• Judge directed jury to infer intent if there was a ‘substantial risk’ he’d cause serious harm

• Apealled stating he should’ve used ‘virtual certainty’ following Nedrick

• Appeal allowed

Elements of AR:

• Prohibited conduct (acts/omissions)

• Prohibited consequences (result)

Reform of AR and MR:

• AR to be replaced with ‘external elements’

• MR to be replaced with ‘fault elements’

• Lord Diplock: better “avoid bad latin” and “think … about the conduct of the accused and his state of mind at the time”

Common law doesn’t traditionally criminalise omissions because:

• Imposing liability for failure to act hard to enforce

• Proving causation might be impossible

• Conflict with principle of autonomy

Criminalisation of omissions occur when:

• Offence is capable of being done by omission

• D is under a legal duty to act

• D has breached that duty &

• D’s breach of duty caused the harm

Gibbins and Proctor 1918:

• Familial relationships

• Father and step-mum failed to feed V who died

• Both convicted of murder

• F had duty as parent and S assumed de facto (in reality) parental responsibility

Stone and Dobinson 1977:

• V’s sis & sis partner convicted of manslaughter

• Failed to summon help for V, died under their care

• Anorexic and refused to eat

• CoA held legal duty due to sibling ties and they V lived in their house voluntarily assuming duty to act by caring for her

Miller 1983:

• Danger where D is responsible for creating danger

• D fell asleep smoking cig

• Realised fire had started but didn’t try to put it out

• HoL when D became aware of the danger caused, he was under a duty to prevent/reduce risk

Evans 2009:

• D gave her sister heroin

• Sister self-administered it

• CoA held a duty arose when D realised sisder OD’d but didn’t summon medical help

DPP v Santana-bermudez 2004:

• Police officer searched SB and asked if he had any sharp object, said no

• When officer searched pockets, she got injured by a needle

• Charged w assault, reasonably foreseeable risk of injury

Fagan v commisioner of met police:

• Accidentally drive car onto police officers foot

• Left car on foot before moving

• Charged w assault

• Continuing act, failure to remove car made it deliberate

Chain of causation:

• D must in fact have caused the result

• Factual chain must exist in law

• Must not be broken by an intervention (novus actus interveniens’

Factual causation:

• ‘But for’ test applied to determine whether the consequence would’ve occurred ‘but for’ D’s conduct

• If the result would not have happened but for D’s actions, factual causation is established

Legal causation:

Whether D’s conduct was a substantial, operative & significant cause of the result

Kennedy 2008:

• D prepared a syringe of heroin and gave it to V

• V self-injected the drug and subsequently died

• HoL allowed D’s appeal as administration of drug does not establish causation to death where V is a fully informed and responsible adult

‘thin skull rule’:

• D has to ‘take his victim as he finds him’

Murder definition:

‘The unlawful killing of another under the Queen’s peace with malice afterthought’ Lord Coke

Fault elements to murder:

• MR: 1) intent to cause death or grievous bodily harm 2) foresight of virtual certainty (following woollin)

• This form of MR came about to abolish the narrow definition of murder, that it had to have been thought out and premeditated

Felony murder:

• Old doctrine (Dorset Hunters case)

• Imposed murder liability for deaths caused during commission of a felony regardless of MR, abolished in English law now

• Judges wanted to narrow scope of felony law & ‘murder by unlawful act’ narrowed to only killing in course of serious crimes

Killing with intent to cause harm cases:

• R v Vickers:

  • Robbed V’s house and hit V in head who dies. Admitted intending serious harm. CA stated intent is a fault element

• R v Cunningham:

  • D broke V’s arm and he died, HoL rejected argument that broken arm isn’t life threatening & stated murder if there was intent of serious harm

• Legal critique of the law in Cunningham:

• ‘I recognise… anyone prepared to act so wickedly has little complaint if, where death results, he is convicted and punished as severely as one who intended to kill’ Lord Edmund Davies

• Are the current laws surrounding murder too broad or too harsh?

• A call for parliament to possibly reform the law

Murder facts:

• Life

• Minimum term set by judge

• Average prison time 15.5 yrs

• Released on license when judge regarded as safe

Law commission 2006, proposal for murder:

• 1st degree: intent to kill

• 2nd degree: intent for GBH or recklessness + discretionary sentencing

• US jurisdictions clearly distinguish between them allowing for greater flexibility and more accurate moral labelling. UK model: morally blunt and structurally rigid

Voluntary manslaughter:

• Admit you had a fault element for murder but you claim a defence:

  • Loss of control

  • DR

  • Suicide pact

Involuntary manslaughter:

• No MR:

  • Gross negligence MS

  • Reckless MS

  • Unlawful and dangerous act MS

Gross negligence:

• R v Adomako, test:

  • D must owe a duty of care

  • Breach of duty of care

  • Breach gave ruse to an obvious and serious risk of death

  • Breach caused death, and

  • Breach of duty must be grossly negligent

  • Lord Atkin: ‘very high degree of negligence is required’

Restrictions of Adomako test, R v Rose 2017:

• D was optomotrist and examined a 7y/o

• Negligently omitted to perform an intra-ocular exam that she was obliged to perform

• V died from something that would’ve been detected if exam had been performed

• D’s conviction quashed, unlike Adomako, risk was not obvious therefore not grossly negligent

• CA emphasised risk should be obvious on the face of things, not obvious if test had been completed

Reckless manslaughter, Lidar 1999:

• D drove off while V was having convo & V’s head was still partly in the car

• V’s head was crushed

• D was aware of necessary degree of risk of serious injury and chose to disregard it

Unlawful and dangerous act manslaughter:

• D must commit an unlawful act, and

• The unlawful act must be dangerous, exposing the victim to the risk of some bodily harm resulting therefrom

• Reasonable people must recognise exposure to other person (r v church)

Dawson 1985:

• D went into petrol station and confronted man behind counter

• He had a heart attack and died

• Dawson charged but charges dropped

• Risk of physical harm needed, emotional shock insufficient

  • Problem? But for causation.

  • Possible reform here

• Watson: if D knows of V’s vulnerability, emotional shock may be relevant (robbery/confrontation of elderly man)

Mitchell 1982:

• D pushed X who fell into V

• V hit his head and died

• D convicted of U&DAMS (transferred malice)

AR of murder:

Unlawful killing of a human being under the queen’s peace

MR- oblique intent:

Woollin test:

• Was death/GBH virtual certainty?

• Did D foresee this?

• If yes, jury may infer intention

  • Nedrick, Woollin, Matthews & Alleyne

MR- omissions liability:

• Gibbins and proctor; murder, parental duty

• Stone & Dobinsion; manslaughter, voluntarily assumed duty

• Miller, Evans; creating a dangerous situation, arson and manslaughter

Defences, DR:

• Abnormality of mental funtioning:

  • “so different that a reasonable person would see it as abnormal” Byrne

• Arise from a recognised mental condition:

  • Acute intoxication alone not enough; Dowds

  • Intoxication + mental illness fine if illness caused the killing; Dietschmann, wood

Provocation:

• MOJ, murder, manslaughter & infanticide: proposals for reform of the law

• Old law, “sudden and temporary loss of control” (Duffy)

• Gender bias, unfairness: favoured men in sudden anger & didn’t account for slow burn reactions in abused women (Ahluwalia)

• Too broad, triggered by trivial things (Doughty- crying baby)

• Sexual infidelity could count & no need for genuine fear

• Now stricter, more appropriate loss of self control

Doughty v Woollin:

• Similar facts, killed babies Doughty smothered & pleaded provocation, Woollin threw against a wall (intent to cause harm was Q)

• Shows shift from subjective emotional reactions to a measured test of foresight and culpability

• Evolution in criminal law from a morally ambiguous and overly generous approach to partial defences, to a stricter more principled model that values foreseeability, culpability and public protection

Murder law criticisms:

• No distinction between intention to kill vs GBH (Vickers), same liability could be unfair?

• Law commission: mandatory life sentence could be disporportionate and unfair

• Judicial inflexibility, cannot take culpability and motive into account; moral blameworthiness

• No clarification of intention in statute- could define oblique/direct in statute

Problems with woollin test:

• Oblique intent where jury may find intention if consequence was a virtual certainty and D appreciated that it was

• Unclear: ‘may’ not ‘must’ undermines principle of legal certainty, grants jury excessive discretion allowing different outcomes on the same facts

• Circular: Simester & Sullivan- the law equates foresight with intent without making distinctions, just because D foresaw it could happen, does not mean it was their aim

  • Could state foresight as evidence of intent, but it is not the same as having an actual desire/purpose (may become clear in the proposal of 1st and 2nd degree)

R v G 2003

• Two boys 11 and 12 set fire to newspapers and threw them under a wheelie bin which set alight

• This caused buildings to catch fire causing 1mil in damages

• Claimed they thought newspapers would burn out and never thought building would burn

• Convicted of arson as judge said foreseeability is assessed by reasonable man

• Appealed to house of lords, conviction overruled

Lord Bingham’s reason for decision in RvG:

• ‘it is not clearly blameworthy to do something involving a risk of injury to another if… one genuinely does not perceive the risk’

• ‘it is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension’

• ‘Criticism of R v Caldwell should not be ignored’

• Unanimous decision by House of Lords: recklessness involves foresight of the possibility of an unjustified risk

R v Caldwell 1982:

• D did work with hotel owner and had an argument with him

• Got drunk and set fire to the hotel in revenge, fire got put out and no one was injured

• Convicted of arson, pleaded not guilty to charge of damaging property with the intent to endanger life, as he was so drunk the thought never crossed his mind

• House of lords stated recklessness could be assessed objectively:

  • Act creating obvious risk of harm

  • Recognised this risk or failed to give thought to the possibility of risk

Defences to criminal damage act:

• Person destroys/damages property who honestly believes they have owners consent

• Destroys/damages property in order to protect property belonging to himself or another

Clinton 2012:

• D’s wife had an affair

• Wife taunted D about not having courage to kill himself

• D beat and strangled wife to death

• Lord Judge CJ: ‘where sexual infidelity is integral to” the context “the prohibition in section 55(6(c) does not operate to exclude it’

Order to form defence of loss of self c:

• Evidence of loss of self control

• Evidence of qualifying trigger

• Would a reasonable person act the same way

• Are disqualifying conditions available:

  • Revenge

  • Self-induced

  • Sexual infidelity

Diminished responsibility:

Prosecution usually accept plea of guilty to manslaughter on grounds of DR if medical evidence is compelling, avoiding trial

R v Brennan 2014:

• No rational basis on which jury could decline DR if evidence is given

R v Dowds 2012:

• D intoxicated and killed

• When he drinks, he can’t stop- pleaded DR

• CA dismissed plead

• D stated intoxication is a recognised mental condition

• CA stated in eyes of law, it isn’t relevant unless you have alcohol dependancy syndrome (Tandy)

Challen:

• Husband abuses wife

• Wife killed him w hammer

• Pleaded DR, didn’t work and was convicted

• Case re-opened and evidence showed extent of coercive control (battered woman syndrome)

R v Lea Rose 2024:

• D stabbed V to death

• Evidence that D&V had engaged in sexual contact and D was highly intoxicated

• D remembered nothing but said she would’ve never consented

• Pleaded DR & self defence

• D convicted

R v Deitschmann

Where D pleads DR resulting from the combination of mental abnormality and intoxication, jury should be satisfied that, despite the drink, D’s mental abnormality substantially impaired is mental responsibility for the fatal act