AR Element - Unlawful Killing
1. a person of “sound mind” and “of the age of discretion” (10yo, Crime and Disorder Act 1998) can commit the AR of a murder by unlawfully killing another person. The D must be legally responsible for his actions.
a. The killing must be unlawful – for example not self-defence, in time of war or certain situations by doctors (see Re A (Minors) (Conjoined Twins) . However an intentional “mercy killing” for compassionate reasons is still murder (Inglis  where a mother killed her paraplegic 18yo son)
AR Element - Causation
The method of killing is unimportant. It does not matter if it was a random killing or a specific individual. The rule of causation is subject to the general rules, and the courts merely determine whether D was the legal cause of death in the sense of contributing to or accelerating it.
AR Element - Human Being
1. If a foetus is killed before birth, the offence will not be murder but a statutory offence concerned with the protection of an unborn child.
a. Procuring a miscarriage is an offence under S58 Offences against the Person Act 1861
b. Child Destruction under S1 Infant Life (Preservation) Act 1929 applies to the killing of a child capable of being born alive during child birth. Unlawful abortion under the Abortion Act 1997 legalises abortion by a medical practitioner in prescribed circumstances before 24 weeks.
d. Handley  set out that a child is alive when it has been wholly expelled and has independent circulation and see AG reference  3 ALL ER 936 HoL.
e. Doctors commit no crime by switching off the life support machine of a person who is already brain dead (Malcherek ).
f. An omission to continue treatment is not murder in cases of long term vegative states (for example someone in a coma no longer receiving treatment) as seen in Airdale NHS v Bland , however a seriously handicapped baby once born is protected by the laws of homicide Re A (Children) (Conjoined Twins) .
g. There is no right to die by a positive act (Euthanasia), and if D can prove that he assisted V’s suicide then he will not be guilty of murder but of the offence of encouraging or assisting a suicide under S2(1) Suicide Act 1961, see; R (Petty) v DPP .
AR Element - Under the Queen's Peace
1. Extends to anyone in the UK who is thus protected by the law and does not apply to enemy aliens in war time. The UK also has jurisdiction over any homicide committed by a British Citizen anywhere in the world under S9 Offences against the Person Act 1861 and S3 British Nationality Act 1948. They also hold jurisdiction on homicides committed on British ships or aircrafts by anyone and homicides by British subjects on foreign ships.
Criticism of Mens Rea for Murder
i. The Nedrick/Wooling test is not a rule of law because the jury may find an intention but does not have too. It is over inclusive because it extends the scope of intention beyond d its ordinary meaning of purpose.
ii. However it is also under inclusive because the exclusion of recklessness would acquit the terrorist who kills following an unsuccessful warning and those who did not see GBH/death as a virtual certainty.
The Sentence for Murder
S1(1) Murder (abolition of death penalty) act 1965 abolished the mandatory death penalty for murder. Section 269 and Sch 21 Criminal Justice Act 2003 provide a statutory scheme for minimum terms in murder cases:
1. Minimum term imposed by trial judge, reflecting gravity will be served in full
2. A portion reflecting the need for public protection until the parole board considers he is safe for release
3. After release the offender will remain on license for life and is subject to recall should he reoffend
It does therefore carry a mandatory life sentence for anyone over 21.
First Degree Murder – Intentional killings and killings with the intent to do serious injury where the killer was aware that his or her conduct involved serious risk of causing death, mandatory life sentence.
2nd Degree – Killings intended to cause serious injury, injury or fear/risk of injury, or killings intended to kill where the D successfully pleads loss of control, diminished responsibility or suicide pact.
Williams  EWCA Crim 2749
Stewartrecommends a stepped approach in summing-up in an alcohol diminished responsibility case to the jury as follows: 1. was the defendant suffering from an abnormality of mind at the time of the killing? 2. if so, was it caused by disease or illness? As we have said, Alcohol Dependency Syndrome may qualify; and 3. if it was so caused, did the abnormality of mind substantially impair the defendant’s mental responsibility for his acts or omissions in being a party to the killing?
On this last question, impairment of responsibility, there is an important passage in the case of Wood which recalls the distinction between the voluntary and involuntary consumption of alcohol:
“If the syndrome does not constitute such an abnormality of mind, diminished responsibility based on the consumption of alcohol will fail. If, on the other hand, it does, the jury must then be directed to address the question whether the defendant’s mental responsibility for his actions at the time of the killing *329 was substantially impaired as a result of the syndrome. In deciding that question the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily. Assuming that the jury has decided that the syndrome constitutes an abnormality of mind induced by disease or illness, its possible impact and significance in the individual case must be addressed. The resolution of this issue embraces questions such as whether the defendant’s craving for alcohol was or was not irresistible, and whether his consumption of alcohol in the period leading up to the killing was voluntary (and if so, to what extent) or was not voluntary, and leads to the ultimate decision, which is whether the defendant’s mental responsibility for his actions when killing the deceased was substantially impaired as a result of the alcohol consumed under the baneful influence of the syndrome.”
R. v Ramchurn  2 Cr App R 3: "Substantial"
“Substantially” is an ordinary English word which appears in the context of a statutory provision creating a special defence which, to reflect reduced mental responsibility for what otherwise would be murderous actions, reduces the crime from murder to manslaughter
. Its presence in the statute is deliberate. It is designed to ensure that the murderous activity of a defendant should not result in a conviction for manslaughter rather than murder on account of any impairment of mental responsibility, however trivial and insignificant; but equally that the defence should be available without the defendant having to show that his mental responsibility for his actions was so grossly impaired as to be extinguished. [per Judge, LCJ, at 23.]
It could be said that substantial should retain the same meaning; see N Wake, ‘Substantial Confusion within Diminished Responsibility?’ (2011) 75 Journal of Criminal Law 12.
the CA revisited the question of whether s 2(2) breached the ECHR, particularly Art 6 and the right to a fair trial, as the D has to prove his innocence (Innocent until proven guilty normally). The CA stated that this did not breach Art 6, for the following reasons:
i) Diminished responsibility is an exceptional defence available in an appropriate case with a view to avoiding the mandatory sentence which would otherwise apply, so that a discretionary sentence can be imposed, tailored to the circumstances of the individual case.
ii) Diminished responsibility depends on the highly personal condition of the defendant himself, indeed on the internal functioning of his mental processes.
iii) A wholly impractical position would arise if the Crown had to bear the onus of disproving diminished responsibility whenever it was raised on the evidence; that would lead not to a fair, but to a potentially unfair trial (at para 23).
Loss of Control Common Law
The common law defined provocation as:
…some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. (Duffy  1 All ER 932, per Devlin, J as approved by Lord Goddard CJ.)
What was needed then, was a sudden and temporary loss of self-control, as interpreted by Ahluwalia  4 All ER 889: the actions of the defendant need not occur immediately after the last incident of provocation, so long as the defendant still suffered from a sudden and temporary loss of self-control. The second rule however, is that the longer there is between the triggering incident and the loss of control, the more likely it is to be cold hearted revenge.
Similarly, s54(2) states that, “it does not matter whether or not the loss of control was sudden”. This reinforces the decision in Ahluwalia.
Clinton, Parker and Evans  EWCA Crim 2:
“10. The killing must have resulted from the loss of self control. The loss of control need not be sudden, but it must have been lost. That is essential. Before reaching the second ingredient, the qualifying trigger, there is a further hurdle that the defendant must not have been acting in a “considered” desire for revenge... In the broad context of the legislative structure, there does not appear to be very much room for any “considered” deliberation. In reality, the greater the level of deliberation, the less likely it will be that the killing followed a true loss of self control.” per Judge, LCJ.
Clinton, Parker and Evans  EWCA Crim 2
10. The killing must have resulted from the loss of self control. The loss of control need not be sudden, but it must have been lost. That is essential. Before reaching the second ingredient, the qualifying trigger, there is a further hurdle that the defendant must not have been acting in a “considered” desire for revenge... In the broad context of the legislative structure, there does not appear to be very much room for any “considered” deliberation. In reality, the greater the level of deliberation, the less likely it will be that the killing followed a true loss of self control.” per Judge, LCJ.
Barnsdale-Quean  EWCA Crim 1418: there needs to be sufficient evidence of a loss of control before the partial defence is left to the jury, and evidence that the killing was planned will allow the trial judge to refuse to put the defence to the jury. This is particularly the case if the defence case involved no claim of a loss of control. In this case, the defendant was convicted of murder after his wife was killed and there was an attempt to make it look like suicide. His wife had been sedated before being strangled with a ligature (that D admitted obtaining several days earlier) and D had self-inflicted injuries that he claimed had been inflicted by his wife.
Qualifying Trigger Definition
The definition of the qualifying trigger is to be found in s55:
55 (1) This section applies for the purposes of section 54.
(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.
(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which— (a) Constituted circumstances of an extremely grave character, and (b) Caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger— (a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
N. Wake (2013) Loss of Control
Terms such as ‘lost the plot’, ‘snapped’, and ‘went berserk’ which are commonly used to establish a loss of self-control might be viewed as implying that the defendant’s conduct was not reasonable in the prevailing circumstances (at 437-8).
Something must be said/done as per s55(4)(a) and (
These are objective factors; it is not sufficient that D feels a sense of being wronged, rather, he needs an objective basis to feel this:
“12… indeed all the requirements of section 55(4)(a) and (b), require objective evaluation”, per Judge, LCJ.
Dawes  EWCA Crim 322:
the circumstances in which the qualifying triggers will arise is much more limited than the equivalent provisions in the former provocation defence. The result is that some of the more absurd trivia which nevertheless required the judge to leave the provocation defence to the jury will no longer fall within the ambit of the qualifying triggers defined in the new defence (at para 60).
In Bowyer, one of the cases decided in Dawes (it was a multiple appeal) the defendant killed V when V returned to his home to find D in the process of committing burglary. D claimed to have lost self-control as a result of V’s actions when he found D there:
it is absurd to suggest that the entirely understandable response of the deceased to finding a burglar in his home provided the appellant with the remotest beginnings of a basis for suggesting that he had any justifiable sense of being wronged, let alone seriously wronged (at para 66).
Similarly, in Hatter , also decided in the same case, the court doubted if the break-up of a relationship could amount to circumstances of an extremely grave character that resulted in a feeling of being seriously wronged.
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
Sexual Infidelity - Judge LCJ
Clinton  EWCA Crim 2: The taunts and distressing words, which do not themselves constitute sexual infidelity, would fall to be considered as a possible qualifying trigger... section 54(3) expressly provides that reference to the defendant’s circumstances extends to “all” of the circumstances except those bearing on his general capacity for tolerance and self restraint.
As a result of all of these arguments, in circumstances where sexual infidelity is not the sole ‘trigger’, then it cannot be excluded
Reacted in the same or in a similar way to the def
Assistance is to be found in the Homicide Act case of Camplin  AC 705. Lord Diplock introduced a distinction between characteristics relevant to the gravity of the provocation, and those relating to self-control. Characteristics relating to the gravity of the provocation must be taken into account. For characteristics that impact upon self-control, only the age and sex of the defendant could be taken into account. Diplock did note the characteristics which impact the loss of control, and the gravity of the provocation, as obviously you would have to assess the impact of the actions on that person and so their characteristics must be at least somewhat shared, however if those characteristics “make someone more violent”, they should be discarded.
AG for Jersey v. Holley  UKPC 23, doubted Smith as accepted by the CA in James  EWCA 14. This reinstated the Camplin approach.
For the objective question, and assessing whether a normal personal would have similarly reacted, the CA stated that if the claim was that the intoxication lowered D’s level of self-control, then the intoxication has to be disregarded: If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence, just because he was not sober (at para 25).
What about taunts regarding addiction? different considerations would arise if, a defendant with a severe problem with alcohol or drugs was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger, the alcohol or drug problem would then form part of the circumstances for consideration (at para 25).
Adomako  1 AC 171 - GNM
…in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such a breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal, (per Mackay, LCJ, at p187).
Extent of the Created Risk - GNM
Adomako  1 AC 171:
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 so bad in all the circumstances as to amount in their judgment to a criminal act or omission (at p 187, emphasis added).
Such an approach is welcomed and is in accordance with the correspondence principle.
See also Willoughby  EWCA Crim 3365 and Mistra  1 Cr App R 21 which made it clear you need a risk of death.
Mistakes and the Sober Bystander
Ball  Crim LR 730
- In this case Ball thought he loaded his gun with bank cartridges and fired his gun at the victim.
- He had in fact accidentally loaded with live ammunition and so he killed the victim.
- He argued, the danger assessment should’ve been assessed from what he thought he was doing, however the court disagreed.
- They said when assessing danger, the court was not to take into account any mistakes the Defendant made. So whilst they take into any knowledge the D has, they disregard it, if it a mistake.
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.
Vehicular Homicide 1
1. Motor Manslaughter - All of the main homicide offences can be charged against those who cause death by driving.
2. Causing death by dangerous driving - Section 1 Road Traffic Act 1988, as amended by the Road Traffic Act 1991 - 1. A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence. 2A(1) For the purposes of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)— (a) the way he drives falls far below what would be expected of a competent and careful driver, and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous. - This is an objective offence, and so the D does not have to be aware they are driving dangerously – the defendant need not foresee any risk in his driving – and it offends against the correspondence principle – the defendant need only create a risk of injury, not of death.
3. Causing Death by Careless Driving - Road Traffic Act 1988, as amended by the Road Safety Act 2006 - 2B A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence. 3ZA (1) This section has effect for the purposes of sections 2B and 3 above and section 3A below. (2) A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver. - See Hall  EWCA 2135 for an example of this offence. The victim in this case had been drinking and stumbled into the road after crossing the central reservation. It was accepted that the defendant’s only fault was that she did not pay sufficient attention and therefore failed to see the victim in the road. She was driving within the speed limit, but as she did not see the victim, she hit him and he died from his injuries.
Vehicular Homicide 2
4. Causing Death by Careless Driving when under the influence of Drink or Drunk - Road Traffic Act 1988, as amended by the Road Traffic Act 1991
3A(1) If a person causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, and— (a) he is, at the time when he is driving, unfit to drive through drink or drugs, or (b) he has consumed so much alcohol that the proportion of it in his breath, blood or urine at that time exceeds the prescribed limit, or (c) he is, within 18 hours after that time, required to provide a specimen in pursuance of section 7 of this Act, but without reasonable excuse fails to provide it, he is guilty of an offence. - The penalty for this offence is 14 years.
5. Causing Death by Unlicensed, Disqualified or Uninsured Driving - Road Traffic Act 1988, as amended by the Road Safety Act 2006
3ZB A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under– (a) section 87(1) of this Act (driving otherwise than in accordance with a licence), (b) section 103(1)(b) of this Act (driving while disqualified), or (c) section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks).
Vehicular Homicide 3
Initially, cause in this context was interpreted widely, as seen in the case of Williams  EWCA Crim 2552,  1 WLR 588. Here, the defendant was driving without a licence when the victim stepped in front of his car. It was accepted by the prosecution that he was not driving above the speed limit, there was no fault or carelessness on his part. The court of appeal confirmed that the offence did not require fault and that all that was required was that the defendant’s driving was a cause of the defendant’s death, in that it was more than a minimal cause. In short, if D had not been driving, V would not have died.
But does the act of the victim break the causal chain, as per Kennedy (No. 2)  UKHL 38  1 AC 269? This was not discussed, instead Environmental Agency v Empress Car Co  2 AC 22 was followed. For commentary, see Sullivan and Simester (2012) ‘Being there’, Cambridge Law Journal 29. - Williams was rejected by the Supreme Court in Hughes  UKSC 56. In this case the victim was extremely tired and under the influence of drugs, was driving erratically and was on the wrong side of the road when his car collided with D’s car. D tried to avoid the collision and was within the speed limit. No blame was ascribed to his driving. The court held that while D’s acts were a ‘but for’ cause (in that if he wasn’t driving, V would not have collided with his car and died), his actions could not be the legal cause of death. The offence required that there must be “something which he did or omitted to do by way of driving [the car] which contributed in a more than minimal way to the death” (at para 28) and that there needs to be “something properly to be criticised in the driving of the defendant” (at para 32). This does not need to be as severe as careless or inconsiderate driving, but there has to be an action or omission that amounts to more than mere presence at the scene.
Causing/Allowing Death of Child/Vulnerable Adult 1
Domestic Violence, Crime and Victims Act 2004 5(1) A person (“D”) is guilty of an offence if– (a) a child or vulnerable adult (“V”) dies as a result of the unlawful act of a person who– (i) was a member of the same household as V, and (ii) had frequent contact with him,
(b) D was such a person at the time of that act,
(c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and
(d) either D was the person whose act caused V's death or– (i) D was, or ought to have been, aware of the risk mentioned in paragraph (c), (ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and (iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.
We can see in the provision that the prosecution do not need to show the exact contribution that the defendant made to the victim’s death; all that needs to be proved is that they either killed the victim (as a result of an unlawful act) OR that the defendant allowed this to happen, when they were aware of a significant risk of serious physical harm to V, or should have been aware of this risk. Note that the offence is restricted to members of the same household and the defendant needs to have had frequent contact with the victim
Causing/Allowing Death of Child/Vulnerable Adult 2
The victim needs to die as a result of an unlawful act (rather than a pure omission). In allowing the harm to occur, D need not be aware of a risk; the requirement is objective, in that D ought to have been aware of the risk. This is a requirement of negligence. The risk must be a significant risk of serious physical harm being caused to V. Stephens and Mujuru  said this should be given its normal meaning, and it is for juries to decide if it is a significant risk, this has led to suggestions juries will generally follow significant as being something of importance. Commentators have questioned whether the offence is too broad; there is no defence for a parent who allows the death of a child where that parent is also suffering from abuse from the parent who kills the child. Can we expect victims of domestic violence who cannot protect themselves to also protect their children? On this, see Herring (2007) ‘Familial Homicide, Failure to Protect and Domestic Violence, Criminal Law Revew 923. Morrison (2013) ‘Should there be a domestic violence defence to the offence of familial homicide’, Criminal Law Review 826, rejects this claim, as the defendant need only take reasonable steps to protect V, and these are ‘such steps as he could reasonably be expected to take’. In short, we take into account the defendant’s circumstances when deciding what is reasonable. This approach was taken by the CA in Khan  EWCA Crim 2, where the court reiterated that was reasonable depended upon D’s situation. The offence is designed to protect children and vulnerable adults. In Khan  EWCA Crim 2 the CA looked the definition of vulnerable adult and stated that vulnerability did not need to be permanent, and could be temporary, based on illness or injury. Furthermore, the court stated that even a physically fit young person could be vulnerable, if they were dependent upon others (such as in this case, a young woman who moved to Leeds from Pakistan after an arranged marriage). In order for liability for an omission to arise, V needs to be exposed to ‘a significant risk of serious physical harm. The CA in Stephens and Mujuru  interpreted what ‘significant’ means in this context. There was discussion as to whether this meant ‘more than minimal’ risk, or ‘something noteworthy or of considerable importance’. The CA decided that the word should not be defined for juries, and the judge was wrong to direct the jury that it mean ‘more than minimal’.