#3594 - Homicide - Criminal Law

• Note: the law of homicide is one of the biggest downfalls of the English criminal law, in the opinion of many academics. It is in dire need of reform – much of the problem derives from the fact that governments need to be seen to be ‘tough on crime’ and they refuse to abolish the mandatory life sentence for murder.

• Homicide – human death attributable to the conduct (act or omission) of another person or people. It can be lawful or unlawful.

• Human Being: Note that life in English law begins at birth and that killing a foetus, no matter how long in term, is not homicide (AG’s Ref No 3 of ’94). However, a pre-birth injury can be the cause of a post-birth death if D intends that the child will die or be seriously injured at birth (Senior).

• Death: death must ensure from the action. Note that brain death is ipso facto death. The year and a day rule no longer applies, due to science.

• Queen’s peace – no prosecution for killing war.

Causation

• Normal causation rules apply, but there is a tendency to want to put blame on a culpable party even if it might strain a principle. This is public policy at its best:

  • Pagett – D was using V as a human shield. He shot at armed police, who fired back and fatally wounded V. D was held liable for the death – it was an instinctive reaction, and could be treated like a ‘ricocheting bullet’. The act was not ‘free, deliberate and informed’.

  • Kennedy (No 2) – settled that preparing a syringe for someone to self inject who then dies is not causation of death – their injecting is a novus actus interveniens.

  • Dhaliwal – V committed suicide after years of abuse by D. The death could be attributed to D.

  • Cheshire – novus actus must be so potent as to render D’s action ‘insignificant’. D’s act was the cause to scarring caused by an operation which blocked and airway and killed V.

• Omissions:

  • There is a difference between killing and letting die. Only when there is an active duty, imposed or assumed, will there be liability for an omission e.g. Evans – D failed to get medical attention for her half-sister after injecting heroin.

  • Medical practitioners might be under a duty to preserve life but a court can relieve that duty if in the patient’s best interests.

MURDER

• Traditionally required ‘malice aforethought’ but this is now inaccurate.

• Defined in Coke’s institutes and in case law in Dyson – common law offence.

• MR for murder is intent to kill or inflict GBH (Moloney). This has been criticised as constructive and inappropriate in cases where the harm may be ‘really serious’ but not in itself an apparent threat to life – nevertheless settled in Cunningham and Rahman.

  • Woollin certainty can be used as evidence to find intent (note that doctors exercising bona fide professional judgment are exempt – although the doctrine of double effect is up for debate).

Mandatory life sentence: murder carries a mandatory life sentence which necessarily alters the ambit of the offence – so far as jury conviction is concerned. The fixed penalty is odd considering the range of culpabilities it spans (mentioned in Howe).

• Was politically necessary to secure victory in a vote abolishing the death penalty and has sort of lingered.

• Many support the penalty, but don’t appreciate the unjust situations in which it may be imposed.

• Some argue that life sentences only last around 15 years, but in reality any release is on license and may be revoked by administrative decision.

• LC’s proposals for a tiered system of homicide offence (first and second degree) would allow the retention of the mandatory life sentence.

MANSLAUGHTER

• Used to be killings that were not sufficiently grave to merit murder charge. In a way this is still the case but there are strict restrictions. At the same time the offence is very broad: can be committed with several MR states.

Voluntary manslaughter:

• Looks a lot like murder. But the charge is reduced to manslaughter on the basis that D has one of the partial defences to murder. Sentence is reduced.

Loss of self control:

• Created by Coroners and Justice Act 2009 to replace provocation.

• Provocation:

  • Common law defence, supplemented by s.3 Homicide Act.

  • Asks if, given the circumstances, would the reasonable man have done what D did?

  • Subjective test: something said or done, causing D to lose his self-control.

    • “something unwarranted which is likely to make the a reasonable person angry or indignant” (Browne).

    • It is unclear if the defence was allowed under intoxicated mistake – it seems to have been,

    • Loss of self-control: “sudden and temporary loss of self control, rendering the accused to subject to passion as to make him or her not master of his mind” (Duffy). It is ok if you understand the consequences of your actions, but the requirement is that you cannot restrain yourself (Richens). Note the relaxation in the ‘sudden’ requirement, and passages of time became admissible – Thornton (No 2), although the longer the ‘cooling period’ the less likely the defence was to succeed (Ibrams).

  • Objective test: everything said and done can be taken into account. It’s judged by reasonable man standard, but there was trouble establishing what characteristics ought to be accounted for. Should the ‘sting’ of the provocation to D make a difference?

    • Camplin – D was mocked and sodomised by V. He then killed him. Ruling that age and gender could be taken into account when judging level of control expected.

    • Newell – things that make D inherently different to other people can be considered. Of little help.

    • After clarification, only those who had a particular personality disorder could be considered separately. Lord Goff found this unsatisfactory and widened it by ruling that things like ‘battered woman syndrome’ should be included – Camplin and Morhall precluded this.

    • CLARIFIED IN Smith – direction was best given without reference to the reasonable person. Everyone was expected to have a reasonable level of control, but conditions which justly affected D’s ability to control himself could be considered. Overuled in AG for Jersey v Holley:

      • Only age and gender affect the level of self-control expected. Other factors e.g. alcoholism may affect sting of provocation, but did not alter standard of control expected.

  • Horder heavily critiqued provocation. The criminal law intends to curb violent responses, and provocation condoned such responses!

    • Killing out of anger is no better than killing out of greed.

    • Gender bias of the defence – more open to women.

    • Encourages D to defame the deceased.

  • McAuley says there should be some degree of D ‘asking for it’ so MR is spread, justifying partial relief of liability. It’s an excuse, not a justification.

• The statutory offence:

  • D must lose self control

    • Note the removal of the ‘sudden’ aspect – there can be weeks pass, theoretically. Same idea as common law.

  • There must be a qualifying trigger that causes that loss of control

    • Can be: fear of serious violence, or a sense of being seriously wronged by things done or said, or a mixture of the two.

    • The violence point makes sense – it allows a partial defence where D’s response was not ‘reasonable’ enough to qualify for the full defence of self-defence.

    • The second allows for circumstances of an extremely grave character, or those which caused D to have a justifiable sense of being seriously wronged.

    • NOTE: sexual infidelity is excluded as a qualifying trigger. However, this has been questions in Clinton, where the court of appeal said that that provision had to be read narrowly, and though sexual infidelity alone is inadmissible, it should be considered in the wide contexts of the circumstances. Does this invalidate the provision, since cases will invariably involve things other than infidelity?

      • Doughty – D killed his crying baby. He had a defence under provocation. No defence under new Act.

  • The loss of control must be ‘objectively understandable’ – reasonable person, really.

    • ‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstance of D, might have reacted in the same or in a similar way to D’

    • the defence allows relevant circumstance of D’s character to be taken into account if he is being taunted as a result of them, but will be irrelevant in generally assessing his ability to exercise self-control (James and Karini).

• The new provisions may weed out some categories but it is confusing and may not make huge differences. ‘qualifying trigger’ is opaque, and while the language of reasonable person if avoided, this is what is being applied!

• Difference from diminished responsibility: the burden of proof for loss of self-control is on the prosecution after sufficient evidence is raised, while the burden of proof is on D for diminished responsibility.

Diminished responsibility: discussed in capacity.

Involuntary manslaughter:

• Would be murder if it weren’t for a lack of intent to kill or cause GBH.

Constructive manslaughter:

• Where D commits an act that is dangerous (Church), criminal per se and results in death, he will be liable for manslaughter. Needs to have AR and MR of an actual offence (Lamb).

• The act need not be ‘directed at’ V (despite the decision in Dalby).

  • There will be no liability for mere civil wrongdoing – Franklin.

  • It cannot be an omission to act – Lowe, where D’s child died due to neglect.

  • Andrews added the criminal per se requirement – no liability for mere regulatory infraction, or driving offences. Rationale: driving is not illegally, but doing so carelessly is. These sort of offences should not be included. Usually SL offences are...