- Created by: Hbrandxx
- Created on: 29-12-18 14:19
Actus reus and mens rea of Homicide
- Homicide includes: murder, involuntary manslaughter (unlawful act, gross negligence, recklessness), voluntary manslaughter (partial defence)
- All homicide offences share the same actus reus: V must be a human being, D must cause V's death, D must do so under 'Queen's peace' (either in UK or by a British citizen)
- Human being: not 'brain-stem dead' e.g. Bland
Murder- mens rea
- D must act with an intention to cause death or GBH
- Controversial due to conflict with 'correspondence principle'= D doesn't need to foresee death
- Minimum tariff of 15 years before eligability for parole
- Criticism over lack of flexibility (e.g. should a mercy killing be in for life?)
- Recent Law Commission proposals haven't discussed abolishing the MLS
Provocation (Old Defence)
- Common law defence to excuse provoked killings
- Issues: NO restrictions on words/conduct deemed as 'provocation', required a sudden/temporary loss of control, objective test lacked certainty
Loss of control
1. D must have lost self-control
2. Qualifying trigger: fear of serious violence, justifiable sense of being seriously wronged
3. Person of normal tolerance/self-restraint may have reacted similarly
- Legal burden on prosection to prove beyond reasonable doubt that 1 or more of these elements is absent; if unable to disprove defence, D will be held liable for manslaughter not murder
Voluntary manslaughter 2
- 'The defendant is to be judged against the standard of a person with a normal degree...of tolerance and self-restraint'
- If, and in so far as, a personality disorder reduced the defendant's general capacity for tolerance or self-restraint, that would not be a relevant consideration'
1. Abnormality of mental functioning caused by recognised medical condition
2. Which provides an explanation for D's acts/omissions in being party to the killing
3. Which substantialy impaired his/her mental ability to either: understand nature of their conduct or form a rational judgement or exercise self-control
R v Golds (2016)
- Medical experts agreed that conditions for DR satisfied
- Judge refused to direct jury on meaning of 'substantial', D convicted of murder
- SC dismissed appeal, Judge doesn't always need to direct jury of meaning of substantial
Constructive (unlawful act) manslaughter
- Unlawful killing has taken place but D lacks mens rea for murder: focus on causation
- Breaches correspondence principle: actus reus and mens rea don't need to link
- Must be able to charge the base crime to consider liability for UAM
- Requirements: unlawful act, act must be dangerous, must cause death of V
Requirement 1: Unlawful act
- Elements of base crime must be specified, reaffirmed in Kennedy no.2 (2007): D supples drugs to V, V self-injected, was D liable for unlawful act of supply? Base crime wasn't clearly set out, V broke chain of causation by free deliberate and informed intervention.
- Lamb (1967): D and V were playing with a gun, D shot V and V died. Convicted of UAM but on appeal it was held the conviction was unsafe as there was no mens rea for UA as D didn't intend to do so.
- Lowe (1973): D neglected baby and baby died. It's an omission. Court of Appeal quashed conviction for UAM on the basis that an omission cannot be an unlawful act for UAM
Involuntary manslaughter 2
Requirement 2: dangerousness
- Church (1966): 'The unlawful act must be such as all sober and reasonably people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm', D assaulted and thought he killed V when he threw V in the river but V actually died of drowning
- Objective: judged from perspective of sober/reasonable bystander, likelihood of harm present
- Dawson (1985): D robbed a petrol station. Attendant had a weak heart and had a heart attack and died. Wasn't dangerous as the reasonable bystander is endowed with D's lack of info
- JF (2015): 2 young boys set fire to what they thought was a derelict building but a homeless person died. 14 year old had an IQ of 6. Court held that if jury agreed a reasonable bystander would've recognised the dangerousness they'd be convicted. Convicted as they had mens rea for base crime of criminal damage.
Requirement 3: Cause death
- Normal principles of causation apply; must be a casual link between unlawful act + V's death
- Kennedy no.2 : V broke chain of causation by free, deliberate and informed intervention
Involuntary manslaughter 3
Gross negligence manslaughter
- When somemone owes a duty of care and is negligent to such a degree that law regards it as a crime and causes V to die.
- Adomako (1994): D was an anaesthetist, during medical operation he failed to notice V's oxygen tube disconnected. V died. Key case for est. requirements.
- E.g. Stone v Dobinson: D didn't care for V who was anorexic. V died. D convicted of GNM.
- Requirements: duty of care, breach of duty, risk of death, causation, gross
Requirement 1: Duty of care
- Evans (2009): D suppled heroin to V who self-injected. D noticed overdose symptoms but didn't call ambulance and V died. Duty arose when D contributed to dangerous situation which he knew/ought to have known was life-threatening.
- Wacker (2003): Duty owed in crminal law where it wouldn't in civil law. D was a lorry driver smuggling illegal immigrants for a gang. Closed ventilation and 58/60 died of suffocation. Court of Appeal held there was a duty in criminal law and D was convicted.
Involuntary manslaughter 4
Requirement 2: Breach of duty
- Standard used is that of an ordinary, competent person in that role
- Adomako: D was judged against whether a competent anaesthetist would've realised the oxygen supply disconnected, if he would've, there is a breach of duty
Requirement 3: Risk of death
- Must be a serious/obvious risk of death during breach of duty, and would the reasonable person in the same role have realised this?
- Rudling (2016): GP prosecuted, failed to make home visit after being told about child's symptoms. Had the visit been made, risk of death would've been clear to competent GP
- Rose: Optometrist D failed to carry out eye test properly. Two fold failure: didn't carry out test and also retrieved wrong results which would've revealed risk of death. Court of appeal decided that foreseeability was to be assessed at time of breach.
Involuntary manslaughter 5
Requirement 4: Gross negligence
- 'Having regard to the risk of death involved, was the conduct of D..so bad in all the circumstances as to amount in (the jury's judgement) to a criminal act of omission?' per Lord Mackay in Adomako
- Sellu (2016): His post-operative care fell far below expected standard which would've indicated that the patient needed urgent medical attention. Judge failed to make clear to the jury that they had to come to their own view as to whether error amounted to a crime
- 'Where D kills by reckless lawful act (no UAM available) which he foresees might cause serious bodily harm (no GNM available as no serious risk of death), this ought to be capable of being manslaughter' Smith and Hogan, Criminal Law
- Question as to whether circumstances where there's no liability for UAM or GNM, can there be reckless manslaughter?
- E.g. someone serving school dinners knows someone has an allergy but fails to stop them eating the food.