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Homicide PDF Notes Update

Criminal law (University of London)

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Murder

Definition – Unlawfully causes the death of another human being with malice
aforethought (Sir Edward Coke)

Actus Reus

 Unlawfully
 Exception: Self-defence and necessity
 Causes (Causation issues: Factual and Legal)
 Death (R v Melcherek & Steel – Brain dead is legal dead)
 Another human being
o Animal – property damage
o Foetus – R v Reeves (Foetus is not a human being)
o Baby – R v Paulton (Baby is a human being i.e. must be fully expelled
from the mother
 Under the Queen’s peace – killing during a war is a defence.
 The Year and a Day Rule
o Common law – death can only occur within ‘a year and a day’ after
defendant’s act
o Law Reform (Year & A Day Rule) Act 1996: –
 ABOLISHED COMMON LAW PRINCIPLE.
 AFTER 3 YEARS – NEED TO SEEK AG’S PERMISSION TO PROSECUTE

Mens rea

 Malice aforethought
o Intention to kill or cause GBH (R v Moloney )

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Voluntary Manslaughter

Loss of Self-Control

 It is a partial defence. This defence is found under S.54 Coroners and Justice Act
2009. This section abolished the old laws of provocation and replaces it with
statutory defence of loss of self-control.
 The effect of this defence is that it reduces the charge of murder to voluntary
manslaughter.

a) S.54 (1) (a) – Defendant must lose self-control

 D must actually lose his self-control. If it was pre planned or there was a desire for
revenge, then he cannot rely on this defence.

R v Jewell (2014)
The trial judge concluded there was insufficient evidence to leave the defence of
loss of self-control to the jury.
D, 12 hours before driving to V’s house has armed himself with firearms, a tent,
spare clothing, passport, driver’s license and a case. D came to the house and shot V
without warning. D claimed that V had threatened him the previous evening and
therefore relied on defence of self-control. The courts concluded the greater the
level of deliberation, it is less likely that the killing was followed by true loss of
self-control. In fact, there was an evidence to point to a planned prosecution.

R v Ibrams and Gregory (1982)

Evidence shows that there was a pre-planning and a motive to seek revenge. As
such, the defence of provocation is not available.

 The time lapse between the provocative element and defendant’s act is also
relevant to determine whether there is a loss of self-control; the cooling off period

R v Thornton (No.2) (1996)

D was subject to violent abuse over a period of 2 years by her husband. One night,
husband returned home and accused her of selling her body. She went into the

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kitchen, picked up and sharpened a knife and trying to persuade the husband to
come up to bed. V responded that he would kill her when she was asleep. She then
stabbed him in the stomach.
It was held that D was guilty of murder and defence of provocation would not apply
because D’s behavior showed that she had ‘cooled off’ before the killing and
therefore there was no temporary sudden loss of control.

R v Ahluwalia (1992)
D was convicted of murder and defence of provocation failed because there was a
‘cooling off’ period where D waited for husband to fall asleep. As such, there was no
sudden loss of self-control.

 Today, the requirement of sudden loss of self-control is abolished as per S.54 (2)
CAJA 2009. However, the time lapse between the provocative element and the act
of killing is still relevant to determine whether there is actual loss of self-control.
In R v Jewell, the courts took into account the 12 hours’ time lapse and went on to
conclude that the defence is not available for the jury to consider.

b) S.54 (1) (b) – Loss of self-control must have a qualifying trigger

 There are 2 types of trigger i.e. the fear trigger and anger trigger

Fear Trigger – S.55 (3)

 Where D has loss of self-control was attributed to D’s fear of serious violence
from V against D or another identified person, the requirement is whether the fear
of serious violence is subjectively assessed and therefore the fear need not be
reasonable.

 It must be fear of violence against the person or an identified 3rd party. However,
it may not be an unidentified person or a group. There would be an overlap between
this trigger and defence of self defence. However, this trigger can still apply when
D initiated the aggression or attack.

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Anger Trigger – S.55 (4)

 There must be circumstances of extreme grave character and the defendant must
feel a Justifiable sense of seriously wronged. However these phrases are not
defined by the act
 Law Commission gave the example of a parent who finds that his child
has just been raped and kills the offender after losing control
 Jacqueline Martin argues that the older case of DPP v Camplin might
satisfy the trigger
 In R v Zebedee, son who was frustrated with the father due to his
condition and kills him, tries to rely on the defence but was rejected.

 Sexual Infidelity cannot be relied as a trigger - 55(6)(c)

 R v Clinton (2012) – sexual infidelity cannot be relied as a trigger
but still can be brought in if there is other potential trigger i.e. to
provide a background story to other potential trigger.

 If the defendant himself incites the thing said or done to provide an excuse to use
violence, there will be no qualifying trigger , 55(6)(a) & 55(6)(b)

c) S.54 (1)(c) – The normal person test

 A person with normal degree of tolerance and self-restraint (D’s age and
sex) – would he have reacted in the same way?
 DPP v Camplin, Lord Diplock drew a distinction between characteristics that
effects the defendant’s level of self-control and characteristics that
effects the gravity of the provocation to the defendant

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Control Gravity
Characteristi Characteristi
cs cs

ONLY SEX ANY

AND AGE CHARACTERISTICS

Diminished Responsibility – S 2 HA 1957 as amended by S 52 CAJA

2009

S.2 (1) Abnormality of mental functioning (Old law – abnormality of mind)

 The phrase is not defined by the act but a state of mind that is do different from
that of an ordinary person would term it as abnormal would fall within the definition
( R v Bryne )
 Reference can be made to S. 2 (1A), based on the old law commission report.

S.2 (1)(a) caused by a ‘Recognised medical condition’

 Recognised medical conditions can be found the authoritative classification list by

World Health Organisation or American Psychiatric Association.
 Therefore the following conditions recognised under the old law will continue to be
recognised under the new law; retarded mental development, depression, bipolar,
paranoid schizophrenia, brain damage, psychopathy, paranoid personality disorder
and post natal depression.

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 If the condition relied by the defendant is contested, expert witness is required.

If the medical expert put forward by the defence is not challenged by the
prosecution, the charge of murder is withdrawn from the Jury ( R v Brennan )
 Contested conditions will include battered women syndrome and premenstrual
syndrome, the decision is ultimately one for the judge to make.
 R v Osborne – ADHD would not be sufficient to invoke the defence.
 Intoxication is not a medical condition but chronic alcoholism i.e. Alcohol
Dependency Syndrome is a recognised condition – R v Tandy, R v Wood

S.2 (1)(b) substantially impaired D’s ability to do (1A)

 Nature of conduct
 Rational judgement
 Self-control

 Goulds (2004) - The term ‘substantially impaired’ referred under S.2 (1)(b) means
‘significantly impaired’, thus it is beyond something which is ‘trivial’ or ‘minimal’.

S.2 (1)(c) provides an explanation for D’s act or omission

 Abnormality of mental functioning does not need does not need to be the sole cause
of killing so long it provides explanation for the defendant’s act. A person who kills
due to a combined effect of recognised medical condition and intoxication may still
have a defence ( R v Dietschmann )

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Involuntary Manslaughter

Constructive Manslaughter (Unlawful Act Manslaughter)

Constructive Manslaughter can be seen in the leading of House of Lords case in DPP v
Newbury and Jones. Two 15-year-old boys pushed the paving stone over the bridge onto
an oncoming train. Stone went through the glass window of the driver’s cab killing the
driver. D was convicted of unlawful act manslaughter. Lord Salmon however did not specify
what the unlawful act was.

Unlawful Act

 It must be a positive act. An omission is not sufficient. In R v Lowe, D neglected

his child causing the child’s death. Courts concluded this was not sufficient.
 There must be an unlawful act i.e. criminal offence. A civil offence is not sufficient.
In R v Franklin, D took a box from the refreshment stall and threw it into the sea.
The box struck the swimmer killing him. Courts concluded the tort of trespass to
property is not sufficient for a constructive manslaughter act because it was a civil
liability.
 Both AR and MR must be established. In R v Lamb
D and V believed no bullets will be fired from the gun if D pulled the trigger. Trial
judge directed that pointing the gun at the victim would be an assault. COA quashed
the conviction. In this case, there was no criminal offence because MR of criminal
offence was not present.
 The MR of this offence is the MR of the unlawful act itself.

Act Must Be Dangerous

 An objective test is applied to the meaning of dangerous. This can be seen in the
case of R v Church. Edmund Davies J explained the concept of dangerous under
constructive manslaughter. An act is dangerous if a reasonable person can recognize
the risk of some harm resulting from the act.
 A reasonable man is deemed to have the knowledge that the defendant has (R v
Dawson).

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 Where the risk of harm become obvious to a reasonable man present on the scene
of the crime, D’s unlawful act becomes dangerous. ( R v Watson )
 D’s mistaken belief that the act was not dangerous cannot be attributed to the
reasonable man. ( R v Ball )

Dawson – robbed a bank using imitation gun, Watson - 87 year old man, frail condition, Ball
- D mistakenly believed that he has loaded the gun with blank

Cause death
Normal rules of causation will apply.

Gross Negligence Manslaughter

In R v Adomako, Courts established that there are four elements to gross negligence
manslaughter i.e.

1. D must owe V a DOC

2. D must breach DOC
3. Breach must have caused V’s death
4. D’s conduct was grossly negligent

Duty of Care

 Under traditional category, DOC exists between doctor-patient, occupiers-visitors,

employer-employee, driver-passenger, driver-other road users, nurse-patient etc.
 If the situation falls outside traditional category, than the 3 part test in Caparo v
Dickman will be relevant :

 Reasonable foreseeability that the claimant will ne harmed

 The proximity of relationship
 Whether it’s fair, just and reasonable to impose duty of care.

 In R v Wacker, COA in establishing duty of care, applied the first limb of the
Caparo test i.e. whether it was reasonably foreseeable that the victim’s will be

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injured as a result the defendant’s breach. No consideration was given to the other
factors in Caparo
 Unlike constructive manslaughter, gross negligence manslaughter can be committed
through omissions. Courts recognize certain situation that could give rise to liability
by way of omission ( see omission chapter )

 contractual obligation
 special relationship
 voluntary assumption of responsibility
 public duty
 creating a dangerous situation
 Doctors also have a general duty to preserve life.

Breach of DOC

 As far as breach of DOC is concerned, as per Lord McCain in R v Adomako, it is

establish that principles of tort will apply. Therefore, the reasonable man test will
apply i.e. whether a defendant has acted as a reasonable person would have acted.
If special knowledge is involved, he would be tested against the standard of a
reasonable man with that particular skill or knowledge.

Cause death

 Normal causation rules will apply

Mens rea – Gross negligence

 Very high degree of negligence is required. The civil standard of negligence is not
sufficient. The concept of gross negligence was explained by Lord McCain in R v
Adomako. It is considered gross negligent if having regard to the risk of death
involved, D’s conduct was so bad in all circumstances as to amount to a criminal act
or omission
 As Lord Hewart CJ explains in R v Bateman, criminal liability is imposed because
the negligent of the accused went beyond a mere matter of compensation

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 R v Singh considered the level of negligence required before a tort becomes a

crime. This includes considering relevant issues; Defendant’s action of taking
unreasonable risk and deliberately expose victim to obvious and serious risk.
Defendant’s indifference to risk arising from his conduct, whether defendant did
anything to avoid the risk and how below the standard he has fallen.

Reckless Manslaughter
.

R v Lidar (2000)

D was having dispute with V and decided to drive off. However, V was clinging to D’s car.
He fell off and was run over. The court of appeal held that ‘subjective recklessness’ was
the basis of the manslaughter and thus reckless manslaughter was still a valid branch of
involuntary manslaughter. Question is whether D recognizes death or serious injury as
highly probable as a result of his act and then goes on to take the risk.

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