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Criminal law Lecture NotesMURDER & INTENTIONHomicide offences in context Where D has the intention to kill/do GBH:- The appropriate charge is:- MurderThree partial defences are available on a charge of murder. They are:-Loss of control Diminished responsibility Suicide pactWhere D succes...

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Criminal law Lecture Notes MURDER & INTENTION

Homicide offences in context

1. Where D has the intention to kill/do GBH:-

The appropriate charge is:- Murder Three partial defences are available on a charge of murder. They are:-

Loss of control Diminished responsibility Suicide pact

Where D successfully pleads one of these:- the conviction is for “voluntary manslaughter”.

2. Where D kills, but does not have the intention to kill/do GBH:There are two possible charges:unlawful act manslaughter, gross negligence manslaughter These two types of manslaughter are known as “involuntary manslaughter”.

Other homicide offences, such as causing death by dangerous driving, are not covered on this syllabus.

1. Definition of murder (common law) The unlawful killing of a person in being in the queen’s peace with malice aforethought 2. Actus reus -unlawful Self defence, surgery, war, boxing etc. -killing D must actually cause v’s death

-of a person in being

When does life begin? AG’s ref no 3 [1994]

When does life end? RE A (a minor) [1992]

-in the queen’s peace A circumstances element of the actus reus R v Adebolajo and Adebowale [2014]

3. Mens rea

-

with malice aforethought

“intention to kill or cause serious bodily harm” R v Cunningham [1982]

R v Moloney [1985]

1. The meaning of intention in criminal law

Nb: these notes apply to all offences where intention is the mens rea, not just murder. There are two types of intention in English criminal law i)

Direct intention R v Moloney [1985]

ii)

Indirect/oblique intention

R v Nedrick [1986]

R v Woollin [1999]

The Woollin direction A) Jury are entitled to find intention where they consider death or serious injury was a virtually certain consequence of D’s act(s) And, B) D foresaw that death or serious injury was a virtual certainty

R v Mathews and Alleyne [2003] R v MD [2004] The Woollin direction only needs to be given by a judge when there is a doubt over whether D directly intended the prohibited consequences (death or GBH in a murder case).

Statutory guidance on intention Criminal Justice Act 1967 S.8 A court or jury, in determining whether a person has committed an offence,— (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Consider the following expressions and their possible meanings 

More likely than not



Probable



Natural and probable



Substantial risk



Highly probable



Virtually certain (Represents the current position, R v Woollin)



Certain

5. Other problem areas A) Assisted suicide S. 2 Suicide Act 1961 R (on the application of Purdy) v DPP [2009] Director of Public Prosecution’s guidance on when to prosecute assisted suicide 2010 R (on the application of Nicklinson and Another) v Ministry of Justice [2014] Possible legislation? Assisted Dying Bill 2014

B) Mercy killings R v DPP [2002] R (on the application of Nicklinson and Another) v Ministry of Justice [2014] Assisted Dying Bill 2014 C) Life support cases R v Malcherek and Steel [1981]

Airedale NHS Trust v Bland [1993] See notes on causation for more.

CAUSATION IN CRIMINAL LAW

Steps to follow on causation

There are two types of causation that need to be considered in all result crimes:

1) Factual causation- the “but for” test. R v White (1910)

2) Legal causation – the “significant and operative” cause test. R v Cheshire (1991) Tracheotomy “Significant”

“operative” A cause will cease to be operative if there is a novus actus interveniens which breaks the chain of causation. Generally a novus actus wil be something that is unforeseeable or a free, voluntary and informed act of the victim or a third party. Note: the “test for whether D is a legal cause differs slightly according to what is being argued as a break in the chain of causation.

Four commonly argued/examined breaks in the chain of causation

1) Where D causes another to act

R v Pagett [1983]

2) Acts of the victim

-V’s actions will rarely constitute a significant and operative cause and will rarely break the chain of causation. - V need not act sensibly or take extra care of himself.

R v Roberts [1971]

-You must take your victim as you find the (the egg shell skull rule) R v Blaue (1975) See also R v Dear (1975)

3) Acts of third parties (generally meaning the medical profession/rescuers)

-Courts will always be considering whether D is still the significant and operative cause - The approach of the courts to medical interventions/medical negligence

R v Cheshire [1991]

R v Smith [1959]

R v Jordan [1956]

Life support cases R v Malcherek and Steel [1981] Airedale NHS Trust v Bland

4) Death by fright cases

Who is responsible when D frightens V into causing their own death?

R v Williams and Davis [1992]

R v Corbett [1996]

R v Marjoram [2000]

R v Watson [1989]

Where the exact cause of death is uncertain AG’s Ref No 4 [1980]

Heroin cases and causation There are two types of case that you need to be aware of. In both types of case the charge of unlawful act manslaughter is based on a charge under S.23 of the Offences Against the Person Act 1861: “Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years”

1. R v Cato-where D injects V with heroin and V dies.

2. R v Kennedy (No. 2) [2007]-where D prepares the syringe and hands it to V. V then self injects and dies.

Other cases on scenario 2 R v Dalby [1982] R v Kennedy (No.1) [1999] R v Dias [2001]

Gross negligence manslaughter can now be an alternative charge in scenario 2 R v Evans [2009]

Can you be liable for “causing the death” of somebody who is already dead? Thabo Meli v R [1954]

VOLUNTARY MANSLAUGHTER I AND II Reading: Chapter 10, in Herring. The key defences are: Loss of Control and Diminished Responsibility These are SPECIFIC DEFENCES - i.e. they can only be pleaded on a charge of murder. They are probably best understood as being excusatory. They are also PARTIAL DEFENCES - i.e. if successful the D is found not guilty of murder but guilty of manslaughter.

Homicide

Intent to Kill Murder

Suicide Pact

Loss of Control

No intent to Kill Manslaughter

Diminished Responsibility

1) Provocation Loss of control has recently replaced the older defence of provocation. Is a traditional common-law defence, which was codified in 1957 and was abolished on 4 October 2010. Background to the reform: Law Commission: LC290 and LC304 (www.lawcom.gov.uk ) Ministry of Justice, (2008) Murder, manslaughter and infanticide: proposals for reform of the law,  Plus summary of responses (www.justice.gov.uk ) The law on provocation was based on: Homicide Act 1957 s3. This required:  

Unlawful Act Gross Negligence

a) Provocative conduct; Anything said or done Doughty (1986) 83 Cr App R 319.

b) D loses self-control; Subjective test: Did D lose self-control? Sudden and temporary Duffy [1949] 1 All ER 932. Ahluwalia [1992] 4 All ER 889. Thornton (No2) [1996] 2 All ER 1023.

c) RP might have lost self-control and reacted as D did; Objective test: Would RP have lost their self-control? DPP v Camplin [1978] 2 All ER 168. AG Jersey v Holley [2005] UKPC 23. Humphreys [1995] 4 All ER 1008. Note: this defence has now been abolished. You need to understand the motivation for this change in the law.

2) Loss of Control This new defence is defined in the Coroners and Justice Act 2009:  Section 54 Partial Defence of “Loss of control”  Section 55 Meaning of a “qualifying trigger”  Section 56 Abolishes provocation Section 54(1) Loss of Control Where D kills, they are not to be convicted of murder if: o D’s acts or omissions resulted from a loss of control; o The loss of control had a qualifying trigger; and o The reasonable person might have .... reacted similarly.

Section 55 Qualifying Trigger

▫

Fear of serious violence from V against D or another identified person; and/or

▫

Things done or said which constituted circumstances or an extremely grave character and caused D to have a justifiable sense of being seriously wronged.

▫

But: 55(6)(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Section 54(1)(c) Reasonable Person Test A person of D’s sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

R v Clinton, Parker & Evans [2012] EWCA Crim 2. R v Dawes and others EWCA [2013] Crim 322. R v Gurpinder [2015] 1 WLR 3442.

Consider this … can the partial defences be pleaded if someone is charged with assault?

3) Diminished Responsibility This is a statutory defence, originally created to allow some people to avoid the death penalty. S.2 Homicide Act 1957 1. Abnormality of mind 2. Caused by either arrested/retarded development, inherent causes, disease or injury. 3. Which substantially impairs D’s mental responsibility for his acts/omissions. Byrne [1960] 2 QB 396.

New formulation created by: Section 52 Coroners and Justice Act 2009 (in force 4.10.10)

1. Abnormality of mental functioning 2. Which arose from a recognised mental condition and provides an explanation for D’s acts; 3. Which also substantially impaired D’s ability to understand the nature of their conduct; form a rational judgment and/or exercise self-control.

This acts to amend the Homicide Act, Section 2.

R v Dowds [2012] EWCA Crim 281.

Consider this … can you explain why the law on diminished responsibility was amended?

4) Evaluation of the reforms The reforms aim to address two issues: 1) Who moved the mustard pot? (Men’s use of provocation) ▫

Joseph McGrail

▫

“Honour Killings”: Rahan Arshad

2) Cases of women who kill violent men.    

Mrs Duffy Kiranjit Ahluwalia Sara Thornton Emma Humphreys

5) Domestic Homicide: Activism and the Law

Domestic Violence: ▫ is common ▫ around 1 in 4 women experience dv during their adults lives.

Domestic Homicide: is much rarer. In 2011/12  In total 172 women were killed, 88 (51%) by partners/ex-partners.  In total 367 men were killed,

17 (5%) by partners/ex-partners.

Justice for Women Justice For Women is a feminist organisation that campaigns and supports women who have fought back against or killed violent male partners.

6) Conclusions: Will the new defence of loss of control make a difference?

▫

Academic comment: Norrie, A. (2010) The Coroners and Justice Act 2009 partial defences to murder (1) Loss of control, Criminal Law Review, 275289.

▫

Justice for Women campaigning for Stacey Hyde.

Consider this … what academic conclusions can be drawn about the reform of the law on partial defences?

INVOLUNTARY MANSLAUGHTER

1. Unlawful act manslaughter AKA constructive manslaughter

AG’s Ref (no. 3) [1994]-the offence has four requirements/elements

i)

D’s act was intentional

ii)

D committed and unlawful act

R v Franklin [1883] R v Meeking [2012] any offence will suffice, as long as it is not strict liability or negligence based. Here, it was endangering of road users contrary to the Road Traffic Act 1988 s22A(1)(b) R v Lowe [1973] R v Lamb [1967] R v Larkin [1942]

iii)

D’s act was “dangerous”

R v Church [1966] “all sober and reasonable people would foresee the risk some non serious harm as inevitable as a result of the unlawful act” (Per Lord Edmund –Davies)

R v Dawson [1985]

R v Watson [1989]

R v Ball [1989]

R v M [2012]-The reasonable and sober person (or D) would not have to foresee the precise type of harm which ensued. R v Bristow [2013]

iv)

The unlawful act must cause the death factually and legally

See the heroin cases for an example of where this requirement is missing- R v Kennedy (No. 2) [2007]

2. Gross negligence manslaughter

R v Adomako [1995] -the offence also has four elements

i)

D must owe V a duty of care

R v Wacker [2003] R v Khan and Khan [1998] R v Willoughby [2005]

ii)

D breached the duty of care

Blyth v Birmingham Waterworks

iii)

The breach of duty caused the death of v factually and legally

R v Dalloway [1908]

iv)

The breach of the duty was gross

R v Adomako [1995]

R v Misra [2005]

AG’s Ref (No. 2) [1999]

Andrews v DPP [1937]

R v Bateman [1925]

Gross negligence manslaughter and omissions/duty situations -duty imposed by reason of job R v Adomako [1995] R v Pitwood [1902]

-duty imposed through D having custody or control of v

R v Stone and Dobinson [1977]

-duty imposed by being a parent or guardian R v Downes [1875] R v Shepherd [1862]

-duty imposed where D creates a dangerous situation R v Miller [1983] R v Evans [2009]

Criticisms of the law on involuntary manslaughter

Proposals for reform

CRIMINAL DAMAGE AND RECKLESSNESS

1. Criminal damage (guidance will be given by the lecturer as to whether the criminal damage offences are on the syllabus) Recklessness is definitely examinable.

offences under CDA 1971 -

S 1 (1) Simple/basic criminal damage

-

S 1(2) Aggravated criminal damage

-

S 1(3) Criminal damage by fire (arson)

1. Basic criminal damage S 1(1) CDA 1971 -

intentionally or recklessly damage or destroy property belonging to another without lawful excuse

Intentionally or recklessly For more on the MR requirement. See earlier notes on intention and later notes on recklessness

Damage or destroy

Destroy- Morphitis and Salmon (1990)

Damage Cox v Riley [1986]

R v Whitely [1991]

A (a juvenile) v R [1974]

Gayford v Chouler [1898]

Lloyd v DPP [1992]

Drake v DPP [1994] Hardman v Chief Constable of Avon and Somerset [1986]

Property S 10(1)

Belonging to another SS 10(2), (3) and (4)

Without lawful excuse The general defences can provide a lawful excuse, but basic criminal damage has its own specific defences contained in S 5 CDA 1971. There are two defences or lawful excuses.

S 5(2)(a) D had an honest belief that the owner had, or would have, consented to the damage of the property

R v Denton [1982]

S 5 (2) (b) D honestly believes that it is reasonable to cause the damage to protect his own property or another’s from immediate danger

R v Hill and Hall [1989]

Blake v DPP [1993]

2. The aggravated offence S 1(2) Definition

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another— (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

- Similarities between the aggravated and basic offences

-Differences between the aggravated and basic offences

a) No restriction on property ownership b) Ulterior intent/recklessness MR requirement c) No need for life to actually be endangered

R v Dudley [1989]

R v Steer [1988]

The mens rea for the CDA offences

Both offences require either intention or recklessness

Intention means the same as discussed before (direct or indirect)

For more on recklessness, see below

Recklessness in criminal law Offences where recklessness can be the MR Criminal damage Assault Battery (both S.39 CJA 1988) S.47 OAPA S.20 OAPA

The two types of recklessness known in criminal law -

Objective recklessness R v Caldwell [1983]

D gave no thought to the possibility of the prohibited consequences occurring when the outcome would have been obvious to the reasonable person -

Subjective recklessness R v Cunningham [1957]

D had foresight of the prohibited consequences

The position with recklessness before 2003 and the H of L judgement in R v G and R

R v G and R [2003] The facts

The certified question for the H of L “Can D properly be convicted under S. 1 CDA 1971 on the basis that he was reckless as to whether property was damaged when he no thought to the risk but, by reason of his age or personal characteristics the risk would not have been obvious to him, even if he had thought about it?”

The use of the Practice Statement 1966 and the judgement in R v G and R [2003] - The statute was not correctly interpreted by Lord Diplock in Caldwell - Criminal liability should be based on subjective fault - Caldwell created obvious unfairness - Academic criticism

The post R v G and R definition of recklessness for criminal damage cases “ a person acts recklessly within the meaning of S. 1 CDA 1971 with respect to: i) ii)

a circumstance when he is aware of a risk that it exists or will exist. a result when he is aware of a risk that it will occur

and it is in the circumstances known to him, unreasonable to take the risk. NB: Subjective (otherwise known as Cunningham) Recklessness now applies across the board in mainstream criminal law.

OFFENCES AGAINST THE PERSON

OFFENCES AGAINST THE PERSON ACT 1861

The non fatal offences against the person which are on the syllabus

S39 Criminal Justice Act 1988- Common assault and battery S47 Offences Against the Person Act 1861-assault occasioning ABH S20 OAPA-assault inflicting GBH or a wound S18 OAPA-intentionally causing GBH or a wound

1. Assault Definition Any intentional or reckless act that causes V to apprehend immediate unlawful violence

Actus reus of assault (Causing v to apprehend immediate unlawful force)

-Can words alone...