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Worksheet 1 Rance v Mid-Downs Health Authority (1991) 1 All E.R. 801, 817 R v Poulton (1832) 5 C & P 329 R v Brain (1834) 6 C & P 349 R v Reeves (1839) 9 C & P 25 Attorney General’s Reference (No. 3 of 1994) (1997) 3 All ER 936 R v Dyson (1908) 2 K.B. 454 R v Adams (1957) Crim. L.R. 365 R v White (1910) 2 K.B. 124; 22 Cox C.C. 325 R v Jordan (1956) 40 Cr. App. Rep. 152 R v Smith (1959) 2 Q.B. 35; (1959) 2 All E.R. 193; (1959) 2 W.L.R. 623; 43 Cr. App. Rep. 121 R v Blaue (1975) 1 W.L.R. 1411; (1975) 3 All E.R. 446; 61 Cr. App. Rep. 269 R v Cato (1981) 73 Cr. App. R. 173 R v Cheshire (1991) 3 All E.R. 670 R v Williams (1992) 2 All E.R. 183 C.A. R v Dear (1996) Crim LR 595 R v Corbett (1996) Crim. L.R. 594 CA Airedale NHS Trust v Bland (1993) 1 All E.R. 821 Re A (Conjoined Twins) (2000) 4 All E.R. 961 R v Cunningham (1957) 2 Q.B. 396 R v Caldwell (1981) 1 All E.R. 96 R v G and R (2003) UKHL 50 (overruling Caldwell) Hyam v D.P.P. (1975) A.C. 55 R v Moloney (1985) A.C. 905 R v Hancock & Shankland (1986) A.C. 455 R v Nedrick (1986) 3 All E.R. 1 R v Woolin (1998) 4 All E.R. 103 R v Matthews and R v Alleyne (2003) 2 Cr. App. R. 30

A-G Ref NO. 3 OF 1994 [ 1997 ] 3 All ER 936 The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave birth to a live baby. The baby died 121 days later due to the premature birth. The defendant was charged with wounding and GBH on the mother and convicted for which he received a sentence of 4 years. On the death of the baby he was also charged with murder and manslaughter. The trial judge held that he could not be convicted of murder or manslaughter since at the time of the attack the foetus was not in law classed as a human being and thus the mens rea aimed at the mother could not be transferred to the foetus as it would constitute a different offence. The Attorney General referred the following point of law: "1.1 Subject to the proof by the prosecution of the requisite intent in either case: whether the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted: (i) to a child in utero (ii) to a mother carrying a child in utero where the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death. "1.2 Whether the fact that the death of the child is caused solely as a consequence of injury to the mother rather than as a consequence of direct injury to the foetus can negative any liability for murder or manslaughter in the circumstances set out in question 1.1." The Court of Appeal reversed the decision in relation to murder. The defendant appealed to the House of Lords Held: The appellant's actions could not amount to murder for the reasons given by the trial judge. However, his actions could amount to constructive manslaughter. There was no requirement that the foetus be classed as a human being provided causation was proved. The attack on the mother was an unlawful act which caused the death of the baby. There is no requirement under constructive manslaughter that the unlawful act is aimed at the actual victim or that the unlawful act was directed at a human being.

R v Poulton (1832) 5 C & P 329

Murder – Unborn foetus Facts A mother strangled her newborn baby, and was charged with the murder. Three medical men testified before a jury that a child can die during the delivery, thus the fact that a child breathes when it is born before it its whole body is delivered does not mean that it is born alive: “It frequently happens that a child is born as far as the head is concerned, and breathes, but death takes place before the whole delivery is complete. My opinion in this case is, that the child had breathed; but I cannot take upon myself to say that it was wholly born alive.” Issue The issue in question was when a foetus becomes a ‘human being’ for the purposes of murder and manslaughter. Held An unborn child is incapable of being killed. A child is born only when the whole body is brought into the world, but it is not sufficient that the child breathes in the progress of the birth, as the child may die before the whole delivery takes place. For a murder or manslaughter conviction, a child must be killed after it has been fully delivered alive from the mother’s body. In this case the jury found the child not to be born alive, and therefore the mother could not be guilty of murder. The case of AG’s Ref (No 3 of 1994) [1997] 3 WLR 421 confirmed that an unborn foetus is not capable of being murdered, but a manslaughter conviction can stand where the foetus was subsequently born alive but dies afterwards from injuries inflicted whilst in the womb. Re A (conjoined twins) [2001] 2 WLR 480 Mary and Jodie were conjoined twins joined at the pelvis. Jodie was the stronger of the two and capable of living independently. However, Mary was weaker, she was described as having a primitive brain and was completely dependent on Jodie for her survival. According to medical evidence, if the twins were left as they were, Mary would eventually be too much of a strain on Jodie and they would both die. If they operated to separate them, this would inevitably lead to the death of Mary, but Jodie would have a strong chance of living an independent life. The parents refused consent for the operation to separate them. The doctors applied to the court for a declaration that it would be lawful and in the best interests of the children to operate. The High court granted the declaration on the grounds that the operation would be akin to withdrawal of support ie an omission rather than a positive act and also the death of Mary, although inevitable, was not the primary purpose of

the operation. The parents appealed to the Court of Appeal on the grounds that the learned judge erred in holding that the operation was (i) (ii)

in Mary's best interest, (ii) that it was in Jodie's best interest, and (iii) that in any event it would be legal. Held: The appeal was dismissed. The operation could be lawfully carried out by the doctors. LJ Robert Walker:

(i) The feelings of the twins' parents are entitled to great respect, especially so far as they are based on religious convictions. But as the matter has been referred to the court the court cannot escape the responsibility of deciding the matter to the best of its judgment as to the twins' best interests. (ii) The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment (as by disconnecting a heart-lung machine). Therefore the Court of Appeal must form its own view. (iii) Mary has a right to life, under the common law of England (based as it is on Judeo-Christian foundations) and under the European Convention on Human Rights. It would be unlawful to kill Mary intentionally, that is to undertake an operation with the primary purpose of killing her. (iv) But Jodie also has a right to life. (v) Every human being's right to life carries with it, as an intrinsic part of it, rights of bodily integrity and autonomy - the right to have one's own body whole and intact and (on reaching an age of understanding) to take decisions about one's own body. (vi) By a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily integrity and autonomy which is their natural right. There is a strong presumption that an operation to separate them would be in the best interests of each of them. (vii) In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life. Mary's death would not be the purpose of the operation, although it would be its inevitable consequence. The operation would give her, even in death, bodily integrity as a human being. She would die, not because she was intentionally killed, but because her own body cannot sustain her life.

(viii) Continued life, whether long or short, would hold nothing for Mary except possible pain and discomfort, if indeed she can feel anything at all. (ix) The proposed operation would therefore be in the best interests of each of the twins. The decision does not require the court to value one life above another. (x) The proposed operation would not be unlawful. It would involve the positive act of invasive surgery and Mary's death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie's life. But Mary's death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable. I would therefore dismiss this appeal. LJ Brooke: If a sacrificial separation operation on conjoined twins were to be permitted in circumstances like these, there need be no room for the concern felt by Sir James Stephen that people would be too ready to avail themselves of exceptions to the law which they might suppose to apply to their cases (at the risk of other people's lives). Such an operation is, and is always likely to be, an exceptionally rare event, and because the medical literature shows that it is an operation to be avoided at all costs in the neonatal stage, there will be in practically every case the opportunity for the doctors to place the relevant facts before a court for approval (or otherwise) before the operation is attempted. According to Sir James Stephen, there are three necessary requirements for the application of the doctrine of necessity: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; (iii) the evil inflicted must not be disproportionate to the evil avoided. Given that the principles of modern family law point irresistibly to the conclusion that the interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all three of these requirements are satisfied in this case.

R v Woolin The appellant threw his 3 month old baby son on to a hard surface as a result as the baby choking on his food. The baby suffered a fractured skull and died. The trial judge directed the jury that if they were satisfied the defendant "must have realised and appreciated when he threw that

child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder." The jury convicted of murder and also rejected the defence of provocation. The defendant appealed on the grounds that in referring to 'substantial risk' the judge had widen the definition of murder and should have referred to virtual certainty in accordance with Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty. House of Lords held Murder conviction was substituted with manslaughter conviction. There was a material misdirection which expanded the mens rea of murder and therefore the murder conviction was unsafe. The House of Lords substantially agreed with the Nedrick guidelines with a minor modification. The appropriate direction is: "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon a consideration of all the evidence."

R v Vickers is important An intention to cause grievous bodily harm is sufficient as the mens rea for murder. Facts Vickers broke into a premises in order to steal money. During the breakin, Vickers came across the victim who resided in the flat above the shop. The defendant attacked the victim, who subsequently died from her injuries. Conviction at Issue Vickers was convicted of murder on the basis that he intended to cause grievous bodily harm. He appealed this conviction, arguing that an intent to cause grievous bodily harm was not sufficient to satisfy the mens rea of murder. Issue facing the Court Whether an intent to cause grievous bodily harm is sufficient to form the mens rea for murder. Outcome The Court of Criminal Appeal rejected the defendant’s appeal and upheld his conviction for murder. The court stated that an intent to cause grievous bodily harm was sufficient as the mens rea for murder, because the infliction of the grievous bodily harm was the direct cause of death. Lord Goddard CJ:

“[For] the prisoner inflicted grievous bodily harn by a voluntary act and intended to harm the victim and the victim has died as a result of that grievous bodily harm. If a person does an act on another which amounts to the infliction of grievous bodily harm, he cannot say: ‘I did not intend to go further than so-and-so.’ … If he intends to inflict grievous bodily harm and the injured person dies, that has always been held in English law, and was so held at the time when this act was passed, sufficient to supply the malice aforethought.” The Court of Appeal approved this direction to the jury by the judge for future use: “Malice will be implied, if the victim was killed by a voluntary act of the accused . . . – done with the intention either to kill or to do some grievous bodily harm. The grievous bodily harm need not be permanent, but it must be serious, and it is serious or grievous if it is such as seriously and grievously to interfere with the health and comfort of the victim…”

Case: R vs Rahman A number of persons made a planned attack on V. Many of the attackers were armed with blunt instruments. V was stabbed to death. It was not known which of the attackers had stabbed him. D argued that he did not carry a knife and was unaware that any of the group had one. The House of Lords confirmed D’s conviction. It was held: The significance of [English] lies in the emphasis it laid (a) on the overriding importance in this context of what the particular defendant subjectively said to be a radical departure from what was intended or foreseen

Worksheet 2 – Voluntary Manslaugter Julien v R [1970] 16 WIR 395 Lett v R [1963] 6 WIR 92 R v Duffy [1949] 1 All ER 932 R v Ahluwalia [1992] 4 All ER 889 R v Baillie [1995] 2 Cr App R 31 R v Thornton [1992] 1 All ER 306 R v Acott [1997] 1 WLR 306 Vasquez v R [1994] 45 WIR 103 Luc Thiet Thuan v R [1996] 3 WLR 45 AG for Jersey v Holley [2005] 2 Cr App R 36 R v James; R v Karimi [2006] 1 All ER 759 R v Serrano [2006] Crim LR 569 R v Davies [1975] QB 691 CA R v Johnson [1989] 2 ALLER 839 CA R v Pearson [1992] Crim LR 193 CA Ramjattan v The State (No 2) [1999] 57 WIR 501 Bristol v R BB 2002 CA 33 R v Byrne [1960] 2 QB 396 R v Atkinson [1985] Crim LR 314 Walton v The Queen [1978] 66 Crim App R 25 R v Dietschmann [2003] 1 All ER 897

R vs Julien (1970) 16 WIR 395 Felix Julien was convicted of murder and appealed on the ground that there was a misdirection on a question of law, in that the trial judge omitted to direct the jury that they might find him guilty of manslaughter if they were in doubt as to whether he was provoked by the deceased. Provocation was not a defence raised by the appellant and the trial judge did not give the direction contended for by the appellant. The appellant's version of the main incident as gleaned from his statement to the police and his evidence, was that the deceased, with whom he had lived as man and wife for three or four years, refused to give him $20 which she had for him and said she would give him the following morning. He said he discovered that she had been drinking that day and had omitted to collect his clothing from the laundry. Thereupon he took off his belt and lashed her hard. She sat on a chair by a table and he bathed, changed his clothes and left the house. When he returned home in the early hours of the following morning he found her dead. The medical evidence disclosed that the deceased suffered massive injuries which, with traumatic shock, caused her death. There was evidence of a quarrel between the appellant and the deceased. Held: (i) that although provocation is not specifically raised as a defence, where there is some evidence of provocation it is the duty of the trial judge to direct the jury as fully as if the defence had been raised. R v Richards ((1967), 11 WIR 102) followed; (ii) that the failure of the trial judge to direct the jury that they might find the appellant guilty of manslaughter if they were in doubt as to whether he was provoked by the deceased, was not a misdirection in law because provocation did not sufficiently arise on the evidence so as to make it incumbent on the trial judge to give such a direction. Per Curiam: the presence of an intention to kill or to do grievous bodily harm is contrary to the expression that the accused was “for the moment not master of his mind”, and the dictum of LEWIS JA (as he then was), clearly gives effect to the new thinking on the subject. Because we accept this dictum as sound it is necessary for us to state what we now consider to be the proper definition of provocation arising as it does from R v Duffy ([1949] 1 All ER 932, n, CCA) elaborated in Lee Chun-Chuen v R ([1963] 1 All ER 73, [1963] AC 220, [1962] 3 WLR 1461, 106 Sol Jo 1008, PC), and amended by R v Bunting ((1965), 8 WIR 276). This, in our view, is the correct definition of provocation: “Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to cause him to retaliate.”

Appeal dismissed. Conviction and sentence affirmed. Lord Widgery: "The third point taken by Mr. McHale is that the deputy chairman was wrong in directing the jury that before the appellant could use force in self-defence he was required to retreat. The submission here is that the obligation to retreat before using force in self-defence is an obligation which only arises in homicide cases. As the court understands it, it is submitted that if the injury results in death then the accused cannot set up self-defence except on the basis that he had retreated before he resorted to violence. On the other hand, it is said that where the injury does not result in death (as in the present case) the obligation to retreat does not arise. The sturdy submission is made that an Englishman is not bound to run away when threatened, but can stand his ground and defend himself where he is. In support of this submission no authority is quoted, save that Mr. McHale has been at considerable length and diligence to look at the text books on the subject, and has demonstrated to us that the text books in the main do not say that preliminary retreat is a necessary prerequisite to the use of force in self-defence. Equally, it must be said that the text books do not state the contrary either; and it is, of course, well known to us all that for very many years it has been common form for judges directing juries where the issue of self-defence is raised in any case (be it a homicide case or not) to say that the duty to retreat arises. It is not, as we understand it, the law that a person threatened must take to his heels and run in the dramatic way suggested by Mr. McHale; but what is necessary is that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps to make some physical withdrawal; and that that is necessary as a feature of the justification of self-defence is true, in our opinion, whether the charge is a homicide charte or something less serious. Accordingly, we reject Mr. McHale's third submission. " Julien v R [1970] 16 WIR 395 Felix Julien was convicted of murder and appealed on the ground that there was a misdirection on a...