CAPE Law Moneague College

Murder and Manslaughter

DEFINITION The modern and simple definition of murder, derived from that of Sir Edward Coke who was Chief Justice from 1613-16 (Institutes of the Laws of England, 1 ! ", is# the unlawful killin$ of a livin$ human %ein$, under the &ueen's peace, with malice aforethou$ht, e(press or implied) ACTUS REUS There must %e an unlawful killin$ and not one, for instance, in self defence) The killin$ must %e of a livin$ human %ein$ and not, for instance, an un%orn child) The killin$ must not %e of an enem* at a time of war) The +aw ,eform (-ear and a .a* ,ule" /ct 1!!6 a%olished the common law rule that the victim must die within a *ear and a da* of the in0ur*) 1owever, consent of the /ttorne* 2eneral is re3uired %efore prosecutin$ a person where (a" more than three *ears have lapsed, or (%" the person has alread* %een convicted of another offence in circumstances connected to the death (e$, maliciousl* woundin$ or inflictin$ 241") CAUSATION /s murder is a result crime, the prosecution must esta%lish causation) There are two t*pes) 5irst of all, factual causation for which the 6%ut for7 test from White is used) 8f there is a possi%le novus actus interveniens (new intervenin$ act" then a test for le$al causation is used) There are various tests for this, e$# The defendant was the 6operatin$ and su%stantial cause7 test from Smith9 The defendant's act or omission 6contri%uted si$nificantl*7 from Pagett9 and There was 6more than a sli$ht or triflin$ link7 from Kimsey)

:ote that there are other tests %ut one is no more important than another) MALICE AFORETHOUGHT The mens rea for murder is malice aforethou$ht) The 1ouse of +ords in Moloney held that this meant an intention to kill or cause $rievous %odil* harm (241") This intent can %e direct or o%li3ue) DIRECT AND O LI!UE INTENTION .irect intent was defined in Mohan as 6a decision to %rin$ a%out, in so far as it lies within the accused's power, the commission of the offence ;7 <%li3ue intention is where a person foresees a conse3uence of his actions %ut does not desire it for its own sake) /n e(ample was $iven %* +ord 4rid$e in Moloney# 6/ man, who, at +ondon airport, %oards a plane which he knows to %e %ound for =anchester, clearl* intends to travel to =anchester, even thou$h =anchester is the last place he wants to %e

and his motive for %oardin$ the plane is simpl* to escape pursuit) The possi%ilit* that the plane ma* have en$ine trou%le and %e diverted to +uton does not affect the matter) 4* %oardin$ the =anchester plane, the man conclusivel* demonstrates his intention to $o there, %ecause it is a moral certaint* that that is where he will arrive)7 The 6virtual certaint*7 test from Nedrick is used to decide if there is evidence of o%li3ue intention) This test was endorsed %* the 1ouse of +ords in Woollin. / recent case e(ample of o%li3ue intent is Matthews and lleyne) INTENTION TO CAUSE G" "H" #IMPLIED MALICE$ 8n ! v "ickers, the Court of /ppeal held that a defendant could %e convicted of murder if it was esta%lished that he had intended to kill, or had intended $rievous %odil* harm) The latter was accepted as sufficient mens rea for murder %ecause if a defendant was willin$ to inflict 241, how was he to know that the victim mi$ht not die> /n intention to cause 241 at least evidenced a willin$ness to accept a su%stantial risk that the victim mi$ht die) 8n ! v #unningham (1!?1", the defendant repeatedl* struck the victim around the head with a chair resultin$ in his death) The prosecution contended that while there was no intention to kill, there had %een an intent to do reall* serious %odil* harm) The defendant's plea of manslau$hter was re0ected and he was convicted of murder) The 1ouse of +ords stated that an intention to cause 6reall* serious in0ur*7 was sufficient to amount to the mens rea for murder)

%oluntar& Manslaughter
@hen a defendant has caused a victimAs death, and has %een proved to have had the necessar* mens rea for murder, he ma* %e a%le to avoid a conviction for murder %* esta%lishin$ that he comes within the scope of the defence of either# .iminished responsi%ilit*, Brovocation, Suicide Bact or 8nfanticide) 8n each case, if the defendant succeeds with the defence, his lia%ilit* is reduced from murder to manslau$hter, the sentence for which is at the discretion of the 0ud$e) This form of manslau$hter is descri%ed as Cvoluntar*C %ecause there will have %een evidence that the defendant did intend to kill or cause $)%)h), %ut certain kinds of e(tenuatin$ circumstances partiall* e(cuse his conduct) PRO%OCATION This defence to murder reduces murder to manslau$hter) 6@here on a char$e of murder there is evidence on which the 0ur* can find that the person char$ed was provoked (whether %* thin$s done or %* thin$s said or %* %oth to$ether" to lose his self-control, the 3uestion whether the provocation was enou$h to make a reasona%le man do as he did shall %e left to %e determined %* the 0ur*9 and in determinin$ that 3uestion the 0ur* shall take into account ever*thin$ %oth done and said accordin$ to the effect which, in their opinion, it would have on a reasona%le man)7 E'(den)e The 0ud$e must decide if there is an* evidence of provocation to $o %efore the 0ur*) / person can %e provoked %* 6thin$s done or %* thin$s said7) / case e(ample is $oughty, where the defendant killed his %a%* %ecause of its constant cr*in$)

Loss o* Sel*+Control The 0ur* must then decide if there was a loss of self-control on the part of the defendant) The* will %e directed to appl* the $uffy test and ask if there was a 6sudden and temporar*7 loss of self-control) @here there is evidence of 6coolin$ time7, it ma* %e difficult for a defendant to esta%lish provocation) 5or e(ample# $uffy D a victim of domestic violence left the room her hus%and was in, chan$ed her clothes and, returnin$ with a hammer and a hatchet, killed her hus%and who was in %ed) 1er conviction for murder was upheld) I%rams & 'regory9 hluwalia9 and (hornton

8f there is a series of incidents over time which drives the defendant to kill, the defence will still %e availa%le accordin$ to# )um*hreys D the defendant was ph*sicall* and mentall* a%used %* the deceased) The Court of /ppeal held that the trial 0ud$e should have anal*sed the various strands of provocation from their first meetin$ until the victim's death) 8t was insufficient to look onl* at the final taunts) / 44C :ews article is also availa%le a%out this case) (hornton +No. ,- D The Court of /ppeal stated that a 0ur* ma* find that there was a sudden and temporar* loss of control tri$$ered %* a minor incident if the defendant had endured a%use over a period of time, on the 6last straw7 %asis)

The Reasona,le Man Test The 0ur* must decide whether a reasona%le man, sharin$ the defendant's characteristics, would have acted as the defendant did) This leads to the 3uestion of what ma* %e a relevant characteristic) 8n $PP v #am*lin, the 1ouse of +ords stated that the reasona%le man is# / person of the same se( and a$e9 :ot e(cita%le or pu$nacious (read* to fi$ht"9 1as the powers of self-control e(pected from fellow citiEens9 and 1as those characteristics which affect the $ravit* of the provocation) <ther characteristics, such as racial ori$in or ph*sical peculiarit*, will onl* %e considered if the* are relevant) 8nto(ication will %e i$nored)

8n Morhall, where the defendant was taunted a%out his $lue-sniffin$ addiction, the 1ouse of +ords held that this could %e taken into account (as opposed to %ein$ hi$h on $lue") 8n )olley, a speciall* convened Judicial Committee of the Briv* Council held that the 1ouse of +ords' decision inMorgan Smith, that characteristics such as a depressive illness affectin$ a person's level of control were relevant, was wron$) Sel*+Indu)ed Pro'o)at(on

8f the defendant induces the provocation %* some act of his own the defence will still %e availa%le accordin$ to the Court of /ppeal decision in .ohnson)

DIMINISHED RESPONSI ILITThis defence to murder reduces murder to manslau$hter) C@here a person kills or is part* to a killin$ of another, he shall not %e convicted of murder if he was sufferin$ from such a%normalit* of mind (whether arisin$ from a condition of arrested or retarded development of mind or an* inherent causes or induced %* disease or in0ur*" as su%stantiall* impaired his mental responsi%ilit* for his acts and omissions in doin$ or %ein$ a part* to the killin$)7 The defendant must esta%lish three thin$s, on the %alance of pro%a%ilities# A,nor.al(t& o* M(nd This phrase was e(plained in /yrne) +ord Barker CJ stated that it means 6; a state of mind so different from that of ordinar* human %ein$s that the reasona%le man would term it a%normal7) This is decided %* the 0ur*) See the 44C :ews article# @hen 0urors have to 0ud$e sanit*) / case e(ample is hluwalia, where the defendant was sufferin$ from C%attered woman s*ndromeC) @atch a 44C :ews video clip a%out the /hluwalia film) Cause The a%normalit* of mind must %e caused %* one of the followin$# / condition of arrested or retarded development of mind9 /n* inherent causes (relevant to the cases under 6a%normalit* of mind7"9 .isease (ph*sical or mental"9 or 8n0ur*)

Su,stant(al I./a(r.ent o* Res/ons(,(l(t& The a%normalit* of mind must su%stantiall* impair (weaken" the defendant's mental responsi%ilit*) 8n ! v Egan, the Court of /ppeal approved the followin$ direction on the meanin$ of 6su%stantial7 impairment, to the effect that the 0ur* should approach the word in a %road common sense wa*, and that the word meant 6more than some trivial de$ree of impairment which does not make an* apprecia%le difference to a person's a%ilit* to control himself, %ut it means less than total impairment ;7) Into0()at(on and D(.(n(shed Res/ons(,(l(t&

8n , v .ietschmann, +ord 1utton su$$ested that a 0ur* should %e directed alon$ the followin$ lines where self-induced into(ication was present in con0unction with an a%normalit* of mind# -ou know that %efore he carried out the killin$ the defendant had had a lot to drink) .rink cannot %e taken into account as somethin$ which contri%uted to his mental a%normalit* and to an* impairment of mental responsi%ilit* arisin$ from that a%normalit*) 4ut *ou ma* take the view that %oth the defendant's mental a%normalit* and drink pla*ed a part in impairin$ his mental responsi%ilit* for the killin$ and that he mi$ht not have killed if he had not taken drink) 8f *ou take that view, then the 3uestion for *ou to decide is this# has the defendant satisfied *ou that, despite the drink, his mental a%normalit* su%stantiall* impaired his mental responsi%ilit* for his fatal acts, or has he failed to satisf* *ou of that> 8f he has satisfied *ou of that, *ou will find him not $uilt* of murder %ut *ou ma* find him $uilt* of manslau$hter) 8f he has not satisfied *ou of that, the defence of diminished responsi%ilit* is not availa%le to him)

In'oluntar& Manslaughter
There are three t*pes of involuntar* manslau$hter# Constructive (also known as Fnlawful /ct", 2ross :e$li$ence and Su%0ectivel* ,eckless)

CONSTRUCTI%E MANSLAUGHTER The prosecution must esta%lish four factors# 1" An Unlaw*ul A)t Case e(amples of an unlawful act include# /dministerin$ a no(ious su%stance contrar* to sG3 <ffences /$ainst the Berson /ct 1?61, ie, heroin - as in#ato9 /ssault D as in Larkin9 4atter* D as in #hurch and in Mitchell9 Criminal dama$e D as in New%ury & .ones9 and /rson (criminal dama$e %* fire" D as in 'oodfellow)

Cases where there was no unlawful act include# Lam% 1!6 D the defendant pointed a loaded $un at another person in 0est %ut the victim was not alarmed) /s %oth of them thou$ht it was safe to pull the tri$$er, there was no assault) ro%ieke D the victim ran awa* from the defendant, across a train track, and was electrocuted %ut the defendant had not ph*sicall* threatened or chased the victim) $ias D the defendant purchased heroin on %ehalf of himself and another) The defendant prepared the s*rin$e, which he passed on to the victim and also used himself) 8t was held that

the defendant's action in in0ectin$ himself was an intervenin$ act which pro%a%l* %roke the chain of causation) Kennedy - suppl*in$ a heroin-filled s*rin$e for immediate use %* the victim)

2" The A)t .ust ,e Dangerous The act must %e dan$erous in the sense that the reasona%le person would realise that it could cause some ph*sical harm to another person) See, for e(ample# Larkin D the defendant waved a raEor a%out intendin$ to fri$hten H %ut the victim slipped onto it and was killed) #hurch D the defendant knocked the victim unconscious and, thinkin$ he had killed her, threw her %od* into the river where she drowned) $awson D the defendant ro%%ed a petrol station and the cashier died of a heart attack) The Court of /ppeal held that the defendant could onl* have %een found $uilt* if the 0ud$e had directed the 0ur* that the re3uisite harm would have %een caused if the unlawful act so shocked the victim as to cause him ph*sical harm)

8t is sometimes necessar* to decide how much knowled$e the reasona%le %*stander has# /ccordin$ to Watson, the reasona%le %*stander has whatever knowled$e the defendant possessed) 1ere, the defendant %ur$led a house %ut was distur%ed %* the ? *ear old occupier who later had a fatal heart attack) The Court of /ppeal held that the reasona%le person was to %e im%ued with all the knowled$e that the defendant had $ained throu$hout the %ur$lar*) 1owever, accordin$ to /all, the %*stander cannot %e endowed with an* mistaken %elief held %* the defendant) 1ere, the defendant mistakenl* thou$ht he had loaded his shot$un with %lanks and onl* intended to fri$hten the victim when he fired at her)

3" Su,stant(al Cause o* Death The unlawful act must %e the su%stantial cause of death) This was not the case in# $al%y D the defendant supplied the victim with dru$s who took them and then other dru$s, %efore overdosin$) The Court of /ppeal held that the defendant's act had not %een the direct cause of death %ut merel* made it possi%le for the victim to kill himself) Watson D the e(citement caused %* the arrival of the police and then a council workman, followin$ a %ur$lar*, ma* have taken over as the operatin$ and su%stantial cause of death)

1owever, it was the cause of death in the followin$ cases# Mitchell D the defendant had an ar$ument with a man and then pushed the man who fell onto the victim (an elderl* woman who later died from her in0uries") The actions of the man fallin$ were foreseea%le and did not %reak the chain of causation %etween the defendant's assault and the victim's death) /lso, the doctrine of transferred malice could %e used# +atimer) 'oodfellow D the defendant fire%om%ed his own council house (with his famil* inside" as part of a plan to %e rehoused) The Court of /ppeal held that there had %een no fresh intervenin$ cause %etween the defendant's act and the deaths of his wife and children)

4" Mens Rea

The mens rea of Constructive =anslau$hter consists of the mens rea for the unlawful act itself) The prosecution does not have to prove that the defendant realised the risk of causin$ some harm) This was accepted %* the 1ouse of +ords in# $PP v New%ury & .ones D the defendant's threw a pavin$ stone from a %rid$e onto a train, which killed the $uard (sittin$ ne(t to the driver") The defendants were lia%le %ecause the* intentionall* did an act which was unlawful and dan$erous and that act caused death) 8t was unnecessar* that the defendants had known that the act in 3uestion was unlawful or dan$erous)

GROSS NEGLIGENCE MANSLAUGHTER A Person A)ts Gross Negl(egen)e and 5(lls Another Person In Ado.a6o the de*endant7 an an(stes(s *a(led to o,ser'e dur(ng an e&e o/erat(on that the tu,e (nserted (n %8s .outh as ,e)o.e deta)hed *ro. the 'ent(lator )aus(ng 9%: to su**er )ard(a) arrest and e'entuall& d(e" It was held that 9D: was gu(lt& o* Man Slaughter & Gross Negl(gen)e7 wh()h (s esta,l(shed where 9D: ,rea)hed a dut& o* Care towards 9%:

8n ! v domako, 1!!I the 1ouse of +ords held that a defendant could %e convicted of involuntar* manslau$hter %* %reach of dut* if# The defendant was in %reach of a dut* of care towards the victim9 The %reach of dut* caused the death of the victim9 and The %reach of dut* was such as to %e characterised as $ross ne$li$ence and therefore a crime)

1" rea)h o* Dut& +ord =acka*, in domako, stated that 6the ordinar* principles of the law of ne$li$ence appl* to ascertain whether or not the defendant has %een in %reach of a dut* of care towards the victim who has died)7 The principles to esta%lish a dut* of care, from #a*aro v $ickman, are# foreseea%ilit* of dama$e9 a relationship of pro(imit* or nei$h%ourhood9 and that the court considers it fair, 0ust and reasona%le that the law should impose a dut* on one part* for the %enefit of another) Esta%lished case e(amples of a dut* of care include# .octor and patient (/ateman and domako"9 .river and pedestrian ( ndrews"9 =aster of a sailin$ ship and crew (Litchfield"9 and .river and passen$ers (Wacker")

/ dut* to act can also %e esta%lished %*#

/ contract, as in Pittwood9 / person assumin$ responsi%ilit* for another, as in Stone & $o%inson9 Statute, e$, the Children J -oun$ Bersons /ct 1!33 which applied to Lowe9 and The creation of a dan$erous situation, %ased upon Miller)

/ defendant will %e in %reach of the dut* of care %* fallin$ %elow the standard of the ordinar* reasona%le person) 5or e(ample# 8n domako, an anaesthetist failed to notice that a tu%e leadin$ to a patient's ventilator had %ecome disconnected) @hen an alarm sounded, he wron$l* assumed that the machine was fault* and took no action for several minutes, then panicked) The patient died9 8n ndrews, a driver was speedin$ and, while on the wron$ side of the road, hit a pedestrian who was carried alon$ on the %onnet of the car for some time9 8n Litchfield, the master of a sailin$ ship sailed too close to rocks despite %ein$ aware that the ship's en$ines mi$ht fail %ecause of fuel contamination) The ship struck the rocks and %roke up, killin$ three crew mem%ers9 and 8n Wacker, the defendant a$reed to %rin$ ille$al immi$rants into En$land in a container on his lorr*) /n air vent was closed durin$ the ferr* crossin$ in order to reduce the risk of the immi$rants %ein$ discovered %ut the 0ourne* took an hour lon$er, killin$ fift*-ei$ht people)

2" Caus(ng Death The 64ut 5or7 Test from White can %e used to esta%lish factual causation) Should there %e the possi%ilit* of a novus actus interveniens then causation in law will need to %e esta%lished)

3" Gross Negl(gen)e3 The 0ur* must consider whether the %reach of dut* should %e characterised as $ross ne$li$ence and therefore a crime, rather than a civil matter) The circumstances must %e such that a reasona%l* prudent person would have foreseen a serious and o%vious risk of death) 1avin$ re$ardin$ to the risk of death involved, the conduct of the defendant must %e so %ad in all the circumstances as to amount to, in the opinion of the 0ur*, a criminal act or omission) This was considered, for e(ample, in# /ateman D the defendant doctor removed part of a woman's uterus durin$ child%irth %ut did not send her to hospital until five da*s later) She later died) /lthou$h he had %een ne$li$ent, his actions were not seriousl* out of line with normal medical procedures at the time (1!GKs") The Court of /ppeal 3uashed his conviction for manslau$hter)