Homicide contd


Assisted suicide

Some treat police murders as more prominent or bad as civillian murders. 

Assisted suicide- a) elements of the defence- Actus Reus- there are two components, self inflicted death and assistance in securing that result by the accused (d). Determining whether D has 'assisted' is done in the way it is done for determining 'accomplice' liability in general eg providing the means of killing or arranging transport to Dignitas. 

Mens rea- intent to assist the suicide and knowledge that the victim might go on to actually do this. Bryce 2004-for accomplice liability in general. As with mens rea in general (but not always) motive or reason is irrelevant. 

b) statistics- April 2009- Feb 2014: 91 assisted suicides/ euthanasia cases referred to CPS by police. Of these 91 cases, 65 were not proceeded with, 13 were withdrawn by police. There are currently 8 on going cases. 1 case of assisted suicide was sucessfully prosecuted in October 2013 (Kevin Howe) and 4 cases were referred onwards for prosecution for murder or serious assualt. 

c) why so few prosecutions? are some criminal acts/omissions not actually wrong? Purposes of criminal law- harm, paternalism and morality. Relevance of consent? 

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Assisted suicide

Lord Williams principles for creating criminal law- sufficiently serious (although often dont prosectute), deal with in other ways (other forms of regulation), enforceable (many dont come to police notice), tightly drawn, and penalty commensurate with seriousness. 

Assisted suicide is legal in the Netherlands, and Switzerland under certain circumstances. There are not high numbers wanting to die. 

Pretty case- can interfere with private life in S8 if the states sees it as necessary. If we want to avoid exploitation professionals should do it. 

d) the DPP's 'policy for prosecutors in cases of assisted suicide' 2010- had public consultation but it is not binding. It was produced as a result of R (on the application of Purdy) v DPP 2009.

Key elements  (not specified by the courts)- whether illness or incapacity is terminal or not is irrelevant, D must have acted out of compassion as distinct from gain, organised assisted suicide or help from a professional is a factor in favour of prosecuting- they have a pro amateur stance, how much help was given by D and with what degree of reluctance? and does not apply to mercy killing- when unable or unwilling. 

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Assisted suicide

Helping people go to Dignitas is almost never prosecuted. They dont do it reluctantly, do for gain, and are professionals so they wouldnt be able to open Dignitas in the UK. Many do not want to die in an unfamiliar environment though. 

Evaluation- ethical underpinnings, balance between the sanctity of human life and the autonomy of people to do what they wish with their lives. Both principles require protection of the vulnerable. 

How well are these principles and the principles of Lord Willaims fulfilled? Amatuer sucide v medically assisted suicide. 'Dark figure' of hidden pressure on vulnerable people: which model is worse? Exporting suicide? The 'slippery slope'? 

Reform- Lord Falconer's Bill: medical assistance, with agreement of 2 doctors, if 'reasonably expected to die within 6 months.' Is terminal nature of illness relevant? (can depression be cured, pain always be relieved? 

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'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 yeild an unequivocal result on a given set of fact, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is pemeated by an anomaly, fiction, misnomerand obsolete reasoning.' 

a) the number of murders- half of homicide offences

b) elements of murder- subject to three exceptions, the crime of murder is committed where i) a person of sound mind ii) unlawfully iii) kills iv) any human being v) under the Queens peace vi) with malice aforethought. This never comes up in court- it is a textbook definiton. 

May not be murder if you have a partial defence = voluntary manslaughter. Loss of control or diminished responsibility. It is a result crime. 

Three exceptions- PVS eg Bland, self defence or prevention of crime and necessity eg conjoined twin separation. 

c) actus reus- all elements together. 

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d) mens rea 'with malice aforethought' this does take up the time of courts. This consists of a) an intention to kill or b) an intention to cause GBH. The inclusion of intent to cause GBH is contraversial- 'in English law a defendant may be convicted of murder who is in no ordinary sense a murderer' Lord Steyn in R v Powell 1997. 

Two circumstances for malice aforethought- direct intention- it is your intention to murder/cause GBH or oblique intention- infering intention- not direct purpose but a virtual certainty of your actions. DPP v Smith 1961 is an objective test. S8 of the Criminal Justice Act 1967, R v Maloney 1985, Woolin 1999- 'the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions and that the defendant appreciated that such was the case.' 

Matthews and Alleyne 2003- 'in our view the law has not yet reached a definition of intent in murder in terms of virtual certainty, what is required is an appreciation of virtual certainty of death and not some lesser foresigh of merely probable consequences' Courts admit there is no definition of intent. 

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Penalties for murder

e) penalties for murder- adults convicted of murder- Murder (Abolition of Death Penalty) Act 1965- provides for mandatory life imprisonment. R v Sec of State for the Home Dept ex parte Hindley 2001- Lord Steyn 'in the divisional court Lord Bingham observed that he could 'see no reason, in principle, why a crime or cimes, if sufficiently heinous, should not be regarded as deserving life long incarceration for purposes of pure punishment', I respectfully agree.' 

R (on the application of Anderson) v Sec of State for Home Dep 2002- in response government enacted CJA 2003 S 269 and Schedule 21. 

Criminal Justice Act 2003- judge to determine the minimum term by reference to one of three starting points 1) whole life- exceptionally high seriousness (over 21) premediditated multiple murder, child murder, and sadist conduct and terrorism

2) 30 years for particularly high seriousness- murder of police men, sadistic, murder for gain (18+)

3) 15 years if neither apply but defendant is over 18. These are minimum terms.

Those over 10 but under 18- 12 year minimum term. 

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Penalties for murder

No death penalty but under s1 of Murder (Abolition of Death Penalty) Act 1965 there was an increase in all minimum terms- even those that werent up for execution. Manslaughter, completely discretionary. 

No mention of mercy- Harry Roberts was sentenced to 3 life sentence for the murder of 3 police officers by Mr Justice Glyn Jones, he has just been let out- 'I think it likely that no home secretary regarding the enormity of your crime will ever think fit to show mercy by releasing you on license. This is one of those cases in which the sentence of imprisonment for life may well be treated as meaning exactly what it says.' 

Judge Masipa on Oscar Pistorious for the culpable homicide for Reeva Steenkamp- 'I am mindful that mercy is nothing to do with weakness or sympathy for the criminal, but is about justice, I am of the view that a non custodial sentence would send a wrong message to the community, on the other hand a long sentence would not be appropriate either, as it would lack the element of mercy, society cannot always get what it wants. Courts do not exist for a popularity context but only to dispense justice. The general public may not even know the difference between punishment and vengeance, we have moved on from 'an eye for an eye'. ' 

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a) the importance of autonomy- a human is free to make his own choices. 

b) setting up the debate- 'the debate around voluntary euthanasia has gained new urgency after it emerged that a 86 year old woman starved herself to death because she believed that it was the only way she could legally exercise her right to die, before she died Jean Davies said she was going through the 'intolerable' experience because the government had failed to reform the law on assisted suicide, leaving her no legal alternative.' - The Guardian.  

What is the difference between assisting suicide and euthanaisa? 

c) voluntary euthanasia- Kay Gildedale- Daughter had previously attempted suicide as she was bedridden for years. Charged with attempted murder after giving her daughter drugs- dont know if that is what killed her. Not guilty. This was called a mercy killing.

d) non voluntary euthanasia- Frances Inglis- convicted of murder. She thought he was in living hell and didnt want him to die of starvation so gave him a fatal drug. He had brain damage. Mercy killing. 'All those who loved and were close to Tom have never seen this as murder, but as a loving and courageous act.'- family member, all supported her.

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'You cannot take the law into your own hands and you cannot take away life, however compelling you think the reason... This was not an act of legal altruism, but a calculated and consistent course of criminal conduct. We can all understand the emotion and unhappiness you were experiencing. The fact is that you knew you intended to do a terrible thing. (subjective emotions) You knew you were breaking societies conventions, you knew you were breaking the law and you knew the consequences. (Sentencing comments).

Legislating for the limits of permissible killing- Tony Nicklinson-wanted assurance that they wouldnt prosecute his family if they helped him die. Lost case in the SC. Jane Nicklinson, Mr Paul Lamb v Ministry of Justice 2013- 'the short answer must be, and always has been, that the law relating to assisting suicide cannot be changed by judicial decision. The repeated mantra that, if the law is to be changed, it must be changed by Parliament, does not demonstrate judicial abnegation of our responsibilities but rather highlights fundamental constitutional principles. For these purposes Parliament represents the conscience of the nation. Judges, however eminent, do not, our responsibility is to discover the relevant legal principles and apply the law as we find it.

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Nicklinson family 'as a family we are hugely disappointed with the judgement but it will not stop us, we will carry on with the case for as long as we can so that others who find themselves in a posititon similar to Tony dont have to suffer as he did. Nobody deserves such cruelty.'

Mr Lamb- ' I was hoping for a humane and dignified end. This judgement does not give me that.' 'I think the right decision is literally so people like me can have the independence to choose as and when to die and know full well that whoever helps has no chance of being prosecuted...I belived you should have the right to die in the comfort of your own home with the right family and friends you want around you but in a very dignified manner.' 

R (Nicklinson) v Ministry of Justice, and R (AM) v DPP 2014- Mrs Nicklinson- I am disappointed that we lost. But it is a very positive step. Parliament have to discuss this. I think Tony would be very pleased at how far we have come.' 

Andrea Williams, Christian Concern- 'This is good news for the many vulnerable people who would have been at risk if the attempt to weaken the law on euthanasia and assisted suicide had been allowed by the SC.' 

Andrew Copson, Executive of British Humanist Association- 'it is clear that the SC went as far as able in urging Parliament to take action on the vital issue of assisted dying.

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f) public opinion and contrasting beliefs. 

g) comparisons with other jurisidictions- Active euthanasia is currently only legal in Belgium, Holland and Luxembourg. Must be done by Dr or healthcare professional, must ask for it, must have mental capacity and be suffereing unbearably with no improvement. 

Some types of assisted suicide and passive euthanasia are legal in Switzerland, Germany, Mexico and five American states. 

The debate regarding euthanasia of children in Belgium- For 12+ in Netherlands and adults with depression. Can be euthanised if old enough to talk and have unbearable physical suffering. Must ask repeatedly and Dr's and pyschologists have to decide. There is no age limit for this. Must be terminally ill and have parental consent. 

h) re-theorising the debates.

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