the law of homicide

8/3/2019 The Law of Homicide

1/44


2/44

Outline of lecturesy Murdery Involuntary manslaughter

y Unlawful act manslaughter

y Gross negligence manslaughtery Reckless manslaughter

y Voluntary manslaughter (partial defences to murder)y Loss of controly Diminished responsibility

y

Reform of the law of homicidey Law Commission (2004-6)y Partial Defences Reviewy Homicide Review

y Coroners and Justice Act 2009 (reform of partial defences)


3/44


4/44

Introduction to murderyMy lords, murder is widely thought to be the gravest of

crimes. One could expect a developed system to

embody a law of murder clear enough to yield anunequivocal result on a given set of facts, a result whichconforms with apparent justice and has a soundintellectual base. This is not so in England, where thelaw of homicide is permeated by anomaly, fiction,misnomer and obsolete reasoning. (Lord Mustill: A-GsReference (No 3 of 1994) [1997] 3 All ER 936)


5/44

Outline of murdery Murder is when a man of sound memory and of the age of

discretion, unlawfully killeth within any county of the realmany reasonable creature in rerum natura under the King'speace, with malice aforethought, either expressed by theparty or implied by law, [so that the wounded party shall dieof the wound or hurt, within a year and a day of the same].(Sir Edward Coke (Institutes of the Laws of England, 1797))

y Modern definition: unlawful killing of another humanbeing with intention to kill or cause grievous bodily harm

y Punishment: the mandatory life sentence


6/44

The actus reus of murdery When is someone a human being? Children must

have been born alive, while death equals brain death

y Unlawful killing? Refers to the absence of defence,usually self-defence see lectures in General Part II

y Queens Peace? Murder only applies in peace time,but can be committed extra-jurisdictionally

y No longer need for death to be within a year and aday, but longer than 3 years and A-Gs permissionrequired to prosecute (see Year and Day Act 1996)


7/44

Themens rea of murdery Intention as described in General Part (I) lectures

y The GBH rule:

y GBH means really serious harm: DPP v Smithy However, in Saunders the Court of Appeal allowed

serious injury as a sufficient direction to the jury

y It is for the judge to decide whether the word really

needs to be used in his direction to the jury: Janjuay The GBH rule is an outcropping of old law from which

the surrounding strata of rationalisations haveweathered away (Lord Mustill in A-Gs Ref (3 of 94))


8/44

Punishment for murdery The mandatory life sentence (MLS) for murder

y The MLS, contrary to public assumptions, does not

always mean imprisonment for rest of ones lifey Sentencing judge sets a minimum tariff that must

be served, without possibility of parole; this sentenceis usually between 15 and 30 years imprisonment

y Prisoner then eligible for release on parole, but ifreleased he or she will remain on licence for rest of life

y This means any further criminal activitypermitsstate to recall to prison; this is the life sentence


9/44

Maximum penalty: discretionary life sentence (i.e. completeflexibility for judge in sentencing, including no imprisonment)


10/44

Unlawful act manslaughter: introy Case study: Mallett

y D argues with neighbour who he believes slandered him

y Punches neighbour once; neighbour falls awkwardly andbreaks him head open; neighbour dies from his injuries

y D convicted of unlawful act manslaughter

y Exemplar of the conundrum of the one punch killer

y The controversy: unlawful act manslaughter is aconstructive crime, which requires no foresight of theeventual death, and indeed no mens rea on part of Dbeyond the original punch (i.e. low correspondence)


11/44

Requirements of offencey Unlawful criminal act (usually battery/assault; no

omissions (Lowe); excludes regulatory offences (Andrew))

y

And dangerou

s: such that all sober and reasonable peoplewould inevitably recognize it as an act which must subjectthe other person to at least the risk of some harm resultingtherefrom, albeit not serious harm(Church)

y NB interpretation of dangerous in Watson; Dawson; Ball

y Which is a legal cause of the death of V


12/44

...and what is not requiredy Foresight of anything more than the basic offence

y That the unlawful act be directed at V him or herself

y Is conviction of the one punch killer fair?y See Horder, Mitchell: issue of (lack of) correspondence

y Much lower moral threshold than GBH rule for murder

y Should someone be held liable for the moral luck of

death, when all they intended/foresaw was battery?


13/44

Gross negligence: introy Case study (and leading case):Adomako (HL)

y D is an anaesthetist caring for V, his patient

y D anaesthetises V during eye operationy D fails to notice for six minutes that tube connecting

oxygen supply to V has become disconnected

y V suffers cardiac arrest and dies

y D convicted of gross negligence manslaughter

Why not constructive manslaughter? (i) omission ratherthan act, and (ii) Ds actions not themselves criminal


14/44

Requirements of the offencey Negligence duty of care exists between D and V

y Some well established duties in law: e.g. doctor to patient(Adomako); landlord to tenant (Singh)

y Otherwise, general rules of: foreseeability, proximity and fair,just and reasonable to impose liability (Caparo v Dickman)

y Courts retain power to ignore negligence rules (Wacker)

y Judge decides on law; jury decides on the facts (Evans)

y If by omission, also need to find omissions duty to act

y D breaches that duty of care (and where relevant anyomissions duty), which causes death of V

y D is grossly negligent in breaching that duty of care


15/44

Meaning of gross negligencey The essence of the matter, which is supremely a jury

question, is whether, having regard to the risk of

death involved, the conduct of the defendant was sobad in all the circumstances as to amount in theirjudgement to a criminal act or omission(Adomako)

y Does this test appropriately define the offence?

y

Or is it circular, allowing jury complete discretion?y NB Test has been found to satisfy Art 7 ECHR (Misra)


16/44

Reckless manslaughtery Requires D to cause death of V and be Cunningham

reckless as to the risk of death or serious injury (Lidar)

yResidual category of manslaughter; most forms ofkilling will be covered by unlawful act or gross neg

yAs such, hardly ever used by prosecutors in England


17/44

Loss of control

Diminished responsibility


18/44

Partial defences: an introductiony The partial defences to murder reduce the offence of

murder to one ofvoluntary manslaughter

y

Theydo not apply to any other criminal offencey Designed to do justice to defendants in broader

context of mandatory life sentence for murder

yAllow judges to impose discretionary sentence

y Question: to what extent are the partial defences onlyrequired because of the MLS?Would they be neededat all if we had full sentencing discretion for murder?


19/44

Case studies: domestic violencey D has been physically and psychologically abused for many years

by her husband, V. One night, after V has raped her, D goes tothe kitchen, retrieves a knife, returns to the bedroom and stabs V

in the chest. V dies later in hospital.y D is jealous and possessive. He thinks his wife, V, is having an

affair with his best friend. When V returns home one night, sheadmits she has been unfaithful. In fury, D strangles V to death.

y D is the father of V. He is a very religious Muslim who is

concerned that V is dressing inWestern clothing and may bespending time unaccompanied with boys. This has left himdepressed. One night V returns home and she tells him she has anew boyfriend. The next day, D waits for V and kills her.

y Should these individuals be murderers, or manslaughters?


20/44

The law reform context

y LC Report, Partial Defences to Murder (2004)

y Government policy (July 2008): Murder, manslaughterand infanticide: proposals for reform of the law

y Complete reform of partial defences in Coroners andJustice Act 2009 (implemented October 2010)

y New defence of loss of control (replacing provocation)y Reformed defence of diminished responsibility


21/44


22/44

The old defence of provocationy Loss of controlpreviously partial defence ofprovocationy Developed by common law from medieval times, to reduce

manslaughter and avoid death penalty where men

defended their honour, especially in response to infidelityy Codified post-war in Homicide Act 1957, s.3y In essence, the defendant needed to show:

y She experienced a sudden and temporary loss of self control(Duffy) in response to provoking acts or words

= subjective/factual elementy Areasonable personwould have done the same thing

y assessment of the gravity (or sting) of the provocationy assessment of capacity for self control

= objective/evaluative element


23/44

Explanation for defencey Is it a partial excuse? i.e. D did wrong, but we do not

completely blame him as concession to human frailty

y

Is it a partial justification? i.e.What D did was right -V must bear some of the responsibility for provoking D

y Or a reasonable excuse? i.e. we excuse Ds weakness,but it needs to have been a reaction that any of us

could have had to the particular provoking incident.


24/44

The pressure for reformy Disparate gender impact men who kill women able

to use defence more easily than abused women

y Sudden loss of control fits the reactions of menmuch more than reactions of abused women who kill

y Thesewomen said to suffer from battered womansyndrome: fear rather than anger; learnedhelplessness; slow burn reaction to sustained abuse

yAbused women who kill left to use diminishedresponsibility, which pathologises their situation

y Such concerns were at the heart of the LC reforms andGovernment changes in Coroners and Justice Act


25/44

Loss of control: CJA 2009, ss. 54-56y D must kill as a result ofa loss of control, due to

y A response to fear of serious violence; and/ory Things done or said which constituted circumstances of an

extremely grave character and caused D to have a justifiablesense of being seriously wronged

yA person of Ds sex and age, with a normal degree oftolerance and self restraint and in the circumstances ofD, might have reacted in the same or similar way to D

y

Reference to the circumstances ofDis a referenceto all of D's circumstances other than those whose onlyrelevance to D's conduct is that they bear on D'sgeneral capacity for tolerance or self-restraint.


26/44

Further requirementsy Judge not required to leave defence to jury unless a

reasonable jury, properly directed, could conclude that itapplied (s.54(4)) previously defence hadto be left to jury

y If jury directed to consider loss of control they mustassume that it has been made out unless prosecutionproves beyond doubt that it is not (s.54(5))


27/44

Subjective test: losing controly What is losing control? Duffy: sudden and temporary

loss of self-control rendering the accused so subject topassion as to make him or her not master of his mind.

y But now no longer need for a sudden loss of control why? to deal with abused women who kill aftersignificant period from provoking act or words classicexample is found in Court of Appeal case of Ahluwalia

y The defence will not apply where circumstances incited byD for the purpose ofproviding an excuse to use violenceor D acted in considered desire for revenge

y NB Law Comm removed concept ofloss of control


28/44

What can cause loss of control?y Fear of serious violence: introduced to deal with the

particular situation of abused women who killy Problems with this limb: do abused women really lose

control as a result of abusive relationship, or act rationally?y Circumstances of extremely grave character leading to

justifiable sense of being seriously wronged - raiseslevel of provocation (because of injustices of old law):y Previously babies crying, honour killings, jealous killings of

women would all have to be left to jury under old lawy Sexual infidelity on the part of the victim is now explicitly

precluded from consideration as a basis for loss of self-control

y But is it ever excusable to kill in anger? SeeWells/Horder.


29/44

Objective testy Would an ordinaryperson ofDs age or sex, with

normal tolerance and self-restraint, and in the

circu

mstances ofD, have reacted in the same way?y Only relevant circumstances are those that do not go

solely to the capacity for tolerance and self-restraint

y Two parts to this test: gravity and capacity for control

yWould the ordinary person be affected by the acts orwords?For this, all Ds characteristics can be considered

y Would the ordinary person have lost control in thissituation?For this, only Ds age or sex can be considered


30/44

Reasonable capacity for control:

objective or subjective?y Debate under the old common law in House of Lords

between taking into consideration all Ds particularvulnerabilities (Smith (Morgan)) and only taking into

consideration Ds age or sex (A-G of Jersey v Holley)y Ultimately, the Holley approach was adopted, and was

incorporated into the Coroners and Justice Acty BUT does this do sufficient justice to those who lose

their self-control because of their specific weaknesses?y Or is it important to keep the test as objective as

possible, to ensure that this is a reasonable excuse?

y Is diminished responsibility better for these Ds?


31/44

Objectivity and abused womeny Holley-style objective test criticised by those who advocate

on behalf of abused women who kill their partners

y Argued that these women will not be able to use evidenceof battered womens syndrome to support their reaction

y Edwards: From now on battered women will be back tofinding themselves once again outside the law.

y But is this really true? Arguable they could instead use all

the circumstances of D to argue that a woman of normalself-restraint would kill if subjected to long term abuse

y Also: greater objectivity ensures much less acceptablecharacteristics such as male possessiveness are excluded


32/44

General conclusionsy Loss of control defence created with context of

gendered domestic violence at heart of reforms

y

Fear of serious violence limb better addresses theexperiences of abused women, and why they kill

y Restrictions on the old provocation limb ensuresmasculine angry reaction will be recognised only rarely

y However, still problems:why has loss of control asa concept been retained, when so male-orientated?

y Should ordinary capacity for self-control includeconsideration ofDs abnormal characteristics?


33/44


34/44

The old lawy Newer than provocation first found in HA 1957, s.2y Defendant must show that he or she suffered from:

y An abnormality of mind;y Arising from

y An arrested or retarded development of the mind; ory An inherent cause; ory An injury or disease;

y Which substantially impaired responsibility for their actions.

yNB Unlikeprovocation burden ofproof lies on theD,not the prosecution (reverse burden ofproof on D)

y (Non-reasonable) partial excuse: focuses on Ds mentalweakness; no need to establish reasonableness of actions


35/44

The defence in practicey Designed to ameliorate the strictness of insanity rules;

y In practice, accepted by prosecution and judges in casesdeemed to be deserving, such as battered women;

y Very high success rate: plea is successful in 90% of cases this is because in 80% of cases the prosecution does notdispute the defendants evidence of mental abnormality;

y Ronnie Mackay (2000) refers to the benign conspiracybetween psychiatrists and trial judges which involvesstretching the medical evidence in order to ensure thatdeserving cases do not attract a murder conviction;

y Concerns that the success or otherwise relies considerablyon the vagaries of which psychiatrists give evidence.


36/44

New defencey Homicide Act 1957, s.2 (amended byCJA 2009)y A person who kills is not to be convicted of murder if D was

suffering from an abnormality of mental functioningwhichy arose from a recognised medical condition,y substantially impaired D's ability to do one or more of things

mentioned below, andy Provides explanation of D's acts/ omissions in doing the killing.

y Those things arey to understand the nature of D's conduct;

y to form a rational judgment;y to exercise self-control.

y An abnormality of mental functioning provides an explanationfor D's conduct if it causes, or is a significant contributory factorin causing, D to carry out that conduct.


37/44

Abnormality of mental functioningy Must be caused by a recognised medical condition

y Seems wider than old concept of 'abnormality of mind;

as no legally imposed limits on what can be includedy Instead defence tied to psychiatric/medical knowledge

y But also narrower - unlikely to include 'mercy killing','low intelligence' (Acott) and 'emotional immaturity'

(Humphreys), which were previously included,because these are not classified as medical conditions

yAs such, lacks flexibility associated with old law to 'dojustice' in deserving cases (argues Ronnie Mackay)


38/44

Effect of abnormalityy MUST fall under one of the following categories:

y Understanding the nature of his conduct

y To form a rational judgement

y To exercise self control

y More restrictive than 'abnormality of mind', which underthe Byrne ruling was open ended: wide enough to coverthemind's activitiesin allits aspects, not only the

perception of physical acts and matters, and the ability toform a rational judgment as to whether an act is right orwrong, but also the ability to exercise will power to controlphysical acts in accordance with that rational judgment.


39/44

Significant cause of actions?y Old law just required substantial impairment of responsibility

y Not included in LC proposals - mere explanation required

y Not present in any of the other DR defences internationally

y Is this an unnecessary and unfair additional hurdle on Ds?y Frank Cook MP, HC General Comm, 11th sitting, (3 Mar 2009):

People who represent psychiatrists object to the extra specificitybecause they say that they cannot tell whether a particularcondition caused a particular thing to happen, and they cannot

give evidence in court to that effect. They can talk about people'smental processes, their attitudes and what was happening ingeneral inside that person's head, but they cannot talk about it inthe specific terms that seem to be required by [s.52].


40/44

Intoxicated diminished resp.y Dietchmann (HL): ignore intoxication if no alcoholism

y Where D suffers from alcoholism, can form a

medically recognised disorder included in ICD-10y But noteWoods, which suggests alcoholism need not

mean drinking is involuntary or there is brain damage


41/44

(excluding the substantive partial defences reforms)


42/44

Reform historyyAfter reform of partial defences, LC looks at whole law

y LC CP 177, A New Homicide Act for E&W? (2005).

y

LC 304, Murder, Manslaughter and Infanticide (2007).y Note: while Government took up LCs reforms of

partial defences, it has so far ignored wider proposalsto reform overall structure of the homicide offences


43/44

Reform of the structure of homicideOffence First degree murder Second degree murder

Requirements (1) intended killings; OR

(2) killings with intent to do serious injury

where the killer was aware that his conduct

involved a serious risk of causing death.

NB element (2) brought up from 2nd

degree murder in response to criticisms

of the consultation proposals.

(1) killings intended to cause serious injury; OR

(2) killings intended to cause injury or fear or risk

of injury where the killer was aware that his or

her conduct involved a serious risk of causing

death; OR

(3) First degree murder where D successfully

pleads provocation, diminished responsibility or

that he or she killed pursuant to a suicide pact.

Punishment Mandatory life sentence Discretionary life sentence

LC Report 304,Murder, Manslaughter and Infanticide (2006)


44/44

Reform of manslaughterOffence Gross negligence Unlawful act

Requirements D causes another persons death

A risk that the conduct would cause deathwould have been obvious to a

reasonable person in Ds position,

AND D had capacity to appreciate the risk

AND Ds conduct fell far below what could

reasonably be expected in the

circumstances.

D causes another persons death

EITHER by a criminal act and D intended tocause physical harm

OR by a criminal act foreseen as involving a

serious risk of causing some harm.

Punishment Discretionary life sentence Discretionary life sentence

LC Report 304, Murder, Manslaughter and Infanticide (2006)

the law of homicide

Documents