HOMICIDE 2 - MURDER

DEFINITION
The classic definition of murder is that of Sir Edward Coke
(Institutes of the Laws of England, 1797):
"Murder is when a man of sound memory, and of the age
of discretion, unlawfully killeth within any country 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, etc. die of the wound or hurt, etc. within a year and a
day after the same."
For the purposes of convenience, we can say that murder
is the unlawful killing of a human being under the Queen's
peace with malice aforethought. However, death no longer
need occur within a year and a day.

ACTUS REUS

1. UNLAWFUL KILLING
The killing must be unlawful. Certain defences, eg self-
defence, will make a killing lawful.
The act (or omission) of the defendant must have been the
legal cause of the death of the victim. Causation must be
established.

2. HUMAN BEING
The killing must be of a living human being.

3. QUEEN'S PEACE
Under the Queen's peace means that the killing of an
enemy in the course of war will not be murder.

4. DEATH WITHIN A YEAR AND A DAY

The year and a day rule was abolished by the Law Reform
(Year and a Day Rule) Act 1996.

MENS REA

1. MALICE AFORETHOUGHT
The mens rea for murder is malice aforethought. The
House of Lords in R v Moloney [1985] AC 905 held that
nothing less than intention to kill or cause grievous bodily
harm (g.b.h.) would constitute malice aforethought: merely
foreseeing the victim's death as probable was insufficient.
(a) Intention to kill
Murder is a crime of specific intent. Intention in this context
includes direct or oblique intent. Direct intent covers the
situation where the defendant desired the death. Oblique
intent covers the situation where the death is foreseen by
the defendant as virtually certain, although not desired for
its own sake. The most recent authority on intention is:
R v Woollin (1998) The Times, July 23.
(b) Intention to cause G.B.H.
In R v Vickers [1957] 2 QB 664, the Court of Appeal held
that a defendant could be convicted of murder if it was
established that he had intended to kill, or had intended
grievous bodily harm. The latter was accepted as sufficient
mens rea for murder because if a defendant was willing to
inflict g.b.h., how was he to know that the victim might not
die? An intention to cause g.b.h. at least evidenced a
willingness to accept a substantial risk that the victim
might die.
In R v Cunningham [1981] 2 All ER 863, the defendant
repeatedly struck the victim around the head with a chair
resulting in his death. The prosecution contended that
while there was no intention to kill, there had been an
intent to do really s.b.h. The defendant's plea of
manslaughter was rejected and he was convicted of
murder. The House of Lords stated that an intention to
cause "really serious injury" was sufficient to amount to the
mens rea for murder.

THE SENTENCE FOR MURDER

The punishment for murder, a mandatory sentence of life

imprisonment, is fixed by the Murder (Abolition of Death
Penalty) Act 1965. On sentencing a murderer the judge
may recommend to the Home Secretary the minimum
period which should elapse before the prisoner is released
on licence.

HOMICIDE 3 - VOLUNTARY
MANSLAUGHTER
INTRODUCTION
When a defendant has caused a victim's death, and has been proved to have had the
necessary mens rea for murder, he may be able to avoid a conviction for murder by
establishing that he comes within the scope of the defence of either: Diminished
responsibility, Provocation, Suicide Pact or Infanticide.

In each case, if the defendant succeeds with the defence, his liability is reduced from
murder to manslaughter, the sentence for which is at the discretion of the judge. This
form of manslaughter is described as "voluntary" because there will have been evidence
that the defendant did intend to kill or cause g.b.h., but certain kinds of extenuating
circumstances partially excuse his conduct.

DIMINISHED RESPONSIBILITY
HOMICIDE ACT 1957
If the defendant can prove on a balance of probabilities a defence of diminished
responsibility, he will be guilty of manslaughter rather than murder under s2(1) of the
Homicide Act 1957 which provides:

"Where a person kills or is party to a killing of another, he shall not be convicted of

murder if he was suffering from such abnormality of mind (whether arising from a
condition of arrested or retarded development of mind or any inherent causes or
induced by disease or injury) as substantially impaired his mental responsibility for his
acts and omissions in doing or being a party to the killing."

1. ABNORMALITY OF MIND
An abnormality of mind is a state of mind which the reasonable man would consider
abnormal. It is thus defined widely. The meaning of the phrase was considered by the
Court of Appeal:

R v Byrne [1960] 2 QB 396. The defendant had strangled a young woman and then
mutilated her body. He claimed he was subject to an irresistible or almost irresistible
impulse because of violent perverted sexual desires which overcame him and had done
so since he was a boy. There was evidence that he was a sexual psychopath, and
could exercise but little control over his actions. The defence of diminished responsibility
was rejected by the trial judge, and the defendant was convicted of murder. The Court
of Appeal allowed the defendant's appeal on the basis that the trial judge had been
wrong to exclude, from the scope of the defence, situations where a defendant was
simply unable to exercise any self-control over his actions. (This would cover the
irresistible impulse situation.) Lord Parker CJ stated:

'"Abnormality of mind" … means a state of mind so different from that of ordinary human
beings that the reasonable man would term it abnormal. It appears to us to be wide
enough to cover the mind's activities in all its aspects, not only the perception of
physical acts and matters, and the ability to form a rational judgement whether an act is
right or wrong, but also the ability to exercise will power to control physical acts in
accordance with that rational judgement.'

His Lordship pointed out that whether the defendant was suffering from any
"abnormality of mind" is a question for the jury. On this question medical evidence is of
importance but the jury are entitled to take into consideration all the evidence including
acts or statements of the defendant and his demeanour. They are not bound to accept
the medical evidence, if there is other material before them which, in their judgement,
conflicts with it and outweighs it. The cause of the abnormality of mind does, however,
seem to be a matter to be determined on expert evidence.

Note: According to Clarkson and Keating, Criminal Law, diminished responsibility has
been pleaded with success in the following type of cases: mercy killers, deserted
spouses or disappointed lovers who kill while in a state of depression, reactive
depressions, chronic anxiety states, alcoholism, women suffering from "pre-menstrual
syndrome", and "battered wife syndrome" cases (eg, R v Ahluwaliah [1992] 4 All ER
889 and R v Thornton (No 2) [1996] 2 All ER 1023.

2. HOW THE ABNORMALITY ARISES

This is very widely defined. It covers:

 (a) A condition of arrested or retarded development of mind,

 (b) Any inherent causes
 (c) Disease or injury.

Although this excludes drink or drugs it does cover disease caused by long term
alcoholism or drug-taking. Alcoholism is enough if it injures the brain, causing
impairment of judgement and emotional responses, or causes the drinking to become
involuntary: R v Tandy [1988] 1 All ER 267 (see below).

3. THE EFFECT OF THE ABNORMALITY OF MIND

The abnormality of mind must substantially impair the defendant's mental responsibility.
The impairment therefore need not be total, but it must be more than trivial or minimal.
The defendant may know what he is doing, know it is wrong, and have some control
over himself but find it substantially more difficult than a normal person would to control
his actions, eg as in Byrne.

In R v Egan [1992] 4 All ER 470, the Court of Appeal approved the following direction
(suggested in R v Lloyd [1967] 1 All ER 107) on the meaning of "substantial"
impairment, to the effect that:

 the jury should approach the word in a broad common sense way, and that
 the word meant "more than some trivial degree of impairment which does not make
any appreciable difference to a person's ability to control himself, but it means less
than total impairment … ".

4. DIMINISHED RESPONSIBILITY AND INTOXICATION

The fact that a defendant might have been drunk at the time of committing a murder is
largely irrelevant to the issues of diminished responsibility, as it will not constitute an
"inherent cause" within s2:

R v Gittens [1984] QB 698. The defendant suffered from depression and had been in
hospital. On a visit home he had an argument with his wife and he clubbed her to death.
He then raped and killed his step-daughter. He had been drinking and taking drugs for
medication. The Court of Appeal suggested that where the jury had to deal with both
diminished responsibility and intoxication, they should be directed to consider:

(1) whether the defendant would have killed as he did without having been intoxicated,
and if the answer to that was yes, (2) whether he would have been suffering from
diminished responsibility when he did so.

This approach has subsequently been approved by the Court of Appeal in R v Atkinson
[1985] Crim LR 314 and R v Egan [1992] 4 All ER 470.

Chronic alcoholism can become a relevant factor. Where a craving for drink causes an
abnormality of mind, the defence will be made out. Where however, the abnormality of
mind causes a craving for drink, the defence will not be available:

R v Tandy [1989] 1 All ER 267. Tthe defendant was an alcoholic who had drunk much
more than normal and then strangled her 11 year old daughter. She did not claim that
she could not stop herself from drinking, and admitted that she was able to exercise
some control over her drinking initially. The trial judge withdrew the defence of
diminished responsibility. The defendant appealed but failed. The Court of Appeal
accepted that where a defendant could show that she was suffering from an abnormality
of the mind, that it was induced by disease (namely alcoholism), and that it substantially
impaired her responsibility for her actions, then the defence of diminished responsibility
would be made out. In the present case, the craving for alcohol did not render the use of
alcohol involuntary - she was in control when she started voluntarily drinking, and that
therefore her state of mind was merely induced by the alcohol.

The principles developed in Tandy have been extended to other types of substance
abuse. For example, long term use of heroine and cocaine in R v Sanderson (1994) 98
Cr App R 325.

5. BURDEN OF PROOF
Section 2(2) states clearly that the burden of proving the defence rests upon the
defendant. Given that the standard of proof which the defendant has to achieve is the
balance of probabilities, he will have to obtain cogent medical evidence as to his
condition.

6. SENTENCE
If successfully pleaded, the defence avoids the imposition of a mandatory life sentence
and enables the court to give whatever sentence is regarded as appropriate. This can
include a hospital order under s37 of the Mental Health Act 1983 thus ensuring
treatment not punishment in appropriate cases. (This is now imposed in approximately
one-third of diminished responsibility cases.)

PROVOCATION
INTRODUCTION
Provocation is a common law defence which has been modified by s3 of the Homicide
Act 1957 which provides:

"Where on a charge of murder there is evidence on which the jury can find that the
person charged was provoked (whether by things done or by things said or by both
together) to lose his self-control, the question whether the provocation was enough to
make a reasonable man do as he did shall be left to be determined by the jury; and in
determining that question the jury shall take into account everything both done and said
according to the effect which, in their opinion, it would have on a reasonable man."

Section 3 does not state the effect of a successful defence - it is by virtue of the
common law that the offence is reduced to manslaughter.

The procedure is as follows:

 (1) Once the judge has decided there is sufficient evidence that the defendant was
provoked, whether or not the defence has been raised expressly by the defendant,
he must leave it to the jury to answer the questions:
 (2) Was the defendant provoked to lose his self-control?, and
 (3) Was the provocation enough to make a reasonable man do as he did?

1. EVIDENCE OF PROVOCATION
Section 3 places an evidential burden on the defendant. He must raise sufficient
evidence of provocation for the judge to leave the defence to the jury. Whether the
defendant has produced sufficient evidence is a matter of law for the trial judge alone to
decide. This evidence can be provided by any witness at the trial, not necessarily by the
defendant alone. Since the 1957 Act, it has been capable for anything to constitute
provocation, including words alone, actions by third parties, and provocation directed at
third parties. For example:

R v Doughty [1986] Crim LR 625. The defendant had killed his baby and wanted to
argue that he had been provoked by the child's persistent crying. On appeal it was held
to be a misdirection for the trial judge to tell the jury that the persistent crying of a 17
day old baby could not constitute provocation, and therefore quashed the murder
conviction and substituted a conviction for manslaughter. The jury should have been
directed to consider how the reasonable man would have responded.

This point was recently reaffirmed by the House of Lords in R v Acott [1997] 1 All ER
706.

2. WAS THE DEFENDANT PROVOKED?

The first element of the provocation test is subjective - the requirement that the
defendant must be shown to have actually lost his self-control. If there is evidence that
his actions were premeditated, or that he had been able to compose himself between
the provocation and the killing, then the defence cannot be left to the jury. In R v Duffy
[1949] 1 All ER 932, Devlin J stated that the provocation must cause a sudden and
temporary loss of self-control, rendering the accused so subject to passion as to make
him or her for the moment not master of his mind".

Where there is a gap in time between the provocation and the killing (described as
"cooling time"), the defendant may encounter difficulties in trying to establish the
defence of provocation:

R v Ibrams and Gregory (1981) 74 Cr App R 154. The defendants and a young woman
had been terrorised and bullied by the deceased, over a period of time but the last act
occurred on 7 October. On 10 October they devised a plan which involved the woman
enticing the deceased to her bed, whereupon the defendants would burst into the room
and attack him. The plan was carried out on 12 October. The defendants were
convicted of murder and on appeal it was held that the judge was right to rule that there
was no evidence of loss of self-control. Lawton LJ expressed the view that the time gap
between the last act of provocation and the killing refuted any evidence that it had been
carried out by the defendants suffering from a sudden and temporary loss of self-control
as envisaged by Devlin J in Duffy [1949].
R v Thornton [1992] 1 All ER 306. A wife who had been treated brutally by her husband
over a period of months and had earlier declared her intention of killing him, after a
fresh provocation went to the kitchen, took and sharpened a carving knife and returned
to another room where she stabbed him. The trial judge left the defence to the jury,
directing them that provocation required evidence of some sudden and temporary loss
of self-control on the part of the defendant. The defence was rejected by the jury. The
defendant appealed on the ground that s3 required the jury to have regard to
"everything both said and done according to the effect which in their opinion it would
have on a reasonable man". The direction given would concentrate the minds of the jury
on the final outburst, when they should be concentrating on the events over the years
leading upto the killing. In rejecting this contention, Beldam LJ stated: "In every such
case the question for the jury is whether at the moment the fatal blow was struck the
accused had been deprived for that moment of the self-control which previously he or
she had been able to exercise".

Note: This principle was reaffirmed in R v Thornton (No 2) [1996] 2 All ER 1023.
However, following the introduction of fresh evidence, a retrial was ordered by the Court
of Appeal to consider the effect of Battered Woman Syndrome and the defendant was
convicted of manslaughter on the ground of diminished responsibility (The Times, 31
May 1996).

R v Ahluwaliah [1992] 4 All ER 889. The defendant had been a victim of domestic
violence for many years. On the night in question her husband had argued with her and
promised to give her a beating the following morning. After he had fallen asleep, the
defendant poured petrol over him and set him alight, causing burns from which he died.
She was convicted of his murder following the trial judge's direction to the jury in
accordance with Duffy. The Court of Appeal held that the trial judge had rightly stressed
to the jury that provocation was only available to a defendant who killed whilst suffering
from a sudden loss of self-control, and that s3 of the Homicide Act 1957 had not been
intended by Parliament to affect the operation of the test in Duffy [1949]. (However, a
retrial was ordered to consider the defence of diminished responsibility including the
effect of "battered woman syndrome" and the defendant was subsequently convicted of
manslaughter).

The Court of Appeal recently made it clear that a defence of provocation can succeed if
there is a series of incidents over time which drove the woman to murder:

R v Humphreys [1995] 4 All ER 1008. The defendant lived with her partner, A, who
began to assault her and abuse her sexually and mentally. During an evening out he
threatened her with a gang-rape. At home D cut her wrists. A undressed to his shirt,
causing D to fear rape, and then taunted her with the remark she had not made a very
good job of cutting her wrists. D lost self-control and stabbed A to death. At her trial for
murder, D pleaded provocation, claiming that the jibe about wrist cutting had been the
trigger which caused her to "snap". Following conviction for murder, the Court of Appeal
quashed her conviction and substituted one for manslaughter. The Court of Appeal held
that the judge had misdirected the jury. (1) The accused's psychiatric characteristics
(stemming from the abuse) should have been attributed to the reasonable person when
the jury considered the application of the objective test. (2) The jury was entitled to the
benefit of an analysis by the judge of the various strands of provocation at the
successive stages starting from her first meeting with A and culminating in his death.
This was necessary because the relationship was a very complex story, involving both
much earlier incidents of violence and the break-down of the sexual relationship, and a
series of events on the night of the killing, including the threat of rape and the taunts. It
was not sufficient simply to leave it to the jury to make sense of the importance of all
these events other than the final taunts.

R v Thornton (No 2) [1996] 2 All ER 1023. Lord Taylor CJ said, on the relevance of
battered woman syndrome to the defence of provocation, that a jury may find there was
a sudden loss of control triggered by a minor incident if the defendant had endured
abuse over a period, on the "last straw" basis.

3. THE REASONABLE MAN TEST

Having decided that the defendant was provoked, the jury must decide whether a
reasonable man would have acted as the defendant did - the objective test. The
reasonable man is attributed with the defendant's particular characteristics which might
be relevant to the provocation:

DPP v Camplin [1978] AC 705. The defendant was a 15 year old boy who, having been
buggered by the deceased, was then taunted by him. The defendant killed the
deceased by hitting him over the head with a heavy frying pan. He was convicted of
murder following a direction by the trial judge to the jury that they were to judge him by
the standards of the reasonable adult, not by a reasonable 15 year old boy. The Court
of Appeal allowed the defendant's appeal on the basis that the more subjective test,
which took account of the defendant's age, should have been applied. This was
endorsed by the House of Lords.

 Lord Diplock gave the following definition of the reasonable man: "… the "reasonable
man" has never been confined to the adult male. It means an ordinary person of
either sex, not exceptionally excitable or pugnacious, but possessed of such powers
of self-control as everyone is entitled to expect that his fellow citizens will exercise in
society as it is today."
 The judge should, according to Lord Diplock, explain to the jury that the reasonable
man referred to in the section is a person having the power of self-control to be
expected of an ordinary person of the sex and age of the defendant, but in all other
respects showing such of the defendant's characteristics as they think would affect
the gravity of the provocation to him. The question is not merely whether such a
person would in the circumstances be provoked to lose his self-control but also
whether he would react to the provocation as the defendant did.

 Hence, whilst the age and sex of the defendant would always be attributed to the
reasonable man, other characteristics such as racial origin, or physical peculiarity,
would only be considered to the extent that they were relevant. Thus in the present
case, the reasonable man would be the reasonable 15 year old, as the defendant's
youth was a relevant characteristic. As certain characteristics such as intoxication or
excitability would be ignored for policy reasons, the defendant's drunkenness was
irrelevant.

The House of Lords more recently had to decide whether the judge should exclude from
the jury's consideration characteristics and past behaviour of the defendant at which the
taunts are directed, which in the judge's view are inconsistent with the concept of a
reasonable man:

R v Morhall [1995] 3 All ER 659. The defendant, who had been indulging in glue
sniffing, was taunted about his addiction by V. A fight ensued, in the course of which D
stabbed V, who subsequently died. When directing the jury, the trial judge made no
reference to any special characteristics of the D which the jury might think would affect
the gravity of the provocation. D was convicted and appealed, contending that his
addiction to glue sniffing was a special characteristic which should have been taken into
account as affecting the gravity of the provocation. The Court of Appeal dismissed the
appeal, purporting to follow DPP v Camplin and R v Newell (1980) 71 Cr App R 331,
and referring to the New Zealand case of McGregor [1962] NZLR 1069. Characteristics
repugnant to the concept of the reasonable man could not possibly be included, for
example, alcoholism, drug addiction, paedophilia (contrasted with included
characteristics such as physical deformity, colour, race, creed, impotence,
homosexuality). Consequently, the self induced addiction to glue sniffing could not be
included within those characteristics capable of being attributed to the reasonable man.
However, the House of Lords allowed the appeal and substituted a conviction for
manslaughter. Lord Goff made the following points:

 In DPP v Camplin, the House of Lords had stressed that the jury should take into
account "all those factors" or "the entire factual situation" which would affect the
 gravity of the provocation. There was nothing in that judgment to rule out any
disreputable characteristics;
 The reasonable man test introduces a standard of self-control which had to be
complied with if provocation was to be established in law;
 D's addiction to glue sniffing should have been taken into account as affecting the
gravity of the provocation, since it was a characteristic of particular relevance as the
words of the deceased which were said to constitute the provocation were directed
towards D's addiction to glue sniffing and his inability to break himself of it;
 A distinction may have to be drawn between two situations: (a) where the D is
taunted with his addiction (for example, that he is an alcoholic, or a drug addict, or a
glue sniffer), or even with having been intoxicated on some previous occasion, in
which case it may where relevant be taken into account as going to the gravity of the
provocation, and (b) where the D was intoxicated (being drunk, or high with drugs or
glue) at the relevant time, which may not be so taken into account, because that, like
displaying a lack of ordinary self-control, is excluded as a matter of policy;
 The Court of Appeal in Newell may have placed too exclusive an emphasis on the
word "characteristic" as a result of relying on the case of McGregor. It is more
important to consider "the entire factual situation", so that there will be some
circumstances affecting the gravity of the provocation which do not fall within the
description of "characteristics", such as D's history or the circumstances in which he
is placed at the relevant time.

The House of Lords was recently asked to consider whether characteristics, other than
age and sex, attributable to a reasonable man were relevant not only to the gravity of
the provocation but also to the standard of control to be expected:

R v Smith [2000] 4 All ER 289. The defendant was charged with murder and relied on
the defence of provocation, alleging that he had been suffering from serious clinical
depression and had been so provoked by the deceased as to lose his self-control.

 The House of Lords held that for the pusposes of s3 of the Homicide Act 1957, the
jury was allowed to take into account not only those characteristics of the accused
which were relevant to the gravity of the provocation, but also those which affected
his powers of self-control. However, the judge was not obliged to let the jury imagine
that the law regarded anything which caused loss of self-control as necessarily being
an acceptable reason for such a loss of control.
 Nor was he required to describe the objective element in the provocation defence by
reference to the reasonable man, with or without attribution of personal
characteristics. Instead, he might find it more helpful to explain in simple language
the principles of the doctrine of provocation, instructing the jury that it was not
sufficient that something had caused the accused to lose self-control, that the law
 expected people to exercise control over their emotions and that a tendency to
violent rages or childish tantrums was a defect in character rather than an excuse.
 The jury had to think that the circumstances were such as to make the loss of self-
control sufficiently excusable to reduce the gravity of the offence from murder to
manslaughter. They were required to apply what they considered to be appropriate
standards of behaviour, making allowance for human nature and the power of
emotions, but not allowing someone to rely upon his own violent dispositions.

4. SELF-INDUCED PROVOCATION
If the defendant induces the provocation by some act of his own the defence will still be
available:

In R v Johnson [1989] 2 All ER 839, the defendant had made unpleasant comments to
the deceased and his female companion. The victim retaliated by threatening the
defendant with a beer glass. The defendant responded by fatally stabbing the victim
with a flick knife. At his trial the judge, following the Privy Council decision in Edwards v
R [1973] AC 648, refused to leave the defence of provocation to the jury on the basis
that it had been self-induced. The defendant was convicted of murder (his defence of
self-defence had failed) and appealed. The Court of Appeal quashed the conviction for
murder and substituted one of manslaughter.

They held that s3 of the Homicide Act 1957 provides that anything can amount to
provocation, including actions provoked by the defendant. The defendant had been
deprived of the opportunity of having his defence considered properly by the jury,
following the trial judge's ruling that he was bound to follow Edwards.

SUICIDE PACT
INTRODUCTION
Section 4 of the Homicide Act 1957 introduces the defence of suicide pact:

"(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance
of a suicide pact between himself and another to kill the other or be a party to the other
killing himself or being killed by a third person.

(2) For the purposes of this section 'suicide pact' means a common agreement between
two or more persons having for its object the death of all of them, whether or not each is
to take his own life, but nothing done by a person who enters into a suicide pact shall be
treated as done by him in pursuance of the pact unless it is done while he has the
settled intention of dying in pursuance of the pact."

This defence would be used in a situation where A and B agree to end their lives by
each injecting the other with a massive drug overdose at the same time. The plan is
carried out, and A dies, but B is found by C and rushed to hospital, and is saved. B
caused the death of A deliberately and is prima facie guilty of murdering him, but B
would be able to avail himself of s4, provided he can show the purpose of the
agreement with A was that they should both die, and that when he injected A with the
drug, he himself was under a 'settled expectation' of dying.

INFANTICIDE
INTRODUCTION
Section 1(1) of the Infanticide Act 1938 provides that where a woman kills her child
before it reaches 12 months in age, and there is evidence to show that at the time of the
killing the balance of her mind was disturbed by: the effect of giving birth, or the effect of
lactation consequent upon giving birth to the child, a jury is entitled to acquit her of
murder, but find her guilty instead of infanticide.

The defence is clearly designed to provide for women who may be very seriously
affected by post-natal depression. Note that it would not provide a defence to a woman
suffering from post-natal depression who killed one of her older children, but it is
arguable that she would raise diminished responsibility in such circumstances.

HOMICIDE 4 - INVOLUNTARY
MANSLAUGHTER 1

INTRODUCTION

Involuntary manslaughter is the term given to an unlawful killing where the necessary
mens rea for murder is not present - the defendant will not have had any intention to kill
or do g.b.h. In fact, the defendant will probably not have contemplated the death of the
victim at all. There are three broad categories of involuntary manslaughter:
* Manslaughter by an unlawful and dangerous act (also known as constructive
manslaughter),
* Manslaughter by gross negligence, and
* Manslaughter with subjective recklessness as to the risk of death or bodily harm.

As with voluntary manslaughter, if a defendant is convicted of involuntary manslaughter

the sentence is at the discretion of the trial judge and can range between life
imprisonment and an unconditional discharge.

UNLAWFUL ACT MANSLAUGHTER

INTRODUCTION

This type of manslaughter is committed when the defendant has caused the death of a
person by an unlawful and dangerous act. The Court of Appeal in R v Mitchell [1983] 2
WLR 938 (below) said that to establish this type of manslaughter it had to be shown:

1. that the accused had committed an unlawful act;

2. that the act was dangerous in the sense that a sober and reasonable person would
inevitably recognise that it carried some risk of harm;
3. that the act was a substantial cause of death; and
4. that the accused intended to commit the act as distinct from intending its
consequence.

1. AN UNLAWFUL ACT

Since the decision in R v Franklin (1883) 15 Cox CC 163, unlawful act manslaughter
must be based on a criminal act. Therefore, if the prosecution cannot establish a
criminal act on the part of the defendant, the defendant will not be liable for unlawful act
manslaughter. Compare:

R v Lamb [1967] 2 QB 981

R v Arobieke [1988] Crim LR 314.

The consent of the victim will not prevent an act from being unlawful. See:
R v Cato [1976] 1 WLR 110.

2. THE ACT MUST BE DANGEROUS

The act must be dangerous in the sense that the average person would recognise that it
could cause some form of physical harm to another person. See:

R v Larkin [1943] 1 All ER 217

R v Church [1966] 1 QB 59.

What type of harm has to be reasonably foreseeable?

The jury must be directed to consider the possibility of physical harm as opposed to
merely emotional harm. See:

R v Dawson (1985) 81 Cr App R 150.

How much knowledge of the circumstances does one attribute to the bystander?

* In R v Watson [1989] 1 WLR 684, it was held that the sober and reasonable"
bystander was to be endowed with whatever knowledge the defendant possessed.

* In R v Ball [1989] Crim LR 730, however, it was emphasised that the sober and
reasonable bystander could not be endowed with any mistaken belief held by the
defendant.

3. SUBSTANTIAL CAUSE OF DEATH

The unlawful and dangerous act must be a substantial cause of death.

Must the act be directed at the victim?

It had been suggested that because the unlawful act must expose the victim to the risk
of some bodily harm, it must be aimed at that victim. See:

R v Dalby [1982] 1 WLR 425.

This seemed to introduce an extra element of mens rea into the offence by requiring the
defendant to 'direct' his action against the victim. The significance of Dalby has been
greatly reduced however, by the two following cases. The issue is now one of
causation. See:

R v Mitchell [1983] 2 WLR 938

R v Goodfellow (1986) 83 Cr App R 23
R v Watson [1989] 1 WLR 684.

4. MENS REA

The mens rea for unlawful act manslaughter consists of mens rea as to the unlawful act
itself (ie, intention or recklessness depending on what the necessary mens rea is for the
act). The defendant need not realise the risk of causing some harm. As long as the
reasonable man in his position would have so realised, this is sufficient mens rea. The
House of Lords reaffirmed this point in:

DPP v Newbury and Jones [1976] AC 500.

If there is no mens rea for the unlawful act the defendant will not be liable; see R v
Lamb (above).

CASES ON INVOLUNTARY
MANSLAUGHTER

UNLAWFUL ACT MANSLAUGHTER

1. AN UNLAWFUL ACT

R v Franklin (1883) 15 Cox CC 163

The defendant while walking along a pier, took up a "good sized box" from a stall and
threw it into the sea where it struck a swimmer and killed him. The defendant was guilty
of manslaughter as death arose from an unlawful act, ie taking another's property and
throwing it into the sea.

R v Lamb [1967] 2 QB 981

The defendant pointed a loaded gun at his friend in jest. He did not intend to injure or
alarm the victim and the victim was not alarmed. There were two bullets in the
chambers but neither was in the chamber opposite the barrel. Because they did not
understand how a revolver works, both thought there was no danger in pulling the
trigger. But when the defendant did so, the barrel rotated placing a bullet opposite the
firing pin and the victim was killed. The defendant was not guilty of a criminal assault or
battery because he did not foresee that his victim would be alarmed or injured.

R v Arobieke [1988] Crim LR 314

The defendant had been convicted of manslaughter on the basis that his presence at a
railway station had caused the victim, whom he knew to be terrified of him, to attempt
an escape by crossing the railway tracks, with the result that he was electrocuted. The
Court of Appeal quashed the conviction on the ground that there had been no criminal
act by the defendant, as the evidence did not show that the defendant had physically
threatened or chased the deceased.

R v Cato [1976] 1 WLR 110

The defendant and the victim agreed to inject each other with heroin. The victim had
consented to a number of such injections during the course of an evening. The following
morning he was found to have died from the effects of the drug-taking. The defendant
was convicted of maliciously administering a noxious substance contrary to s23 of the
Offences Against the Person Act 1861, and of manslaughter, either on the basis that his
unlawful act had caused death, or on the basis that he had recklessly caused the
victim's death.

The Court of Appeal held that the defendant had been properly convicted. Lord Widgery
CJ stated that heroin was a noxious substance on the basis that it was likely to injure in
common use, and that the defendant had administered it knowing of its noxious
qualities. The victim's consent to suffer harm of this nature could never relieve the
defendant of his liability, or destroy the unlawfulness of the defendant's act.

2. THE ACT MUST BE DANGEROUS

R v Larkin [1943] 1 All ER 217

The defendant waved a razor about intending to frighten his mistress's lover. His
mistress, who was drunk, blundered against the razor and was killed. The defendant
was convicted of manslaughter. It was held that where the act which a person is
engaged in performing is unlawful, then, if at the same time it is an act likely to injure
another person, and that person dies, the accused is guilty of manslaughter.

R v Church [1966] 1 QB 59

The defendant had gone to his van with a woman for sexual purposes. She mocked his
impotence and he had attacked her, knocking her out. The defendant panicked, and
wrongfully thinking he had killed her, threw her unconscious body into a river, where she
drowned. The defendant was convicted of manslaughter. He had acted unlawfully
towards the victim in a way that sober and reasonable people would appreciate involved
risk of injury to the victim.

Edmund-Davies J provided a definition of dangerousness when he stated: "� the

unlawful act must be such as all sober and reasonable people would inevitably
recognise must subject the other person to, at least, the risk of some harm resulting
therefrom, albeit not serious harm�"

R v Dawson (1985) 81 Cr App R 150

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.

The defendants were convicted and successfully appealed to the Court of Appeal,
following a misdirection by the trial judge. Watkins LJ held that

(a) if the jury acted upon the basis that emotional disturbance was enough to constitute
harm then, they would have done so upon a misdirection. A proper direction would have
been that the requisite harm is caused if the unlawful act so shocks the victim as to
cause him physical injury. (b) Regarding the test for determining whether or not the
unlawful act was dangerous, he stated: "This test can only be undertaken upon the
basis of the knowledge gained by a sober and reasonable man as though he were
present at the scene of the crime and watched the unlawful act being performed � he
has the same knowledge as the man attempting to rob and no more."

Thus, the reasonable man must be taken to know only the facts and circumstances
which the defendant knew. It was never suggested that any of the defendants knew that
their victim had a bad heart; therefore the reasonable man would not know this.

R v Watson [1989] 1 WLR 684

The defendant had burgled a house occupied by an 87 year old man who suffered from
a heart condition. The defendant disturbed the victim, and verbally abused him, but
made off without stealing anything. The police were called shortly afterwards, and a
local council workman arrived to repair the windows broken by the defendant in gaining
entry. An hour and a half after the burglary the victim had a heart attack and died. The
defendant was convicted of manslaughter but appealed successfully on the issue of
causation (as to which see below).

As to the nature of the unlawful act however, the Court of Appeal recognised that,
following Dawson and applying the test established by Watkins LJ, the unlawful act had
to be dangerous in the sense that all sober and reasonable persons would foresee that
it created a risk of some physical harm occurring to the victim, but added that in
applying this test, the reasonable person was to be imbued with all the knowledge that
the defendant had gained throughout his burglarious trespass (ie his realisation of the
victim's frailty) and not just the defendant's limited or non-existent knowledge at the
moment he first entered the property.
Note: On this basis therefore, the burglary did constitute a dangerous unlawful act, but
only because the court assumed that the defendant, during the course of the unlawful
act, must have become aware of the frailty of the victim.

R v Ball [1989] Crim LR 730

The defendant had been involved in a dispute with his neighbour, the victim, over her
parking her vehicle on his land. The victim, accompanied by two men, called on the
defendant to investigate the disappearance of her vehicle. An argument developed
which culminated in the defendant grabbing a handful of cartridges, loading his shotgun,
and firing at the victim. The victim was killed in the attack. The defendant was acquitted
of murder, on the basis that he had honestly believed that he had loaded the gun with
blank cartridges and had only intended to frighten the victim, but was convicted of
manslaughter.

The defendant appealed on the basis that the trial judge had erred in directing the jury
as to how they should have assessed the 'dangerousness' of his unlawful act, in that
they had not been told to bear in mind the defendant's mistaken belief, that he was firing
blanks, when applying the Dawson test. In dismissing the appeal, the Court of Appeal
held that once it was established that the defendant had intentionally committed an
unlawful act, the question of its dangerousness was to be decided by applying the
objective test (as in Dawson). The court refused to impute to the reasonable man the
defendant's mistake of fact, ie believing the live cartridges to be blanks.

3. SUBSTANTIAL CAUSE OF DEATH

R v Dalby [1982] 1 WLR 425

The defendant was a drug addict who lawfully obtained drugs on prescription. He gave
some of the tablets to the victim, also known to be a drug addict. The victim had
consumed a large quantity of the drug in one session, and subsequently injected
himself with other substances. The following morning he was found to have died of a
drug overdose.

The defendant was convicted of unlawful act manslaughter, based on his unlawful
supply of the controlled drug, and he appealed on the basis that his supply of the drug
was not a dangerous act which had operated as the direct cause of death. He
contended that the death was due to the victim's act in consuming such a large dose of
the drug in such a short space of time. The Court of Appeal allowed the appeal, Waller
LJ holding that the defendant's act had not in any event been the direct cause of death,
but had merely made it possible for the victim to kill himself. His Lordship stated that
where manslaughter was based on an unlawful and dangerous act, it had to be an act
directed at the victim which was likely to cause immediate injury, albeit slight.

R v Mitchell [1983] 2 WLR 938

The defendant, having become involved in an argument whilst queuing in a post office,
pushed an elderly man, causing him to fall accidentally on the deceased, an elderly
woman, who subsequently died in hospital from her injuries. The defendant was
convicted of unlawful act manslaughter. He unsuccessfully appealed on the ground that
his unlawful act had not been directed at the victim.

Staughton J held that although there was no direct contact between the defendant and
the victim, she was injured as a direct and immediate result of his act. Thereafter her
death occurred. The only question was one of causation and the jury had concluded
that the victim's death was caused by the defendant's act. The actions of the elderly
man in falling on the victim were entirely foreseeable and did not break the chain of
causation between the defendant's assault and the victim's death. Dalby was
distinguishable on its facts as a case where the victim was not injured as a direct and
immediate result of the defendant's act. In addition, the court saw no reason of policy for
holding that an act calculated to harm A cannot be manslaughter if it in fact kills B: see
Latimer (1886).

R v Goodfellow (1986) 83 Cr App R 23

The defendant had deliberately fire bombed his own council house in the hope that he
would be rehoused by the council. His wife and children, who had been in the house,
were killed in the ensuing blaze. He appealed against his conviction for manslaughter
on the ground that his unlawful act (criminal damage) had not been directed at the
victims as required by Dalby. The Court of Appeal held that Dalby should not be
construed as requiring proof of an intention on the part of the defendant to harm the
victims. It was to be viewed as an authority on causation, in that the prosecution had to
establish that there had been no fresh intervening cause between the defendant's act
and the death.

R v Watson [1989] 1 WLR 684

(For facts see above.) The defendant appealed successfully on the ground that his
counsel had been denied a sufficient opportunity to address the jury on the issue of
whether the excitement caused by the arrival of the police and the council workman
could have taken over as the operating and substantial cause of death. (Note: But did
this predictable event break the chain of causation?)

4. MENS REA

DPP v Newbury and Jones [1976] AC 500

The defendants, both teenage boys, had thrown a piece of paving stone from a railway
bridge onto a train which had been passing beneath them. The object struck and killed
the guard who had been sitting in the driver's compartment. The defendants were
convicted of manslaughter, and unsuccessfully appealed, on the ground that they had
not foreseen that their actions might cause harm to any other person. Lord Salmon
explained that a defendant was guilty of manslaughter if it was proved that he
intentionally did an act which was unlawful and dangerous and that act caused death,
and that it was unnecessary that the defendant had known that the act in question was
unlawful or dangerous.