Murder and manslaughter

 by Dr Peter Jepson

Murder at Common Law is defined asÖ

 ìWhere a person of sound mind unlawfully kills any reasonable creature in being and under the Queenís peace with malice aforethought, either expressly or implied, the death following within a year and a day.î

Actus reus is the unlawful killing of a person (this also applies for manslaughter) 

Mens rea of murder is malice aforethought 

(1)      Killing must be unlawful.

(2)      Causation must be established.

(3)      Victim must be a human being

(4)      Under the Queenís peace.

Statute now removed the Year and a day rule [Law Reform (Year and a Day Rule) Act 1996].

Mens rea of murder ñ

ëmalice aforethoughtí

Decided in R v Vickers [1957] that the intention to cause G.B.H is sufficient (in Vickers the V was stealing from a shop and struck an old lady with a number of blows).

Vickers was approved by H of L in Cunningham [1981] (In Cunningham D attacked a man with a chair [thus intent for g.b.h.] in a pub believing he was friendly with his girlfriend). 

See also R v Moloney [1985] where the H of L confirmed the same.

ëForesight of consequencesí as evidence of intention for murderÖ

R v Moloney [1985] Father and stepson were playing with guns. Father said that the boy would not have the guts to pull the trigger ñ he did. Stepson said that he had no intention to kill just pulled trigger without thinking of the consequences. H of L held that foresight of consequences was not the same as intention, but only evidence from which intention might be proved (found not guilty of murder but of manslaughter).

Hancock and Shankland [1986] [miners case where they dropped concrete on a car] similarly they said that THEY did not foresee the consequences of their actionsÖ

R v Nedrick (1986) Court of Appeal tried to simplify matters, Suggests Jury should ask themselves 2 questions.

 (1)      How probable was the consequence that the defendantís act would cause g.b.h or death?

(2)      Did the D foresee that his act would cause g.b.h or death? If D realised it was ëvirtually certainí that the act would cause g.b.h or death then this is evidence on which a jury can decide D had specific intention for murder.

From your reading - name a HL case that confirms this approach?

 There are three special defences to murder from the Homicide Act 1957 ñ thus establishing voluntary manslaughter.

…      Diminished responsibility (s.2)

…      Provocation (s.3)

…      Suicide pact (s.4).

If Judge accepts there are grounds for such a plea, the D needs to convince the Jury on the balance of probability.

Note that in voluntary manslaughter cases D still possesses ëmalice aforethoughtí for murder.

Diminished responsibility

(1) D must be suffering from an ëabnormality of mindí (R v Byrne [1960]) sexual psychopath killed a young woman ñ The Court of Appeal said the phrase meansÖ..

 ìa state of mind so different from that of an ordinary human beings that the reasonable man would term it abnormalî

 ñ     thus it is an issue for the jury to determine on the facts.

 (2)      Abnormality must be caused by arrested or retarded development or an internal cause or disease or injury.

This excludes being influenced by drugs or alcohol unless there is a disease or injury to the brain. In R v Tandy [1988] D had killed her 11-year-old daughter. It was decided if the alcoholism had reached a level at which Dís brain had been injured she could plead diminished responsibility.

(3)      Abnormality must ësubstantiallyí affect the accused mental responsibility for his acts or omissions. Substantially means more than some trivial degree of impairment. It is said the Jury should approach this in a commonsense way.

Provocation used in a variety of situations.

Most important point is that the provocation must cause a sudden and temporary loss of self-control.

In R v Thornton [1992] a battered wife killed her husband. Evidence showed she waited till he was asleep ñ sharpened the knife and then killed him. Court of Appeal held she could not use the defence of provocation.

Other important point is that it is not enough to show that the accused was provoked, the jury must also be convinced that a reasonable man would have been provoked in the same circumstances and would have acted as the accused did.

DPP v Camplin [1978] 15-year-old boy was sexually assaulted by an older man. The man laughed at the boy and the boy hit him with a heavy cooking pan (killed him). At the trial the Judge said they must consider with a reasonable person (adult) would have been provoked and acted in the same way. H of L held this was the wrong test and that the Jury should have considered if a 15-year-old boy (with same characteristics) would have been provoked and acted as the D did.

(Thus if a woman with a scar is provoked about her looks ñ the Jury would need to consider the standpoint of a reasonable woman with a scar etc)

Suicide Pact.

Occurs where A and D both agree to commit suicide, but only A dies.

In such circumstances D is guilty of voluntary manslaughter - not murder. 

Involuntary Manslaughter

 The accused must do an unlawful act and that act must cause the death of the victim.

Manslaughter established if dangerous in the sense that a sober and reasonable person would realise that the act might cause some injury ñ even if not serious injury. 

DPP v Newbury and Jones [1976] dropped a paving stone with intent to cause Criminal Damage.  H of L held they were guilty of manslaughter since they had done a criminal act ñ criminal damage- that was dangerous. They did not need to realise the act was dangerous because any sober and reasonable man would. 

Example of liability..

 R v Mitchell [1983] Mitchell in a P.O tried to push his way in a queue. A man objected and Mitchell pushed him ñ he fell back and a number of people fell including a 89-year-old woman. She suffered a broken leg and seemed to be recovering OK, but after a few weeks she dies from complications due to her leg. The malice was transferred and Mitchell was found guilty of involuntary manslaughter. 

Recklessness

 If there is an obvious risk that someone will be injured as a result of the defendants conduct, it is possible the D will be guilty of manslaughter even if the conduct is otherwise lawful. 

Gross Negligence

 Where a person owes a duty of care then he performs his duty so negligently that someone dies he may be guilty of manslaughter. 

R v Bateman [1925] gross negligence goes beyond a matter of compensation between subjects it is where D shows a disregard for the life and safety of others.

Court of Appeal held in R v Prentice and others [1993] that where an expert in carrying out his work and causes a death, the correct test to apply for establishing manslaughter is one of gross negligence.

Problem is that there seems to be no clear dividing line between negligence and gross negligence.