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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?)

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)

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

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

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)

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

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

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.

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)

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

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

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

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

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)


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

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