Homicide

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

• Lord Edmund Davies, 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’

• 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)