Homicide - Homocides PDF

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Homicide, Murder or Manslaughter Murder & manslaughter: actus reus: ‘Conduct causing the death of a human being under the queen’s peace.’ 

The victim has to be in being, ie a baby in the mother’s womb will not be considered as victim of homicide. Must be alive an independent of the mother.

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If the prosecution can’t prove that the victim was alive then the def can only be convicted of attempted murder, ie brain dead hence cannot be a victim of homicide. (Airedale NHS Trust v Bland)

DEATH: CLRC (14th report): Brain death = ‘when all the functions of the brain have permanently and irreversibly ceased.’ P557 casebook… patient is truly dead even if other organs are functioning artificially ie heart beat. A lot of hesitation about embodying in a statute an ‘expression of a present medical opinion’ as its continuously changing in the light of new information hence a statutory definition of death (in regard to further knowledge) would be under a risk of loosing its assent of the majority of the medical opinion. There might also be different views about the content of new definition. Also such definitions would ‘have wide repercussions outside offences against the person and the criminal law.’ Hence an enactment of a definition of death has not been recommended. P558 casebook 

Causing death: ‘it must be proved that the defendant caused the death of the deceased person.‘ P554casebook.

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After 1996, the year and day rule has been abolished. Hence prosecution would be prohibited for homicide if the ‘death occurred more than a year and a day after the cat which caused it.’ P276textbook.

Murder: is ‘unlawful homicide committed with ‘malice aforethought”. Penalty= mandatory life imprisonment. In the absence of malice aforethought the unlawful homicide will be manslaughter as malice aforethought describes the mens rea needed for murder. MA does not mean ill-will or premeditation, as a person who kills in the heat of the moment will be equally guilty of murder as that who kills out of motives of ie mercy/compassion. P277 textbook.

Person will be convicted of murder if 

He intended to kill

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Cause GBH

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Killed in furtherance of a felony or when preventing/ resisting lawful arrest: (constructive malice) which was abolished by the homicide act in 1957. s.1 provides: ‘…person kills another in…furtherance of some other offence , the killing shall not amount to murder unless done with the same malice aforethought… as required for a killing to amount to murder when not done in… furtherance of another offence.’ Meaning, a killing even if done in the furtherance of another offence, the other offence must be ignored. The killing’s circumstances must be considered and whether it would amount to murder in regard to express/implied malice = guilty of capital murder p 568casebook. AND ‘…killing done in the course … of resisting an offence of justice… shall be treated ass killing in …furtherance of an offence.’ P277

In Cunningham, hold decided that intention to cause GHB was ‘implied malice’ thus mens reus of murder intention to kill/cause GBH. A person wont be generally liable of a crime if the prohibited effects results was not foreseen or unintended Intention: Mens rea = intention to cause prohibited results. 

Direct intention = when the defendant desires and intends the consequence of his action, its his purpose in acting so.

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Indirect intention/oblique intention = consequence is a secondary purpose in order to achieve the primary purpose. Glanville Williams stated: ‘the consequence is not in the straight line of your purpose, bur a side effect that you accept as an inevitable or ‘certain’ accomplishment of your direct intent.’ P52 textbook

The law commission in the criminal law Bill proposed the following definition of intention: ‘….. a person acts- … 

‘intentionally’ with respect to a result when- …

i) It is his purpose to cause it

ii) Although it is not his purpose to cause it, he knows that it will occur in the ordinary course of events if he were to succeed in his purpose of causing some other results… p54 text —- this definition is largely consistent with Woolin p66 text How have the courts defined intention? In moloney they concluded that the ‘mens rea for murder was intention to kill or …cause GBH.’ P55 text Proving a person’s state of mind is not easy unless a confession is given by the accused. In the absence of such confession the jury will have to use their common sense ‘to draw inferences from the circumstances and the natural and probable consequences of the accused’s conduct in those circumstances.’ P55 this has also be provided for in s.8 of the criminal justice act 1967 Intention to kill: 2 types of malice aforethought: 

express malice: ‘with intent to kill’

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implied malice: ‘with intend to do serious bodily harm.’ P562 casebook.

Hyam v DPP [1974] p562 case book. Facts: appellant set fire to a dwelling house by deliberately pouring petrol through the letter box and igniting it. 4 people were in the house = mrs Booth and her 3 children. The 2 girls died. The appellant motive was jealousy of mrs booth that she was going to marry mr Jones. She claims that she only intended to frighten mrs booth by the fire but not to cause death or GBH. Jury was directed that the prosecution must prove beyond reasonable doubt that she intended to kill or cause gbh to booth. If they were satisfied that when she set fire she knew it was highly probable that this would cause death/serious bodily harm, then the necessary intend would have been established, therefore it doesn’t matter if her motive was to frighten mrs booth. Held: CA dismissed the appeal and in giving leave to appeal to the HOL , certified that …this point is of general public importance : ‘is malice aforethought in the crime of murder established by proof beyond reasonable doubt that when doing the act which led to the death of another the accused knew that it was highly probable that the act would result in death or serious bodily harm?‘ p563 casebook.

Lord Hailsham rejected the argument that ‘a consequence foreseen as highly probable is intended.’ P563.he stated that: ‘if a man in full knowledge of the danger involved, and without lawful excuse, deliberately does that which exposes a victim to a risk of the probable grievous bodily harm… or death, and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the same extent as if he had actually intended the consequence to follow, and irrespective of whether he wished it.‘ P564 = appeal dismissed. Lord hailsham in Hyam [1975] stated in his judgment that ‘intention was to be distinguished from desire and foresight of probable consequence.’ P57 Moloney (1985) Facts: appellant (M) and stepfather (S) drank heavily at a wedding. They were awake all night and heard laughing and talking in a friendly way until 4.00am when a gunshot was heard. M phoned the police saying that he had killed his father. He said they disagreed as to who was quicker at loading and firing a shotgun. M was first to load. S said that if ‘u have the guts pull the trigger.’ M pulled and S was dead (he didn’t aim though) Held: m was convicted of murder (due to Stephen BJ’s direction of the jury in relation to intention) appeal dismissed by CA, appealed to HOL. Lord Bridge held: Stephen’s direction was unsatisfactory and misleading, he stated: ‘on review of the whole evidence they (the jury) either think that the intend did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.’ Murder = intention, it should have the same meaning throughout common law, should be kept simple. Jury must consider 2 Qs: 

‘Was death … in a murder case a natural consequence of the defendant’s voluntary act?

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Did the def foresee the consequence as being a natural consequence of his act? The jury should have been told if they answered YES to both Qs, it is a proper for them to draw that he intended that consequence.’

(Jury can infer that he intended that consequence if D foresaw death as a natural consequence) Appeal dismissed.

Hancock & Shankland (1986) Facts: h + s were miners on strike. They objected to a miner (x) going to work. X was going to work in a taxi driven by the deceased W. they pushed a concrete weighing 65 lbs form a bridge over the road along which X was being driven by W. block struck taxi’s windscreen and W died. Held: they were prepared to plead guilty to manslaughter but crown decided to pursue a charge of murder. Defence was= they didn’t intend to kill to cause serious bodily harm to anyone, but merely to block the road. Jury directed in accordance to the moloney guidelines and were convicted of murder. Direction by the judge relating to foresight of consequence was given = ‘natural consequence’ . appeal was based on the ambiguity of the phrase , p61 text. CA quashed the conviction, and the crown appealed to the HOL = appeal dismissed = manslaughter. Lord Scarman : ‘… it is necessary to direct a jury on the issue of intend by reference to foresight of consequences the probability of death or serious injury resulting from the act done may be critically important. Its importance will depend on the degree of probability. If the likelihood that death pr serious injury will result is high, the probability of that result may… be seen as overwhelming evidence of the existence of the intent to kill or injure…’ p61textbook he continued … ‘I accept the view of the CA that the Moloney guidelines are defective (and they also) require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that, if that consequence was foreseen, the greater the probability is that , that consequence was also intended’ p61 textbook and p 125 casebook. Nedrick {1986] Facts: N having threatened to ‘burn out’ a woman against whom he bore a grudge, poured paraffin through her letterbox and set it alight. Her child died in the fire. Held: direction given to the jury based on passage in Archbold (before Moloney) which was disapproved in the case and was to the effect that the def was guilty of murder if he knew that it was highly probable that his act would result in serious bodily injury to someone in the house. CA quashed conviction and substituted verdict of manslaughter. Appeal dismissed. Lord Lane: ‘if the jury are satisfied that … the def recognised that death or serious harm would be virtually certain to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious harm, even though he may not have had any desire to achieve that result.’ P30/1 booklet.

Woolin (1998) Facts: the appellant threw his 3 year old son on a hard surface after loosing his temper, after which his so sustained a fractural skull and died. He was charged with murder. Held: the legal issue to be decided was whether the appellant nevertheless had the intention to cause serious harm. The judge directed the jury that if there were satisfied that the appellant ‘must have realised and appreciated when he threw that child that there was a sustainable risk that he would cause serious injury to it…’ then they should convict his of murder. The jury found that he had the necessary intention and hence convicted hi of murder. Obiter dicta in judgement: lord lane: The jury must ask themselves 2 Qs: ‘How probable was the consequence which resulted from the def’s voluntary act? AND did he foresee that consequence … if he didn’t appreciate the death or serious harm was likely to result from his act, he cannot have intended to bring it about.’ P128casebook In Woolin Lord Steyn in his judgment affirmed that the case requires Nedrick direction relation to virtual certainty and also Nedrick stated ‘what state of mind (in the absence of a purpose to kill or cause serious harm) is sufficient of murder.’ P64text. Also in reformulating Nedrick lord s substituted the words ‘infer’ for the word ‘find’ p64ttext. Text book also comments on few problems with the virtual certainty issue__ is it important for revision to include???? P64/5 Basic, specific and ulterior intent, p69/70 text book 

Basic intent: offences for which the mental element requires is: intention, knowledge or recklessness. ‘Basic mens rea’: offences committed recklessly = no requirement that intention be proved.

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Basic intent crimes: ‘those crimes whose definition expressed a mens rea which does not go beyond the actus reus.’

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Ulterior intent crimes: ‘mens rea requires a proof of an intention to bring about a consequence beyond the actual actus reus of an offence.’ P70 textbook.

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Specific intent: covers crimes of ulterior intent and other offences where the D pleads lack of mens rea due to intoxication when he committed the catus reus.

Manslaughter: ‘Covers all unlawful homicide which is not murder.’ P278textbook 2 categories: Voluntary and Involuntary Manslaughter; 

Voluntary M: ‘…accused killed with malice aforethought… thus could be convicted of murder, but there are mitigating circumstances present reducing his culpability.’ i.e. diminished responsibility or provocation = conviction of manslaughter. Has not been studied yet!!!

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Involuntary M: when the accused commits unlawful killing but without malice aforethought but nevertheless had a culpable state of mind. Covers middle ground between accidental death and murder. If the killing was unlawful and the d didn’t have the mes reus then he will be convicted of manslaughter.

AG ref (no. 3 of 1994) [1997] Facts: the def stabbed his pregnant girlfriend in the abdomen. No injury to the foetus was detected; she was born prematurely n died later due to complications arising from her premature birth. He was charged with murder. Trial judge directed an acquittal on the grounds that no conviction for either murder or manslaughter was possible in law. Before CA 3 arguments were raised : 

First: an ‘unexpected difference of mode by which the relevant consequences occur should be regarded as serving the chain of causation if it is sufficiently far removed from the intended mode.’

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Secondly: doc of transferred malice should only be limited to cases where the consequence occurred due to negligence in relation to the actual victim. On further appeal to the HOL it was held that def could be convicted of manslaughter but not murder. An intention to harm the mother couldn’t be equivalent to intention to harm the foetus since they r 2 different living organisms, hence mens rea for murder was not present. P93/4

PS (additional notes): on appeal to the HOL, Lord Mustill perceived the following points as established rules: 

Doctrine of transferred malice

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An embryo/foetus in utero cannot be victim of a violent crime except under a statute.

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Existence of a time interval between the going of the def’s act with the wrongful intent and its impact on the victim, leading to death, doesn’t prevent all the: intent, act, death, from amounting to murder as long as the casual connection between act and death isn’t broken.

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Violence towards a foetus resulting in harm after its born alivecan amount to criminal responsibility even if the harm wasn’t criminal (apaer from statute) if suffered in utero. P556 casebook

White (1910) the defendants intended to kill his mother by poisoning her. However, she died of a heart failure instead. The defendant has not caused her death as there was no actus reus p33text. AG ref (no.4 of 1980) p62 booklet. Facts: d slapped v on the face causing her to fall down a flight of stairs and bangs her head. D dragged her upstairs by a rope tied around her neck, placed her in the bath and drained off her blood b4 cutting her body up and disposing of the pieces. It was impossible to determine the cause of death. CA held that it is not necessarily to prove which act caused death but jury could only convict of manslaughter if they were satisfied both with 1 the fall was a result of an intentional act by the accused which was unlawful and dangerous and 2 the cat of cutting her throat was an act of gross criminal negligence. Same apply to charge of murder if the mens rea was present. So if proven that mens rea was present when the first cat was preformed, he should be guilty of homicide as either this act caused the death or n thus there is no problem or if the second act caused death a conviction can be supported on the basis of the transaction principle on causation as the first act was a contributory cause of death. P49/50 Constructive manslaughter: also referred to as an ‘unlawful act’ manslaughter p297 ‘requires a commission of an unlawful act’. Omission will not be enough, but will be for gross negligence where there is a duty to act. P299 textbook. CM = ‘if a person caused death during the course of his carrying out a felony which involved violence…’ = murder. P567casebook The act will not be unlawful if the accused can lawfully justify what he did i.e. parent while using reasonable force to chastise a child who then unexpectedly dies. They won’t be guilty of manslaughter if the force used was lawful. P299textbook.

However if ‘D commits an unlawful act, the fact that he lacked mens rea and was intoxicated, will not avail him’ p299. Lowe (1973): facts are not really available!!! CA quashed d’s conviction of manslaughter founded on offence of wilful neglect of the child as in to cause him/her unnecessary injury or suffering contrary to s 1(1) of children and young persons act 1933. The jury were directed that there was no difference between omissions likely to cause harm or an act likely to cause harm. However the CA disapproved of senior[1899] distinguishing between acts n omissions: ‘If I strike a child in a manner likely to cause harm it is right that if the child dies I may be charged with manslaughter. If however I omit to do something with the result that it suffers injury to its health which results in death …a charge of manslaughter should not be inevitable consequence even if omission is deliberate.’ P299 if omission is negligence then no liability for manslaughter should arise. However there is a difference between wilful neglect i.e. not to give food, n neglect resulting from lack of thought. It has been stated that Lowe’s decision requires reconsideration. Church (1965): leading case DONE!! The act must be dangerous, the unlawful act should be such that all reasonable people would have recognised that it must cause some harm to the victim, though not serious harm. Test is objective because the prosecution doesn’t have to show that the def knew the act was unlawful or that it was dangerous. Lamb (1967) facts and decision set out in booklet p64 Facts: the defendant fired loaded gun at his friend as a joke, neither realising that a bullet would be fire from the gun, it did and his friend died. Held: he was convicted of manslaughter as ‘pointing the revolver and pulling the trigger was an unlawful act even if there was no intent to injure or alarm …’ n that they don’t have to consider whether pointing the gun was an assault. Ca: quashed the conviction, not an unlawful act, if there was no assault. Mens rea (an essential part of manslaughter) couldn’t be established in this case ‘except by proving the element of intent without which there can be no assault.’ P297 there was also no actus reus of assault as the friend did not apprehend any injury, while the actus reaus of assault is : ‘causing the victim to apprehend immediate application of unlawful force to his body.’ P297 DPP v Newbury (1976) facts/decision in booklet / objective test adopted.

Held HOL: could the d be convicted of manslaughter even if he didn’t foresee...