Lecture 5 homicide

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University of the West Indies Open Campus
Criminology
Homicide
Definition of Homicide
Murder and manslaughter are two of the offences that constitute homicide.
Manslaughter can be committed in one of three ways:
1. killing with the intent for murder but where a partial defence applies, namely loss of
control, diminished responsibility or killing pursuant to a suicide pact.
2. conduct that was grossly negligent given the risk of death, and did kill, is manslaughter
("gross negligence manslaughter"); and
3. conduct taking the form of an unlawful act involving a danger of some harm, that resulted
in death, is manslaughter ("unlawful and dangerous act manslaughter").
The term "involuntary manslaughter" is commonly used to describe a manslaughter falling
within (2) and (3) while (1) is referred to as "voluntary manslaughter".
There are of course other specific homicide offences, for example, infanticide, and causing death
by dangerous or careless driving.
Murder
Subject to three exceptions (see Voluntary Manslaughter below) the crime of murder is
committed, where a person:
 of sound mind and discretion (i.e. sane);
 unlawfully kills (i.e. not self-defence or other justified killing);
 any reasonable creature (human being);
 in being (born alive and breathing through its own lungs - Rance v Mid-Downs Health
Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;
 under the Queen's Peace;
 with intent to kill or cause grievous bodily harm (GBH).

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A 'year and a day'
Where the act or omission occurred after 7 June 1996, death no longer needs to follow within a
year and a day.
Unlawful Killing
Some killings may be classed as lawful. For example, killing in self-defence. Also
when the death penalty was implemented, such state ordered executions would be
classed as lawful. Soldiers and police may kill in the course of their duties but will be
liable for murder if they go beyond their duty or use excessive force:
R v Clegg [1995] 1 AC 482 House of Lords
The defendant was a soldier serving in Northern Ireland. He was manning a vehicle
check point along with four other soldiers. Other soldiers were stationed along the
road before and after the place where the defendant was stationed. A car approached
the first checkpoint and slowed down. It then accelerated at great speed with its
headlights on full beam. Another soldier ordered the car to stop to no avail. All four
soldiers at the checkpoint open fired on the car.
The defendant fired three bullets as the car was approaching and a final bullet as the
car was driving away. The final shot proved to be fatal, hitting a passenger who was in
the back seat of the car. The car had been stolen and contained young 'joy riders' not
terrorists. The defendant was convicted of murder and appealed to the Court of
Appeal. His appeal was rejected on the grounds that in firing the last shot after the
danger had passed, he had used excessive force in the circumstances. However, the
Court of Appeal made the following observations:
"There is one obvious and striking difference between Private Clegg and other
persons found guilty of murder. The great majority of persons found guilty of murder,
whether they are terrorist or domestic murders, kill from an evil and wicked motive.
But when Private Clegg set out on patrol on the night of 30 September 1990 he did so
to assist in the maintenance of law and order and we have no doubt that as he
commenced the patrol he had no intention of unlawfully killing or wounding anyone.
However, he was suddenly faced with a car driving through an army checkpoint and,
being armed with a high velocity rifle to enable him to combat the threat of terrorism,
he decided to fire the fourth shot from his rifle in circumstances which cannot be
justified and the firing of his fourth shot was found to be unlawful.

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It is right that Private Clegg should be convicted in respect of the unlawful killing of
Karen Reilly and that he should receive a just punishment for committing that offence
which ended a young life and caused great sorrow to her parents and relatives and
friends. But this court considers, and we believe that many other fair-minded citizens
would share this view, that the law would be much fairer if it had been open to the
trial judge to have convicted Private Clegg of the lesser crime of manslaughter on the
ground that he did not kill Karen Reilly from an evil motive but because, his duties as
a soldier having placed him on the Glen Road armed with a high velocity rifle, he
reacted wrongly to a situation which suddenly confronted him in the course of his
duties. Whilst it is right that he should be convicted for the unlawful killing of Karen
Reilly, we consider that a law which would permit a conviction for manslaughter
would reflect more clearly the nature of the offence which he had committed."
The Court of Appeal for Northern Ireland certified the following point of law to the
House of Lords
"Where a soldier or police officer in the course of his duty kills a
person by firing a shot with the intention of killing or seriously
wounding that person and the firing is in self-defence or in defence of
another person, or in the prevention of crime, or in effecting or
assisting in the lawful arrest of offenders or suspected offenders or of
persons unlawfully at large, but constitutes force which is excessive
and unreasonable in the circumstances, is he guilty of manslaughter
and not murder?"
House of Lords held:
In dismissing the appeal the House of Lords declined the opportunity to extend the
defence available under s.3 Criminal Law Act 1967 to allow those who use excessive
force which results in death to have manslaughter convictions substituted for a murder
conviction. Whilst their Lordships were persuaded with the merits of such a change,
any change must come from Parliament.

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 Also doctors may lawfully kill in limited circumstances:
Administering pain relief:
R v Dr Bodkins Adams [1957] Crim LR 365
Dr Bodkins Adams had administered a lethal dose of pain killers to a terminally ill
patient.
Held:
Dr Bodkins was acquitted of murder. Devlin J:
"a life shortened by weeks or months is just as much murder as one shortened by
years.... However, a doctor is entitled to do all that is proper and necessary to relieve
pain and suffering even if such measures may incidentally shorten life."
Withdrawal of treatment: Airedale Hospital Trustees v Bland [1993] 2 WLR 316
The defence of necessity: Re A [2001] 2 WLR 480
Human being
The second element of the actus reus of murder requires the victim to be a human being. This
obviously excludes animals from the remit of murder but raises questions as to at what point
does one become a human being and at what point does one cease to be a human being.
A foetus is not classed as a human being and therefore a person who kills a foetus can not be
charged with murder: A-G ref (No 3 of 1994) [1998] AC 245
A foetus becomes a human being when it has been fully expelled from it mother and has an
independent existence.

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A person ceases to be a human being when their brain stem ceases to be active irrespective of
whether they are being kept alive by artificial means: R v Malcherek and Steel [1981] 2 ALL
ER
R v Inglis [2011] 1 WLR 1110 Court of Appeal
The appellant appealed against her conviction for murdering her son Thomas. Thomas
had suffered serious head injuries when he had fallen out of an ambulance. He had
undergone lifesaving surgery which removed part of his skull which resulted in severe
head and facial disfigurement. He was in a vegetative state but doctors were hopeful
that he would make a recovery. The appellant, however, was convinced that his
vegetative state was permanent. She became obsessive and believed he was in pain
and wanted to end his suffering. She injected him with a lethal dose of heroin with
the intention to kill. She appealed against her conviction.
Held:
Her conviction was upheld
Lord Chief Justice on the issue of mercy killings:
“Therefore we must underline that the law of murder does not distinguish between
murder committed for malevolent reasons and murder motivated by familial love.
Subject to well established partial defences, like provocation or diminished
responsibility, mercy killing is murder."
On the issue of whether he was a human being:
“the law does not recognise the concept implicit in the defence statement that Thomas
Inglis was "already dead in all but a small physical degree". The fact is that he was
alive, a person in being. However brief the time left for him, that life could not
lawfully be extinguished. Similarly, however disabled Thomas might have been, a
disabled life, even a life lived at the extremes of disability, is not one jot less precious
than the life of an able-bodied person.”
On the issue of euthanasia:
“Until Parliament decides otherwise, the law recognises a distinction between the
withdrawal of treatment supporting life, which, subject to stringent conditions, may be
lawful, and the active termination of life, which is unlawful.”

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Disability now matter how extreme does not prevent a person being a human being.
In the Queen's Peace
The third aspect of the actus reus of murder excludes the killing of alien enemies in the time of
war.
MENS REA
Intent
For the principal defendant, the intent for murder is the intention to kill or cause grievous bodily
harm (GBH), nothing less. Foresight is no more than evidence from which the jury may draw the
inference of intent, c.f. R v Woollin [1999] 1 Cr App R 8 (HOL).
Attempted Murder
In contrast to the offence of murder, attempted murder requires the existence of an intention to
kill, not merely to cause grievous bodily harm: R v Grimwood (1962) 3 All ER 285. The
requisite intention to kill can be inferred by the circumstances: R v Walker and Hayles (1990) 90
Cr App R 226.
Joint Enterprise
The principle set out in R v Lane and Lane (1986) 82 Cr App R 5 and restated in R v Aston and
Mason (1992) 94 Cr App R 180 is that where two people are jointly indicted for the commission
of a crime and the evidence does not point to one rather than the other, and there is no evidence
that they were acting in concert, the jury ought to acquit both. This equally applies to homicide
offences.
Where association evidence is relied on, the circumstances of the association of the suspect with
the principal offender, together with the other evidence in the case, must give rise to the
inference that the suspect was assisting or encouraging the principal's offence. In some
circumstances it may be appropriate to consider alternative charges which may be available and
which do not require the use of the joint enterprise doctrine. In the event that the particular
circumstances apply and no such alternative is available prosecutors should weigh carefully the
merits of proceeding with the more serious charge under the doctrine of joint enterprise.

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Each case will need to be considered on its own facts and on its own merits before a decision to
prosecute is made.
Causation
The prosecution must always show a causal link between the act/omission and the death.
The act or omission must be a substantial cause of death, but it need not be the sole or main
cause of death. It must have "more than minimally negligibly or trivially contributed to the
death." - Lord Woolf MR in R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1
All ER 344.
It does not matter that the act/omission by the defendant merely "hastened" the victim's death: R
v Dyson (1908) 1 Cr App R 13.
However, where it is alleged that an omission was a substantial cause of death, causation is
particularly difficult. It is necessary to prove to the criminal standard that but for the omission
the deceased would not have died.
To break the "chain of causation" an intervening act must be such that it becomes the sole cause
of the victim's death so as to relieve the defendant of liability. (Consider R v Kennedy (2007) 3
W.L.R. 612 below in Cases where death results from the unlawful supply of drugs.)
Examples of intervening acts are:
 Third party interventions: such an act will not break the chain unless it was a free,
deliberate, informed, voluntary act, which was not reasonably foreseeable by a reasonable
person: R v Pagett (1983) 76 Cr App R 279.
 Acts of God or nature can break the chain if entirely unforeseen and unconnected with
the defendant's act.
 An act of the victim will break the chain if not within the range of response which might
be anticipated from a victim in his situation: R v Roberts (1972) 56 Cr App R 95 and R v
Williams & Davis 1992 CLR 198. Note: Reeves v Metropolitan Police Commissioner
(HOL) 2000 1 AC 560 where it was accepted that if the police were aware that the
prisoner was a known suicide risk then a special duty of care existed and that Novus actus
interveniens did not apply where he then went on to commit suicide.
 Death resulting from any normal medical treatment employed to deal with a criminal
injury must be regarded as caused by the criminal injury. It is only in the most
extraordinary case that treatment designed to repair the harm done by the original attack
could be regarded as the cause of the victim's death to the exclusion of the accused's act:
R v Cheshire (1991) 3 All ER 670.

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The defendant must take his victim as he finds him under the 'egg-shell skull' rule: R v LeBrun
(1991) 4 All ER 673.
Partial Defences to Murder
Partial defences, are different to complete defences, such as self-defence, as they bear all the
ingredients of murder but if successfully argued, reduce the offence to an act of" voluntary
manslaughter" not murder.
There are three partial defences to murder: diminished responsibility, loss of control and killing
in pursuance of a suicide pact.
In addition there is a so called 'concealed' partial defence, created by legislation in the act of
infanticide, see below in this guidance.
Note: Duress is not a defence to a charge of murder or attempted murder.
MANSLAUGHTER
Where manslaughter replaces murder due to one of the special defences this is known as
voluntary manslaughter. This is because the defendant has the mens rea of murder which is often
referred to as having murderous intent. Where a killing has occurred in the absence of murderous
intent this is known as involuntary manslaughter.
Diminished responsibility is one of three special defences which exist solely for the offence of
murder. It is contained in the s.4A of the Offences Against the Person Act Chap 11:08 of the
Laws of Trinidad and Tobago. Where the defence of diminished responsibility is successfully
pleaded, it has the effect of reducing a murder conviction to manslaughter.
The three special defences of diminished responsibility, loss of control and suicide pact differ
from general defences in that they do not apply to all crimes and also the effect is to reduce
criminal liability rather than to absolve the defendant from liability completely.
To rely on the defence, the defendant must be able to demonstrate the following:

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1. An abnormality of mental functioning caused by a recognised medical condition.
2. Which provides an explanation for the defendant’s acts or omissions in being party
to the killing.
3. Which substantially impaired his/her mental ability to either:
a) Understand the nature of their conduct or
b) Form a rational judgment or
c) Exercise self–control
Abnormality of the mental functioning caused by a recognised mental condition.
The question of whether the defendant is suffering from an abnormality of the mental
functioning is for the jury to decide after hearing medical evidence. The jury are not bound to
follow medical opinion it is ultimately their decision as to whether the defence should succeed. A
notorious example of the jury ignoring medical opinion was present in the trial of Peter
Sutcliffe (the Yorkshire ripper) where the medical opinion was unanimous that the defendant
was a paranoid schizophrenic, yet the jury refused to allow him the defence. Abnormality of the
mental functioning is assessed by reference to what a reasonable man would regard as abnormal.
It has a wide meaning and encompasses the inability to exercise will power and control.
R v Byrne (1960) 2 Q.B. 396
The appellant murdered a young girl staying in a YWCA hostel. He then mutilated her body. He
did so as he was suffering from irresistible impulses which he was unable to control.

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Held:
"abnormality of mind" was wide enough to cover the mind's activities in all its aspects, including
the ability to exercise will power to control physical acts in accordance with rational judgment.
But "abnormality of mind" means a state of mind so different from that of ordinary human
beings that a reasonable man would term it abnormal. He was thus allowed the defence to reduce
the murder conviction to manslaughter.
Some examples of what has been held to constitute an abnormality of the mind include:
 Jealousy (R v Miller 1972,even unfounded jealousy R v Vinagre 1979)
 Battered woman syndrome (R vHobson 1997, R vAhluwalia 1993)
 Pre-menstrual tension (R vSmith 1982, R vReynolds 1988)
 Epilepsy (R vCampbell 1997)
 Chronic depression (R vSeers, R v Gittens 1984)
In each case the defendant must demonstrate that the characteristic was excessive when
compared to that experienced by a reasonable person.
2. The abnormality must provide an explanation for D’s act or omission in being party to
the killing. - This is an issue of causation - S. 4A states that an abnormality of mindis caused
by an arrested or retarded development of the mind or any inherent causes or induced by disease
or injury. This is interpreted by the courts as meaning that the abnormality must be caused by an
inside source and that outside factors causing the abnormality such as alcohol or drugs cannot be
taken into account unless the abnormality was as a result of the disease of alcoholism or drug
addiction or long term damage caused by the intake of such intoxicants:

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 R v Tandy [1989] 1 WLR 350
 R v Wood [2009] 1 WLR 496
 R v Stewart [2009] 1 WLR 2507
The same approach is applied where the defendant is intoxicated by prescription drugs: R v
O'Connell 1997 Crim LR 683
Where there exists an abnormality of the mind in addition to intoxicants, the legal position was
stated in R vGittens and affirmed in R vDietschmann.
The appellant attacked and killed his wife with a hammer and then raped and killed
his daughter. At the time of the killing he suffered from severe depression. He had
attempted suicide and had been hospitalised and on prescribed medication. On a visit
home from hospital he consumed a quantity of alcohol and also took some
prescription pills whilst his wife was out. On her return he and his wife had a violent
argument and he killed her with a hammer. He was convicted on the two counts of
murder.
The evidence of three doctors called on behalf of the appellant at his trial was that he
suffered from an abnormality of mind due to inherent causes which substantially
impaired his mental responsibility. Two of the doctors considered that the abnormality
of mind was due to a depressive illness and the third considered that the abnormality
of mind was due to a disorder of his personality induced by psychological injury. The
doctor called on behalf of the prosecution agreed that the appellant was suffering from
an abnormality of mind, but in his view that abnormality was brought on by drink and
drugs and was not inherent and was not the result of an illness.
The judge directed the jury:

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"Of course you have a further consideration in this case: that drink combined with
taking the sleeping tablets certainly may have had something to do with his acts of
killing in this case. I do not think there is any dispute about that on the part of any of
the doctors. It may have played some part in what he did, but what you have to decide
here is what was the substantial cause of his conduct. Was it the abnormality of mind
from which he suffered that substantially impaired his mental responsibility, an
abnormality of mind arising, of course, from inherent causes or from disease or injury,
not an abnormality of mind arising from the taking of drink - for that does not help?
As I say, you ask yourselves what was the substantial cause of his conduct. If it be
substantially the abnormality of mind arising for those reasons other than drink or
drugs, why, then, the defence of diminished responsibility has been established."
The jury convicted of murder on both counts and the defendant appealed.
Held:
The murder convictions were substituted for manslaughter convictions on the grounds
of diminished responsibility.
The jury should be directed to disregard what, in their view, the effect of the alcohol
or drugs upon the defendant was, since abnormality of mind induced by alcohol or
drugs is not (generally speaking) due to inherent causes and is not therefore within the
section. Then the jury should consider whether the combined effect of the other
matters which do fall within the section amounted to such abnormality of mind as
substantially impaired the defendant's mental responsibility within the meaning of
'substantial' set out in R v Lloyd [1967] 1 QB 175.

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Therefore four points clearly emerge from the judgment of the Court of Appeal in
Gittens:
(i) Where a defendant suffers from an abnormality of mind arising from arrested or
retarded development of mind or inherent causes or induced by disease or injury and
has also taken drink before the killing, the abnormality of mind and the effect of the
drink may each play a part in impairing the defendant's mental responsibility for the
killing.
(ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect
of the drink on the defendant's mind, the abnormality of mind arising from a cause
specified in subsection 2(1) nevertheless substantially impaired his mental
responsibility for his fatal acts.
(iii) Accordingly it is not correct for the judge to direct the jury that unless they are
satisfied that if the defendant had not taken drink he would have killed, the defence of
diminished responsibility must fail. Such a direction is incorrect because it fails to
recognise that the abnormality of mind arising from a cause specified in the
subsection and the effect of the drink may each play a part in impairing the
defendant's mental responsibility for the killing.

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(iv) The direction given by the judge in R v Turnbull (Launcelot) 65 Cr App R 242
should not be followed.
Acute voluntary intoxication (binge drinking) alone is not capable of founding the defence of
voluntary intoxication:R v Dowds [2012] EWCA Crim 281
3. Which substantially impaired his/her mental ability
The defendant must show that the abnormality of the mind must have substantially impaired his
mental ability to either:
 Understand the nature of their conduct or
 Form a rational judgment or
 To exercise self –control
This is a question for the jury to decide after hearing medical evidence. It is not necessary to
show a complete loss of control, however, any evidence of planning on the part of the defendant
may be used to show the defendant’s mental ability was not impaired: R v Campbell [1997] 1 Cr
App R 199
Raising diminished responsibility on appeal
If the defendant did not raise the defence of diminished responsibility at trial, the appeal courts
are reluctant to admit fresh evidence relating to diminished responsibility:
R v Andrews [2003] EWCA Crim 2750
In the case of R v Ahluwalia [1993] 96 Cr App. R. 133, Lord Taylor CJ stated:
"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if
medical evidence is available to support a plea of diminished responsibility, it should be
adduced at the trial. It cannot be too strongly emphasised that this court would require

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much persuasion to allow such a defence to be raised for the first time here if the option
had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants
might be encouraged to run one defence at trial in the belief that if it fails, this court
would allow a different defence to be raised and give the defendant, in effect, two
opportunities to run different defences. Nothing could be further from the truth. Likewise,
if there is no evidence to support diminished responsibility at the time of the trial, this
court would view any wholly retrospective medical evidence obtained long after the trial
with considerable scepticism.
PROVOCATION
Please note that in the UK the law of provocation was repealed by the Coroners and Justice Act
2009 and replaced with the defence of Loss of Control. The defence of provocation remains
applicable to killings which took place before 4th Oct 2010.
The defence of provocation is a further special defence to murder contained in s. 4B of the
Offenses Against the Person Act Chap 11:08 alongside diminished responsibility.These are
referred to as special defences as they only apply to the law of murder. They are also partial
defences as they do not provide a complete defence but can reduce a murder charge to a
manslaughter charge.
The requirements of the defence of provocation under s.4B of the Act are:
1. There must be evidence of provocation.
2. The defendant must have been provoked to lose their self control.
3. The provocation must be such as to make a reasonable man do as the defendant did.

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1. There must be evidence of provocation
s.4B requires there to be evidence that the person charged was provoked by things done or said.
This extended the common law defence of provocation which did not recognise provocation by
words.There is no requirement that the provocative act was deliberate or aimed at the victim:R v
Davies [1975] 1 QB 691
 Even the constant crying of a baby is admissible as evidence of provocation: R v
Doughty (1986) 83 Cr App R 319
 However, without some evidence of a provocative act, the judge cannot put the issue of
provocation to the jury even where the circumstances suggest that the defendant lost their
self- control:R v Acott [1997] 1 WLR 306
 The jury may take into account actions over a period of time:R v Ahluwalia [1992] 4 All
ER 889
 A defendant will still be allowed the defence if they induced the provocation: R v
Johnson [1989] 1 WLR 740
2. Loss of self control.
s.4B of the Act requires the accused to be provoked into losing their self control. The common
law definition provided by Devlin J (as he then was) in R v Duffy (as affirmed by the Court of
Appeal) applies:
"Provocation is some act, or series of acts done (now includes words)... which would cause
in any reasonable person and actually causes in the accused, a sudden and temporary loss
of self-control, rendering the accused so subject to passion as to make him or her for the
moment not master of his or her mind."

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R v Duffy [1949] 1 All ER 932
R v Duffy was decided before the introduction of the Homicide Act 1957 which makes no
reference to the requirement that the loss of self control must be sudden and temporary for the
defence of provocation. However, the Duffy definition was approved as being authoritative
following the Act's introduction in countless cases. It has been argued that the definition is too
restrictive and can operate harshly particularly on wives who kill abusive and violent husbands.
The provocation defence was unsuccessful in the following cases as the defendants were unable
to demonstrate a sudden and temporary loss of control:R v Ahluwalia [1992] 4 All ER 889, R v
Thornton [1996] 1 WLR 1174
 If there is any evidence of planning this will demonstrate no sudden and temporary loss
of control.
 The loss of control need not be complete so as to negate murderous intent:R v Richens
[1993] 4 All ER 877
3. The provocation must be such as to make a reasonable man do as the defendant did.
This third element of the defence of provocation is a question for the jury. The jury is required to
balance the gravity of the provocative act against the actions expected of a reasonable man. S.4B
provides that in determining the question of whether the provocation was enough to make a
reasonable man do as the defendant did, "the jury shall take into account everything both done
and said according to the effect, in their opinion, it would have on a reasonable man".
This element has proved problematic when the courts have sought to interpret and apply the
section and has been the subject of many appeals.

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Originally it was held that this third element was entirely objective and no account could be
taken of characteristics of a particular defendant in assessing both the gravity of the provocation
or the reaction of a reasonable man:DPP v Bedder [1954] 1 WLR 1116
However, in the following case it was accepted that certain characteristics could be taken into
account in assessing whether a reasonable man would have done as the defendant did:DPP v
Camplin [1978] AC 705
This lead to uncertainty as to what characteristics could be taken into account. In Newell it was
stated that characteristics which were sufficiently permanent and actually related to the
provocation could be considered by the jury:R v Newell (1980) 71 Cr App R 331.
This suggests that provided the characteristic is sufficiently permanent it should be taken into
account no matter how incompatible with the concept of a reasonable man. In R v Morhall [1995]
3 WLR 330 the court accepted that even discreditable characteristics should be taken into
account in the question of the gravity of the provocation but not in assessing the reaction
expected of a reasonable man:R v Morhall [1995] 3 WLR 330
It was accepted that mental characteristics should be attributed to the reasonable man in the
following cases:
 Battered woman syndrome:R v Ahluwalia [1992] 4 All ER 889
 Eccentricity and obsessional personality traits:R v Dryden [1995] 4 All ER 987
 Attention seeking:R v Humphreys [1995] 4 All ER 1008
These cases lead to concern that the law on provocation had taken a wrong turning and that the
law expressed in Newell had been misinterpreted in that the characteristics of the defendant
could be taken into account not only in assessing the gravity of the provocation but also in
assessing the reaction expected of the defendant. This concern culminated in the Privy Council
decision in the following case:Luc ThietThuan [1997] AC 131

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Privy Council decisions are not generally binding in English law. In R v Smith (Morgan), the
House of Lords had the opportunity to consider the issue and decided against the approach taken
in Luc ThietThuan: R v Smith (Morgan) [2000] 3 WLR 654
The difficulties arising from such an approach were seen in the following case where it was held
that characteristics of excessive jealousy and possessiveness should be taken into account by the
jury: R v Weller [2003] Crim LR 724
Subsequently the issue of mental characteristics in relation to the law of provocation came before
the Privy Council for further consideration in the landmark case of A-G for Jersey v Holley. The
Judicial Committee of the Privy Council, consisting of nine members of the House of Lords,
made an unprecedented announcement that they were declaring the law applicable to England
and Wales and departed from the House of Lords precedent in R v Smith (Morgan) following the
previous Privy Council decision in Luc ThietThuan.
Attorney General for Jersey v Holley [2005] 3 WLR 29 - Following on from this case the Court
of Appeal has accepted that the Privy Council did state the law on provocation applicable to
England and Wales and has applied the decision in three subsequent cases and thereby departing
from the House of Lords precedent in R v Smith (Morgan).
Reform of Provocation in the UK
The Coroners and Justice Act 2009 abolished the defence of provocation and has replaced it
with a new defence of loss of control. This came into force October 2010. S.3 of the Homicide
Act 1957 and the common law of provocation is to be repealed by s.56 Corononers and Justice
Act 2009. S.54 introduces a new defence of loss of control where it has been prompted by a
trigger event. Qualifying triggers are set out in s.55.
The some of main changes:
 there is no requirement the loss of control need be sudden s.54(2)
 Sexual infidelity will not count as a qualifying trigger

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 A qualifying trigger must relate to either fear of violence from the deceased or from
things done or said.
 There are two requirement to be satisfied where the trigger is through things done or said.
These are that the circumstance must be of an extremely grave character and the
circumstances must have caused the defendant to have a justifiable sense of being
wronged.
 If the fear of violence or things done or said were incited by the defendant they are to be
disregarded.
CONSTRUCTIVE MANSLAUGHTER
Constructive manslaughter is also referred to as unlawful act manslaughter. Constructive
manslaughter is a form of involuntary manslaughter in that an unlawful killing has taken
place where the defendant lacks the mens rea of murder. There are two types of involuntary
manslaughter: constructive manslaughter exists where the defendant commits an unlawful
dangerous act which results in death; where the defendant commits a lawfulact which results
in death this may amount to gross negligence manslaughter.
Elements of the offence:
The offence of constructive manslaughter can be broken down into three elements:
1. There must be an unlawful act
2. The unlawful act must be dangerous
4. The unlawful dangerous act must cause death

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1. There must be an unlawful act
Originally any unlawful act would suffice for constructive manslaughter even if it was only
against civil law:R v Fenton (1830) 1 Lew CC 179
However, it was later established that only offences against criminal law would suffice:R v
Franklin (1883) 15 Cox CC 163
All elements of the unlawful act must be present. If there is no unlawful act, there can be no
conviction for constructive manslaughter (although there may possibly be liability for gross
negligence manslaughter):R v Lamb [1967] 2 QB 981
 There must be an unlawful act, omissions will not suffice:R v Lowe [1973] QB 702
 The unlawful act need not be directed at the victim:R v Larkin (1942) 29 Cr App R 18
 The unlawful act need not be directed against a person:R v Goodfellow (1986) 83 Cr
App R 23
2. The unlawful act must be dangerous
The unlawful act must be dangerous, however, dangerous is not given its ordinary and natural
meaning. The specific meaning of dangerous was given by Edmund Davies LJ in Church as:
"the unlawful act must be such as all sober and reasonable people would inevitably recognise
must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not
serious harm." - R v Church [1965] 2 WLR 1220
The test is thus objective, concerned with what a sober and reasonable person would regard as
giving rise to some harm. This is assessed as if the reasonable person were present at the time of
the unlawful act and observing. The reasonable person will thus have only the knowledge of an

22
observer any special factors which would not be apparent to an observer will not be taken into
account.
To amount to dangerous for these purposes, the sober and reasonable person must recognise the
act as inevitably resulting in physical harm:
R v Carey &Ors [2006] EWCA Crim 17
Any knowledge of the defendant, including a mistaken belief, can not be imputed to the sober
and reasonable person:R v Ball [1989] Crim LR 730
3. The unlawful dangerous act must cause death
This has been particularly problematic for the courts in relation to where a death occurs from
taking drugs. The question arises as to whether those who supply such drugs can be liable for
manslaughter. Where the defendant actually injects the drug to another person resulting in death,
the position is quite straight forward. The defendant's unlawful act is administering a noxious
thing contrary to s.23 Offences Against the Person Act 1861 and this act causes death. The
defendant is liable for manslaughter notwithstanding the fact that the victim consented to the
injection. See:R vCato [1976] 1 WLR 110
However, Lord Widgery CJ's obiter comments lead to confusion in the law. Lord Widgery stated,
had it not been possible to rely on the unlawful act of administering a noxious thing, the
defendant would nevertheless be liable as he had committed the unlawful act of possession. The
difficulty being that possession of drugs does not in itself cause death.
In R vDalby it was recognised that the possession or supply of drugs did not cause death:R v
Dalby (1982) 74 Cr App R 348
However, the case of R vKennedy proved problematic for the courts. It was subject to two
appeals to the Court of Appeal and an appeal to the House of Lords. It concerned the position

23
of a person who had prepared a solution of heroin and handed it to the victim who then injected
himself. The first appeal was unsuccessful:R v Kennedy [1999] Crim LR 65
His conviction was upheld on the grounds that he had assisted the unlawful act of the deceased in
self-injecting.
However, in the subsequent case of R vDias it was pointed out that it is not a crime to inject
oneself:R v Dias [2002] 2 Cr App R 5
This point was followed in R vRichards where the conviction was quashed as it was based on the
law as stated in Kennedy's first appeal:R v Richards [2002] EWCA Crim 3175
This lead to Kennedy's further appeal to the Court of Appeal:R v Kennedy [2005] 1 WLR
2159
However, this was also unsuccessful. The court held, following the case of R vRodgers, that the
unlawful act was his assisting in the administration of the drug and thus amounted to an offence
under s.23.
R v Rodgers [2003] 1 WLR 1374
However on appeal to the Lords, the House affirmed the decision in R vDias and held that it is
never appropriate to convict a person of constructive manslaughter, where he supplies a class A
drug to a fully informed and responsible adult who then freely and voluntarily self administers
the drug.

24
Mens rea of constructive manslaughter?
At one time it was thought that it must be shown that the defendant had the intention to frighten
or harm a person or could foresee the risk of harm. This was based on an obiter statement by
Lord Denning in a civil case: Gray v Barr [1971] 2 QB 554
However, in the following case it was established that the statement had no relevance in criminal
case. DPP v Newbury [1977] AC 500
Consequently it need only be established that the defendant had the mens rea of the unlawful act
committed. There is no requirement that the of mens rea in relation to the ensuing death.
GROSS NEGLIGENCE MANSLAUGHTER
Under English law, where a person causes death through extreme carelessness or incompetence,
gross negligence is required. While the specifics of negligence may vary from one jurisdiction to
another, it is generally defined as failure to exercise a reasonable level of precaution given the
circumstances and so may include both acts and omissions. The defendants in such cases are
often people carrying out jobs that require special skills or care, such as doctors, teachers, police
or prison officers, or electricians, who fail to meet the standard which could be expected from a
reasonable person of the same profession and cause death.
In R v Bateman the Court of Criminal Appeal held that gross negligence manslaughter involved
the following elements:
1. the defendant owed a duty to the deceased to take care;
2. the defendant breached this duty;
3. the breach caused the death of the deceased; and
4. the defendant's negligence was gross, that is, it showed such a disregard for the life and
safety of others as to amount to a crime and deserve punishment.

25
The House of Lords in Seymour sought to identify the mens rea for "motor manslaughter"
(negligently causing death when driving a motor vehicle). Reference was made to R v Caldwell
and R v lawrence[9][10]
which held that a person was reckless if:
1. he did an act which in fact created an obvious and serious risk of injury to the person or
substantial damage to property; and
2. when he did the act he either had not given any thought to the possibility of there being
any such risk or had recognised that there was some risk involved and had nonetheless
gone on to do it.
The conclusion was that for motor manslaughter (and, by implication, for all cases of gross
negligence), it was more appropriate to adopt this definition of recklessness. Consequently, if the
defendant created an obvious and serious risk of causing physical injury to someone, there could
be liability whether there was simple inadvertence or conscious risk-taking. It was no longer a
defence to argue that the negligence had not been gross.
In Adomako an anaesthetist failed to notice that a tube had become disconnected from the
ventilator and the patient died. Lord Mackay disapproved Seymour and held that the Bateman
test of gross negligence was the appropriate test in manslaughter cases involving a breach of duty,
allowing the jury to consider the accused's conduct in all the surrounding circumstances, and to
convict only if the negligence was very serious. Individuals have a duty to act in the following
situations:
 to care for certain defined classes of helpless relatives, e.g. spouses must take care of
each other, and parents must look after their dependent children. In R v Stone and
Dobinson[12]
an elderly woman with anorexia nervosa, came to stay with her brother and
his cohabitee, who were both of low intelligence, and subsequently starved herself to
death. The Court of Appeal held that the question whether the couple owed a duty to care
for the deceased was a question of fact for the jury, which was entitled to take into
account the facts that she was a relative of one of the appellants, that she was occupying a
room in his house, and that the other appellant had undertaken the duty to care for her by
trying to wash her and taking food to her.

26
 where there is a contract (even if the person injured was outside the contractual
relationship and, in the civil law would be barred by privity from enforcing the contract).
In R v Pittwood1902 TLR 37, a railway crossing gatekeeper had opened the gate to let a
cart pass and forgot to shut it again. Later a hay cart was struck by a train while crossing.
He was convicted of manslaughter. It was argued on his behalf that he owed a duty only
to his employers, the railway company, with whom he had contracted. Wright J, held,
however, that the man was paid to keep the gate shut and protect the public so had a duty
to act. In contracts relating both to employment and to the provision of services, R v
Yaqoob[13]
considered a partner in a taxi firm who was responsible for making all
necessary arrangements for the inspection and maintenance of a minibus which had
overturned after its tyre burst, killing one of its passengers. He was convicted of
manslaughter because the failure properly to maintain the minibus was the direct cause of
the accident and there was an implied duty owed both to other members of the
partnership and to those renting the vehicle, to inspect and maintain beyond the standard
required for an MOT test, council inspections, and other duties imposed by regulation.
The jury was competent to assess whether the failure to discharge that implied duty was
gross negligence without hearing any expert evidence; these were not technical issues and
they did not need expert help. The sentence of four years imprisonment was within the
sentencing band and not excessive.
In Attorney-General’s Reference (No 2 of 1999),[14]
a case on corporate manslaughter that arose
out of the Southall rail crash, the Court of Appeal decided the defendant's subjective state of
mind (i.e. whether there was conscious risk-taking) is irrelevant and, therefore, so is the question
of recklessness, leaving the objective test as the only test for liability. Rose LJ, said:
Although there may be cases where the defendant’s state of mind is relevant to the jury’s
consideration when assessing the grossness and criminality of his conduct, evidence of his state
of mind is not a pre-requisite to a conviction for manslaughter by gross negligence. The
Adomako test is objective, but a defendant who is reckless as defined in Stone may well be the
more readily found to be grossly negligent to a criminal degree. In our judgment unless an
identified individual’s conduct, characterisable as gross criminal negligence, can be attributed to
the company, the company is not, in the present state of the common law, liable for manslaughter.

27
Civil negligence rules are not apt to confer criminal liability…the identification principle
remains the only basis in common law for corporate liability for gross negligence manslaughter.
This was only persuasive authority for the law of manslaughter at large, but R v DPP, ex p
Jones[15]
which said that the test of negligent manslaughter is objective, confirmed Attorney
General’s Reference (No 2 of 1999) as a correct general statement of law.

Lecture 5 homicide

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