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  • Created on: 19-04-15 13:00

Death and finality

Death = most serious offence due to its finality

550 cases of criminal homicide (2011-12)

Does CL pick out most heinous crimes or is it frozen by tradition?

400 deaths a year through dangerous/careless (etc) driving --> some receive longer sentences than manslaughter --> should they be included ind efinition of murder/manslaughter?

Is distance between D's fault and the consequent death too remote in some cases?

Are labelling decisions acceptable?

What implciations should different labels have for sentence levels?

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Structure of homicide



Voluntary manslaughter

Loss of control

Diminished responsibility

Suicide pact


Involuntary manslaughter

Gross negligence


Unlawful and dangerous act

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Definition of homicide/murder

The unlawful killing of a reasonable person in being under the King (or Queen's) peace with malice aforethought express or implied (simplified Lord Coke definition of murder)

  • unlawful killing
  • person in being
    • start of life
      • not a foetus --> A-G Reference (No 3 of 1994)
      • Child is born alive adn has existence independent of mother
    • end of life
      • irreversibly brain dead --> relies on medical definition
      • persistent vegetative state --> can discontinue treatment (omission) not criminal because no duty of care (no hope of recovery and not in best interests
  • King/Queen's peace
    • not during war
  • malice aforethought
    • intention
  • within a year and a day
    • abolsihed by Law Reform (Year and a Day Rule) Act 1996 --> prosecutorial discretion now
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Mandatory life sentence (murder)

Mandatory life sentence

Minimum term --> served in full; reflects gravity of offence; set by judge

Imprisonment based on condiserations of public protection --> can be detained until Parole Board decides it is safe to order release

Offender remains on license once released for rest of life

s269 Criminal Justice Act 2003 --> sch 21

  • (over 21) - whole life term - exceptionally serious cases --> premeditated killings of 2+ people, sexual of sadistic child murders, politicially/religiously/ideologically motivated murders
  • (over18) - 30 years --> murders of police or prison officers on duty, murders involving firearms or explosives, sexual or sadistic killings, murders aggrated yb racial or sexual orientation, cases that would attract whole life term if over 21
  • (over 18) - 25 years --> knife or other weapon intentionally taken to scene to commit crime or to have weapon availabe for use, as it was used
  • (over 18) --> 15 years for other murders not falling within high categories
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Mandatory life sentence (murder) (2)

Sch 21 leaves room for judges -->

  • 'normally'
  • provision for court to take account of any further relevant factors
  • 'detailed consideration of aggravating and mitigating factors may result in min term of any length'

LCJ released Practice Direction in May 2004

  • judge must specify min term 
  • as long as judge bore in mind principles in s21, not bound to follow them
  • explanation for departing from them should be given

Judge cannot set max term

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Mandatory life sentence (murder) (3)

Arguments in favour of mandatory life sentence

  • symbolic indication of unique evil of murder
  • places offender under State's control for remainder of their life
  • denunciatory effect --> general deterrent effect

Arguments against mandatory life sentence

  • none of these arguments above are particularly storng or conclusive
  • penalty does mark murder out from other crimes, BUT definition of murder is NOT sufficiently refined to capture only worst killings
  • whether life sentence is regarded as sufficient denunciation depends on public's perception of what life imprisonment means
  • does prospect of life imprisonment influence murderers at all?
  • is it necessary for public protection?
  • why should manslaughter by DR receive discretionary sentence and murder receive mandatory sentence when offenders may be equally dangerous
  • little public support for mandatory life sentences, execpt in worst cases --> accept determinate sentences in other cases
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AR - causing death

MR - intention to kill

intention to cause GBH

intention includes foresight of virtual certainty

'the present definition of the mental element in murder results in defendants being classified as murderers who are not in truth murderers' (Lord Steyn in Powell & English)

Woollin --> where jury concludes D foresaw death or GBH as virtually certain it is 'entitled to find' intention

GBH rule confirmed in Cunningham (1981)

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Murder (2)

Arguments for the GBH rule

  • no significant moral idfference between intending to cause GBH and intending to kill

Arguments against GBH rule

  • breach of correspondence principle is unnecessary (manslaughter is available)
  • definition of GBH includes number of injuries that are most unlikely to put V's life at risk
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Gross negligence manslaughter

Re-established by HL in Adomako (1995) -->

  • D in breach of duty of care
  • breach of duty caused V's death
  • breach of duty amounted to gross negligence

What determines existence of a duty?

  • tort law as reference --> but criminal extends beyond this -->
    • Illegality doesn't apply as a defence
      • Wacker (2003); Willoughby (2005)
  • certain duty situations which are well established, e.g. parent and child
  • new duty situations may be recognised
  • Miller doctrine --> unjustified creation of a dangerous situation may lead to a duty to take reasonable steps to eliminate danger
    • extended in Evans --> D only assisted in creation of danger
  • Evans (2009) --> existence of duty of care = question of law for judge
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Gross negligence manslaughter (2)

Gross negligence test --> Adomako

whether D's conduct fell so far below the expected standards as to justify conviction for manslaughter

Criticisms of this test

  • circular
  • fails to meet test of certainty properly required of a criminal law by Art 7 ECHR
  • breadth leads to unfair inconsistency in prosecution policies

Adomako test challenged on basis of uncertainty (under Art 7) in Misra (2004)

  • challenge dismissed
  • unconvincing response
  • 'an element of uncertainty about the outcome of the decision-making process, but not unacceptable uncertainty about the offence itself'
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Reckless manslaughter

Arguably a more serious form of manslaughter

Cognitive state --> awareness; attitudinal side --> disregard/indifference

Risk must be unjustifiable

Lidar (1999)

Jury must be conviced D was:

'aware of the necessary degree of risk of serious injury to the victim and nevertheless chose to disregard it, or was indifferent to it'

Different to GN manslaughter in 2 ways:

  • requirement of foreseight of risk; failing to see an obvious risk is insufficient
  • foresight of possible serious harm, as well as foresight of possible death is sufficient (GN requires risk of death)

No often charged as stand alone offence --> most commonly default category into which D falls when on murder charge jury finds D did not foresee death or serious injury to be virtually certain

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Unlawful act manslaughter

3 elements:

Cause death

Through an unlawful act (must be a criminal act)

Criminal act must, in circumstances, be dangerous --> must pose risk of at least some harm even if not serious harm

  • constructive liability
  • prosecution must establish all elements of crime relied upon as unlawful were present
  • D must not have any defence to crime relied upon
  • must not be a break in chain of causation
  • D's conduct in committing crime must have been objectively dangerous
  • 2 types of crim ethat will not suffice as unlawful act:
    • crimes of negligence --> dealt with under GN manslaughter
    • crimes of omission --> logic of this exception less evident --> should be included
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Unlawful act manslaughter (2)

Mitchell (1982) --> minor assault led to conviction (low sentence but serious label)

Church (1966) --> objective standard of 'dangerous' --> reasonable person must recognise risk of some harm, albeit not serious harm

Dawson (1985) --> risk of physical harm needed --> emotional shock insufficient

Watson (1989) --> test of reasonable person with D knowledge of circumstances --> burglary as UDA

Meeking (2012) --> activates handbrake when car travelling at 60mph --> criminal offence to interfere with motor vehicle in such circumstances --> obviously dangerous to reasonable person --> should have been charged as GN?

Bristow (2013) --> burglary not dangerous crime but was dangerous due to the circumstances when coupled with foresight of risk of intervention to prevent escape

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Unlawful act manslaughter (3)

Theoretical/ethical considerations:

  • 'one punch' manslaughter --> reflects possible unfairness due to remoteness of risk between D's act and V's death
  • why should causing death lead to such an increase in seriousnes of offence, when death was not only unforeseen, but may not even have been an obvious risk?
  • 'unlawful' and 'dangerous' --> failure to identify sufficiently clearly conduct that is sufficiently blameowrthy to justify conviction for mansalguther, but is not in essence conduct where neglgience as to unforeseen consequences plays crucial role in determining blameworthiness

Law Commission, 1996 proposal

D must intend or foresee injury to V, and risk of death or serious injury must be obvious

Government response (2000)

'anyone who embarks on a course of illegal violence must accept the consequences, even if the consequences are unforeseeable'

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Reform (1)

Radical proposal

Single offence of homicide with specifics only reflected through sentencing

  • abandon life sentence
  • fair labelling issues
  • judges would be unhappy with being entrusted with so much sentencing discretion --> long sentencing trials --> distorted system of quick trial and long sentencing

Constructive manslaughter in need of reform

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Law Commission Proposals (2006)

First degree murder

  • mandatory life sentence
  • intention to kill
  • intention to do serious injury where D is aware of serious risk of causing death

Second degree murder

  • sentencing discretion - max = life
  • intention to kill, but duress, loss of control, DR
  • intention to do serious injury
  • intention to cause some injury/fear of/risk of injury & awareness of serious risk of causing death


  • sentencing discretion, max = life
  • gross negligence
  • causing death through criminal act intended to cause injury or known to create serious risk of injury 
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