Lecture 4 (October 29th.) Introduction to Homicide and Elements of Murder

HOMICIDE: SOME GENERAL REMARKS.

Homicide occurs when D causes the death of V, provided that V is a person within the Queen’s peace. Personhood is acquired at the time of birth and terminates with death. Death is typically confirmed by the permanent cessation of pulse and heartbeat. Further, the condition known as ‘brain death’ – the complete and permanent absence of electro- magnetic activity in the brain – is almost universally recognised as a conclusive indicator of death. Any neural dysfunction short of brain death is taken to be compatible with life.

Our concern here is with unlawful homicides. (Homicide can be lawful as when D kills V in justifiable self-defence) An unlawful homicide may be murder, manslaughter, infanticide or one of the several forms vehicular homicides. Our study is limited to murder and manslaughter. Murder is a killing done either with an intention to kill or intent to cause serious bodily harm. Murder is punished by imposing a mandatory term of life imprisonment. Manslaughter is a sprawling, untidy offence embracing a wide range of conduct and diverse forms of culpability. It comes in two varieties, namely voluntary manslaughter and involuntary manslaughter. (The terminology is not apt but is rooted). Voluntary manslaughter is a killing of V by D where D has the mens rea for murder but comes within the terms of the statutory defences of loss of self-control, diminished responsibility or membership of a suicide pact.(the last defence will not be studied) These defences do not result in the acquittal of D; rather D is to be convicted of manslaughter. Involuntary manslaughter comprises unlawful and culpable killings, but where D lacks intent to kill or cause serious bodily harm. The sentence for manslaughter is at the discretion of the trial judge (a discretion constrained by sentencing guidelines and appellate sentencing decisions) and may be anything from life imprisonment to an absolute discharge.

Remarkably, there are no statutory definitions of either murder or manslaughter. The political insistence on a mandatory life sentence for murder makes necessary a body of substantive law to separate murder from manslaughter. If the mandatory life sentence were abolished the entire territory of homicide could be covered by a suitably drafted single offence of unlawful homicide, punishable at the discretion of the judge in the light of the facts of the case. This is a pattern already familiar elsewhere in the criminal law. Theft is the dishonest appropriation of property belonging to another with intent to deprive permanently. Theft ranges from the taking of a single apple from a market stall to the removal of millions of pounds from a bank account, differences reflected in sentencing, not in different offences. Is this a suitable model for homicide?

HUMAN BEINGS

Since homicide involves the death of a human being, we need to establish what constitutes a human being. Under broad headings, there are two points of time to focus on. Namely:

- Beginning of life- End of life

Crutchley (1857) 7 C & P 814, 173 ER 355

19 th century case which established that for the purposes of homicide, life begins at th e point of birth. I.e. the child must be wholly expelled from the mother. This was confirmed in A-G’s Reference (No. 3 of 1994) [1998] AC 245.

A-G’s Reference (No. 3 of 1994) [1998] AC 245

There was a quarrel between D and his pregnant partner. D stabs V and as a consequence of this offence against V the pregnant mother it made it necessary to deliver the child well before term. As a consequence of that, the child is born alive but dies some weeks later. The Q arose: could this be a homicide where the causal incident was prior to the birth?

HL had no problem in finding this was a homicide because the child was born and died a human being and the court found it to be irrelevant that the cause of death preceded the birth of the child. All that mattered was that the child was born alive.

The HL was quite clear however that had the child been destroyed in the womb, a live birth would not have ensued, that would not have been a case of homicide. The entity destroyed would not have been a human being

As a background to this, there are other offences involving the unlawful destruction of a foetus or a child yet to be born

Infant Life Preservation Act 1929

Creates the offence of child destruction

- The intentional destruction of a child capable of being born alive- V. Serious offence. Max penalty of life

Offences against the Person Act 1861 s58; Abortion Act 1967

- The former prevents a mother from knowingly taking substances which might harm the child. The latter can be made legal in certain circumstances.

Certain people find it a troublesome problem as it’s well accepted that from the 8 th month of pregnancy onwards, all significant development of a womb has occurred and the only significant difference b/w a late term child outside the womb and in it is location.

On a side note, quite a number of jurisdictions in the US have changed their homicide legislation to incorporate late term children within the purview of the law of homicide. (Commonwealth v Lawrence (1989) 404 Mass 378)

There are no real proposals to make that change in this country. But there’s an important civil case (St George’s Healthcare NHS Trust v S [1998] 3 ALL ER 673 which really underscores the difference in status of a late term child and a baby at the point of birth.

St George’s Healthcare NHS Trust v S [1998] 3 ALL ER 673

This was a woman who was advised that she required a caesarean operation days from the point of birth. Were the operation not carried out the mother would die and also the child would die. The

woman refused and didn’t give a reason. She simply said she didn’t want the operation. What the doctors did was to take the law into their own hands and proceeded with their operation. It was a forceful procedure. The mother survived unharmed and the child was born healthy.

The CA confirmed that the woman had been seriously assaulted and subjected to false imprisonment. That it was an unlawful procedure and that humans have an absolute autonomy over that decision making,

This vividly underscored the lesser status of a alter term child. If the procedure involves the death of a human being then the mum as a mum owes a DoC to that human being and the legal position would’ve been much more complex.

Art 2 European Convention for Human Rights

There are questions that the art 2 of the ECHR complicates this. It’s the vital right to life provision. There’s a case from France (Vo v France(2005) 40 EHRR 259) that made the argument that by allowing a late term abortion, the state was failing to protect the life of an unborn and a viable child therefore art 2 was implicated and art 2 protected unborn children. ECtHR just said margin of appreciation, custom of states etc... This was a well-known medical procedure and art 2 wouldn’t be implicated.

Moving from the point birth, it may be that once the child is born alive, the child is profoundly handicapped. The provision of the law understandably is that once a person is born alive they have legal status as a human being. There’s no as it were quality check to see if they measure up to a criteria. The point of birth is everything.

*Re A (Children) [2000] 4 ALL ER 961

Involved the separation of conjoined twins and one of the twins was certain to die as a consequence of the operation. The weaker conjoined twin had profound handicaps. For instance, she lacked a heart and lungs of her own and so was entirely dependent on her sibling to whom she was conjoined for oxygen and bloodstream. Life would’ve been much simpler here if the law could say that the weaker twin was not in fact a human being and submissions were put forward by council to that effect. And the court invited counsel to put aside that submission and counsel complied with that.

The CA was happy the argument was set aside which underscores that no matter how profound the disability, the entity is still a human. Certain forms of disability prevent any engagement in life;

- States of profound and permanent coma- E.g. persistent vegetative state tony bland was in

*Airedale NHS Trust v Bland [1993] 1 AC 789

In the bland case, tony bland was in a PVS (persistent vegetative state) and that entailed that he could feel some sensations but he lacked any form of sentience and the state of the art at the time was that PVS was not merely persistent as its now called but permanent. Op to end his life (such an op was authorised)

But all the judges who heard this case were insistent that any condition such as coma or PVS was compatible with a state of life. There would be no quality of life test applied even when the condition made engaging with life completely impossible.

There was one form of ‘seeming life’ however that the HL said was a form of death not a form of life. It’s the condition known as ‘brain death’ that’s a condition where there’s absolutely no EM activity in the brain. So the function of the brain is eliminated. The something reading is completely flat and the body can only be sustained on a life support machine.

So the classic indicia of death which was at one time just lack of pulse/heartbeat are still quite sufficient. And we add to that, the condition of brain dead which is now a form of death but anything else is a form of life however grievous the disability.

ABOLITION OF YEAR AND A DAY RULE

To be a homicide as we know, D must kill V and for historical reasons, death had to ensue within a year and a day within the conduct alleged to have caused the death as a precondition to cause homicide. It went after legislative appeal in 1996 though (Law Reform (Year and a Day Rule) Act 1996).

The Queen’s Peace

Maria v Hall (1807) 1 Taunt 33, 127 ER 741; 1 Hale Pc 433.

Offences against the Person Act 1861 s.9

CAUSATION

Common to all forms of homicide is proof that D by his act or omission caused the death of V. Your previous study of causation is relevant here. We will merely make brief reference to some matters of particular relevance to homicide, namely cause and voluntary conduct; cause and constrained conduct; omissions as causes; and medical interventions.

The resolution of causal questions one way or the other will have great impact on the fortunes of D. If D shoots and kills V with intent to kill V, lacking any justification or complete or partial excuse, he will be a murderer. If the bullet should jam in the breech he will be guilty of attempted murder. When we examine the mandatory life sentence regime for murder, we will see that the sentencing judge must set a minimum term before the lifer is eligible for parole. That minimum term must be served in full. A 20 year minimum term means 20 years in prison. In cases of attempted murder, the sentence is at the discretion of the judge. If he passes a heavy sentence of 20 years imprisonment, typically the prisoner will be released on licence after serving 10 years. Is that difference, in one direction or the other, justifiable? Should so much hinge on causation?

Causation and informed voluntary conduct.

*Kennedy (No 2)[2007] UKHL 38;[2008] 1AC 269

Casual stories start with a voluntary and sufficiently informed act which is immediately associated with the death and which supervenes over other physical causes of the death at the point in time of the death. The facts of Kennedy make this point.

But after this initial analysis, we move back to the old CL position that free, deliberate, informed acts of TP’s break the chain of causation so here, the person taking the drugs was the cause of their own death.

(Check: When looking at the Kennedy principle don’t forget the (complicit rule?). complicity does not rest on causation)

Causation and constrained conduct.

Broadly speaking, ‘constrained conduct’ refers to situations where D has caused V’s conduct to be constrained in some way. E.g. where V is frightened into taking their own life.

*Roberts (1971) 56 Cr App R 95

D was brutal to his 3 year old son. The terrified child essentially jumps down a flight of stairs and kills himself. The court held that the father had killed the boy because the reaction of the boy was not unforeseeable. And when someone reacts in a foreseeable way as a result of the act of D the causal link is intact.

Williams [1992] 2 All ER 183. (V, a hitch-hiker, jumped out of a car and suffered fatal injuries. There was no evidence of a threat by D. CA said that as the response was not proportionate to the threat, D shouldn't be liable)

Blaue [1975] 1 WLR 1411.

Out of religious conviction, a blood transfusion is refused and a typically not fatal injury causes the woman’s death from loss of blood. Again D is responsible from V’s death as the religious beliefs were upheld so she had no choice in the matter and it was held as a constrained choice

*Daliwal [2006] EWCA Crim 1139

Brutal husband who cause his wife’s suicide. The question for the court was whether D could be liable for causing someone else to commit suicide.

CA said in you could cause another person’s suicide through your brutality in principle but on the facts of this case, causation was not made out. (You might ask if that analysis by the CA made sense)

Horder and McGowan, ‘Manslaughter by Causing Another’s Suicide [2006] Criminal Law Review 1035.

Medical Interventions

Where relevant, the causal analysis may enter into questions of foreseeability as indeed we can see in Roberts.

In med cases however, for policy reasons, there is an extreme reluctance to apply a foreseeability analysis even if the treatment is so bad as to foreseeably cause death and better treatment would’ve ensured survival, the courts effectively refuse to invoke the foreseeability analysis. The intervention must be of ‘quite an extraordinary kind’ before a medical intervention will severe the causal link.

*Cheshire [1991] 3 All ER 670

D shot V however, V essentially only died due to bad medical treatment. D is convicted of murder and appeals.

Held, dismissing the appeal, that when a jury had to consider whether negligent medical treatment of injuries inflicted by a defendant was a cause of death it was sufficient for the judge to direct them that it had to be proved that the defendant's acts caused the death, but that they need not be the sole or main cause provided that they contributed significantly to it; that even though negligence in the treatment of the victim was the immediate cause of his death, it should not be regarded as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that the contribution made by his acts could be regarded as insignificant; but that it was not the function of the jury to evaluate competing causes or to choose which was dominant provided they were satisfied that the defendant's acts could fairly be said to have made a significant contribution to the victim's death; that although the judge had erred in inviting the jury to consider a test of causation based on their assessment of the degree of fault in the medical treatment, in the context of the remainder of his direction on the issue and in the light of the evidence given no miscarriage of justice had actually occurred

Mckechnie [1992] 94 Cr App R 51.

Omissions as causes

Technically omissions cannot cause anything. However, there is a strong normative pull to include omissions where there was a duty to act in the causal field of homicide law. This is done by using a counter- factual analysis. Imagine world as it might have been if the duty had been performed and you ask if we’re sure beyond a reasonable doubt that if D did his duty, V would not have died at all or would have died in materially different circumstances.

The rule might make sense if applied carefully and cogently. In practice however, once the omission is proved, there is often a tendency not to explore that parallel world. It’s too easily assumed that doing the duty would have changed the material facts of that case.

Gibbins and Proctor (1918) 12 Cr App r 134

Pittwood (1902) 19 TLR 37

Stone & Dobinson[1977] QB 254

Hopeless couple who were found to have undertaken a doc to v. The unfortunate victim suffered from anorexia in the case and clearly had a very stubborn affliction. It was not addressed in any cogent form by the trial court and the CA. They didn’t focus on whether even if these people had been super sensitive/competent whether they’d have prevailed over the underlying anorexia

condition as the fact is many interventions in these cases are unavailing however focused. Example of how it’s not fully explored, particularly beyond reasonable doubt.

*Miller [1983] 2 AC 161 – case of the hobo and the house that burnt down. Establishes the principle that you are under a legal duty to remedy dangerous situations you create.

The distinction between acts and omissions are vital on the borderline cases in distinguishing b/w acceptable medical practice and homicide.

Airedale NHS Trust v Bland [1993] AC 789

Bland was in a PVS and the question was whether the doctors could withdraw treatment by way of artificial feeding from the patient lawfully. Every judge was unequivocal that if the procedure was a positive act, it would have been an act of murder as the death of Bland was a certainty once the artificial life support was withdrawn. The HL said it was an omission and it was perfectly legal for doctors to withdraw treatment once they decide it’s no longer effective. When you read the case, think about whether it’s a cogent explanation of the act/omission distinction.

Sullivan uses the following rule of thumb:

Essentially with a positive act, at the point you’re acting, most of your behavioural options are no longer available with regards to the time and place. Now the act may be very brief, almost instantaneous but while you are doing it, there are not a lot of things you can be doing at the same time.

If it’s truly an omission then all of your behavioural options remain open save for thing you are omitting to do. (As Jonathan Rogers puts it; it is the difference between making a decision to go to Lichtenstein and being banished from Lichtenstein)

Re B [2002] 2 All ER 449

A case where a woman who was fully sentient but tragically paralysed from the neck down asked her medical team to cease respiratory support and allow her to die. The medical team refused and that refusal is challenged before the CA.

The procedure involved is this; if a person is taken form artificial life support, they are typically first sedated, life support is then removed and then the medical team places a person in an adjoining bed and that person is then left to die. That procedure had to be characterised as an omission to be lawful.

And indeed, the CA did find it was an omission (and not an act of omission) that caused the death. However the technical question to be raised is how one can characterise the procedure as a mere omission rather than an act of omission. Does the conceptual analysis carry the moral entity?

MURDER Murder would be commonly regarded as the most serious peace time crime. As we know, a sentence of life imprisonment must be passed following a conviction for murder. That makes it especially important that the definition of murder should consistently capture those unlawful

homicides that merit such a sanction. The mental element for murder is an intention to kill or to cause serious bodily harm. Some senior judges have expressed the view that murder should be confined to cases where D killed with intent to kill. The Law Commission proposed a division of murder into first and second degree murder which we examine below, a proposal not enacted by the previous government. The coalition government has indicted an intention to review the law of murder (politics.co.uk September 8, 2010) but no further details are yet to hand.

Currently an intention to cause grievous bodily harm suffices for murder. That form of culpability is very important in practice. A large scale empirical study of murder carried out by Dorling (see below) demonstrates that the large majority of murders would fall outside that category but for the fact that the prosecution need only prove an intention to cause serious bodily harm. Whether this leaves us with a morally convincing version of murder is something to be discussed.

Murder is a crime requiring an intention to cause death or serious bodily harm. Your previous study of the legal meaning of intention is in point here. Recall that the courts have made rather heavy weather of pinning down the legal meaning of intent. It is important not to overlook that typically proof of intent requires nothing in the way of conceptual analysis. If D plunges his knife into V’s stomach, he has demonstrated, at the very least, an intention to cause V serious bodily harm. The intention to cause serious harm is not something mysterious hovering over his conduct, it explains his conduct. The meaning of intent in murder only requires the attention of lawyers where the killing takes a less direct form, leaving room for legal dispute about D’s intentions.

Note also that it is a crime of intent and the great dividing mark for serious crime is b/w intent and recklessness on the one hand, most serious crimes can be created intent or reckless, and crimes of negligence by strict liability on the other hand. But for murder, it has to be intent. Recklessness doesn’t suffice.

By way of introduction, it is first helpful to discuss the leading case on recklessness

R v G [2004] 1 AC 1034

Involves 2 youths literally playing with fire. They cause an enormous amount of damage. The issue in the case was whether they were reckless as to the full extent of the damage caused.

The HL ruled that proof of recklessness entailed proof that D foresaw an unjustifiable risk that his conduct might cause the actus reus of the crime.

So the person without that foresight wouldn’t be reckless. He might be negligent though. D must foresee the risk and run it regardless to be reckless. Note also the risk has to be unjustifiable. There are certain risks that are quite lawful to run. Typical example would be a surgeon carrying out a medical operation with informed consent etc perhaps aware that in a significant number of cases the patient will die.

So note that reckless is not just a technical expression but also judgemental. There’s criticism implicit in the finding. Whereas with murder, it’s intent. So it’s a more serious yet more neutral term. Intent as such carries no moral baggage.

So we have to look at cases where serious bodily harm was intended not merely foreseen. If it was merely foreseen and the risk was unwarranted it may well be manslaughter not murder.

THE MENTAL ELEMENT IN MURDER

Intent

The story for intent in murder is quite remarkable. All the cases starting in 1961 with smith are about the meaning of culpability in murder.

Smith [1961] AC 290 caused a huge change in the law as there it was said that you did not need to look into the state of mind of D but rather, merely look at the act.

*Criminal Justice Act 1967 s.8 – essentially reversed the effect of Smith.

Frankland [1987] AC 576 – Here the PC essentially said that Smith was a mistake and should not be followed.

So it is clear that intent needs to be proved in a subjective sense

The first leading case we can lightly touch upon is the case of:Hyam [1975] AC 55

Here, D set fire to a house. She claimed only to want to frighten the woman sleeping in side not to injure or kill her but she admitted that she was risking the lives of the persons inside. And the HL here (but u can forget this after as its misleading) by a majority of 3-2 said that D could be taken to have intended any consequence that she foresaw was the natural and probable result of her conduct. On that basis, if proof of that foresight was established, D had intent to bring about that consequence. In terms of pure culpability, there might be some merits to this approach but the problem is that it distorts the natural meaning of intent.

We foresee risks and we might think they’ll materialise but we often hope they won’t. So it may be that though she foresaw the risk, it was far from what she intended. This was discussed again by another appeal to the HL.

*Moloney [1985] AC 905, 926 (Lord Bridge)

(note: this is essentially the precursor of Woolin. Ideally read both and them link them together and view it as a whole.)

Here, D got into some sort of argument with his stepfather over who could load and fire a shotgun he quickest and at some point, the stepfather is killed.

The HL here essentially recognises that the ruling in Hyam got intent wrong. That there was a confusion of intent and recklessness and intent was overdrawn if it included recklessness and it had to be narrower. Importantly, in his leading judgment Lord Bridge said that in the typical case of a killing with a weapon, there is no need to give any direction on intent at all.

In the straightforward case, it really confuses the jury to go into matters of intent because the matter is so straightforward the jury can be left to themselves to make the inference. So in the vast majority

of cases we’d rely on the plain meaning of the word and thus you can’t be too prescriptive. But typically you intend to do something if you want to bring that result about. It’s the reason or one of the reasons you were acting. It informs your conduct.

Just because you see something as certain doesn’t necessarily mean u intended to do it though. So intent informs conduct, it may direct conduct but it shouldn’t be fully associated with desire.

So there are cases where the law has a reading of intent that goes beyond its natural meaning and it needs to be put to the jury. This is “the law of intent” so most of the time it’sa natural meaning but in some cases a technical meaning is applied to the word intent

Those cases are colloquially known as ‘dangerous act cases’ where D does not want to bring the event about.

Hancock [1986] AC 455.

Striking miners defying the strike ban were being taxied into their workplace and D’s, a 3 man group of striking miners, are on a bridge over the motorway. They see a taxi with the strike breaking miners ride in towards the bridge, one of the striking miners handling a quarter of a paving stone releases the stone as the taxi is under the bridge, it falls and kills the taxi driver. Charge of murder with dropper as principal and 2 others as accomplices.

This is a case where you need direction of intent because on the miner’s own account of their actions which the prosecutors were willing to accept, what D and others wanted to do was to drop it as closely as possible to the taxi without hitting it. Though they conceded they were aware of a very strong risk that their objective might fail. That instead of missing the occupants it might hit the taxi with drastic results.

So taking them at their word they didn’t intend to kill or cause serious bodily harm. Did they have intent to kill in the extended sense? We answer that question by applying the ‘Woolin direction’

Was death or gbh a virtual certainty? Was D aware at the time of his act that death or sbh was a virtual certainty? So that goes to the jury. Is it a case that if the jury makes those findings that they have to convict them of murder?

It gives as some people argue merely an option to the jury to make a finding of murder. (Norrie “After Woollin”[1999] Crim. LR 259. article in hand out) argues that when you use intent in an extended sense Woolin makes clear that it’s merely evidence on which the jury can make a finding of intent if they choose.

So the law allows some moral element to the jury. If they don’t a positive finding on the two questions, it’s not a case of murder but even if they do, there’s a bit of jury equity in there.

The best support for this view of the law can be seen inMathews and Alleyne[2003] Cr App R 30.

D (and friends) were a group of lands and they find a Nottingham student wandering the streets. They get hold of him and march him around various cash points to withdraw cash from his bank accounts. After he’s done withdrawing and he’s of no use, they take him to a river bridge.

He pleads with them not to throw him in as he can’t swim. They don’t listen to him and throw him in to his certain death. You may think it’s a straightforward case of murder and might think the trial judge was indulgent in allowing the defendants to say it was a Woolin style case rather than leaving it to the jury to infer intent.

The trial judge says it’s a dangerous act case so we need a special direction. On this topic, go back to facts of Woolin where a small baby is picked up and smashed onto a hard surface. Is that a dangerous act case? Was the Woolin direction needed in Woolin itself?

So this law doesn’t seem very satisfactory. So they get the Woolin direction from the judge. He carefully goes thru the test and then says to the jury ‘if you find these tests satisfied, doubtless you will find this is a case of murder’. The CA say this is a misdirection. The judge should have made it clear the Woolin test didn’t constitute intent, merely evidence from which an inference of intent could be drawn.

But the CA then said something quite remarkable; they then confirm the verdict of murder saying they had no doubt that had an appropriate direction been given the jury would have made a finding of intent. So that draws a lot of issues as to what the distinction is between finding intent and the test of merely drawing the basis on which intent can be found.

So that is the law of intent and murder for the regular cases. Usually the natural meaning suffices but there are exceptional situations where a ‘ Woolin direction’ is needed. Further, it is unclear whether all the cases requiring a Woolin direction actually requite them.

Intent in medical contexts.

Where doctors foresee a great risk of death, it is immediately apparent that he use of a might be very uncomfortable if applied in a medical context. However, it is possible to conclude in medical contexts where a doctor is acting in good faith, a narrower view of intent will be taken. Perhaps over narrow.

Re A (children) (Conjoined Twins: Surgical Seperation)) [2000] 4 All ER 961

Walker LJ found that the death of the weaker twin was an absolute certainty but said that the surgeons involve did not intend her any harm. Their intent was simply to allow the stronger twin to recover her full health and faculties.

Intent to cause serious bodily harm.

For the law of murder as it currently stands, it is clear that either intent to kill or to cause serious bodily harm will suffice. There was at one time however considerable uncertainty about the latter part.

Homicide Act 1957 s.1 – abolished the doctrine of constructive malice under which the mens rea for murder could be attributed to D where the death was caused during the commission of another felony.

Vickers [1957] 2 QB 664 – D was committing a robbery and was discovered by the owner. To prevent recognition, he struck her on the head multiple times and she died as a result. D was convicted of

murder and appealed that on the basis of the Homicide Act 1957, "constructive malice" had been abolished, and as the death occurred in the course of causing grievous bodily harm, the necessary malice aforethought to establish murder could not be implied from that, and he was not guilty of murder but of manslaughter. Held that the mens rea for murder could be implied from the fact that D had intended to cause grievous bodily harm.

*Cunningham [1982] AC 566

The defendant struck another man several blows on the head with a heavy chair in an unprovoked attack motivated by sexual jealousy. The man died as a result of a fracture of the skull. Charged with murder, the defendant denied an intention to kill, but there was evidence from which the jury, convicting him, could and did infer an intention to inflict grievous bodily harm.

The HL in Cunningham by a 3-2 majority confirmed that an intent to do serious/grievous bodily harm was sufficient culpability for murder.

That term ‘serious bodily harm’ is not defined. It’s not a term of art. What is serious is a factual matter for the jury. (Bollom[2003] EWCA Crim 2846 - In determining whether injuries sustained by a victim of an assault were "grievous" it was necessary to have regard to the effect of those injuries on the victim, taking into account the victim's age and health.)

Intent to do serious bodily harm need not involve any foresight of death on the part of D. And indeed the injury in its own right need not be life threatening (particularly important in medical cases where the medical treatment exacerbate rather than heals the injury).

The intent to cause serious bodily harm is hugely important in practice. There is a case Study by Dorling (Dorling, ‘Prime Suspect: Murder in Britain’) which concludes that ‘serious bodily harm limb’ is necessary in over 70% of murder convictions.

*A-G’s Ref(No 3 of 1994) [1998] AC 245 at 258-9 per Lord Mustill – (Where a pregnant woman was stabbed eventually resulting in the death of the baby); “My Lords, in a system based on binding precedent there could be no ground for doubting a long course of existing law, and certainly none which could now permit this House even to contemplate such a fundamental change as to abolish the grievous harm rule: and counsel rightly hinted at no such idea. But when asked to strike out into new territory it is, I think, right to recognise that the grievous harm rule is an outcropping of old law from which the surrounding strata of rationalisations have weathered away. It survives but exemplifies no principle which can be applied to a new situation

Powell and Daniels [1999] 1 AC 1 at 15 per Lord Mustill – “In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It is sufficient if it is established that the defendant had *15 an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated: see Williams, Textbook of Criminal Law , 2nd ed. (1983), pp. 205-251; Ashworth, Principles of Criminal Law , 2nd ed. (1995), pp. 85, 261; Card, Cross & Jones, Criminal Law , 12th ed. (1992) pp. 203-204. This is a point of considerable importance. The Home Office records show that in the last three years for which statistics are available mandatory life sentences for murder were imposed in 192 cases in 1994; in 214 cases in 1995; and in 257 cases in 1996. Lord Windlesham, writing with great Home Office experience, has said that a minority of defendants convicted of murder have been convicted on the basis that they had an intent to kill: "Responses to Crime," vol. 3 (1996), at 342, n.29. That assessment does not surprise me. What is the justification for this position? There is an argument that, given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bodily injury cannot complain of a conviction of murder in the event of a death. But this argument is outweighed by the practical consideration that immediately below murder there is the crime of manslaughter for which the court may impose a discretionary life sentence or a very long period of imprisonment. Accepting the need for a mandatory life sentence for murder, the problem is one of classification. The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers. It happens both in cases where only one offender is involved and in cases resulting from joint criminal enterprises. It results in the imposition of mandatory life sentences when neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory life sentence.

The observations which I have made about the mental element required for murder were not directly in issue in the appeals under consideration. But in the context of murder the application of the accessory principle, and the definition of murder, are inextricably linked. For that reason I have felt at liberty to mention a problem which was not addressed in argument. That counsel did not embark on such an argument is not altogether surprising. After all, in Reg. v. Cunningham [1982] A.C. 566 the House of Lords declined to rationlise and modernise the law on this point. Only Lord Edmund-Davies expressed the hope that the legislature would undertake reform: see p.583b-c. In my view the problem ought to be addressed. There is available a precise and sensible solution, namely that a killing should be classified as murder if there is an intention to kill or an intention to cause really serious bodily harm coupled with awareness of the risk of death; 14th Report of the Law Revision Committee on Offences against the Person )1980) (Cmnd. 7844), p.14, para. 31, adopted in the Criminal Code for England and Wales (Law Com. No. 177) (1989), clause 54(1) . This solution was supported by the House of Lords Select Committee on Murder and Life Imprisonment, H.L. Paper (1988-1989) No. 78-1, p.25, para.68.”

Rahman[2008] UKHL 45;[2009] AC129,para 51 per Lord Brown – “My Lords, there are many more murderers under our law than there are people who have killed intentionally. The actus reus of murder is, of course, the killing of the victim; the mens rea (established in R v Cunningham [1982] AC 566 ) is the intention either to kill the victim or at least to cause him some really serious bodily injury—“grievous bodily harm” as it used to be called, “gbh” for short. As this appeal illustrates, moreover, there is a further group of murderers too, those who did not intend even gbh but who foresaw that others might kill and yet none the less participated in the venture.”

THE SENTENCE FOR MURDER

So murder has a very broad form of culpability going beyond the natural meaning of intent and encompasses sbh as well as death for culpability.

But in every case of murder from understandable mercy killings to outright atrocities, the penalty is always the same. A mandatory life sentence. Some details are found in the Criminal Justice Act 2003 s.269 and schedule 21.

Under this, after the life sentence, the judge must fix a minimum term. This is known as the retributive part of the sentence. How bad is the murder, how severely should d be punished? The statutory regime gives the judge 3 bands and effectively lay down criteria which the judge must follow in allocating the particular murder he’s concerned with into 1 or the other of the 3 bands

Sullivan [2005] 1Cr App R(S) 308.

In the case of Sullivan, the CA looked at this regime and didn’t like it at all as it reduced judicial discretion. Lord Woolf said there was an ultimate discretion for the judge if he found that he bandings didn’t suit the specifics of the case, he could operate outside the banding and give a lesser term. Despite this, judges have readily confirmed that this statutory regime is very prescriptive

Look at the regime. The default is that each murderer must spend at least 15 years in prison. If you attempted murder but didn’t succeed in killing, you still receive a heavy sentence but typically eligible for parole after half the sentence.

If there are aggravating features, there’s a radical upgrade from 15 years to 30 years. And if there are super aggravating features then the sentence is whole life. For the rest of the term, (after 15 or 30), you have to make an application to the parole board and persuade the parole board you are safe to be released and you are released on license and if you break any of those terms you can be called back into prisons.

Lecture 5 (November 5th.) Reform of the law of Murder and Voluntary Manslaughter (loss of control defence)

REFORM OF THE LAW OF MURDER

no lecture. Read on it for essay.

Most of the time there’s a great deal of automaticity of law. Low maintenance just goes along. True in the law of murder particularly the bit on the intent to do GBH. Whether it’s too broad or not, it’s typically easy for the jury to apply.

So there is an element of it’s not broke why fix it? The crucial matter is whether it is over inclusive. We have more life prisoners, on the basis of murder convictions, than the rest of the EU countries combined. Our murder rate is lower than it has been for many years. It’s around 700 per annum which for around a population of 60 million it’s quite impressive. (Around 1.41 per 100, 000)

MANSLAUGHTER We move on to manslaughter. There’s technically only one kind of manslaughter offence; so in a sense when faced with a killing, it’d either be a murder or manslaughter. That’s over simple though.

The territory of manslaughter divides into what is called

(i) Voluntary manslaughter(ii) Involuntary Manslaughter

Voluntary Manslaughter

Voluntary manslaughter is the term used to refer to killings on the part of D which satisfy the definitional elements of murder but where a partial defence reduces the conviction to manslaughter. The major practical consequence is the displacement of the mandatory life sentence for murder. The sentence for manslaughter can be a life sentence but also any other sentence or measure (including hospital orders with or without restriction and various non-custodial provisions) that the presiding judge considers appropriate.

There are 3 partial defences to murder:

I. New, statutory, loss of control defence (to reduce murder to manslaughter)a. Created by the coroner’s injustice act of 2009 and it became operational in October

2010b. It abolishes and replaces the old and highly controversial defence of provocation

i. You will find textbooks have a large treatment on the old law. The reason being there’ll still be cases in the pipeline where the action occurred prior to act and the old law of provocation may still be in play. However, it doesn’t really concern us.

II. Diminished responsibility (again a partial def to murder reducing it to manslaughter)a. This is still to be found in s2 of the homicide act 1957 but is much amended by s52 of

the coroner’s and justice act 2009. And again, it’s only the new version of diminished responsibility which concerns us

III. Being a member of a suicide pacta. If you have a settled intention to die and kill with consent another party who wants

to die (both parties must intend to die)b. Found in s4 of homicide act 1957

Involuntary Manslaughter

An unlawful killing where D lacks the mens rea. (I.e. does not intend to kill or cause gbh)

VOLUNTARY MANSLAUGHTER: LOSS OF CONTROL

The old provocation defence

The terms of the loss of control partial defence are set out in sections 54, 55 and 56 of the Coroners and Justice Act 2009.This new measure replaces the controversial defence of provocation, a defence which was based on common law and the repealed s.3 of the Homicide Act 1953.

At the heart of the old defence was a sudden loss of self-control of D in response to something said or done by the deceased, V. Here, D still has the mens rea for murder. The defence required an objective evaluation and asked whether a reasonable person placed int eh circumstances of D would have lost control as well and further, if the reasonable person would have lost control, whether he would have attacked V in the manner D did.

It’s a very strange defence. In tort, defences involving the ‘reasonable person’ defences typically completely exonerate D. However, this was never true of provocation. While there are potentially complete defences to murder such as self-defence, the question of when it was ever reasonable to kill if you weren’t in danger was always asked. Indeed it is this question which led to considerable disquiet with regards to the manner of operation of the provocation defence.

A frequent example of a provocation plea was a man killing his female partner on the basis of actual or suspected sexual infidelity. E.g. of a successful provocation please. There was a man (a solicitor) who came home in a suspicious frame of mind, opened his wife’s handbag, reads the content of a letter not written by him. Enraged by this letter, he kills his wife immediately and spontaneously, in front of their infant children. It’s the success of such cases, where anything said or done could trigger a successful defence of provocation, which gave rise to disquiet

A defence based on a sudden outburst of violence is particularly suited to a male temperament and male physique. Woman in the same situation aren’t able to react spontaneously in the same way. The class of women that gave rise to these concerns are the case of ‘battered woman’. These are cases involving partners (typically female) subjected to a round of continuing violence who in the nature of their case may have lacked any form of escape or familial support. And in a number of cases, the woman might take events into her own hands and say kill the husband while he slept. Those women didn’t qualify for the defence as if there was any degree of premeditation or planning it was hard to raise a plea that the woman had lost her self-control at the time of the killing.

So there’s a very real reservation due to the gender bias here. Perhaps sometimes allowing too much cultural latitude for the treatment of women.

A final separate concern was that anything, said or done, which provided D to lose his self-control could count as legally adequate provocation and indeed, allow him to raise the defence. E.g. R v Doughty (1986) – here, D was raising a child. One day, when the three month old was crying excessively, he beat the child to death and was allowed to raise the provocation defence on these facts.

So it was thought that we needed a new start. This is to be found in s54-56 of the Coroners and Justice Act 2009.

The new start (s54 Coroners and Justice Act 2009)

So there was this idea to start afresh and indeed, in the original LC proposals, there was a lack of presence to any reference to a loss of self-control. LC lost its nerve (and so did the HO and MoJ) and the new version begins with the loss of sc.

There still must be at the time of the killing, evidence fit to go to the jury that raises at least the possibility that D killed V while he was out of control. So it’s still the basic rationale of this new defence. That there are certain circumstances where to some extent, a loss of sc can be condoned, or at least partially excused.

It’s that condonable loss of sc that reduce the crime of murder to manslaughter with the dramatic impact that the sentence is completely up to the discretion of the judge and even if attract a long sentence, e.g. 14 years, you are typically applicable for parole after you serve 50% of your sentence whereas the default for murder is at least 15 years spent in prison.

What a psychological loss of sc implies is quite difficult to pin down with any exactitude. What we do know is that a loss of sc must be compatible with the intention to kill or cause gbh because only if the definitional elements of murder are present or conceded by the defence does this loss of control defence arise

S54(2) tells us that the loss of control need not be sudden. This was put in particularly with ‘battered women’ in mind. There must still be a loss of sc but it need not be by away of sudden and immediate response to the last episode of provocation. It does allow for what is sometimes called the ‘slow burn reaction’. Where a person is in fear. In circumstances she finds grossly offensive to her. The response isn’t immediate but as long as it exhibits loss of sc as a possibility, the defence may arise

We’re also warned in s54(2) that there must not be a considered desire for revenge. So where there is a gap b/w being provoked and the response to that provocation comes later, there must be a loss of sc but it mustn’t be indicative of a considered desire for revenge.

Its clear there’s a fine line here. The exact psychological state the law is looking for is really hard to pin down. Easiest way is to tell the jury they have to consider whether it was a considered desire for revenge or simply indicative of the loss of sc.

As well as the loss of sc itself, it must come through a particular manner. Not any loss of sc will do. It has to come through ‘a qualifying trigger’ it must be linked to and explained by ‘a qualifying trigger’

Qualifying trigger (s55)

S55(3)

Straightforward and unwarranted (s55(3)); a fear of serious violence from V against D or another identified person. We can talk about SD here. It’s a complete exoneration but it must be in response to an actual or almost certain violence. (very tight degree of pre-emption in the law of SD). Here we are allowing as a partial defence to murder someone who anticipate serious violence and to protect herself from it, she kills V. So the timespan is much more receptive than SD.

This defence is crafted with the battered woman in mind. But note the loss of control requirement. It seems a bit odd. It’s not merely that he woman must act in a way to protect herself. That is not enough. She must also be in a state of a loss of sc at the time she carries out the killing

The exact rationale of this seems hard to pin down and it unclear if the battered women situation has been completely remedied. (note the old case raising the provocation defence of Ahluwalia (1992) - D was subjected to things beyond belief.one day V says to his wife I’m too tired of beating you. I’m going to sleep and I’ll be up in the morning to keep beating you. D poured petrol around him and set him on fire. She was convicted of murder but this was later overturned and replaced with manslaughter on the grounds of inadequate counsel) It is unclear if someone in an Ahluwalia situation would be able to raise the new loss of self-control defence as given the planning in the way she killed V, it seems that she’s not in a state of a loss of control.

S55(4)

if we haven’t got a threat of serious violence, the 2nd qualifying trigger will be a thing done or said which constituted circumstances of an extremely grave character causing D to have a justifiable (not excusable) sense of being seriously wronged.

S55(6)(c)

The range of things that might have this impact is left at large say for one important exclusion (prov put in too much opposition but pushed by harriet harmon as solicitor gen) namely that sexual infidelity can never count as a qualifying trigger.

But if say a woman thinks she has a good marriage an thinks she has a best friend. One day she comes home from work early and just as she goes into her bedroom she finds her husband in bed with her best friend. If she takes it out immediately on the best friend, the betrayal of trust and loyalty can presumably be taken into account as the friend owes no sexual fidelity to her friend. However, if she takes it out on her husband, she presumably will be guilty of murder

Or say woman returning home and find husband in bed with daughter. Perhaps the added element could be seized upon. Say it isn’t just SI but S infidelity plus and perhaps that could help allow the defence.

S55(6)(a) and (b)

Finally, a qualifying trigger of any kind (serious violence or words said and done) must not be incited or induced by D as an excuse to use violence. So D mustn’t contrive circumstances forcing V into a corner hoping he’ll respond in a certain way

So that covers what can be termed the subjective elements of a loss of control defence. After that, you move to the objective element where some kind of moral evaluation has to be given to the incident to see whether it’s a case of manslaughter rather than murder.

S54(1)(c)

A jury must think the following; that a person of D’s sex and age (so to that extent you take the actual person herself) (you ask questions based on the responses of what one might call ‘normal person’) with ‘the normal degree of tolerance’ and self-control and is placed in the same circumstances of D. The Q they have to ask is ‘might I have reacted’ in the same or in a similar way.

The crucial term there is ‘circumstances’ we’re told we consider all the circumstances

S54(3)

Reference to circumstances we’re told there is all of D’s circumstances other than those whose only relevant to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint.

So basically everything counts apart from things that only bear on his gen cap for tolerance and self-restraint. So this tells us that at the very least, the loss of self-control defence is about ‘normal people’ who find themselves in exceptionally stressful circumstances. (contrast with diminished responsibility) So it’s the situation that D finds herself in rather than any frailty of her own that allows for the partial condoning of the act. To an extent, she is a victim of circumstance. She has found herself not under moral life stress but something quite exceptional which may partly condone killing in those circumstances.

Personal Frailties

So things like depression for example. So her normal temperament is destabilised by her depressive condition that presumably must be left out of acct if that is something that has a general bearing on her capacity for self-control

In response to that example, what if D has been taunted about her depression?

See the old case of Humphreys [1995] 4 All ER 1008. Where D is taunted/mimicked by her bf in front of some of her friends of her self-harming activities) her depression has a bearing on her cap for self-control but more than that, her condition might be the focus of the conduct of V. When we contemplate how an ordinary person would respond, we have to assume an ordinary person with an ordinary capacity for self-control and we’d have to say that that case if replayed has to go under the defence of diminished responsibility. Probably not a case of loss of self-control.

Clearly certain conditions are ruled out entirely. E.g. psychopathy. (anti-social personal disorder) (propensity to use violence under any pretence) So when looking at personal frailties these are merely in relation to the diminished responsibility defence.

Cultural Factors

These are perhaps the most problematic consideration. When we’re talking about tolerance and capacity for self-control in general terms, it is against the background of a society with a great deal of cultural variations where for e.g. some people have a great deal of religious conviction.

E.g. some religions are against gay sex. And in certain African countries for example, it’s still extremely criminal. So if a person has a particular flashpoint, if something is in play for which he has very strong views, what are the rules. See the case Mohammed [2005] EWCA Crim 1880.

It was claimed and accepted on D’s behalf that he had a right within a religion to appoint the person that his daughter should marry. The daughter refused and began a relationship with a person outside the preferred religion. The father (all accepted by D and not contested) felt it was not merely disobedience but a grave sin. No less than apostasy by the daughter for which the appropriate response was death. And dad kills the daughter on the basis of her disobedience being apostasy.

So when you say a gen cap for tolerance and self-restraint, you have to at some point set a standard and sometimes the standard will prove unacceptable to members of the society being policed.

The idea seems to be that we’re not utterly condoning the behaviour, but asking whether it should be reduced to manslaughter from murder. In those circumstances, it is only fair to judge the defendant on the basis of tolerance conditioned by his culture and his religion. And in such cases, the jury should be asked to consider a case from his perspective (feels S).

However, if you exclude certain things (sexual I), if you want to get into the thorny q of trumping religious beliefs, if you don’t want them to count in the defence, you’d have to say so explicitly as we’ve done with sexual infidelity. This was dropped at the last minute

Because of that it’s fair to say that strongly held beliefs, even in difficult cases like Mohammed, however alien to others, cannot disallow the person’s general capacity unless you explicitly make it clear that in a sense their abnormal which is a difficult thing to say about bona fide religious beliefs.

(Sullivan feels things like religion and honour killings should have been specifically recognised. Because of the politicisation of the criminal justice process, that was seen as a step too far. He feels it should’ve been done explicitly but since it wasn’t we take the letter of the law as we find it)

Lecture 6 (November 19th.) 1. Voluntary Manslaughter (Diminished Responsibility). 2. Involuntary Manslaughter (Constructive Manslaughter)

VOLUNTARY MANSLAUGHTER: DIMINISHED RESPONSIBILITY

The partial defence of diminished responsibility, which reduces what otherwise would be murder to manslaughter, was introduced into English law by section 2 of the Homicide Act 1957. A new version of s.2 (1) now applies; the change is to be found in section 52 of the Coroners and Justice Act 2009.Before turning to this change, some brief remarks on what remains of the original provision.

The old regime

S.2(2) requires D to prove that he is not guilty of murder because of diminished responsibility. This has been found to be compatible with the presumption of innocence guaranteed by Article 6(2) of the European Convention for Human Rights: Lambert [2001] 1 Cr App R 205. S.2 (3) provides for a verdict of manslaughter rather than murder if the defence is successful.

There is an important difference in orientation between the defence of loss of self-control contrasted with the defence diminished responsibility. The former defence partially excuses persons who are of normal stability and temperament who act violently in stressful circumstances. In other words, the reason for the loss of self-control is to be found in external circumstances surrounding the killing of V by D. By contrast, the focus in cases of diminished responsibility is on factors internal to D which may diminish the responsibility of D with regard to his killing of V.

The former version of s.2 (1) required proof of an, “abnormality of mind......as substantially impaired [D’s] mental responsibility for his acts or omissions in doing or being a party to the killing.” The working reality of this provision was very much a matter of practice rather than law. Where the medical evidence was clear and undisputed, the prosecution frequently accepted a plea of guilty of

manslaughter on the ground of diminished responsibility. Although the judge could intervene and insist that the issue of diminished responsibility be contested, in just over 90% of cases where the defence offered a guilty plea based on diminished responsibility the prosecution was permitted to accept it.

The ready acceptance of uncontested guilty pleas has had two notable consequences. First, the linkage between the medical evidence and the conduct of D which caused V’s death was not explored. It was enough, for example, for D just to be a schizophrenic. Whether that condition was part of the causal history of the killing was an issue typically not addressed.

E.g. there was a case under the old regime where D, a schizophrenic who was in a residential accommodation being treated for his condition, was gaming on a console. A fellow patient takes the console again and this angers D. As a consequence, he kills V to get his console back. The defence raised a diminished responsibility plea and this was accepted. However, the propensity of violence of schizophrenics as a general class while slightly higher than the general population, is not greatly elevated.

- The best studies show about an 8-10% increase in a risk of violence. So when something

makes a particular schizophrenics violent, it may have nothing to do with his schizophrenia

A study of cases carried out for the Law Commission by Professor Mackay of guilty pleas based on diminished responsibility (Law Com 290, Appendix B) is a useful resource for testing out the new law. Take Case 50, a case where D was unequivocally diagnosed as schizophrenic. D killed his lover V in a jealous rage because she had started on another sexual relationship. In the brief account of the case, D’s mental illness of itself, rather than a consideration of whether his schizophrenia explained his actions, inclined the prosecution to accept a plea of guilty of manslaughter. Under that verdict a court can deal with such a case by passing a restriction order of indefinite duration to be served in a secure mental hospital until such time as a mental health tribunal considers the release of the detained person to be safe. If such a case were to be contested under the new law, a murder verdict seems likely. D would go to prison under a life sentence. He might be subsequently transferred from prison to a special hospital but that would depend on various contingencies.

Sullivan’s view is that the old regime worked better in this regard as he feels that if a schizophrenic (or someone similar) got into trouble in such a manner, rather than imprisoning him for a minimum of 15 years, it’s better to put him in a secure mental hospital indefinitely where he can receive the appropriate treatment. (Indeed it has been shown that there are thousands of mentally ill people in prisons around the country)

Secondly, broad conceptions of what constituted a condition falling within section 2 were not contested in cases such as mercy killings and killings following domestic abuse where sympathy was aroused for D. What might be considered responses to stressful circumstances rather than destabilisation brought about by internal pathology were allowed to ground the defence. This relaxed practice is unlikely to continue under the new version of s.2(1) which focuses more directly on the part D’s mental abnormality played in the killing of V.

The New Law

Note that for this particular defence the burden of the proof is, and always has been, on the defence. Per s2(3), it is for the defendant to establish his diminished responsibility before the court (whereas with loss of self-control D just has to raise evidence and for other side to rebut it) When a pBoP is on the defence, the burden is a lesser one. The Prosecution burden is proof beyond reasonable doubt while the defence burden is the civil burden namely on the balance of probabilities.

This has been found to be convention compatible with art 6(2) guarantee of presumption of innocence (Lambert [2001] 1 Cr App R 205)

Note that now, It must be a recognised medical condition. Things like mercy killings, battered women, won’t count anymore unless they can be characterised as evidence of a recognised medical condition.

Further, the mental condition must impair d’s ability to do at least one of 3 things

1. To understand the nature of his conduct or (and/or – the more the better)2. form a rational judgement (or/and)3. exercise sc

the last will include our psychopath (anti soc dis) where condition is categorised by propensity to violence. Can raise defence not under loss of sc but under dim respon

So you need a recognised mental condition which impairs D’s ability to do a particular thing and finally, it must provide an explanation for D’s conduct. It will be taken to provide an explanation where it causes or is a significant contributory factor in causing D to carry out the killing.

Involuntary Manslaughter Involuntary manslaughter is the term for those forms of manslaughter where liability for the offence may be imposed without proof that D intended to kill or cause grievous bodily harm to V. I.e. the prosecution is not seeking to prove that D had mens rea for murder.

There are three forms of involuntary manslaughter:

(i) Unlawful act or Constructive manslaughter(ii) Gross negligence manslaughter(iii) Reckless manslaughter

Unlawful act or Constructive manslaughter

Unlawful act or constructive manslaughter is the label for killings perpetrated by way of a criminal and dangerous act (not omission). The only mental element that need be proved against D is whatever mental element the predicate crime requires.

Gross negligence manslaughter

Gross negligence manslaughter occurs where D owes V a duty of care with respect to the relevant act or omission and fails to discharge that duty, thereby causing the death of V. The breach of the duty of care must be judged by the jury to be so bad as to merit a conviction for manslaughter.

Reckless manslaughter

The third form of involuntary manslaughter, namely reckless manslaughter, is less securely established than the other two forms and is far less important in practice. None the less, there is recent authority that it may be manslaughter for D to cause V’s death foreseeing that his conduct might kill or seriously harm V or even, perhaps, cause some risk of harm to the person or health of V. As we shall discuss, it will rarely happen that a case of reckless manslaughter will not also fall within either constructive manslaughter or gross negligence manslaughter.

Involuntary manslaughter covers a very wide range of conduct. The typical instance of constructive manslaughter will be some form of violent assault by D upon V. It may be that the circumstances of a particular killing seem indistinguishable from a case of murder and only a prosecutor’s charging decision, an acceptance of a guilty plea to manslaughter, or an inscrutable jury verdict explains the verdict of manslaughter. By contrast, incidents little removed from cases of accidental death may fall within this variant of manslaughter as when D lands a single punch on V, but V falls awkwardly, bumping his head to fatal effect. D does not need to foresee any harm to V. It is enough that from an objective standpoint his act carried a risk of causing some physical harm, albeit minor harm, to someone else.

Constructive manslaughter is in line with certain non-fatal offences against the person such as assault occasioning actual bodily harm or malicious wounding/grievous bodily harm, offences where the consequences arising from violent conduct rather than intent or foresight of the consequences of conduct are the predominant elements of liability. This results driven approach is not without its critics, but at least there is something to be said for the view that violent persons should not be able to disown the consequences of their violence on the basis of not foreseeing how dangerous their violence might turn out to be. By contrast, gross negligence manslaughter focuses on non-violent conduct, but conduct that may yet be dangerous if done with insufficient care. We encounter defendants who are in regular employment and leading peaceable lives but on one occasion at least, have fallen down on the job with disastrous consequences for V. Persons such as electricians, gas fitters, ships officers, lorry drivers, surgeons, anaesthetists etc may find themselves facing a very serious criminal charge and a custodial sentence if found guilty. Is a results driven approach appropriate here? If it is should we extend the approach and create offences of causing injury and serious injury by gross negligence?

CONSTRUCTIVE MANSLAUGHTER (AKA UNLAWFUL ACT MANSLAUGHTER)

This is a CL creation and its history begins with the ‘felony murder’ rule. (at one time, criminal offences were divided into misdemeanours and felonies with the latter being more serious.) Under this rule, if one caused the death of another during the commission of a felony (e.g. used violence during the course of a burglary), that in its own right was murder. Hence the felony murder rule

As a subsidiary of this rule, there was an unlawful act rule in manslaughter. If it couldn’t be proved that the killing took place in the commission of a felony but nonetheless, some unlawfulness was present that would suffice for manslaughter.

While the felony murder rule no longer exists, the unlawful act rule persists.

The unlawful act

The starting point is an unlawful act. At one time, this was completely at large. Indeed for a period, even tortious acts would qualify for the unlawful act rule. (Some illegality causally connected to someone’s death) It is no longer the case that any unlawful act suffices. The predicate for liability is significantly narrower these days.

Now, the predicate act (the crime which causes the death) must be a crime. Any other form of illegality is not enough. The leading authority for the proposition that a mere tort will not suffice is not impressive.

A criminal act

Franklin [1883] 15 Cox CC 163

D was walking along Brighton pier on a bank holiday afternoon. There are swimmers in the sea below. Suddenly for no apparent reason, D grabs hold of a wooden crate outside a pub on the pier. He suddenly picks it up and without looking, chucks it over the side of the pier. It hit a swimmer on the head and the swimmer died as a consequence. D is charged with manslaughter and the prosecution seek to prove this in two ways. They say it’s either (or both) unlawful act manslaughter and/or manslaughter by gross negligence.

What was the underlying unlawful act? Prosecution said it was trespass to goods and that was enough. Mr Justice Fields insisted a tort wasn’t enough. Said the prosecution hadn’t been able to pinpoint a crime by D and said constructive manslaughter failed. The judge seemed to simply do it for his dislike of this doctrine. This was readily taken up by practitioners though there was no appellate case for a while.

Lamb [1967] 2 QB 981

More recently, CA in lamb expressed the view that only something in the nature of an assault would suffice and narrowed it down. As we’ll see, that is too narrow. Nonetheless, it’s clear they thought only a crime would suffice.

*Newbury [1977] AC 500

The matter seemed settled but some doubt was thrown upon it by the HL in the case of Newbury. The appellants, two fifteen year old boys, were convicted of the manslaughter of a railway guard who was travelling in the driving cab of a train. The appellants had pushed over in the path of the oncoming train part of a paving stone left by workmen on the parapet of a railway bridge. It went through the glass window of the cab and killed the guard.

Here, there were some tortious acts committed which resulted in death and no specific crime was identified. Though there was trespassing, there were clearly crimes as well. Most notably, criminal damage. So even though the crimes weren’t identified, it’s a safe assumption that the law is still as it was stated in Franklin.

Scarlett [1993] 4 ALL ER 629

In Scarlett (impt case in the law of self-defence), D was convicted of manslaughter at trial on the basis that he had committed the crime of assault. He appeals to CA and succeeds in having his

conviction quashed on the basis that he had a mistake of fact defence. Note; CA thought he would have a defence even if the force he used had been objectively disproportionate if he considered his response to be justifiable. (BE VERY CAREFUL OF THIS REMARK. There is no such defence based on such a belief.) But at the time, CA thought there was and on that basis quashed the conviction.

Though there may not have been a crime on the view of the CA, there was clearly a battery under civil law. This was clearly a tortious act (of battery)on the part of D against V using disproportionate force. But there is no suggestion by the CA that the conviction could be sustained on the basis of a tortious act.

Ultimately it seems clear that some kind of criminal act is necessary for this kind of liability

What kind of criminal act is the next question?

An act of commission

If any criminal act would suffice, we would have a crime of enormous latitude. Judges have been disinclined to give full range to the potential (though recently this has changed) and there have been a number of limitations

First of these cases involves the necessity (as perceived by CA in lowe ) for an act of commission rather than an act of omission. (this was a very important decision in limiting the breadth of unlawful act manslaughter)

Lowe [1973] QB 702

D was a mother who despite the fact that her child was obviously seriously ill over a protracted period of time for no good reason failed to seek medical help for her child. Consequently, the child dies and it was found that appropriate medical intervention would’ve saved the child

On that basis, the mother was found guilty of the statutory offence of the wilful neglect of a child

Prosecution went further and said that is a criminal offence in its own right. The wilful neglect explains why the child died. Thus, all the elements of manslaughter of this kind are present in this case. The immediate impact would be to enlarge the scope of this offence.

The judge who presided over the CA was clearly loathe to extend manslaughter into this domestic area. Said the statutory offence was a sufficient response. He drew a distinction b/w a child dying because of violence (there he’d have no doubt it was constructive manslaughter – plain and simple assault; excessive corporal punishment) and a child death brought about by ‘hands off neglect’

The decision ever since then has been widely cited for the proposition across the board that an act of commission is required. This is a proposition that is accepted in all leading texts.

An earlier case Senior [1899] QB 283 must be disregarded where there was a successful prosecution for manslaughter as a result of neglect.

So need a crime, of commission

An act criminal per se

Now to an important limitation which is hard to put in words. The criminal act must be criminal ‘per se’. It must be something that is intrinsically criminal. So not merely an act that is prima facie lawful which can become criminal because of the manner it is done.

To be found in the leading case of Andrews [1937] (also on gross negligence manslaughter but important for unlawful act manslaughter too)

*Andrews [1937] AC 576 (Expressed by lord Atkin)

(Expressed by lord Atkin) This was a case of very bad driving indeed. Driving caused the death and the driver was clearly guilty and convicted of the lesser homicide of causing death by dangerous driving. No dispute. Prosecution, because it was such a bad case, wanted to go further and brought a manslaughter charged based on the driving. And, it was the same kind of argument in Lowe.

So if allowed, manslaughter would completely supersede the offence of causing death by dangerous driving. It’d make all such cases one of manslaughter at one and the same time. Clearly not what parliament intended when it created this lesser form of homicide.

Atkin said essentially that the driving was not an unlawful act for the purposes of this form of liability. The reason (which Sullivan thinks he gives) is that driving is something that is lawful. It only becomes unlawful if for example you drive so badly that you constitute a danger on the road.

That’s the heart of the case. It is seemingly easy to grasp but the difficulty is to apply that concept to different criminal scenarios.

Is driving w/o a license intrinsically criminal or criminal by manner of performance?

Other commentators (smith and Hogan) rather than go with this reading (Simister and Sullivan) say the real meaning of Andrews is that the doctrine of constructive manslaughter does not apply to any crime of mere negligence or of strict liability. They say the doctrine is limited to crimes of culpability. Intention and recklessness. Sullivan would be happy to take the reading if it seemed to reflect the sate of the law.

Andrews [2002] EWCA 3021; [2003] Crim LR 477

But in Andrews (02) there was a conviction for constructive manslaughter based on the supply of a prescription drug w/o a license to do so. And the point about that offence (selling drugs/lacking a license) is a crime of strict liability. (All that mattered here is that a license was lacked to make that kind of sale)

So this shows we need to use the distinction b/w acts which are intrinsically criminal (criminal per se) and acts which only become criminal because of the way they are done, (intrinsically lawful) and are outside the purview of this doctrine

As a matter of day to day practice, most constructive manslaughter cases are based on assault. As a result it’s not too confusing in practice. So by and large the law can be lived with in practice though there are the odd cases like Andrews (02) where the prosecution picks up on another criminal offence to get a manslaughter verdict.

So we know that the unlawful act has to be a criminal act, of commission, which is criminal per se. But it must also be dangerous.

A dangerous criminal act

Further important limitation, the act must be dangerous.

Newbury [1977] AC 500 & Church [1966] IQB 59

The need for a dangerous criminal act was endorsed unequivocally by the HL in Newbury supporting an earlier CA decision in Church (worth reading alongside Newbury). What constitutes a dangerous act in this context is as follows;

Was the act from the perspective of an ordinary sober bystander likely to cause some physical harm to V, the deceased. Few points to emphasise from this:

- D’s perception is not in play. It’s an objective form of liability. Once you’ve proved he’s committed a criminal act. (Typically assault. Depends on mens rea of crime) and proved causal connection b/w crime and death, next question to ask is whether that criminal act is dangerous.

- It’s so if from an objective standpoint it threatens to cause some physical harm. As stressed in Church , even minor physical harm will suffice.

So dangerous is quite a technical word in that sense.

Newbury and Church stress quite importantly, that the test is to be applied ex ante (at the time of the act itself). Obviously dangerousness could be inferred from the act itself. In theory at least juries can’t simply make that kind of inference. They must put themselves in the position of d at time of act and ask themselves if it was dangerous in the above sense.

So in assessing the facts, they are to be put in the position of D and thus, to be attributed with the knowledge of the facts which were reasonably available to D at the time of the act.

So forms of latent danger which were not to be observable by a bystander are to be disregarded . (e.g. if you don’t know there’s some gas in the air and u light a match. Unless u could be aware it should be disregarded)

Dawson [1985] 81 Cr App R 150

Involves an overweight man in his late 40s who stood on the forecourt filling up cars which needed petrol. V is working lawfully here and along comes D who produces a convincing replica gun. Can’t fire but V doesn’t note it. V this porky man is extremely frightened. So frightened in fact that he has a heart attack and as a consequence he dies. Amongst the other offences D committed assault. By producing the replica, D put V in immediate fear of serious physical harm. It was that stress which induced the heart attack from which he died.

The key issue here is whether it was a ‘dangerous act’. In itself, the replica was not dangerous. It was just a convincing replica weapon. The prosecution and defence agreed endorsed by the court that fright per se however intensely experienced was not of itself physical harm . And from that

perspective, the CA quashed the conviction because as it considered from the perspective of an objective bystander, this act did not threaten physical harm. Note that the objective bystander knows that it is a replica weapon. (Given the information D has of the nature of the act)

So that’s the case of Dawson which is contrasted with Watson

Watson [1989] 89 Cr App R 211

Here, an example of constructive manslaughter not being confined to assault. Here the predicate offence was a burglary. D breaks into V’s house. During the course of the burglary, V wakes up. V is a frail 87 year old man. D obviously sees that V won’t offer much in the way of opposition of burglary offence. D just took note of him and carried on.

V clearly didn’t like this, had a heart attack and as a consequence dies. This time, it is manslaughter from the objective bystander perspective. The very fact of entry at night into the old man’s house was dangerous because 87 year old men are within the class of persons who were susceptible to heart attacks if they experienced fright. He would seek risk of harm as D would know it dealt with a very old man.

Ball [1989] Crim LR 730

Odd decision. Here, D was quarrelling with V. The quarrel intensifies and D raises the shotgun he happens to be carrying, goes into his pocket, that he knows contains a mix of live and blank cartridges, he loads a cartridge, aims the gun at V, squeezes the trigger, V is almost instantly killed by the shot entering his heart. Seems to clearly be a case of murder not manslaughter but nonetheless, the prosecution presses for constructive manslaughter.

Line of reasoning in light of decision in Dawson, the objective test must be applied by reference to D’s mistaken belief that he had loaded a blank cartridge. So D is sort of trying to say this is like a replica gun case. He just wanted to frighten V not cause physical harm. The judge withdrew from the jury consideration of B's knowledge or belief that the cartridge was a blank one. B appealed, arguing that the objective assessment of whether the act was dangerous must be based on the act which the accused believed himself to be committing.

CA is clear that the question whether the act was dangerous was not to be judged by the defendant's appreciation but by that of the sober and reasonable man, into whose appreciation could not be imputed the mistaken belief that his act was not dangerous because he thought he had loaded a blank cartridge

(Note that at first instance, the characterisation of Ball as a Dawson case succeeded to a particular point. The reading of Dawson which was accepted was that Dawson case involved mistaken belief of the physical vulnerabilities of the deceased whereas Ball mistaken belief about the dangerousness of the weapon. This distinction if it were accepted – one rule for dangerousness of weapon and another for vulnerabilities of V would lead to a contorted and useless jurisprudence. The better view of the case is that the conviction in Ball is entirely square with Dawson. Dawson doesn’t need to be qualified in any way. Because on the facts of Ball it is surely the case that any reasonable bystander would be aware of the danger of loading the gun with a live cartridge. So the only issue is danger,

(not the source/nature of danger) only issue for the objective bystander is whether it was a dangerous act.)

We turn to a limitation that needs to be mentioned but is no longer in play. May come across in reading though

No “aimed at” requirement (NO LONGER IN PLAY)

Dalby [1982] 1 ALL ER 916

D supplied drugs to V. V takes the drugs which are of a purity unanticipated by V and as a consequence dies. D is charged with constructive manslaughter. The predicate offence is the unlawful supply of a controlled drug. The conviction at trial is quashed. Why? No good reason for the quashing. (Maybe like Kennedy but its pre Kennedy)

CA quashed on the basis that there was a further limitation on the nature of the criminal act namely that the act had to be something ‘aimed at V’. These were words used in a famous murder case Smith and at one time it was arguable there was this limit on the actus reus of murder. It’s legal history though. However the CA snatched at this limitation (as clearly they didn’t want to convict for manslaughter here) and said there mere supply of drug isn’t in the nature of being ‘aimed at’ anyone.

Mitchell [1983] QB 741

This aimed at limitation as put to the test soon after in Mitchell. Involved a queue at a post office. What happened here is that there’s a crowded post office and there’s a queue. At the front of the queue is V, an elderly lady. At the back of the queue, there is a quarrel b/w D and X. D punches X. X bumps into another man at the back of the queue and there is a ‘domino effect’. So V dies from the bump she receives from the aforementioned domino effect. With the recent case of Dalby in mind, D tried to claim that he’s not guilty of constructive manslaughter because his punch is aimed at X and it cannot be said that the punch is in any sense ‘aimed at ‘V.

Nonetheless, he is convicted of constructive manslaughter. Dalby is ‘finessed’ on the basis that supply is described as something which is nearly ‘inert’ whereas what has happened here is active. There is some violence with the punch. The aimed at limitation isn’t evaded. It’s doubted in passing. The distinction mentioned does the job so with an ‘active act’ all that is necessary is a causal connection b/w the positive act and the death of v.

So from Mitchell it seems there is no aimed at requirement. We now know the better explanation of Dalby is to be found in the important case of Kennedy (No 2) which insists (barring special circumstances) that person taking drug, aware he is taking the drug, is responsible for his own death. The causal chain is broken with the intervention of a voluntary informed act.

So the supplier merely gives the where and all for V to kill himself. He then drops out of the causal story.

This leaves a conundrum in several cases (have a look at them)

Causal directness

When can we say that a person has effectively killed himself? Read carefully the case of carey. Good discussion of it in smith v Hogan. Was it rightly decided? Courts decided there wasn’t the necessary causal directness. That v effectively killed herself even though she was put into a state of terror by the act of D.

Alsso, a domestic violence case dhaliwal after repeated beatings and threat of more to come, woman killed herself and D charged with manslaughter. Case fails on causal grounds. Indeed CA felt had it been argued differently it may have succeeded.

A critique of constructive manslaughter

For decades, the majority ‘enlightened opinion’ (judges/academics/barristers etc.) was that constructive manslaughter of this kind was a relic of the past. That the focus was on the causation of death. And that of itself was doing too much (?) at the neglect of the more important question of d’s culpability (whether d warranted conviction and a custodial sentence) and the view was that in many cases, that wouldn’t be the case. Particularly in cases where D himself saw no risk of causing death or serious bodily harm.

The argument was at one time the LC’s position was all for abolishing gross negligence manslaughter and narrowing constructive manslaughter effectively to assaults where in the cause of the assault, D would foresee at least the risk of causing death for serious bodily harm. (Only in those cases was a serious conviction wanted)

Case which exemplifies the phenomenon of ‘one punch manslaughter’

Mallet [1972] Crim LR 26

D and V had been anxious neighbours (regularly did things which annoyed each other). D and V are having a quarrel over their garden fence. Things this time (and for the first time) do get out of control. D inexcusably punches V. but D did that. V unfortunately falls awkwardly and hits his head on the rock and as a consequence he dies.

Mallet’s conviction for constructed manslaughter was upheld by the CA. The real issue here is in sentencing. Both sides agree there is no culpability whatsoever as to the causing of death. It really was in a sense ‘an accident’. On-going tense relationship between D and V. Assault outright but no one would foresee death.

CA agreed with all that but said; the fact of death itself must be recognised and here (in light of some subsequent developments) the relatively modest minimum term of 12 months imprisonment was passed. And Mallet was frequently cited as the only acceptable (unacceptable?) face of constructive manslaughter.

This appraisal is probably wrong. CA in December LCJ presided over a number of consolidated appeals some of which involved one-punch manslaughter. And the question was whether the sentences passed by the trial judge were too excessive. Too which lord Judge replied that they were too lenient. (Lord halsham in Cunningham saying we need a robust form of murder) Lord Judge does exactly this in the consolidated appeals. He says that anybody who uses violence must do so at his own risk. If you use violence, you pass a threshold and make yourself responsible for all the

consequences that flow from that act. So the fact of death itself must be signified by a significant custodial sentence

The object of criticism of Mallet from the perspective of lord judge, 12 months would not be a firm enough sentence in light of him causing death.

So the focus seems to be on the consequences rather than culpability when it comes to punishment.

For serious offences, focus has always been on culpability to capture the chance factors in life.

There is a sense these days that the sentiment probably plays well with the bulk of people.

Reform of Constructive Manslaughter

Law Com No 304:-

Manslaughter should encompass killing another person:

(a) through the commission of a criminal act intended by the defendant to cause injury, or(b) through the commission of a criminal act that the defendant was aware involved a serious

risk of causing some injury.

So the modest LC proposal (08) watered down version or earlier one; there we’ll see for constructive manslaughter there must be an intention to cause injury or recklessness as to a serious risk of causing injury. So constructive manslaughter would be subjectivised to that extent. Personal subjective culpability of D would matter more in that reformulation. But probably won’t find favour with lord judge.

Lecture 7 (November 26th.) 1. Involuntary Manslaughter (manslaughter by gross negligence; reckless manslaughter)

MANSLAUGHTER BY GROSS NEGLIGENCE

The first and radical difference is that no underlying illegality need be found. Here conduct which is clearly and intrinsically lawful. E.g. a surgical operation which goes badly wrong and causes the death of the patient may form the subject matter of a prosecution of gross negligence manslaughter. so this is an offence, a serious offence,

Here you meet people frequently as defendants who lead non-criminal lives. They do tasks, important tasks which if done badly, can cause death. You find people (Bernard Williams) who are ‘ethically well disposed’ no predicative intentions as to other peoples property. No violent feelings against other persons. Can nonetheless find themselves (often to their great surprise) to defendants of a homicide charge.

Before we get to the ‘modern’ cases, we need to look at the leading case of Bateman

Bateman (1925) 19 Cr App R 8

"the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment."

That has been criticised for its peculiarity and circularity. It’s a pretty good summary however of a rough area of law. Our template is civil law of negligence with some modifications. You have to find at least a negligent act. Look into things like DoC etc… once you’ve found a breach of DoC which has a clear bearing on death of then you go back to the kind of conduct it was and say it’s more than just negligence. It’s gross negligence. So it’s not enough to leave the parties to it to sort out rights and remedies. The state needs to come in and use law of manslaughter as a deterrent.

The judgment in Bateman has been approved in what is still a leading case on both constructive manslaughter and manslaughter by gross negligence. Namely, Andrews [1937]

*Andrews [1937] AC 576

Here the Hl and in particular, Lord Atkin who was giving the leading speech said that Lord Hewitt got it right in Bateman. Further, he said ‘a word that might help juries is recklessness’. By way of necessary parenthesis, you’ll recall from the HL decision in G [2004] that recklessness now means foresight of the relevant consequences and taking in an unjustifiable or inexcusable course of action in running the risk of those consequences coming about. So these days, recklessness is a purely subjective state of mind. At the time of Andrews, it was perfectly clear from the context that lord Atkin was using recklessness as simply an alternative way or expressing gross negligence. He wasn’t moving from away from a negligence standard to something else.

Unfortunately, the law of recklessness post Andrews goes into various forms of convulsion. The meaning of recklessness kept changing. As a result of a group of HL decisions, recklessness was expanded to cover not merely subjective recklessness which after R v G is now the only form of legal recklessness but was expanded after the name of the leading case to include ‘Caldwell’ recklessness. Caldwell recklessness took the form of failure to think of an obvious and serious risk. (It had always included perception of running the risk but included in Caldwell the person who was in the presence of an obvious and serious risk but failed to think about it)

Seymour [1983] 2 AC 493

This was the leading case of manslaughter by gross negligence for a short period and here, the term ‘gross negligence’ was superseded and in its place, ‘Caldwell-style’ recklessness was substituted. So during the Seymour era, liability could be imposed for manslaughter simply on the bases of causing someone’s death by failing to consider an obvious and serious risk which then resulted in the death. One consequence of this is that many people were convicted of manslaughter who in the eyes of practitioners (used to earlier form of law) wouldn’t have been convicted under the rubric of gross negligence.

*Adomako [1995] 1 AC 171; Smith at [1994] Crim LR 758; Virgo at [1995] CLJ 14; Gardener at (1995) 111 LQR 22 (must read)

The matter was resolved in Adomako. When reading this case, there’s a lot of ‘pussy-footing’ about Seymour. The bottom line is real that Seymour is put to one side as no longer the applicable test to use and in its place gross negligence is restored. This concerned a range of appeals.

*Adomako [1995] 1 AC 171; Smith at [1994] Crim LR 758; Virgo at [1995] CLJ 14; Gardener at (1995) 111 LQR 22This was a range of appeals

Facts: D, an anaesthetist, was in continuous employment by the NHS but never employed permanently- essentially hopped from clinic to clinic looking for work. During an operation, connection between the patient and oxygen was lost; a competent anaesthetist would have noticed this and rectified the fault within 30 sec. But D took 8 minutes to source the difficulty. The patient entered a vegetative state.

Here D was not a bad man: he was trying to do his best at his job and was just very unskilled. Clearly, should never practice again.

Held: outlined the 4-stage test of GNM

1. the existence of a duty of care to the deceased;2. a breach of that duty of care (using ordinary tortuous principles) which;3. causes (or significantly contributes) to the death of the victim; and

a. The criminal law account of causation to be applied here4. the conduct amounting to breach should be characterised as gross negligence, and was so

bad as to warrant criminal punishmenta. Egregiousness of the negligence that was applied.

Further, conviction sustained and D got punishment

Analysis: On what grounds was the punishment? Retributive- but he wasn’t a bad person! Utilitarian- social deterrent effect to future shitty anesthetists?

Sullivan argues that GN as a serious crime (not as a regulatory offense) is one that would also attract a strong custodial sentence. To always mete this sentence is misconceived- especially in the case, where, where he didn’t have any intent to do harm.

The Law Commission for many years argued the total abolition of manslaughter- but now endorses GNM. We can safely assume that the prospect of change in manslaughter is very slim.

A-G’s Ref (no 2 of 1999) [2000] 3 All ER 182LJ Roes:

GNM applies to corporations as well as personal individuals. (We don’t study corporate manslaughter). GNM is a standard that is applied to corporations and individuals

The direction approved in this case was with regard to gross negligence manslaughter

*Important loose end: there was no specific reference as to what kind of outcome the GN must relate to

- Best view: GN must correspond to a risk of death . IF it were to correspond to a risk of anything else, then GNM would support constructive manslaughter

o For CM, the act must be unlawful and the accused must possess whatever mens rea is needed for the act. A simple requirement for some bodily harm suffices for liability.

Singh [1999] Crim LR 582CA: Confirmed that GN as to death is required- liability is triggered by the risk of causing someone else’s death

Attempts at reform and change of the lawBetween the situation in Adomako and in Misra, one must examine the HOL decision in G

G [2004] 1AC 1034Facts: This is a leading case on recklessness- was a case of criminal damage.

Held: the HL overturned objective Caldwell recklessness and reinstated as the only form of legal recklessness the subjective taking of an unjustifiable risk.

Most Lords felt that subjective recklessness was the minimum culpability for serious crimes: that it should be limited to those who choose to do something wrong. Assuming free will, if one intends to do something then he has chosen to inflict the risk of harm onto another.

Contrast this with negligence: with the latter, there need not be any foresight of the harm intended (** is he contrasting recklessness or GNM??)

Misra [2004] EWCA Crim 2375Argument 1: In light of subjective recklessness re-established in G, argue that liability for manslaughter should be confined to those who in the very least assume the risk of serious harm

Held: Argument dismissed because in G there was no suggestions about GNM (effectively refused to extend G decision to the area of GNM), or that liability for it was suspect.

Further, held that GNM was a form of liability that has been around for many years and it was up to parliament to legislate if it wanted to change it.

Argument 2: GNM was in breach of A7 of the ECHR-

This prima facie bans retroactive law. But Strasbourg jurisprudence has expanded the notion of retroactivity: now the underlying concern is that D be put on fair notice of when his conduct may be in breach of the law.

The argument here was that the terms of the direction in Adameko (1. Negligence was a tortuous breach and 2. the jury must come to their own moral conclusion) did not offer a lot of guidance at all. Contrasted with tort law, with criminal law all we know is that there may be a finding by a jury.

Held: that GNM was a familiar form of liability and there was a public interest in punishing regulations of the worst kind: individuals had all the guidance needed to make it a crime

- But if one is going to make regulation the starting point of a crime, then there is no way that standard of scrutiny can be relaxed enough

SUMMARY OF THE LAW AFTER MISRA

Starting point:

1. Does D owe a duty to V? This duty is measured in tortuous principles

2. Contributory negligence on the part of V doesn’t break the chain of causation: because in criminal law, there is no need for a breach that gives rise to compensation. Indeed, criminal law does not care much about compensation. It is enough to ask if D’s conduct is negligent beyond any contributory negligence on the part of V- even if D and V are both to blame then V’s conduct doesn’t need to be taken into account

Wacker [2003] 1 Cr App R 22Facts: D, a lorry driver, was transporting illegal immigrants across the border in his truck. To ensure that customs officials didn’t hear any noises from his truck and come and investigate, he insisted that during the passage from customs the air ducts in the back of the lorry be taped up- assuring them that there would be enough air. There wasn’t: >30 people died of suffocation. D was convicted of GNM

(*** Why can’t a claim in constructive manslaughter be applied here? Clearly, smuggling immigrants across the border is an illegal act, and its an act that gave rise to the deaths of the immigrants….)

Argued by D that the deceased were joint tortfeasors: they were parties to it and consented to the risk and thus had any of the survivors brought a tortuous claim the action would have failed (there was no DOC owed to the tortfeasors.

- This is a wholly correct tort argument

Held: Conviction upheld that D’s conduct was the exclusive concern of the criminal court. His conduct had breached a DOC. The fact that the breach was not enforceable in civil courts was not the concern of criminal courts

Willoughby [2004] EWCA Crim 3365Facts: 2 people, D and V, jointly conspire to burn down a house and claim the insurance. D was negligently unsafe and V died as a result of D’s negligence.

Held: same argument as in Wacker succeeded: that they were joint tortfeasors was irrelevant

Herring, ‘The duty of Care in Gross Negligence Manslaughter’ [2007] Crim.LR 24

Evans [2009] EWCA Crim 650- court overstretches to find breach of a DOC to sustain a conviction for GNMFacts: Family get-together that involved the mutual taking of drugs. D, the half-sister of V, provided V with heroin. V, aware that she was taking heroin, takes it. The drug was purer than expected and V died as a direct consequence of injecting herself with the drug

Analyzed

a) as constructive manslaughter? The supply of drugs was illegal and there was a clear relationship between the illegal act and the death. But taking the drug was an intervening act that broke the chain of causation (Kennedy) between the unlawful supply of the drug and V’s death.

b) as GNM?

1. Was there a DOC? Drug suppliers don’t owe a DOC to their victims- it’s a criminal act and they don’t give a shit about their victims. ½ sisters don’t owe a DOC either: at law, siblings have no presumed DOC. If the mum had provided the drug then the mum would have owed a DOC, but the mum was taking drugs somewhere else.

Held:

So how was GNM sustained???

Creation of a dangerous act: Miller Principle that if one creates a dangerous situation (even blamelessly) then one is under a duty to take reasonable steps to alleviate the damage

** There are huge problems with using Miller as the underlying principle!

1. Miller caused a fire by his own direct act- but here, the danger of death was created by a voluntary act! (the taking of the drug by V)

2. V realized the danger that she was in by carrying out the act. Kennedy: taking of the drug is a voluntary act by V.

Rogers, ‘Death, drugs and duties’[2009] Archbold News 6 (available on moodle) Reckless Manslaughter

This is the 3rd form of involuntary manslaughter (the others being GNM and Constructive manslaughter) and it has very little practical significance

Hyam [1975] AC 55

HOL here divided on if a form of risk-taking (setting fire at a grave risk to those inside) was intention or recklessness. But all felt that D was guilty of RM on the basis of foresight of the risk of causing serious harm. One can then question: what is serious harm??

Looking at the case from the other forms of involuntary manslaughter: Here, by setting fire arson so

a) Constructive Manslaughter? One can point to the arson as a dangerous act by a neutral standard. The underlying conduct behind the risk to life would be dangerous- therefore only need recklessness as culpability

b) GNM? Underlying conduct was lawful and recklessness (subjective) will deliver a result that was not obtainable as GNM.

Stone [1977] QB 354

Troublesome dicta:

- D perceiving the risk of somehow there being a risk to his health would be sufficient culpability

- If this was reliable: a verdict where GNM may not be allowed- Criticized as being a throwaway

West London Coroner, ex parte Gray [1988] QB 467

Lidar [2000] 4 Archbold News.

COA here was dealing with reckless manslaughter- assumed that the perception of the risk had to amount to at least bodily harm

- Sullivan feels that this is a better view of the law: here no argument put forth for a broader form of culpability.