Homicide Murder and Manslaughter L7 PDF

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Criminal Law and Justice

Lecture 7

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Homicide: Murder and Manslaughter Overview Murder  Actus reus and mens rea  Intention (generally)  Criticisms and reform proposals Voluntary manslaughter  The partial defences to murder  Provocation/loss of self control  Diminished responsibility Definition •

Multiple statutes have reformed the law of murder: but its definition is still at common law.

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Key source is Sir Edward Coke’s Institutes vol 3, 1644:

“Murder is when a man of sound memory and of the age of discretion unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law[, so as the party wounded, or hurt, &c. die of that wound or hurt, &c. within a year and a day after the same].* * Bracketed text removed by the Law Reform (Year and a Day Rule) Act 1996. Modernising the definition Murder is when a man of sound memory and of the age of discretion unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law… Murder is when a capable person unlawfully kills a living victim, with malice aforethought. Unlawful killing with malice aforethought Actus Reu s: Who can kill? 

“A man of sound memory and of the age of discretion” – capacity to kill o Any natural person (not a company)

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“of sound memory” o not insane: M’Naghten Rules 1843 – ‘not guilty by reason of insanity’

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“the age of discretion” o The age of criminal responsibility: 10, in England and Wales

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Unlawful ‘killin g’ •

Factual causation: “but for” … But the caused event, for we mortals, always comes about.

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Killing is “the acceleration of the inevitable”:

R v Dyson 1908 o o

A child’s certain and imminent death due meningitis was accelerated by the child’s father’s infliction of serious injuries Accelerating death is enough for the law to consider someone as causing death

R v Evans and Gardiner 1976 – Victoria Australia case •

Killing and medical cases

Airdale NHS Trust v Bland 1993 o

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Bland, who had been suffocated during the Hillsborough Stadium Tragedy in 1989, had been in a persistent vegetative state in hospital for over three years. When the hospital authorities applied for judicial authority to discontinue in the form of artificial feeding and hydration. The House of Lords held that, on the facts, it was permissible to do so.

Unlawful: without a valid defence.

Who can be killed? •

“any reasonable creature in rerum natura” –

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Any living human being. Bland still died as a result of the withdrawal of support. The doctors did not kill him.

Life begins: –

At birth:

Attorney-General’s Reference (No 3 of 1994) 1998. o

o o o

D had stabbed his girlfriend, V, who was between 5 and 6 months pregnant. She subsequently recovered from the wound but 7 weeks later, gave birth prematurely. Subsequently, the child, W, died 4 months after birth. It was clear that the stab wound penetrated W whilst in the womb and this was the cause of death. D was charged with W’s murder but was formally acquitted after the judge held that the facts did not disclose a homicide against the child. The case was referred to the Court of Appeal, which held the trial was wrong and that, applying the doctrine of transferred malice, a murder conviction was possible. The defendant appeal to the House of Lords which said that the ‘transferee’ had to be in existence at the time for mens rea, so manslaughter was possible

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Vo v France 2004: ECHR Art 2: right to life. o

o o o

The applicant, who was 6 months pregnant, attended a hospital for an examination. Another woman, who had a similar name, attended on the same day in order to have a coil removed. The doctor confused the two patients, and in an attempt to remove the coil from the applicant, he pierced the amniotic sac and as a result, the pregnancy was terminated. The applicant and her partner lodged a criminal complaint in which they alleged, inter alia, unintentional homicide of the applicant’s child. The court acquitted the doctor of that offence on the basis that the foetus was not a human person for the purposes of the offence. –

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Some indeterminacy about exact moment in the old cases.

Life ends: –

Brainstem death

Re A 1992 –

Permanent vegetative state:

Bland- see above R v Inglis 2010 o

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D was charged with the murder of her own son, V, 22, by injecting him with a fatal overdose of heroin. At the time, V was in a ‘desperate state of disability’. 18 months earlier, V had suffered serious head injuries after falling from an ambulance and had been in a deep coma on a life support machine ever since. Two operations had been carried out after the accident, which left V with ‘severe disfigurement’. D found all of this extremely depressing and distressing. She was convinced that it was her duty as a mother to relieve V of all the pain and suffering. Her arguments (1) relied on provocation but the trial judge rules there was no evidence of loss of self-control and (2) the case was not murder but a ‘mercy killing’ and V was so severely disabled to no longer be a ‘human being’ The Court of Appeal rejected those argument and upheld the murder conviction.

Mens Rea: Malice aforethought •

“malice aforethought” is a technical term, not ordinary language.

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Malice aforethought breaks down to: –

Intent to kill V; or

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Intent to cause grievous bodily harm

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R v Moloney 1985 The defendant and his stepfather who had a friendly and loving relationship were engaged in a drunken competition to see which of them could load a shotgun faster than the other. Moloney won, and was then challenged by his stepfather to fire the gun. He did, killing his stepfather instantly. o Moloney was charged with murder and convicted. He appealed and the Court of Appeal allowed appeal to the House of Lords. o The defendant's conviction for murder was substituted for manslaughter. It was not a case of oblique intent and the judge should not have issued a direction relating to further expansion of intention. o

R v Cunningham 1982 The defendant attacked the victim in a pub believing (wrongly) that the victim had had sexual relations with his fiancé. The defendant knocked him to the ground and repeatedly struck him on the head with a bar stool. The victim suffered a fractured skull and a subdural haemorrhage from which he died 7 days later. o The jury convicted the defendant of murder having found that he intended really serious harm at the time of the attack. o The defendant appealed contending that the law of murder should be confined to those who intend to kill and thus the decision in R v Vickers was wrongly decided. The defendant relied upon dissenting judgment of Lord Diplock in Hyam. o The House of Lords declined the opportunity to use the 1966 Practice Statement. The mens rea of murder remains intention to kill or intention to cause GBH.

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Grievous bodily harm: really serious harm

DPP v Smith 1961 (“really” is mere emphasis, up to judge) In an attempt to prevent Smith driving away with stolen goods, a policeman jumped onto Smith’s car o Smith proceeded to drive erratically, shaking the policeman off and causing death o The judge directed the jury to find that Smith had the necessary intent to cause GBH murder if they were satisfied that the reasonable man could have foreseen the harm as a consequence o The House of Lords affirmed that the virtual certainty test was an objective test o

R v Janjua and Choudhary 1999 Intention •

So what is “intention”? –

Direct intention: D intends X if his purpose is to bring X about.

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Oblique intention: D intends X if it is not his purpose, but he or she foresees X with a (high) degree of probability AND X is indeed (highly) probable;

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Or possibly: a jury may infer that D intends X if D foresees X with a (high) degree of probability (and X is indeed …).

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These issues are (mostly) general to intention as a mens rea element.

Direct intention “The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. In trials for murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms.” - R v Moloney 1985, per Lord Bridge •

Purpose is not the same as motive or desire.

Oblique Intention Was the death or serious injury a virtual certainty? Then the jury are entitled to find intention but don’t need to. But what if your purpose is not kill or cause serious harm, but that is the (highly) likely outcome? 

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Classic example: D puts a bomb on a plane for the purpose of claiming the insurance. D does not want the passengers and crew to die, but its (pretty much) inevitable they will. Is D committing murder? (example originates from Law Commission report 10, published in 1967). A series of cases have changed the level of probability or its expression; but ambiguity remains as to whether the probability defines (oblique) intent, or is merely a way in which a jury can infer (oblique) intent

Hyam v DPP 1975: The level of probability of consequence was referred to as “probable” or “highly probable”. Ratio was that a high probability of grievous bodily harm was sufficient mens rea for murder, not that it necessarily amounted to an intention to cause grievous bodily harm – so arguably about definition of mens rea for murder rather than generally applicable account of intention. R Moloney 1985: applied where “natural consequence”. R v Hancock and Shankland 1986: “natural consequences” not to be used in directions: jury told matter of probability, higher the probability it was foreseen, the more likely intended. R v Nedrick 1986: Foresight of “virtual certainty” was evidence from which the jury could infer intention (Court of Appeal). R v Woollin 1999: Move towards definition: speeches in House of Lords indicate that foresight of virtual certainty was (oblique) intention. R v Matthews and Alleyne 2003: Court of Appeal said that was not what Woollin meant: Virtual certainty is evidence, not a rule of law as to meaning of “intention”.

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From Smith, Hogan and Ormerod, Criminal Law, 15 ed, 2018:

“(1) A result is intended when it is the actor’s purpose to cause it; (2) a court or jury may also find that a result is intended, though it is not the actor’s purpose to cause it, when – (a) the result is a virtually certain consequence of his act, and (b) the actor knows that it is a virtually certain consequence.”

Reform Criticisms include:      

Common law nature of murder; Reach of murder: from worst crime to mercy killing; Constructive offence: intent to cause grievous bodily harm; Oblique intent; Within oblique intent, objective probability element; Mandatory sentence break between murder/manslaughter (and everything else).

Possible reform avenues •

Abolish the murder/manslaughter distinction: one offence of homicide, wide sentencing powers.

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Re-calibrate: Law Commission proposals 2006 –

First degree murder – intentional killing.

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Second degree murder o o o

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Intent to cause serious bodily harm; “recklessly indifferent” killing; First degree murder reduced by partial defences

Manslaughter o o

Gross negligence; Intent to, or reckless as to, causing some injury.

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Final recommendations broadened both murder offences.

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Rejected by Government.

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Voluntary manslaughter •

Common law: unlawful homicide that is not murder is manslaughter (note a number of statutory offences now: infanticide, causing death driving offences, corporate manslaughter)

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Division into voluntary and involuntary manslaughter.

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Voluntary: where a partial defence applies.

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“Partial”: reduces murder to manslaughter, not “not guilty”.

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“defence”: only arises if the mens rea and actus reus of murder is made out.

The partial defences •

Loss of self control: Coroners and Justice Act 2009, ss 54 to 55.

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Diminished responsibility: Homicide Act 1957, ss 2 to 2A.

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BOTH new defences, replacing old equivalents

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Suicide Pacts: Homicide Act 1957, s. 4: reduces to manslaughter what would otherwise have been murder if in pursuance of a suicide pact with V (no more on this).

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Originally introduced to mitigate the mandatory death penalty (before 1965), and now mandatory life sentence, for murder

The old law: provocation •

Loss of control successor to the old common law defence of provocation (modified, not codified in Homicide Act 1957, s3): Made out if: o o o o

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Thing said or done provoked D; D suffered sudden and temporary loss of self-control; Provocation would make “reasonable man” do the same; “reasonable man” would have same characteristics of D relating to gravity of provocation, but not loss of control.

Unsatisfactory:

o Many cases, especially on shared characteristics; o Seen as gendered: worked for male anger but not women in abusive relationships Ahluwalia (1993) D had been ‘provoked’ by her husband, V, and stabbed him to death. However, prior to stabbing, she had gone into another room to sharpen a knife before killing V. o Defendant pleaded provocation but were convicted of murder because there was no ‘loss of self-control. o

New law: loss of self control 

Developed from (but significantly different to) Law Commission proposals.

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Abolished provocation: Coroners and Justice Act 2009, s 56. Old cases on provocation irrelevant

R v Clinton (2012), or “rarely necessary” D had bludgeoned and strangled his wife, V, to death. The day before her death, V told D that she was having an affair. V was also aware that D had been looking at suicide websites and taunted him about this. o At his trial for murder, D did not deny the killing but pleaded DR and loss of control. The Court of Appeal held that what V said about her sexual infidelity could not ‘of itself’ amount to a qualifying trigger. o

R v Gurpinar (2015) Mustafa Gurpinar (G), aged 14, had stabbed V1 to death during a pre-arranged fight. G was charged with murder. His defence at trial was a combination of lack of mens rea and selfdefence. o The trial judge considered directing the jury on loss of control but eventually decided not to do so on the basis that it would be ‘an added complication’. G was convicted of murder and appealed, contending that the trial judge should have directed the jury on loss of control. o The Court of Appeal dismissed both appeals on the basis that there was insufficient evidence on which a jury properly directed could reasonable conclude that the defence of loss of control might apply to either appellant

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Loss of self control: Basic structure •

Coroners and Justice Act 2009, s 54:

The loss Not further defined Need not be “sudden”: s 54(2). Length of time between trigger and killing still important, but not critical R v Jewell (2014) 

D had driven to V’s house, ostensibly to pick him up for work, and shot him at point blank range, twice, with a shotgun. o D’s loss of control defence was withdrawn by the trial judge on the basis that there was insufficient evidence to support it, and the Court of Appeal upheld D’s resulting murder conviction. o Rafferty LJ said that the killing ‘bore every hall mark of a pre-planned, cold-blooded execution….the evidence that this was planned execution is best described as overwhelming’

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Subjective test for jury Smith, Hogan and Ormerod: “the test may be best understood as founded on whether D has lost his ability to maintain his actions in accordance with considered judgement or whether he has lost normal powers of reasoning”: approved R v Jewell 2014 (but see Gurpinar 2015). Dis-applied if D “acted in a considered desire for revenge: s 54(4)

Qualifying triggers Old law: anything could provoke: extreme example, a crying baby R v Doughty 1986 o

D had killed his 17-day-old son after the child would not stop crying. Although he was convicted of murder, the Court of Appeal allowed his appeal on the basis that there was evidence of provocation by ‘things done’ and substituted a manslaughter conviction

Now limited (s 55) –

Fear of serious violence   

Subjective – genuine (not necessarily reasonable) fear; and Fear of serious violence. Distinguish from self-defence: o D will always prefer self-defence, as complete defence; o Trigger is available, unlike self-defence, where eg  no imminent threat of violence;  Force used excessive.  Possible different treatment of intoxication?

Justifiable sense seriously wronged    

Subjective: D must factually feel seriously wronged; Objective: sense of wrong must be objectively justifiable; and circumstances must objectively be extremely grave. So unlike old law, no provocation by (objectively) the trivial – crying baby

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Additional controls on qualifying triggers

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How far do “incitement” provisions in s 55(6) go? –

Old authority of Johnson 1989: that D caused a reaction in others that lead to provocation did not prevent reliance on the defence.

The appellant was at a night club. A woman called him a 'white nigger'. The appellant was white but had taken to adopting a West Indian accent. He took exception to the comments and made violent threats to her. A male friend of hers intervened and poured a glass of beer over the app...