Homicide PDF

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Murder and involuntary manslaughter are two types of criminal homicide, in both these types an unlawful killing of human being, actus reus is same. In murder, intention to kill or cause grevious bodily harm is a requirement however, in manslaughter not intention but proof of fault must be present. M...

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Murder and involuntary manslaughter are two types of criminal homicide, in both these types an unlawful killing of human being, actus reus is same. In murder, intention to kill or cause grevious bodily harm is a requirement however, in manslaughter not intention but proof of fault must be present. Mens rea element distinguishes the nature of criminal homicide. Nonetheless, there are many types of faults in manslaughter, including reckless manslaughter where foresight shall be present to prove the death or serious injury. In gross negligence manslaughter, foresight is not a requirement but there shall be negligence of high degree to level that can pose risk to death. In constructive manslaughter both foresight or gross negligence are not necessary and only the commission of harm with the mens rea is required. Common element between murder and involuntary manslaughter is unlawful killing of human being. In murder/ voluntary manslaughter, loss of self-control, diminished responsibility and pact of suicide are main types. Though three defences, in the cases of murder, if successfully raised can reduce the murder into manslaughter. Killing-Unlawful Killing and In Being/ an Human Being/ Actus Reus Element Discussing the criminal homicide ‘an unlawful killing of a human being’; prime common elements are, a killing, an unlawful killing and a human victim. Firstly a killing requires ‘an act’ in the cases of murder and gross negligence manslaughter, but in the cases of omission in breach of duty, do not require ‘an act’. The relevance of consent, conduct and causation are the items that form the unlawful killing. A killing however, will not be unlawful if it is accidental or there is a defence to such killing like self-defence. Consent part does not make a killing lawful thus not a defence in to criminal homicide liability through affirmative action like in euthanasia. In Nicholsaon (2014), Mr. Nicholsan having ‘locked-in-Syndrome’ sought declaration from the courts to allow his wife to assist him to take his life, claiming his right of autonomy but court, Supreme Court of UK and ECtHR case Nicklinson v UK (Admissibility) rejected his claim declaring the matter morally contentious and only Parliament can address it. Secondly, in unlawful killing, UK criminal law respects the person’s autonomy to certain extent, however, if someone is not interested to entail the medical care necessary to save life then medical doctors will not be held liable for the death of such person. It will be unlawful for doctor to operate despite overriding V’s decision (St. George’s Healthcare NHS Trust v S/ [1999]). Thirdly, criminal homicide applies only to living beings/ a human victim, therefore no one can be charged for criminal homicide against a deceased person. Cases of foetus and unborn child (depending the age) are dealt under abortion or child destruction offences. Murder/ Mens Rea Element Actus Reus of murder is unlawful killing of human being, mens rea of it distinguishes from manslaughter. Malice aforethought used to be a fault element in murder, however traditional concepts of malice aforethought and premeditation are no more requirements of murder, because a murder prompted by thought out plan, compassion, greed or committed in the heat of the moment is still a murder. In Inglis [2011], Court of Appeal

convicted a mother for injecting heroin, out of compassion, to son having Persistent Vegetative State (PVS). Mens rea of murder is the intention to kill or cause grievous bodily harm thus known as express malice and implied malice. In both the express malice and implied malice common is intention. Duff (1990) described the intention that if a person’s objective was to cause death or grievous body harm and victim is not dead then person’s action has failed not his objective. Direct intention in the absence of evidence will lead the judge and jury find the indirect intention which could highlight the person would know the certain result/ outcome before hand. Judge must give standard direction to the jury about intention and that motive is different from intention. Judge’s direction to jury, whether D stabbed V with intention to kill V? if, answer is not available then whether D stabbed V to intend to cause V serious injury. Answer to either of the question will result in conviction with murder, however if some harm is intended then guilty of manslaughter. (based on Woollin [1999]) Mens rea of murder is either to kill a person or causing the grievous bodily harm, same has been clarified in Vickers [1957] and clarified in Cunningham where D beaten V with chairs on the head to cause death. D’s appeal against to conviction on the basis that intention to kill was necessary rejected in the light of Vickers confirmation. Voices raised to amend the law related to murder because mandatory life sentence is punishment of it. Dissenting views on the issue are present like a vicious killer and a compassionate spouse performing euthanasia to terminally ill/ PVG partner will face the same degree of murder. Therefore, it believed that intention to cause serious injury shall not be enough to convict someone in murder because it will be constructive liability and this type of liability is for higher degree crime like for muder and not for causing grievous body harm (Lord Steyn, Powell and Daniels [1999]).

Voluntary Manslaughter Murder has three defences otherwise known as partial defence namely loss of control (till 2010 was used to call provocation), diminished responsibility and suicide pact, if these defences are accepted then murder will be reduced to conviction of lesser degree i.e. voluntary manslaughter. In voluntary manslaughter, prosecution can prove that killing was voluntary with intent but due to mitigating context, mandatory sentence will not be awarded. i.

Loss of self-Control/ Provocation

Provocation contains both the subjective element and objective element; as per subjective element a killing shall be ignited with provocation of some act that results in loss of self-control. Acott [1996] describes that any out of self-controlled that is not triggered by provocation will not be any defence. Revenge killing and other premediated killings are also not included in loss of self-control (Ibrams 1982). Time

lapse between the last act of provocation and the killing was used to be considered no defence (Duffy 1949), but in Ahluwalia [1992], it was considered that loss of selfcontrolled does not mean it shall be immediate reaction of last provocation rather it could span over a long time and erupts at any extreme point. Loss of self-control is a defence. Object element demands that D’s act shall remain consistent as that of reasonable people who might face similar provocation, in the regard jury had to take the words and action of provocation provoker into consideration with careful precision keeping attributes like physical features, race, and sexuality. Jury shall not take in account any other characteristics in consideration that might cause the loss of self-control below of reasonable people e.g. mental illness, aggressive behavior and intoxication. ii.

Loss of Control

The Coroner and Justice Act 2009 while retaining the provocation structure confined itself to few triggers that might cause loss of self-control thus distancing from previously accepted defences like unfaithful partner. Now it is requirement that D’s act and conduct shall be partially justified by the context that has caused the loss of self-control. Section 54 of the Act refrains to convict D of V’s murder, if D’s acts and omissions are due to loss of self-control and such loss of self-control had a qualifying trigger and a reasonable person of same age and sex as that of D’s and with normal tolerance level, self-restraint in similar circumstances might have reacted the same way. Section 54 also does not restrict that loss of self-controls shall be immediate or sudden. Similar to provocation, defence of loss of self-control also requires it to be caused by qualifying trigger. Loss of self-control as per classic definition ‘so subject to passion as to make him/ her for the moment not master of his or her mind’ (Duffy [1949]). Loss of temper is not analogous to the loss of self-control. If a killing is disproportionate or hysterical, it does not automatically qualifies for loss of self-control (R v Goodwin [2018]). S.54(4) made it clear that if D had considered a desire of revenge then defence of loss of self-control will not be available. However, in Ahluwalia [1992], it has been seen that loss of self-control does not have to be sudden ad it can be cumulative and triggered bt the last act. Judge should direct to jury the longer the time between the last act of trigger and killing lesser the chances that killing is due to the loss of self-control. Trigger must be serious enough that can justify the loss of self-control. S.55(4) defines two such qualifying controls: forming the circumstances extremely grave and it must cause D to have the feeling of extremely offended. First Qualifying Trigger: Fear of serious violence is first qualifying trigger, where D’s loss of self-control was to the effect that D was fearing that V might use the violence against D or another identified person S.55(3). Cases like Clegg [1995], Marting (Anthony) [2001] cover this qualifying trigger where D’s claim might be something ‘In the spur of moment

and stress, I was fearful being killed or hurt badly thus lost the control. Fear related trigger is similar to plea of self-defence . Self-defence if raised correctly that is total defence. A person who is having defence of fear, rather using the loss of control defence can use the self-defence and in case court does not allow evidence in the self-defence then person can use the defence of loss of self-control (R v Goodwin [2018]). Second Qualifying Trigger: Second qualifying trigger is S.55(4), The Coroner and Justice Act 2009 it is usual trigger raised addressing the constitution of circumstances of extremely grave character and justifiable sense of being serious wronged questions. Former question will trigger the unfaithful partner and sexual jealousy type of circumstances that do no encapsulate the extremely grave character situation. Two components to the latter question, justifiable and being seriously wronged, this scenario develops in extreme grave provocation. But that is not always the case, in Bowyer [2013], D burgled the V house where D already knew V, during the altercation V remarked provocative about D’s girlfriend. The court did not accept the trigger of D regarding being seriously wronged as justifiable because D’s status as burglar removed his claim for being justified. Sexual jealousy or sexual infidelity has been exclusively excluded through S.55(6) The Coroner and Justice Act 2009, to remove the impression or confusion that loss of self-control was still available. In R v Clinton, Parker and Even, not the sexual infidelity S.55(6) was claimed but loss of self-control was claimed because when D confronted his wife being unfaithful she constituted the circumstances of grave character by insulting him to cause justifiable sense of being seriously wronged. In Dawes and Hatter, break up of relationship has not been considered the justifiable reason. Self-induced loss of self-control is not a defence rather D shall claim that with evidence; a bully D cannot claim the loss of self-control because his victim kicked D in shin and D being fearful loss the self-control and killed V. S.55(6) applied such way that fear or sense of seriously being wronged will be disregarded and will not be justifiable if D incited in order to give an excuse to use violence. (Johnson [1989] and Bower [2013]). Objective element of Provocation (as per old law) and partial defence i.e. loss of self-control is that defence is consistent with the expectation from the ordinary people on the matter of religion, physical appearance, some past event, sexuality, race and gender. Internal condition like aggressive temper, intolerance, intoxication and mental disorder have not been given weightage. In R v Willcocks [2016], the Court of Appeal have accorded with trial judge while rejecting to take mental disorder in account and in Asmelash [2013], intoxication has not been taken into account ad defence because law expect that people shall have similar standard of self-control as other normal people.

Regarding evidence and procedure S.54(5) & (6) of The Coroner and Justice Act 2009, the judge and jury will take an evidence in account if that can be raised a defence. Burden of proof is on the prosecution, however, it must be D, who shall offer the defence in a manner to convince jury that defence is in relevance of S.54(5) and judge will decide the defence’s capability as per S. 54(6). In the light of these sections, the judge will disallow those provocations like intoxication, sexual infidelity etc. but will consider the evidence and can ask jury to consider, if it can cause grave circumstances e.g. that partner threatened to cause harm to the child, taking away family support and accusing something insulting or disgraceful. The Court of Appeal put its weight behind the trial court who has heard the evidence first hand and declared to be slow in interfering in (R v Dawes, Martin [2017], R. v Hatter, R v Bowyer). Diminished Responsibility

S.2 of Homicide Act 1957 deals with Diminished Resposibility; considering the capital punishment of murder offence, its purpose was to take the serious mitigation in concern. However, later in The Coroner and Justice Act 2009 S.52, it has been included as a defence with clarity on mental abnormality and how to substantiate the abnormality. Although this provision is included in Act to give space to defences like loss of selfcontrol however, unlike loss of self-control, burden of proof of diminished responsibility is on defence in consistence of civil standard and on balance of probabilities. S.52 has amended the Homicide Act 1957 by stating that D can not be convicted of murder if D suffers from an abnormality that is based on recognized medical condition or significantly impaired the ability of D by understanding D’s conduct, exercise of selfcontrol and (satisfactory) explanation of D’s act or omission. Mental Abnormality does not have definite test of objectivity, however S.52(1A) address that where D had misinterpreted V’s actions or words or misjudged the danger as well as if abnormality has reduced the D’s power of self-control. World Health Organisation and the American Psychiatric Association’s Diagnostic and Statistical Manual of Menatl Disorder have recognized the mental conditions: arrested or retarded mental development, depression (Gittens [1984]), Bipolar (Inglis [2010]), Paranoid schizophrenia (Sutcliffe, The Times, 1981), Brain damage, Psychopathu (Bryne [1960]), Paranoid personality disorder (Martin [2001]), postnatal depression (Reynolds [1988]) In cases of diminished responsibility, expert witness is required by defence to rely upon the medical condition (Brennan [2014]). If medical expert presented the medical evidence in favour of D and prosecution does not contest it then judge shall pull off the charges of murder from jury but in case prosecution contest such evidence then prosecution shall bring forward his own medical expert to bring forward the evidence. Battered women’s syndrome (Ahluwalia; Hobson[1998]), premenstrual syndrome (Smith (Sandy) 1982) and Osborne [2010] have been contested by prosecution.

Alcohol and Drugs Intoxication is not a medical condition (Fenton 1975), The Court of Appeal has concluded in Dowds [2012] that voluntary acute intoxication whether alcohol or any other intoxicating substance will not be having the defence of diminished responsibility. However, if intoxication and medical condition are present at same time as combined effect of killing then D has defence not on the basis of intoxication but in the presence of medical condition (Dietschmann [2003]). In R v Kay [2017], where D was suffering from schizophrenia and was under intoxication at the time of killing; his defence was not recognized because D can not solely rely on the defence that he was having schizophrenia, he must have to have evidence that no other trigger was present other than schizophrenia to eligible for diminished responsibility. Chronic alcoholism is an exception of this rule because chronic alcoholism is recognized medical condition (Wood [2009]) but in R v Kay such defence was not available to Mr. Kay and he was found just drunk at the time of killing. Explanation must be provided for claiming the abnormality under new provision: likely why killing take place: whether D was oblivious of his responsibility or self-control was lacking. However, pshycopath can not use such defences because they possess both the ordinary powers of self-control as well was cognitive abilities. S.52(1B) states that explanation will be provided if it can have significant contribution to explain the factors that caused the killing in defence of D but jury will decide the significance of explanation e.g. depression and intoxication in Gittens whereas chronic alcoholism and intoxication (Wood [2009]). The Court of Appeal in Golds [2014] preferred the interpretation of S.52(1) that defendant’s abnormality shall be significant enough to impair the understanding and self-control where jury will decide the threshold of impairment. The Supreme Court rejected the Gold [2014] stating therein that to be eligible for diminished responsibility D shall be significantly impaired to close to total impaired; meant by almost impaired.

Involuntary Manslaughter Foresight/ reckless manslaughter, unlawful act/ constructive manslaughter and gross negligence manslaughter (causing death through lack of care), these three types though have overlapping areas yet have distinction. In Hyam [1975] and Smith [1961] both the V have been murdered but if these cases were held these days then intent to kill or cause grievous bodily harm would have been the requirements. In ‘Reckless manslaughter’, prosecution has to prove the foresight of death or serious injury, in gross negligence, whether the prosecution is able to prove the foresight of death or serious injury, jury has to take in consideration that whether actions of D were so negligent that

there can be a risk of death. In constructive manslaughter, defendant does not have a mens rea/ but their actions were unlawful and dangerous. Reckless manslaughter is rare since it is also a constructive manslaughter because actions with foresight of death or causing serious injury is criminal offence. Reckless manslaughter came with murder and judge gave directions to the jury that if they find the intention then D is guilty of manslaughter however not intention is find then D foresight to death or serious injury is probable. Relevant cases Hyam [1975], Goodfellow [1986] and Hancock and Shankland [1985]. Constructive manslaughter is the charge that shall be applied when death is caused due unlawful and dangerous action of D but same has absence of intention or foresight of death or serious injury as well as gross negligence that might pose risk of death. Gross negligence manslaughter is appropriate in situations where someone remained criminally careless in performing lawful activity or committed omission to performed that they were supposed to do. This type of charge is also appropriate where there is lack of evidence that D had foresight to death and causing serious injury as well as no unlawful and dangerous act. Examples of these type of situations are the doctors and surgeons who overdozed the patients then required or incompetent surgery, parents towards their children, bus drivers ignoring the traffic principles, train drivers deviating from safety manuals, builders carrying out work without precautionary measures for public members etc.

Constructive manslaughter is unlawful act manslaughter and its liability of crime is constructed from the elements of other crimes whereas other crimes have an actus reus, mens rea and consequential perspective. Prosecution has to prove the core crime elements like assault, criminal d...