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15 Cards in this Set
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Homicide: No offence of Homicide in the UK - all subdivided into: Murder Voluntary Manslaughter
Involuntary Manslaughter: (futher subdivided into) Unlawful dangerous act manslaughter Manslaughter by gross negligence Coporate manslaughter
Causing death by dangerous driving |
The common offence in all of the offences
Actus Reus: The accused must have caused death of the victim Whether the accused is liable for MURDER or MANSLAUGHTER will depend on the MENS REA
The actus reus raises 2 potential questions: When does someone die? Stops breathing, brain dead, artificial (life support machine) What is a human being? Does it include foetus? (When does this become a human being?) |
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Actus Reus - Causation in Homicide
Factual Causation: The But for Test - but for the defendants conduct would the victims' death occur in the way it did? Did the defendants conduct accelerate the death SIGNIFCANTLY? Signifcantly - more than minimal Legal Causation - must be established in addition to factual causation |
Can both parties be liable for the death (if more than one person is involved)? Yes - If both parties actions accelerated death SIGNIFCANTLY (more than minimal)
What if there was an intervening event? Although there was an intervening event.. where the injuries inflicted: An operating & substancial cause of death
Was intervening Act reasonably forseenable?: R v. Singh (Gurphal) (1999) for Gross Negligence Manslaughter A reasonable prudent person would have forseen the risk (OBJECTIVE) |
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Intervening Act - Medical Care Case Developments
R v. Jordan (1956) - Injury not operating & substancial cause: Victim stabbed & his wounds largely healed DIED 8 days later Court of Appeal - Care recieved was 'palbably wrong' REALLY BAD As wound healed difficult to prove LEGAL CAUSATION There was an intervening act! Injury not an operating & substancial case of DEATH - NEIL USE THIS |
R v. Smith (1959) second factor so OVERWHELMING - death not flow Victim dead at Army Medical Centre after being stabbed by defendant Evidence that medical treatment had been bad & treatment effected recovery Appeal dismissed - If at time of death the original wound still operating & substancial cause of death. If second case (intervening factor) so overwhelming to make original wound merely part of history - DEATH does not flow from the wound.
R v. Cheshire (1991) - death not so independent from original injury Defendant shot victim who underwent surgery 2 months later, victim died of scar tissue obstucting breathing Defendant argued negligent medical treatment was intervening event Doctors were treating the harm caused by defendant Chain of causation in-tact HELD: Death was not so independant of original injury to exclude defendants acts APPEAL DISMISSED |
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Pre-Existing Conditions: R v. McKenchie (1992) - Chain of causation intact - take victim as you find Victim was injured in head by defendant & admitted to hospital Whilst there, diagosed duodental ulcer Hospital would not operate because of head injuries & victim died 5 days later Chain of causation intact as without head injury victim would not have died Death not so independent - YOU MUST TAKE YOUR VICTIM AS YOU FIND THEM |
Who is a human being for the purpose of homicide? A child when expelled from the wound & alive Re A (Children) (2002) - Jodie and Mary conjoined twins Argued that Mary dependant on Jodie for suvival - not independent person R v. Malercheck and steel (1981): Defendant assaulted stabbing victim resulting in brain damage - put on life support Life support machine turned off and victim died Defendant argued doctors killed her by turning life support machine off Person ceases to be alive when no brain stem activity HELD: Stab wound was still the operating & sabstancial cause of death |
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Intention & Murder
Once the actus reus is defined: A defendant must have the REQUISITE Mens Rea to commit murder THIS IS - INTENTION to kill / cause serious harm RECKLESSNESS CANNOT be USED!
DIRECT INTENTION - Defendant desired the outcome thay was achieved (primary purpose) INDIRECT (OBLIQUE) INTENTION - The consequance achieved was not the defendants primary aim / purpose HOWEVER; Its consequance was vitually certain to occur IT IS FOR THE DEFENDANT TO DESIRE / FORSEE VITUALLY CERTAIN OUTCOME This makes it subjective |
The sentence for murder is life imprisonment Judge has no discretion - it's mandatory
Voluntary mamslaughter This is where a person has committed the actus reus for murder with the appropriate mens rea. HOWEVER: Law recognises a person (in certain circumstances) may be treated differently This may effectively mean a defence MAY be afforded to murder
Such examples may include: Diminished responsibility Loss of control Infanticide Suicide pacts
Effects of these if successfully argued = voluntary manslaughter NOT MURDER These are ONLY PARTIAL (not true) defences to MURDER (though will diminish manslaughter) These defences may effect sentances for other crimes How voluntary manslaughter works - Judges discretion in sentancing (can affect sentance) |
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Historical defences to partial defences
Until October 2010 - partial defences of diminished responsibility were in s.2 & 3 of Homicide Act 1957 (HA) Much case law reaching different conclusions Law commission recommended changing definitions Partial defences for diminished responsibility & provication: NOW - Definitions of Partial Defences are FOUND in Part 2 - Coroners & Justice Act 2009 (COJA) Definition of diminished responsibility - set out in s.52 COJA 2009 so now incorporated into s.2 (1) HA 1957 Provocation in s.3 HA 1957 repealed & replaced with s.54 - 55 COJA 2009 - LOSS OF CONTROL |
Diminished Responsibility
Actus reus is committed with the requisite mens rea Defendant suffering from a recognised medical condition Provides defendant with partial excuse for his actions In criminal law, generally for prosecution to disprove a defence - Beyond RD WITH Diminished responsibility - Defendant to prove - BUT Balance of Propability (BoP) Anything over 50% is a BoP |
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Key points:
S.52 (1) COJA amends the text of s.2 (1) Homicide Act 1957 !! So when it says s.2 (1) HA it means text of s.52 (1) of COJA !!
1. Person who kills another not to be convicted if suffering: Abnormality of mental function a) arose from recognised medical condition b) substancially impaired ability (mentioned in 1a) c) provides an explanation of conduct
1.a) understand nature of their own (defendants) conduct b) form rational judgement c) to exercise self control
The 4 parts s.52 (1) would have been proven.
Abnormality of mental function R v. Byrne (1960) A mental state was so different from ordinary and a reasonable man would term it abnormal |
Did Abnormality of mental function arise from a recognised medical condition? Subject to medical expert opinion in court Experts normally refer to internationally recognised classification systems If expert gave evidence of condition of classification list AND Jury accepts this evidence - TEST is MET If not on list - other conditions MAY be used - subject to special information
Alcohol Dependancy & Diminished Responsibility R v. Stewart (James) (2009): Murder claimed diminished responsibility owing to alcohol dependancy whilst drunk Alcohol dependancy mean his drinking was not voluntary - recognised as a disease Appeal allowed - Abnormality of the mind - diminished responsibility |
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Substancial Impairment - More thna trival / minimal R v. Lloyd (1967)
For a defence to succeed for diminished responsibility: Defendant must show that homicide would not have happened Without the recognised medical condition If defendant commits a crime which is not connected to recognised medical condition -Not able to rely on partial defence of diminished responsibility |
Loss of Control - 2nd Partial Defence (after diminished responsibility) Defence only MURDER If successful - would reduce it to voluntary manslaughter - morally less culpable
S.54 (1) COJA 2009 - Partial Defence to Murder: Loss of Control Defendant cannot be convicted of murder if: a) Acts and omissions resulted from loss of self control b) The loss of self-control had a qualifying trigger. AND c) A person of similar age, sex and degree or tolerance in the circumstances - may have reacted similarly
S.54 (2) For 1a above - No matter if loss of control is sudden
(3) s.1 (3) - Reference to ALL the circumstances & defendant capacity to self restrain
(4) Defence does not apply for revenge
(5) Jury to assume defence satisfied - EVIDENTIAL BURDEN on defendant only (to show defence issue) - prosecution to prove no defence
(6) If contrary evidencd to defence identified - judge to direct jury. |
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Qualifying Trigger
Was put in as previous defence of provocation was TOO Generous High bar needed - Threshold established (qualifying trigger)
How it works s.55: 1. Applies to s.54 2. Loss of self control for s.54 if s.55 3, 4 or 5 BELOW apply: 3. Loss of control was due to fear of serious violence 4. Attributes to things done or said which a) constituted circumstances of a brave character b) caused defendant to have justifiable sense of being wronged 5. Loss of control - Attribute to combination of factors in 4 & 5 above 6. Determining the qualifying trigger a) defendants fear of violence disregarded if used as excuse for violence if caused by something defendant has incited b) sense of being wronged not justifiable if incited by the defendant - excuse for violence |
Suicide pacts
Section 4 - Homicide Act 1957
(1) shall be manslaughter and not murder if suicide pact
(2) defence to prove it was suicide pact (evidential burden) B.O.P
(3) DEFINITION - Agreement between two or more persons to take own lives - Though person must have SETTLED their intentions (such as not decide to back out) |
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Homicide (2) Involuntary Manslaughter & death by dangerous driving
Involuntary Manslaughter: Defendant did not intend the death or grievous bodily harm Defendant intended minor harm only Defendant was negligent in their actions
Two types of Involuntary Manslaughter: 1. Unlawful and Dangerous Act Manslaughter (constructive manslaughter) UDA 2. Manslaughter by Gross Negligent
UDA - to establish an offence of UDA, the defendant must: Do a criminally unlawful act which is dangerous and causes the victims death. |
Unlawful act
The initial act must in itself be unlawful So, the victim assaulted the defendant in the first place AND defendant uses REASONABLE FORCE and victim dies - Defendant not liable for UDA
R v. Lamb (1967): Lamb pointed a revolver at a friend - bullets in chamber bug not adjacent to barrel Lamb unaware barrel rotated before firing and killed friend Manslaughter - did not intend and was not reckless to consequance as never forsaw risk Appeal allowed - No mens rea & no unlawful act
R v. Church (1966): Man fought with women who mocked him - knocked unconcious - thought she dead Pushed her into a river and she drowned Appealed against manslaughter - Appeal dismissed Even though his act of knocking her unconcious did not cause her death; Still liable - overall his series of acts caused the death |
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Unlawful Act must be Dangerous Risk of death? Level of harm? Subjective / Objective Test - Defendants perception / reasonable person perception? |
DDP v. Newbury (1977): 2 x 15 year old boys pushed a paving slab into path of train & killed diver Convicted of manslaughter & appealed - appeal dismissed Issue: Can a defendant (not under drink / drunk influence) be properly convicted of manslaughter if the did not forsee harm PRINCIPLE: if the act is unlawful & dangerous and causes death = manslaughter PRINCIPLE 2: Judged from the view of a sober and a reasonable person Its an OBJECTIVE TEST. Summary: Murder = must have intent to kill / cause serious harm Manslaughter = Reckless to the killing or cause serious harm & follows unlawful act |
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Manslaughter by gross negligence Case: R v. Bateman (1925) - Person cpuld be criminally liable for death (GROSSLY) Negligent - Not just negligent... GROSSLY - Patient died through negligent doctor - beyond mere civil compensation - subject showed such disregard for safety |
Leading case: R v. Adomako (1995) - Adomako was an anaesthetist - oxygen tube to patient disconnected - Patient died - Adomako convicted of gross negligence as he failed to notice warning on equipment - IN COURT - " A competent anaesthetist would have noticed within seconds" The 5 stage test in Adomako: 1. Duty of care owned by defendant to victim 2. Duty breached 3. A risk that defendants conduct could cause death - R v. Singh (1999) - In order to eatablish manslaughter by gross negligence: Circumstances would be that a reasonable prudent person would forsee riskof death (not just injury/serious injury) 4. The breach of the duty DID cause the death of the victim 5. The jury must conclude that defendant fell SO FAR below the standards to be labelled grossly negligent and criminal |
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Death by dangerous driving - Corporate Manslaughter S.1 - Causing death by dangerous driving(person who causes death by by driving mechanically propelled vehicle - road/other public place) guilty of an offence S.2 - person who (not death) same as above S.2A - Definitions of DD S.2A (1) (a) DD if below standards of a competent driver S.2A (1) (b) DD if obvious to a competent driver it would be dangerous S.2A (2) DD if vehicles condition is dangerous (competent person would realise) NOTE: To satisfy s.2 standard must be FAR below that of a reasonable driver - NOT merely below!!! NEGLIGENCE IS NOT ENOUGH!!! |
Causing death by dangerous driving is: A separate offence than Unlawful and Dangerous Act Manslaughter because: - UDA requires mens rea (Intent or recklessness) - Dangerous driving needs only grossly negligent behaviour UDA and s.1 - RTA 88 both require grossly negligent behaviour |
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Corporate liability for manslaughter
A company has its own legal identity (corporate body) In theory can be prosecuted for committing crimes
Injuries should be under OAPA 1861 Deaths could be liable for murder or manslaughter ISSUES that relate to above are - DIFFICULTY in establishing mens rea (on a company - collective mind)
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Development of corporate liability (Timeline):
R v. Cory Bros Ltd [1927] Minor electrocuted by a fence in a minors strike HELD - Company could not (NOTE previously) be liable for manslaighter or OAPA
R v. I.C.R. Haulage Ltd [1994] HELD - A company could incur criminal liability subject to 2 limitations: (a) Certain offences by nature cannot be committed by a company e.g rape OR assault (b) A company cannot be convicted of offence when only sentence physical (prison)
Tesco Supermarket Ltd v. Nattrass [1972] Proving mens rea involving companies - THE IDENTIFICATION PRINCIPLE - Prosecutors MUST prove Who was the 'Directing Mind' of the Company AND; The 'The Directing Mind' had the necessary mens rea
ISSUES: Large companies - at least one senior executive effectively had to know everything before they could be held criminally liable - IMPRACTICAL..!! As many executives - no one person would know the full story Herald of free enterprise / Ladbrooke Grove / Piper Alpha - no one liable! GOVERNMENT Needed to review corporate killing law Under NEW OFFENCE - Corporate Manslaughter, Identification Principle not relied on |
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Currant position of corporate liability:
Corporate Manslaughter and Corporate Homice Act 2007 (CMCH) Focuses on the collective conduct of the company senior management
Key points of CMCH 2007: S.1 - an organisation which this section applies is guilty of an offence if the way its activities are managed or organised: S.1 (1) (a) Causes a persons death AND; S.1 (1) (b) Amounts to a gross breach of duty of care by organisation to the deceased
S.1 (2) Organisations described (corporation etc)
S.1 (3) Organisation guilty of offence if activities (man/org) by senior management is a SUBSTANCIAL element of the breach
S.1 (4) Breach of duty of care is 'gross' if it FALLS far below what is reasonably expected in circumstances |
What needs to be proven to prosecute
Relevent duty of care: Duty owned to its employees or other persons working for or performing services for the organisation Duty owned by other organisations (supply of goods or services) Organisations undertaking constructions or maintenance Commercial activities, plant / vehicle useage Any person for whose safety aorganisation responsible
Gross breach: Conduct falls FAR below the standard reasonably expected in the circumstances Assistance as to what's reasonable in s.8 CMCH 2007 (policies, procedures, attitudes, tolerance of practices etc).
THERE IS NO INDIVIDUAL LIABILITY for CMCH |
