Homicide revision notes criminal law PDF

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Homicide revision notes criminal law The mens rea of murder is an intention to kill or cause grievous bodily harm. Kill or grievous bodily harm to the victim: Grievous Bodily Harm (GBH) means really serious harm (DPP v Smith A harm can be a GBH even though it would not pose a risk to the life of the...

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Homicide revision notes criminal law ⇒ The mens rea of murder is an intention to kill or cause grievous bodily harm. ⇒ Kill or grievous bodily harm to the victim: Grievous Bodily Harm (GBH) means really serious harm (DPP v Smith [1961]). A harm can be a GBH even though it would not pose a risk to the life of the victim (R v Bollom [2003]). Only an intention to kill or cause GBH is needed to establish the mens rea of murder (R v Vickers [1957]). INTRODUCTION TO MANSLAUGHTER ⇒ Manslaughter is a less serious form of homicide than murder. There are two main kinds of manslaughter: 

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Voluntary manslaughter: (not on the exam) These are killings which have the actus reus and mens rea of murder, but due to existing circumstances it should not be called murder. For example, a defendant who successfully pleads loss of control, diminished responsibility, or suicide pact to a charge of murder will be guilty of voluntary manslaughter. Involuntary manslaughter: These are killings where the mens rea of murder (intent to kill or cause Grievous Bodily Harm) does not exist, but there is sufficient fault to justify criminal liability. Examples of involuntary manslaughter include, reckless manslaughter, gross negligence manslaughter, and constructive (or unlawful act) manslaughter. SUICIDE PACTS

⇒ Suicide pact is a defence only to murder. ⇒ Section 4 of the Homicide Act 1957 provides that if the defendant kills another in pursuance of a suicide pact he or she is guilty of manslaughter, not murder. ⇒ An example of a suicide pact is where a husband and wife agree that they will die together. The plan is that the husband will shoot his wife and then turn the gun on himself. He kills his wife but someone stops the husband killing himself, or he loses his nerve. ⇒ The Law commission has recommended the abolition of this defence to murder (Law Commission Paper No 177).

MERCY KILLINGS AND EUTHANASIA ⇒ Mercy killings and euthanasia are widely used terms to describe situations where the defendant kills a person who is suffering from a terminal illness. ⇒ The law is clear here: there is no defence of mercy killing in criminal law. It is murder to do an act which significantly shortens a person’s life, even if that person is in agony and asks to be killed. See, for example, the case of R v Inglis [2011]. DEFINITION OF CONSTRUCTIVE MANSLAUGHTER ⇒ To be guilty of constructive manslaughter the defendant must be proved to have performed an act which was: (1) Unlawful;   (1) Dangerous; and (3) Caused the death of the victim.  ⇒ The House of Lords undertook a thorough examination of constructive manslaughter in Attorney-General’s Reference (No 3 of 1994) [1998]. AN UNLAWFUL ACT ⇒ The defendant must have committed a criminal act, but violence is not essential the case of R v Goodfellow (1986)). ⇒ The mens rea and actus reus of the criminal act must be proved (R v Slingsby [1995]). Also the case of R v Dhaliwal [2006]. ⇒ Note: it is generally accepted that a strict liability offence or an offence of negligence (e.g. dangerous driving) cannot form the basis of constructive manslaughter (Andrews v DPP [1937]). ⇒ There has been debate over whether a criminal omission can form the basis of constructive manslaughter. R v Senior [1899] suggests a criminal ommission can form the basis of constructive manslaughter, but R v Lowe [1973] suggests it cannot. However, where there has been a criminal omission often the defence of gross negligence manslaughter is raised. DANGEROUS ACT ⇒ The defendant's act must have posed a risk of some physical injury (R v Carey [2006]).

⇒ Emotional harm is often not enough, unless that emotional harm could lead to physical harm such as a heart attack or even shock (R v Carey [2006]). ⇒ Whether there is a dangerous act is to be viewed objectively i.e. would the reasonable person think the act is dangerous (R v Church [1966]). See, for example, R v Dawson (1985). ⇒ Also see the cases of R v Lamb [1967], R v Nebury and Jones [1976], and R v Watson [1989]. CAUSATION ⇒ The defendant’s unlawful and dangerous act must cause the victim’s death. ⇒ The unlawful and dangerous act need not be directed to the victim to rely on the defence e.g. if you punch X who stumbles into Y causing him to fall over and die you may still rely on constructive manslaughter. ⇒ It must be shown that it was the unlawful and dangerous act of the accused that caused the death of the victim, and not simply that the victim died while the defendant was committing an unlawful and dangerous act. This appears to have been overlooked in the case of R v Cato [1976]. DEFINITION OF GROSS NEGLIGENCE MANSLAUGHTER ⇒ For gross negligence manslaughter it must be shown that: (1) The defendant owed the victim a duty of care; (2) The defendant breached that duty of care; (3) The breach of the duty caused the death of the victim; (4) The breach was so gross as to justify a criminal conviction. ⇒ The leading case on gross negligence manslaughter is the House of Lords’ decision in R v Adomako [1995].    

⇒ Also see the cases of R v Stone and Dobinson [1977] and R v Prentice [1993]. (1) THE DEFENDANT OWED THE VICTIM A DUTY OF CARE ⇒ The definition of 'duty of care' is the same as it is given in the tort of negligence (R v Wacker [2003]) i.e. you owe a duty of care to anyone who may be foreseeably harmed by your action. For

example, a doctor owes a duty of care to his/her patients as seen in R v Adomako [1995]. ⇒ It is for the judge, NOT the jury, to decide if there is a duty of care (R v Evans [2009]). (2) THE DEFENDANT BREACHED THAT DUTY OF CARE ⇒ It must be shown that the defendant breached his/her duty of care to the victim. ⇒ In deciding this, the jury must consider whether the defendant's actions were less than what a reasonable person would be expected to do. ⇒ If, for example, the defendant is a specialist at something then they must act as the reasonable specialist would e.g. in R v Adomako [1995] the defendant (Adomako) must act no less than what is expected of a reasonable anaesthetist. (3) THE BREACH OF THE DUTY CAUSED THE DEATH OF THE VICTIM ⇒ It must be shown that the defendant’s breach of the duty caused the victim’s death. See, for example, R v Hayward (1908). (4) THE BREACH WAS SO GROSS AS TO JUSTIFY A CRIMINAL CONVICTION ⇒ Lord Mackay told the jury (in R v Adomako [1995]) to consider whether the defendant's actions were so bad they should result in a criminal conviction. ⇒ In Attorney General’s Reference (No. 2 1999) it was stated that the defendant does not need to have foreseen death to be convicted of gross negligence manslaughter. Nevertheless, where there is a grossly negligent act, death is often foreseeable anyway. SUBJECTIVE RECKLESS MANSLAUGHTER DEFINITION ⇒ Subjective reckless manslaughter is where the defendant killed the victim foreseeing a risk of death or personal injury. ⇒ Subjective reckless manslaughter is rare because whenever there is subjective reckless manslaughter it will be possible to

charge constructive or gross negligence manslaughter, both of which are easier to prove. CASES: CONSTRUCTIVE MANSLAUGHTER ANDREWS V DPP [1937] AC 576 Facts: The appellant drove a van above the speed limit and overtook another car. As he did so he struck a pedestrian and killed him. Held: His conviction for manslaughter was upheld. It is quite difficult to interpret the judgement, but seems to suggest strict liability offences and cases of negligence cannot exist in constructive manslaughter. ATTORNEY-GENERAL'S REFERENCE (NO. 3 OF 1994) [1997] 3 ALL ER 936 Facts: 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. Held: The House of Lords said he could not be charged with murder of the baby. 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 CAREY [2006] EWCA CRIM 17 Facts: Aimee Wellock, aged 15, and three friends went out for an early evening walk. They came across the three appellants who had been drinking. The appellants started making fun of Aimee and her friends and then became physically violent. Aimee had her head pulled back and was punched in the face. Two passing motorcyclists stopped and shouted at the appellants and they ran off. Aimee then ran off. She ran just over 100 metres but then unfortunately she collapsed and died. It transpired that she had a severely diseased heart and the run had induced a ventricular fibrillation which resulted in her death. The three appellants were convicted of affray and constructive manslaughter. They appealed against the manslaughter conviction.

Held: The manslaughter convictions were quashed. The physical assault on Aimee was not the cause of death. The cause of death was Aimee running away in fear. R V CATO (1976) 62 CR APP R 415 Facts: The appellant purchased some heroin took it to his home which he shared with Anthony Farmer and two others. He invited them all to use the heroin. They each prepared their own solution and then paired off to inject each other. Farmer prepared his own solution and the appellant injected him. This was repeated during the night. The following day Farmer was found dead. The appellant was convicted of manslaughter and administering a noxious thing under s.23 OAPA 1861. Held: Appeal was dismissed. The Conviction for manslaughter was upheld. The difficulty intros case was that it was said that the unlawful act (needed in constructive manslaughter cases) was possession, but this seems hard to support; it would have been better to have said the injecting of the drugs was the unlawful act as it poisoned the victim contrary to s.23 Offences Against the Persons Act 1861. R V DAWSON [1985] 81 CR APP R 150 Facts: The defendant and two other men carried out an attempted robbery at a petrol station. The cashier at the petrol station was a 60 year old man who, unknown to the defendants, suffered from a heart disease. Dawson had pointed a replica handgun at the victim and his partner had banged a pick-axe handle on the counter. Money was demanded, but the victim pressed the alarm button and the defendants fled empty handed. Shortly afterwards the victim collapsed and died from a heart attack. Held: The defendants were not convicted of manslaughter. As the reasonable person in the defendants’ position during the attack would not have known of the man’s heart condition, they cannot be guilty; in other words, the reasonable person would not see their actions as dangerous. R V DHALIWAL [2006] EWCA CRIM 113 Facts: The defendant had verbally abused his wife for many years. The wife committed suicide as a result of this abuse. Held: The defendant was not guilty as he did not cause the death of his wife; whilst mental harm by way of a recognised mental condition can be classed as harm, mere emotions are not enough to qualify. The defendant’s wife did not commit suicide as an immediate and reasonable response to the verbal abuse, but acted voluntarily.

R V GOODFELLOW (1986) 83 CR APP R 237 Facts: The appellant had been harassed by two men and wished to move from his council accommodation. In order to get re-housed he set fire to his house making it look as if it had been petrol bombed. Unfortunately his wife, son and son's girlfriend all died in the fire. Held: His conviction for manslaughter was upheld. There was no requirement that the unlawful act was directed at the victims nor that it was directed at a person. R V LAMB [1967] 2 QB 981 Facts: Two boys were playing with a revolver. There were two bullets in the chamber but neither were opposite the barrel. The two boys believed that this meant it would not fire. One of the boys pointed the gun at the other and fired. As he pulled the trigger the chamber turned and the gun went off killing the boy. The other was charged with constructive (unlawful act) manslaughter. Held: There was no unlawful act as no assault had been committed as the victim did not believe the gun would go off therefore he did not apprehend immediate unlawful personal violence. R V NEWBURY [1977] AC 500 Facts: Two 15 year old boys threw a paving slab off a railway bridge as a train approached. The paving slab went through a glass window on the cab of the train and struck the guard killing him. The boys were convicted of manslaughter. The Court of Appeal dismissed the boys' appeals. The boys appealed to the Lords with the following certified question of law: “Can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs, if he did not foresee that his act might cause harm to another?" Held: There is no requirement that the defendant foresees that some harm will result from his action. R V WATSON [1989] 2 ALL ER 865 Facts: The appellant smashed a window and broke into the house of an 87 year old man, Harold Moyler. Moyler went to investigate and the appellant shouted abuse at him and ran off. The police arrived and Moyler suffered a heart attack and died 90 minutes after the initial break in. Held: His conviction was quashed as it could not be established that the break in was the cause of the heart attack. However, the Court of Appeal

held that a sober and reasonable person would regard the act of the appellant as dangerous as they would have known of the age and frail condition of the victim. CASES: GROSS NEGLIENCE MANSLAUGHTER R V ADOMAKO [1994] 3 WLR 288 Facts: The appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to obvious signs of disconnection. The jury convicted him of gross negligence manslaughter. Held: His conviction for gross negligence manslaughter was upheld by the House of Lords. ⇒ Lord MacKay LC: “…gross negligence…depends…on the seriousness of the breach of the duty committed by the defendant in all the circumstances in which he was placed when it occurred and whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s judgment to a criminal act or omission”. R V HAYWARD (1908) 21 COX 692 Facts: The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied (see notes on this here). He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances.

R V PRENTICE [1993] 4 ALL ER 935 Facts: A Leukaemia patient came into hospital and required a lumber puncture. Hospital regulations said that one doctor by themselves could not do that; there must be a supervising doctor. However, on this occasion, there was no consultant available; two junior doctors were the

only people available, even though they had no experience of this. The junior doctors said they could not do this as the were not trained, but were told they had to because they were the only available people. Everything went wrong and the patient suffered a slow agonising death. Each were charged with gross negligence manslaughter and they appealed. Held: The Court of Appeal said the jury is entitled to consider the circumstances in which the defendant found himself in; therefore, if the jury think the circumstances are relevant they may acquit the defendant. Here, Prentice did get his conviction quashed. Note: the Corporate Manslaughter Act now allows for corporations/organisation to be convicted of gross negligence but serious management failure must be shown. R V STONE AND DOBINSON [1977] 2 ALL ER 341 Facts: Ted Stone was 67, totally blind, partially deaf had no appreciable sense of smell and was of low intelligence. He lived with his housekeeper and mistress of 8 years, Gwendolyn Dobinson aged 43 who was described as ineffectual and inadequate. Ted's sister Fanny came to live with them. She had previously lived with another sister but had fallen out with her. She had mental problems and was suffering from anorexia nervosa. Ted and Gwendolyn took her in and agreed to look after her. However, Fanny's condition deteriorated, and she was found dead in her bed in appalling conditions. Held: Stone and Dobinson were found liable for her death (i.e. they were convicted of gross negligence manslaughter) as they had assumed a responsibility to her by taking her in. They failed to look after her and ensure she got the medical help she needed...