Criminal

Homicide

Murder and manslaughter are both

homicides, which requires unlawful killing.
Both crimes are differentiated by their
respective fault elements.

- Murder is an unlawful killing with ‘malice

aforethought’ while.
- Manslaughter is an unlawful killing
without ‘malice aforethought’.

Meaning of homicide
Homicide means the killing of a person. Some killings don’t generate criminal liability because the
killing may be justified or excused. This may include someone who kills accidently, negligently, or in
self-defence. These are homicides but not criminal homicides. There are two types of homicide,
innocent and criminal.

Punishing homicide
Before the Murder (Abolition of the Death Penalty) Act 1965, death sentence was the mandatory
sentence for murder. Now the mandatory sentence for murder is the life sentence and judges hare
bound to follow this and have no discretion to give a different sentence for murder. This is because
retaining the mandatory life sentence maintains the moral uniqueness for punishing murder, this
was stated in the 14th report on offences against the person (1980).

The life sentence does not mean that the person convicted for murder will remain in prison for the
rest of his life. After some time has lapsed the person can be released on license. The license is
revokable if any conditions attached to it are breached and due to this when a person is released on
license it is thought that they have completed their life sentence. Release on license is granted by
the Parole Board. However, the person cannot be released before the minimum time set by the
trial judge. The minimum time is set according to the Criminal Justice Act 2003 which sets the
principles that need to be considered when determining the minimum term. For some very serious
cases the whole life sentence term can be given.

For manslaughter judges are not bound to grant the life sentence even thought it is available for
most serious cases judges are able to grant different sentences on their discretion.

Criminal Homicide: The Actus reus.

Criminal homicide is “when a person unlawfully kills any reasonable creature in being, and under
the King’s Peace, with malice aforethought, either express or implied by the law” (Criminal law by
William Wilson).

1. Unlawful Killing
the term unlawful killing may mean that the killing that is justified or excusable is not a criminal
homicide.

In Attorney-General’s Reference (No. 3 of 1994), where a medical practitioner performed a lawful

abortion, but the foetus was born alive and later died due to the operation. The court of appeal had
to determine criminal liability for murder. The court held obiter, that the defendant is not liable for
murder because the act which caused death was lawful under the Abortion Act 1967. As J.C. Smith
says in his commentary about this case, ‘the doctor has no authority that justifies or excuses to kill a

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person in being but he does have the lawful authority of the Abortion Act for the act which, as it
happens, results in the death of a person in being’.

The Kings Peace means that killing an enemy alien under battel conditions in time of war in not
criminal homicide and is lawful. Any other killing contrary to this will be unlawful.

i. The relevance of consent.

Consent doesn’t affect the unlawfulness of criminal homicide. This is because criminal homicide does
not owe anything to the human autonomy unlike crimes of rape or assault. The act of killing is
inherently wrong which means these crimes are wrong by their nature. Crimes of rape or assault
are contingently wrong which means they are not necessarily wrong per se but are prohibited by
law. Therefore, because killing someone is inherently wrong consent cannot justify or excuse it.

Traditionally at criminal law it was adopted that a person has the right to refuse consent to life
saving treatment and the other person would not be involved in a positive act of killing. This
principle cannot be objected because of the respect for individual autonomy. And it would be
justifiable if positive assistance was given to people who are suffering from a painful illness.
However, THE PRINCIPLE IS THAT IS AN ACT WHICH IS DESIGNED TO KILL AND DOES KILL SOMEONE
CONSTITUTES TO MURDER IF INTENTION IS ESTABLISHED. This was seen in-

In R v Nicklinson- Mr Nicklinson suffered from a condition which left him paralysed from his eyelids
down. He sought that it would be lawful for his doctors or wife to terminate his life of grounds of
necessity as his illness was intolerable and that a refusal would be a violation of his human rights.
This was rejected by both the court of appeal and the supreme court. This decision was later
affirmed in the case of Nicklinson v UK at the European court human rights, and it was held that the
issue was within the margin of appreciation afforded to states which allowed them to determine
such controversial areas.

Determining lawful and unlawful contribution is also an issue. This was seen in the case of-

Purdy- where the claimant suffered from an irreversible condition and she wanted to end her life
because she knew her life would become unbearable. She decided to travel to a country where
assisted suicide was lawful, and her husband agreed to take her there. The question was whether
her husband would be prosecuted under section 2(1) of the Suicide Act 1961 for his contribution.
She sought claimed under judicial review of the Director of Public Prosecution’s refusal to publish
details on the policy Article 8(1) of the European Convention for protection of Human Rights and
freedoms which outlines what circumstances could bring about prosecution for contribution in
suicide contrary to section 2(1). Her claim was dismissed by the divisional court, but the House of
Lords departed from their earlier decision R v Director of public prosecution (2002) and held that
the DPP’s refusal were in breach of her human rights under Article 8(1). And stated that contribution
to suicide can be justified as long as doesn’t attack the deceased’s autonomy but promotes it.

ii. Conduct and Causation

For homicide it is necessary to prove that the defendant has done a positive act which caused the
victims death this is because homicide is a result crime. Causation is established where it can be
proved that BUT FOR the defendants act the result would not have occurred. Even where there
were other factors that contributed to the death but as long as there isn’t a voluntary act of the
victim or an abnormal event the chain of causation will not be broken.

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Case 1- A gives B, who is terminally ill, an overdose of painkillers designed to ‘put him out of his
misery’. This kills B immediately. Medical evidence shows that B would have died within days from
natural causes.

Conduct

Direct act of violence is not necessary. A person can kill by exposing a vulnerable person to the
elements which could lead to their death. For example, by poisoning. A person is not liable for death
if they transmit a fatal disease. A person can also be liable for an omission when death results from
a breach of a duty to act but death because of an omission are rarely treated as murder because it is
difficult to prove the intention.

2. In being.
Another substance of criminal homicide is killing a person ‘in being’. The issue is when does a human
life begin and end?

i. The beginning of life

Legally life begins at birth. Killing a foetus in the womb is not criminal homicide but it can be
depending on the age of the foetus at the time of abortion. The main issue is when does a foetus
become a person ‘in being’.

Legally the foetus does not become a human being until its born and is completed separated from
the mother. A foetus that is killed before it is born is not considered criminal homicide this was seen
in the case off Poulton (1832). This offence will be known as the offence of child destruction.

Complete separation from the mother means that no part of the foetus remains in the birth canal
but does not require the umbilical cord to be cut. The foetus will become a living being if born alive.
It does not need to start breathing this was seen in the case of Encho (1830). And also, the child
does not need to maintain an independent circulation. The child does not need to viable but needs
to be alive this was seen in the case of Ranch v mid-downs health authority (1994). A child who is
able to survive on life support because their circulation and breathing is weak is a living person for
the purpose of criminal homicide.

An issue arises when a risk causing act occurs when foetus is still in the mother’s womb but it dies
after it’s born. The authority has unanimously held the defendant guilty for criminal homicide
depending upon the mens rea. This was seen in the case of-

Senior (1832) where a midwife who delivered a baby poorly was convicted for murder when the
child died soon after being born.

In West (1848) it was held that a person who intentionally gets an unlawful abortion is guilty of
murder if the child is born prematurely or dies.

- The issue with this decision if that for criminal homicide to occur actus reus and mens rea need
to concur but in this case the intention was to kill an unborn child but for murder intention to
kill a person in being is requires.
- Another issue is that if actus reus is killing of an unborn child then unlawful abortions and child
destruction could be homicidal since the procedure is to remove the child from the womb
rather than kill it in the womb.

Where a foetus is removed before 18 weeks the standard criteria of it living is satisfied but only for a
small amount of time this was seen in the case of Ranch v mid-downs health authority (1994). the
issue is whether all such events are considered as criminal homicide.

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Purpose of crimes of abortion and child destruction is to impose a moral label on foetus killing
unlike human killing. This purpose will be fulfilled if an act directed against a foetus can be
interpreted as homicidal.

Where a mother has been negligent and causes the death by for example, taking dangerous
intoxicants. The doctrine of transferred intent will not operate and the mother will not be guilty of
murder or manslaughter. But according to the case of Senior there is no doctrine that would suggest
why liability cannot be incurred for manslaughter. Why doctrine of transferred malic cannot operate
can be seen in-

In Attorney-General’s Reference no. 3 (1994)- the defendant stabbed his girlfriend who was
pregnant. Due to this her child was born prematurely with a stab wound. He plead guilty for
intentionally causing grievous bodily harm to his girlfriend. The child died 120 days later, and the
defendant was charged with murder. It was held that the defendant’s intention towards the mother
was transferred to the child. This decision of the court of appeal was rejected by the house of lords
they held that the doctrine of transferred malic would only apply to loving beings. A foetus has a
special status and it would be inappropriate use the doctrine of transferred malice in this way. But
the defendant was charged with constructive manslaughter on the ground that the death was
caused by his unlawful act.

ii. The end of life

The end of someone life is when the person stops breathing, their heart stops pumping, and the
brain ceases to function. These functions will simultaneously disappear. Advances in medical science
has made it possible for a person to stay alive even when one or more of these functions have
stopped working. A person can be kept alive using machinery even though life isn’t worth living in
such situations the person is still alive.

Where a person is brain dead the condition is irreversible and all functions of their body stop
working. At common law a person who is brain dead will be considered legally dead and such
person cannot be killed by a medical professional or anyone else if their life support is removed.
This was seen in the case of-

Malcherek (1981)- the doctor who removed a brain-dead patients life support was not responsible
for the death but the person who put the patient in such a condition was responsible.

Where a person is not brain dead removing their life support will result in a death of a person ‘in
being’. A person is alive as long as their brain is functioning for example, persistent vegetative state
where the person goes into an irreversible coma but their brain still functions. This was seen in the
case of- Inglis (2002)- the defendant was convicted for murder after she had injected her son with
heroin who was suffering from PSV. This is a case of causing death by affirmative action.

On the other hand, if life support of a PSV patient is removed by a medical professional it is legal for
them to do so because their duty to sustain life only lasts until it is in the best interests of the
patient.

Murder
The distinction between murder and manslaughter is that murder is committed with malicious
aforethought while manslaughter isn’t. The actus reus of murder are the principles stated above.

Malice aforethought
There is no requirement of a thought out plan. The basic requirement is that it must not be an
afterthought. There is also no requirement for malice because killing someone with compassion is

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also as malicious as killing someone will an ill intention. Malice aforethought is the intention to kill
someone or cause grievous bodily harm. A person who loses control or suffers with diminished
responsibility is also capable of negating malice aforethought, but this will be considered as
voluntary manslaughter.

i. The mental element of murder before 1957.

Before the passing of the Homicide Act 1957 it was accepted that a person has malice aforethought
where they had no mitigating or justifying circumstance. Following mental states could be present if
such justifying circumstances weren’t present.

- Intention to kill- express malice.

- Intention to cause serious harm to the persons body in danger- implied malice.
- Intention to commit a felony or resist arrest- constructive malice.

The Homicide Act 1957 intended to abolish constructive malice otherwise known as felony murder
rule. Now under section 1 (1) of the Homicide Act 1957 where there is a murder in the course of
violent felony for example rape or robbery, it would not amount to murder unless it is committed
“with the same malice aforethought (express or implied) as is required for a killing to amount to
murder when not done in the course of such offences” (section 1(1)). The prosecution will not have
to prove that the defendant while committing a felony formed a mens rea for mens rea, proving that
the defendant intended to rob is not enough.

The Act does not address the issue of offence of causing grievous bodily harm with intent. Before the
Act was passed, it was sufficient for murder that the person intended to cause grievous bodily harm.
Due to the felony-murder rule the position of this rule has become uncertain. Because it was not
addressed so the position remains the same.

Case 1- A, intending to teach B, a rival villain, a lesson, breaks both his legs. This causes an artery to
rupture unexpectedly. B dies when he refuses a life-saving blood transfusion for religious reasons. A
was guilty of murder.

ii. The law post-1957

After Vickers (1957) malice aforethought is based upon proof of

a. Intention to kill- express malice.

b. Intention to cause grievous bodily harm- implied malice.

Grievous bodily harm murder.

In Vickers (1957) the defendant was convicted for murder which he broke into a house to steal but
got caught by the victim. He hit her multiple times and it was held that where a person intends to
cause grievous bodily harm, they will be guilty for murder even if the harm wasn’t intended to be
life threatening.

In DPP v Smith (1961) the house of lords approved intention to cause grievous bodily harm as
implied malice for murder but the word grievous was changed to really serious.

In Cunningham (1981) the principle was finally established unanimously that decisions in Vickers
and DPP were correctly stated and the common law approach.

Intention to kill.

Intention is a mental element of murder. what does intention comprise of is the issue. In its focal
sense it refers to aim, purpose or desire. In cases where a person shoots, poisons, or beats them up

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to cause serious injury the jury are not directed to the meaning of intention it is left to their
common sense. Where intention needs to be determined it would most likely be left to the
probability of death occurring. However, judges are not able to direct the jury to determine
intention based on likeliness of death or whether the death was foreseen.

Where a person has acted for a purpose other than that of death or serious injury the judge can
direct the jury on intention this was seen in the cases of Hyam and Hancock. Or where there is
evidence that can be interpreted on the issue intent. Thus, intention extends further than its
meaning to capture the state of mind of a person who acts knowing the consequence of his act is
most likely certain even if it wasn’t desired. But it is for the jury to decide whether there was
intention.

The house of lords in Woollin (1998) held that “where the charge is murder and in the rare cases
where the simple direction is not enough, the jury should be told that they are not entitled to find
necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty
as a result of the defendants act and that the defendant appreciated that such was the case. The
decision is one for jury to be reached upon a consideration of all the evidence”.

After this decision the jury don’t have the freedom to convict someone for murder based on the
fact that they foresaw the consequence. The prosecution must either prove that the defendant
desired to cause death or serious injury or that the defendant foresaw it as a virtual certainty as a
side effect of what they wanted. If they can only prove that they foresaw the consequence as likely
to some extent, then this will be considered recklessness and the defendant will be charged for
manslaughter as seen in the case of Hyam and Hancock where the defendants were found guilty of
manslaughter.

Foresight of the consequence being a virtual certainty is not the definition of intention and the jury
are not bound to find intention based on foresight and are expected to look at evidence to
determine intention. This principle gives the jury freedom to either find or not find intention based
on common sense. In Re A (conjoined twins) the defendant knew for certain that separating the
twins would kill one of them but if didn’t separate them both would die. But his reason for acting is
morally inconsistent with criminal intention prescribed by the crime definition.

Conclusion.

Issue with grievous bodily harm murder

1. Not possible to convey to a jury that what extent of risk categorises murderous killing.
2. Due to the uncertainty the jury may decide based on non-legal criteria.

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Malice Mitigated- Voluntary Manslaughter.

There are 3 partial defences which can mitigate voluntary murder to manslaughter. This is where
the prosecution are able to prove that the killing was intended but where the context of the case
renders the sentence unjust.

Provocation.
Provocation was relevant to murders that took place before 4th October 2010 because provocation
was abolished and replaced with the defence of loss of control under the Coroners Justice Act
2009. However, the underlying principles of loss of control are similar to those of provocation. There
are subjective and objective elements of provocation.

Subjective element is that- the killing was due to loss of self- control triggered by the persons
actions. Where loss of control wasn’t triggered by provocative actions of another the defence will to
apply this was seen in Acott (1996). Where the killing was due to revenge the defence would not
apply this was seen in Ibrams (1982).

In Ahluwalia [1992] it was held that, provocation requires a loss of self-control, but it does not have
to be due to an immediate reaction. For example, a woman subject domestic abuse might lose her
self-control after a long period of time. As long as the killing was due to loss of self-control, the
defence would apply.

Objective element- The general rule is that the reaction of the defendant should be consistent with
how a reasonable person would react to such trigger. To determine this the jury was to take into
account the persons characteristics like their race, colour, weight sexuality etc. The jury should not
consider any other characteristics that could caused the person to lose self-control below that of a
reasonable person like whether they were intoxicated or their mental health.

Loss of control- The external trigger.

This defence was created by the Coroners and Justice Act 2009 in place of provocation. It operates
only for murder because murder is the only offence which operates with mandatory life sentence.
And it is a partial defence. For the defence to be successful there must be unrebutted evidence that
the defendant lost control due to a QUALIFYING TRIGGER. the defence requires the persons actions
to be justifiable and not simply that they lost it. And the loss of self-control does not need to be
immediate.

Elements of the defence

Section 54 of the act states:

- Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of
murder if –
a. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-
control,
b. the loss of self-control had a qualifying trigger, and
c. a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in
the circumstances of D, might have reacted in the same or in a similar way to D.
- For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was
sudden. [Emphases added].

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Section 54 includes a-

a) Subjective element- A requirement that the defendant lost his self-control.

b) Objective element- that a person of the defendant’s sex and age, with a normal degree of
tolerance and self-restraint and in the circumstances of the defendant would react the way
the defendant did.

1. Subjective element.
i. The loss of control.

This element requires proof that the defendant lost his self-control. Evidence that the defendant
lost his temper isn’t sufficient. It is also not sufficient that the victims conduct was objectively
capable of causing loss of self-control if the defendant was capable of murdering them without it
this was seen in the case of R v Goodwin (2018). Under subsection 6 if the defendants own conduct
caused the qualifying trigger, then the defence will not be available.

Under s.54(4) this defence is not available if the defendant murdered someone to take revenge or
premeditated. This was seen in the case of Ibrams where the defendants carried out an attack on a
person who had subjected them to multiple attacks. Due to the attack taking place a week after the
victim had attacked them and while the victim was asleep the defence was not available.

The loss of self-control does not have to be immediate. Where there has been a lapse of time the
defence is available this was seen in the case of Ahluwalia (1996) where the defendant had suffered
a long term abused at the hands of her husband and during this time, she tried to commit suicide.
She later found out her husband was having an affair and when she tried to stop him from deserting
her and their family he threatened to burn her with a iron. After a couple of hours she threw petrol
in his room and brunt him and he died a few days later due to the burns. It can be seen that her
actions were premeditated and not immediate. It was held that in some cases a lapse of time will
not render the defence unavailable but to decide the jury need to look at all the evidence and if
there is a long lapse of time the evidence will become weak.

ii. Qualifying triggers

Under section 55 qualifying triggers are-

“(3) to defendant’s fear of serious violence from the victim or another identified person or

(4) to a thing or things done or said (or both) which

a) Constituted circumstances of an extremely grave character and

b) caused the defendant to have justifiable sense of being seriously wronged or

(5) a combination of the matters mentioned in subsections (3) and (4)”.

The act has 2 specific qualifying triggers.

First qualifying trigger

Under section 55 (3) where the defendant losses self-control due to fear that the victim poses
serious violence towards the defendant or another person. The violence doesn’t have to take place
but the fear has to be of serious violence. Where a person is unable to get the full defence of self-
defence, they are able to rely on this trigger. This was seen in the case of Ahluwalia where the wife
subject to years of abuse killed her husband. There was no threat of immediate harm.

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In Clegg [1995] and Martin (Anthony) [2001] the defendants killed the victims in circumstances
where there was reason for fear of serious violence but there was no good reason. The court held
that there was out of proportion to that fear.

Second qualifying trigger.

Under section 55 (4)(a) the things that are said or done which are relied upon as triggers
“constituted circumstances of grave character”. This excludes some triggers that were previously
accepted for provocation such as nagging, taunting, sexual jealousy etc. sexual infidelity is
specifically excluded as a qualifying trigger under section 55 (6). Triggers that are still accepted are
rape or act of violence, it applies to the victim as seen in Complin (1978), their parents or close
relatives as seen in Royley (1612) of the victim and blackmail as a trigger is also acceptable as seen
in Edwards v R (1973).

Under section 54 (4)(b) things said or done “caused the defendant to have a justifiable sense of
being seriously wronged”. It needs to be a justifiable sense of being seriously wronged. It is not
enough that the defendant feels they have been seriously wronged. This was seen in the case of

Bowyer- the defendant girlfriend was a prostitute, and the victim was her pimp. The defendant did
not know his girlfriend was a prostitute nor did he know about the victim. The victim had caught him
burgling in his girlfriend’s house, threatened him with violence and taunted him about his girlfriend
being a prostitute. The defendant killed the victim because of the taunt. It was held that by burgling
he lost any justification he might have in responding to the victims taunt.

iii. Sexual Infidelity.

Under provocation this is the trigger of sexual jealousy and possessiveness. Under section 55 (6)
sexual infidelity is not loner a qualifying act and the section specifically excludes it. This was seen in-

R v Clinton, Parker, and Evans (2012)- in this case section 55 (6) was interpreted to mean that sexual
infidelity including sexual jealousy, possessiveness, or family honour which promote loss of self-
control are no longer qualifying triggers.

Where loss of control occurs due to sexual infidelity where another trigger apart from those stated
above then it must be considered,

In R v Clinton, Parker, and Evans (2012)- the defendant had killed his partner after he found out she
was cheating on him. But the loss of self-control wasn’t just triggered by jealousy other factors were
present. The wife had abused the defendant when he asked her to not leave him and made extreme
wounding remarks and state that he was too weak minded to fulfill his desire to commit suicide. It
was held that other things said or done were of extremely grave character which caused him to lose
self-control and were justifiable sense of being wronged.

Clinton was later approved in Dawes, Hatter and Bowyer [2013], court of appeal agreed with the
decision of the trial judge, that the break-up of a relationship per se, will not be of extremely grave
character and will not be entitle the defendant to feel a justifiable sense of being seriously wronged.
It was stated by the trial judge that-

Therefore, there must be something, as seen in Clinton, in addition to the usual heart break due to
break-up of a relationship which renders the situation sufficiently grave to constitute a justifiable
sense of being seriously wronged.

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2. The objective element.

Under section 54 (1)(c), the reaction of the defendant must be consistent “with what might be
expected of ordinary people of D’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of D”. this was seen in-

R v Hill (2008)- it was held that if the victim is a child subject to sexual abuse then the jury should
take into account how a person of reasonable tolerance would react in the victims position.

R v Asmelash (2013)- it was held that voluntarily intoxication is not on of the circumstances which
needs to be considered by the jury. The jury will need to consider whether a sober person with the
defendant’s sex and age with a normal degree of tolerance and self-restraint, in the defendant’s
situation would react the way the intoxicated defendant did.

Defence of diminished Responsibility- The internal trigger

The defence of diminished responsibility is a partial defence under section 2 of the Homicide Act
1957 but was later reconfigured by section 52 of the Coroners and Justice Act 2009. the burden of
proof is on the defendant and where this defence the case will be murder. The defence is to reduce
liability for intention killing to manslaughter, so the defendant isn’t given the mandatory life
sentence.

Section 52 of the Coroners and Justice Act 2009.

“(1) A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D
was suffering from an abnormality of mental functioning which –

a) arose from a recognised medical condition,

b) substantially impaired D’s ability to do one or more of the things mentioned in subsection
(1A), and
c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are –

a) to understand the nature of D’s conduct,

b) to form a rational judgment,
c) to exercise self-control.

(1B) For the purposes of subsection 1(c), an abnormality of mental functioning provides an
explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry
out that conduct.”

Elements of defence
1. Abnormality of mental functioning arising from a recognised mental condition.

Firstly it must be established that a person suffered from an abnormality of mental functioning.
Abnormality of mental functioning has not been defined but a person has an abnormality of mental
functioning where the persons ability to form a rational judgement or exercise self-control is
impaired that it would be inappropriate to treat them as a responsible person this was seen in R v
Baker (2012). A person can rely upon this defence even if they knew what they were doing is wrong
as long as there was a known mental condition which caused specified abnormality.

2. Recognised mental conditions.

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Recognised mental condition can be found in the World Health Organization’s International
Classification of Diseases and the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders. And condition from the old law will be accepted as well.

· Arrested or retarded mental development.

· Depression (Gittens [1984]).
· Bipolar (Inglis [2010]).
· Paranoid schizophrenia (Sutcliffe [1981]).
· Brain damage. (Hendy [2006] and Wood [2008]).
· Psychopathy (Byrne [1960]).
· Paranoid personality disorder (Martin (Anthony) [2001]).
· Postnatal depression (Reynolds [1988]).
The new law, requires the testimonies of expert witnesses where the condition relied upon is
ambiguous. In the case of Brennan [2014] an important procedural issue regarding the defence was
clarified. Where there is medical evidence provided by the defence the prosecution is able to rebut
the evidence by providing their own expert testimonies. A charge of murder will be withdrawn from
the jury if medical evidence supporting a defence is produced and not rebutted by the
prosecution. The decision is ultimately one for the judge.

In Osborne [2010] the Court of Appeal held that attention deficit hyperactivity disorder (ADHD) will
not be a ground for allowing the appeal against conviction.

i. Drugs and Alcoholism.

Firstly, intoxication alone does not support the defence since the defendant’s condition will not be
due to a disease that arose from a recognised medical condition this was seen in R v Dowds (2012).

Secondly, where the defendant is an alcoholic who commits an offence due to the brain damage
caused by this condition. This was seen in Tandy, the Court of Appeal held that chronic alcoholism
could cause mental abnormality within the meaning of section 2 (1) thus, chronic alcoholism is a
recognised medical condition.

The third is where the defendant commits an offence while being intoxicated but also suffers from a
medical condition.

In R v Stewart- the Court of Appeal, held that alcohol dependency syndrome could be considered a
mental condition capable of producing, an abnormality of mind where it caused involuntary
consumption of alcohol.

In Egan- the Court of Appeal held that the jury should be asked to ignore the effect of the
intoxication and consider whether the combined effect of the other mental conditions that amount
to such abnormality of mind to substantially diminish the defendant’s mental responsibility. This
requires the defendant to prove that he committed the offence was due to his abnormality and not
because of his voluntary consumption of alcohol.

In Dietschmann, the House of Lords held that impaired responsibility could be relied upon where the
defendant suffering from a mental abnormality kills someone while being intoxicated as long as the
killing was substantially caused by the mental abnormality.

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3. Substantially impaired to do one or more thing mentioned in section 52 (1A).

The defence only operates if the mental condition substantially impaired the defendant to do one of
the three things mentioned in subsection 1(A).

a) to understand the nature of D’s conduct,

b) to form a rational judgment,
c) or to exercise self-control.

In Simcox- the court of appeal held that the trail judge was correct in the decision that the
impairment must be considerable to be substantial.

This test was approved in Golds (2016) where the supreme court agreed with the court of appeal
and held that the Simcox test was correct. Thus, it must be proved that that the defendant’s mental
abnormality had a considerable effect his mental responsibility and self-control. Whether the
impairment is considerable is a question for the jury.

4. Providing an explanation for killing.

Under the new act it is required that the abnormality must provide an explanation for the
defendant’s action of killing. It must be the reason why the killing took place. For example, their delf-
control was lacking, they didn’t understand what they were doing, or that their reason was impaired.
These are reason why the defendant might have done what they did.

Under section 52 (1B) an explanation will be provided if the abnormality “causes, or is a significant
contributory factor in causing, D to carry out that conduct”.

Involuntary Manslaughter.
Involuntary manslaughter are killings which aren’t necessarily chosen by the defendant There are 2
forms of involuntary manslaughter. First, is constructive manslaughter which is killing someone while
doing an unlawful or dangerous act. Second is killing someone due to gross negligence in breach of
duty.

1. Constructive manslaughter.
Until 1975 killing due to commission of an ordinary assault crime was manslaughter. The basis of
liability was constructive malice, but this was abolished by section 1 of the Homicide Act. Now
constructive manslaughter is when the defendant kills someone while committing an unlawful
dangerous act. For voluntary manslaughter it is not necessary to show that the defendant had
appreciated that his act was dangerous, as long as the act is considered by a sober reasonable
person the defendant will be found guilty.

Constructive manslaughter covers a wide spectrum of blame worthiness. This can be seen by
comparing two separate cases.

Firstly. In Goodfellow (1986)- the defendant burnt his council house down because he wanted to be
rehoused. Due to this his wife and another women who were in the house died while he managed to
save his 2 children. Though he didn’t intent to hurt anyone this case would have been treated as
murder before 1975.

Another case on the end of the spectrum is Mitchell (1983)- where the defendant punched a man
because he accused his of queue jumping caused the victim to fall on a 89-year-old women which
caused to break a leg and she died. He was held guilty for manslaughter.

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Elements of constructive manslaughter.

There are two elements of voluntary manslaughter unlawful act and dangerous act.

1. Unlawful Act.
i. Unlawful act must be criminal.

This is the actus reus for constructive manslaughter which is that is must be criminal and not just
unlawful. This principle can be seen in tort of negligence against a person in the case of R v Franklin
where it was held that where a person commits a tort of negligence against a person, they will not
be guilty of manslaughter.

Case 1- A, as a prank, takes away the latter of V, a roofing contractor as he is about to descend upon
it V falls to his death. The defendant will not be guilty of constructive manslaughter as the act he
committed was not criminal but rather tort of trespass to goods.

in case of battery where a simple act as punching leads to someone’s death will be constructive
murder. Because battery is a crime and punching is a dangerous act and it is likely that physical
harm will occur as a result of commission of battery. However, where a person has a defence like in
any other homicide the defendant will not be held guilty. This was seen in the case of-

Simon Slingsby- where the defendant during the course of consensual sexual activity manage to
inflict serious internal injury dur to a signet ring which caused her death. It was held that the injuries
weren’t intentional and were accidental thus there was no assault, and the defendant was not held
guilty for manslaughter.

- Liability can only be incurred for constructive manslaughter if the act is criminal in itself rather
than a lawful act becoming criminal only because it was performed negligently. These crimes
are usually ones that require proof of intention or recklessness.

Case 2- Adam is driving his car home. He overtakes a lorry while going round a bend in the road. A
car, driven by Eve, is being driven in the opposite direction. The two cars crash. Eve is killed. Adam is
uninjured. In this case Adan will not beheld guilty for constructive manslaughter because even
though dangerous driving is an offence and dangerous it is not a inherently a crime. Driving is not a
crime it only became unlawful when he started driving dangerously.

Case 3- Adam is driving his car home. He sees Eve crossing the road. As a joke he steers his car
towards her, intending to scare but not injure her. Eve jumps out of the way and into the path of a
passing car. Eve is killed. In this case Adam would be guilty of manslaughter because he committed
common assault against Eve which is an inherent crime.

ii. An omission cannot form the conduct element in constructive manslaughter.

Liability for constructive manslaughter requires proof of commission of an unlawful act. An

omission cannot be the basis of liability even where there is a breach of duty to act. This
justification of this principle is that breach of duty to act should be subject to the same rules that
other breaches of duty are subject to which is that there should be gross negligence.

2. Dangerous Act.
i. Dangerousness of act is assessed objectively.

In 1965 the requirement that there should be foresight of possible harm was abolished. Now it is
enough that the defendants act was OBJECTIVELY dangerous. In the case of Church (1965) it was
held that “the unlawful act must be such as all sober and reasonable people would inevitably

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recognise must subject the other people to at least the risk of some harm resulting therefrom, albeit
not serious harm”.

ii. The unlawfulness of an act must be constituted independently to its dangerousness.

This can be seen in the case of Lamb (1967) where the defendant and his friend were playing with a
revolver. The defendant made she that there was no bullet opposite the firing pin. When he fired the
gun, he shot his friend to death. He had not known that the chamber of a revolver revolves around.
His conviction for constructive manslaughter was quashed on appeal because even thought the
action was dangerous it was not a crime.

In the case of Church, it can be seen that the act being unlawful and dangerous are separate. The
prosecution only have to prove that an act was unlawful and that Objectively the act provoked a risk
of injury. They don’t have to prove that the offence committed against a person was dangerous by
character/ inherently dangerous.

DPP v Newbury and jones- the house of lords in this case held that the question only that needs to
be asked is whether the crime committed provoked the risk of injury. The subject matter did not
have to be crime of endangerment. In this case two kids threw pieces of paving stone onto the
pathway of a train which fell on the driver’s cabin killing him. It was held that it was not necessary to
show that the defendants foresaw the risk of harm as long as the risk is obvious to a reasonable
person.

However, in Jennings- it was held that the prosecution must pinpoint the unlawful act that was
committed.

3. Causation

In the case causation the prosecution will have to prove that BUT FOR the defendants act the harm
wouldn’t have occurred. In some cases it can also be proved that the defendants act was the
substantial and operating cause and that there was no independent intervening act that broke the
chain of causation. For constructive manslaughter it must be proved that the chain of causation
between the defendants act and the harm is intact. This was seen in the case of

Goodfellow- the court of appeal rejected the principle that the unlawful action had to be directed
against the victim.

Mitchell (1983)- the court of appeal took a similar decision and held that the question which needs
to be asked is whether the chain of causation linking the harmful act to the result was still intact.

Manslaughter by breach of duty.

Manslaughter by breach of duty also known as gross negligence manslaughter. This is the second
form of involuntary manslaughter. Where a person’s gross negligence results in someone’s death
they may be charged gross negligence manslaughter. This is the case with omissions and where the
act was not criminally unlawful. Elements of gross negligence manslaughter were established in the
case of Adomako (1995) where the defendant who was an anaesthetist failed to supervise the
patient who was given anaesthesia when the oxygen tube came off causing the death of the patient.
There were 4 elements of gross negligent manslaughter.

Elements of manslaughter by breach of duty.

1. Duty of care must be owed to the victim.
2. Defendant breached the duty owed.

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3. Breach of duty caused the death.

4. The breach of duty was gross.

a. The Duty.

A duty of care is imposed on the defendant towards the victim on the basis of foreseeability of the
injury that could occur. The main question is whether the duty of care in criminal law is similar to the
duty of care in civil law. This was seen in the case of

Adomako (1995)- Lord Mackay stated that to establish duty of care the same principles of
negligence apply. It is for the judge to determine whether a duty of care existed based on whether
the injury was foreseeable. The jury had to determine whether the duty of care was breached by the
defendant and whether the death resulted from the breach.

In criminal law a duty of care may also exist where a duty wouldn’t have been imposed in civil law.
This was seen in the case of Walker where the defendant was held under a duty of care towards
illegal immigrants when they suffocated when being transported in a lorry. In civil law damages
wouldn’t have been granted for such case.

Lord Judge CJ stated-

When a person has created or contributed to the creation of a state of affairs which he knows, or
ought reasonably to know, has become life threatening, a consequent duty on him to act by taking
reasonable steps to save the other person’s life will normally arise.

A question as to whether duty of care will only be imposed if the risk of harm was death. Herring
and Palser stated, “Criminal proceeding are not about balancing the responsibility between the
defendant and the victim but in determining whether the activity engaged in by the defendant is
sufficiently harmful and blameworthy to justify a criminal conviction.” This was seen in the case of-

R v Winter and Winter- where a fire service cameraman died in an explosion at a fireworks
company. Appeal against conviction for gross negligent manslaughter was refused and it was held
that it was reasonably foreseeable that the employee of the fire service would come in to take
pictures for training purposes, just because he failed to follow instructions doesn’t mean he wasn’t a
duty of car.

IT IS FOR THE JUDGE TO DECIDE WHETHER A DUTY OF CARE EXISTED.

b. Standard of care.

The standard of care is determined objectively like its determined in civil law. Failure to conform to
the standard of care must be gross. Where there is mere failure to conform to the standard of care
is not enough. In Adomako Lord Mackay stated that “Responsibility will depend on the seriousness
of the breach of duty committed by the defendant in all the circumstances in which the defendant
was placed when it occurred. The jury must consider whether, having regard to the risk of death
involved, the conduct of the defendant was so bad in all the circumstances as to amount in their
judgment to a criminal act or omission”. Thus, liability for gross negligence manslaughter requires
there to be a risk of death.

The risk of death also has to be apparent at the time of the breach this was seen in the case of R v
Rose [2017] where an optometrist was charged on the basis that they had failed to do a full
examination of the patient and if they did they would’ve found out that the patient had a life
threatening condition. On appeal the conviction was quashed it was held that even thought the

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negligence was gross, there wasn’t a serious and obvious risk of death if full examination was not
carried out.

Corporate manslaughter.
1. Scope of liability

Under the Corporate Manslaughter and Corporate Homicide Act 2007 an organisation is guilty “only
if the way in which its activities are managed or organised by it’s senior management is a substantial
element in breach” (subsection 3).

a. The duty of care

Duty of care that should be imposed is not stated in the Act and it is a matter for the courts and will
be determined according to Adomako.

b. Standard of care.

The breach of duty resulting in death must be gross especially where the conduct of the organisation
which amounts to the breach of duty falls far below from what would reasonably be expected of
them. It is for the jury to decide whether the breach was gross however, the Act provides the criteria
the jury has to follow. For example, considering the health and safety obligations the organisation
was under.

Summary.
Summary The actus reus of criminal homicide is conduct which unlawfully causes the death of a
living person. Conduct includes actions of any kind and also omissions in breach of duty. The conduct
does not have to be the sole cause of death as long as it is a substantial and operative cause. A living
person does not include a foetus in the womb or a person who has suffered brain death. It does
include the newly born, even where the conduct causing death preceded a live birth unless that
conduct was the execution of a lawful abortion. It includes also a person suffering from forms of
irreversible coma. Conduct is unlawful for the purpose of the law of criminal homicide if it is not
validated by a defence. Murder is committed when the defendant kills the victim with malice
aforethought. Malice aforethought in this context means simply that the defendant intended to kill
or, if not to kill, then to cause at least serious injury to the victim. Diminished responsibility and loss
of self-control are partial defences to murder which, if successful, reduce the conviction to
manslaughter. Loss of self-control, which replaced provocation, is a partial defence to murder where
there is (unrebutted) evidence that the accused lost his self-control and that this loss of control
resulted from a qualifying trigger. The qualifying triggers are (i) a fear of serious violence to D or
another person or (ii) things said and done which constitute circumstances of an extremely grave
character and which caused D to have a justifiable sense of being seriously wronged. Sexual infidelity
is not a qualifying trigger. The jury must then acquit and convict of voluntary manslaughter unless
they are convinced that in acting as he did the defendant’s behaviour has not measured up to the
standards of tolerance and self-control to be expected of a person of D’s age and sex in the
defendant’s circumstances. Diminished responsibility is a partial defence for those who kill while
suffering from an abnormality of mental functioning of understanding, rational judgement and self-
control which reduces the person’s responsibility for the killing. This abnormality must be grounded
in a recognised mental condition. Manslaughter takes two separate forms. The first, voluntary
manslaughter, occurs where all the definitional elements of murder can be established, but it is
mitigated, for reasons of provocation, infanticide, or diminished responsibility, to manslaughter. The
second, involuntary manslaughter, occurs where the actus reus of murder can be established but not

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the mens rea. The mens rea for involuntary manslaughter is ‘lower’ than that for murder but ‘higher’
than that which would justify an acquittal. Involuntary manslaughter is differentiated from non-
punishable ‘accidental’ killings by requiring proof either that the accused took an unacceptably high
risk of death in breach of duty in the performance of a possibly otherwise lawful activity or brought
about a death in the course of committing an unlawful and dangerous act.

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