Criminal - Murder, Manslaughter

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Murder

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Offence Regulated by s. 4 Criminal Justice Act 1964

s. 1 unlawful killing = murder only when the person intended to kill/seriously injury some person.

s. 2 rebuttable presumption of intention of natural and probable consequences of conduct.

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Actus Reus

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AR = unlawful killing. (Lawful, would be, e.g. killing in self-defence).

Result offence: it must be proved that conduct (e.g. assault) caused a result, death.

Charleton in a 1976 article: brain dead = dead.

O’Sullivan J. in R v. Quitting & Adams (1976): vital functions (including heartbeat) = still alive.

Because of medical advances, Year and a Day Rule abolished by s. 38 CJA 1999.

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R v. Quitting & Adams (1976)

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O’Sullivan J: vital functions (including heartbeat) = still alive.

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Mens Rea

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Under s. 4(1), intention to kill/seriously injury somebody; this is the doctrine of transferred malice.

An intention for anything less serious – or lower mens rea > manslaughter. AR = unlawful killing.

s. 4 (2): oblique intention > rebuttable presumption; no onus on the accused; onus remains on Prsc to show brd that presumption has not been rebutted.

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s. 4 (2) Criminal Justice Act 1964

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s. 4 (2): oblique intention > rebuttable presumption; no onus on the accused; onus remains on Prsc to show brd that presumption has not been rebutted.

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s. 3 Criminal Justice Act 1990 - Section 3 Murder

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s. 3 CJA 1990 applies to a murder:
i. of a Garda acting in the course of duty;
ii. of a foreign head of state, government member, or diplomat; in Ireland; for a political motive;

iii. committed in furtherance of subversive objectives under OASA 1939.

Actus Reus: the same as for murder, plus all the elements mentioned above (including motive – it is rare for the Prsc to have to prove motive).

Mens Rea: the same as for murder, with the additional element of knowledge or recklessness as to the fact that the victim was i, ii, or iii.

This is a statutory form of the decision in DPP v. Murray (1977).

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Punishment

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Until 1964: murder a capital offence: death penalty.

1964 onwards: only s. 3-type murders: death penalty.

s. 1 CJA 1990: abolished the death penalty; 2002 referedum: death penalty removed from Constitution.

Now: murder = mandatory life sentence (average duration 8 – 12 years); s. 3 murders: mandatory min. 40 years; s. 3 attempts min. 20 years.

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s. 5 Offences Against the Person Act 1861 - Manslaughter

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s. 5 OAPA 1861: anyone convicted of manslaughter can be imprisoned for life.

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Actus Reus

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Identical to that for murder: unlawful killing.

Manslaughter differs from murder only in terms of mens rea.

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Voluntary Manslaughter

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An unlawful killing with an intention to kill or cause serious injury will result in a manslaughter conviction in two instances:

i. Self defence of self, of another person, or property, or to prevent commission of a crime, used more force than reasonbly necessary, but not more than he honestly believed necessary;

ii. Provocation leading to sudden and temporary loss of control.

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Involuntary Manslaughter

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There are three types of involuntary manslaughter, although there is a certain amount of overlap:

1. Assault Manslaughter
2. Criminal and Dangerous Act Manslaughter
3. Criminal Negligence Manslaughter

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Assault Manslaughter

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Where the Def assaults the victim with intention of causing some physical injury (not merely trivial injury), resulting in the victim’s death.

R v. Holzer (1968): Def punched victim, intending to bruise him or cut his lip; victim fell, banged his head and died: assault manslaughter.

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R v. Holzer (1968)

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Def punched victim, intending to bruise him or cut his lip; victim fell, banged his head and died: assault manslaughter.

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Criminal and Dangerous Act Manslaughter

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Where the Def commits a crime leading to another’s death, where (a) the crime was objective dangerous, and (b) the Def intended to commit the crime.

Assault is the obvious example, but has its own category.

People (AG) v. Crosbie (1966): Henchy J. pointed out that the actual act which causes death must be dangerous and unlawful – it is not sufficient for an unlawful, non-dangerous act to somehow lead to death.

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People (AG) v. Crosbie and Meehan (1966)

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Henchy J. pointed out that the actual act which causes death must be dangerous and unlawful – it is not sufficient for an unlawful, non-dangerous act to somehow lead to death.

"A person who produces a knife with the intention of intimidating or frightening another and not for self-defence commits an assault and the act done is therefore unlawful. When a killing resulted from an unlawful act, the old law was that the unlawful quality of the act was sufficient to constitute the offence of manslaughter. The correct view, however, is that the act causing death must be unlawful and dangerous to constitute the offence of manslaughter. The dangerous quality of the act must however be judged by objective standards and it is irrelevant that the accused person did not think that the act was dangerous."

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Criminal Negligence Manslaughter

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Criminal negligence is different from civil negligence.

The UK differentiates between vehicular and non-vehicular manslaughter; Ireland does not; but Davitt J.’s test is appropriate for general applicability.

People (DPP) v. Dunleavy (1948): CCA held that the jury had been misdirected by a judge who suggested that criminal negligence = negligence.

Davitt J. held that a jury must be satisfied that the fatal negligence was “of a very high degree; and was such as to involve, in a high degree, the risk or likelihood of substantial personal injury to others”.

Per me: all of these test still seem very nebulous!

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People (DPP) v. Dunleavy (1948)

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CCA held that the jury had been misdirected by a judge who suggested that criminal negligence = negligence.

Davitt J. held that a jury must be satisfied that the fatal negligence was “of a very high degree; and was such as to involve, in a high degree, the risk or likelihood of substantial personal injury to others”.

(a) That negligence in this connection means failure to observe such a course of conduct as experience shows to be necessary in the circumstances, the risk of injury to others is to be avoided. [ie.] failure to behave as a reasonable driver would.

(b) That they must be satisfied that negligence upon the part of the accused was responsible for the death in question (causation).

(c) That there are different degrees of negligence. fraught with different legal consequences; that ordinary carelessness, while sufficient to justify a verdict for a plaintiff in an action for damages for personal injuries, or a conviction on prosecution in the District Court for careless or inconsiderate driving, falls far short of what is required in a case of ma nslaughter; and that the higher degree of negligence which would justify a conviction on prosecution in the District Court for dangerous driving is not necessarily sufficient.

(d) That before they can convict of mansla ughter, which is a felony and a very serious crime, they must be satisfied that the fatal negligence was of a very high degree; and was such as to involve in a high degree. the risk or likelihood of substantial personal injury to o thers."

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People (DPP) v. Cullagh (1999)

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Chairoplane operator appealed manslaughter conviction;

CCA held that the test is whether the Def deserves to be criminally liable for death – a matter of degree.

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R v. Prentice (1993)

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Criminal negligence = “gross negligence, which the jury considers justifies a criminal conviction”.

Note that Lord Taylor held this to be the fourth part of the test: (a) duty; (b) breach; (c) causation; (d) gross negligence.

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Sections. 52 and 53, Road Traffic Act 1961 - Dangerous Driving Causing Death

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ss. 52 and 53, Road Traffic Act 1961

Due to the difficulty of proving the standard of negligence expounded by Davitt J. in Dunleavy, s. 52 RTA 1961 created the offence of dangerous driving > driving without due care and attention.

Punishment for dangerous driving causing death (or serious injury), upon indictment: 5 years and £3,000.

NB: this is a less serious offence than manslaughter, with a less serious mens rea: ordinary negligence while driving.

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People (AG) v. Quinlan (1963)

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Dangerous = driving in a manner which a reasonably prudent motorist would recognise as involving a direct and serious risk of harm to the public.

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R v Church (1966)

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The accused knocked the deceased unconscious.

Believing he had killed her, he threw her into a river, after which she drowned.

Lord Edmund Davies stated that "the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm".