Criminal Homicide Law PDF

1\. Criminal homicide comprises of two key forms: murder and involuntary manslaughter, they are distinguished by their mental elements. 2\. Murder requires intention to kill or cause GBH as mens rea. \- Manslaughter requires proof of fault which varies: i\. Reckless manslaughter foresight of deat...

1\. Criminal homicide comprises of two key forms: murder and involuntary manslaughter, they are distinguished by their mental elements. 2\. Murder requires intention to kill or cause GBH as mens rea. \- Manslaughter requires proof of fault which varies: i\. Reckless manslaughter foresight of death or serious injury ii\. Gross negligence manslaughter no foresight, but a very high degree of negligence as to risk of death. iii\. Constructive manslaughter neither foresight nor negligence. Commission of a crime likely to cause harm with the relevant mens rea for that crime. 3\. We will now discuss the common elements in criminal homicide, these are the actus reus which are the same for all types. \- The common elements are constituted by a killing, which is unlawful, and has a human victim. A unlawful killing: \- A killing is lawful if it is accidental, that is, not blameworthy. It is also lawful if a valid defence operates, for example self defence. \- Consent is not a defence to liability for criminal homicide by affirmative action: there no defence of euthanansia. In R v Nicklinson: \- Nicklinson suffered from locked-in-syndrome, following a stroke which rendered every muscle in his body below his eyeballs paralysed. \- Sought a declaration that it would be lawful on the grounds of necessity for his doctors or his wife to terminate his life, since his consideration rendered his life intolerable. \- He claimed a refusal would be a violation of his human rights and his autonomy. \- Claim was rejected. \- The criminal law does respect a person\'s autonomy to a certain degree, however, if V refuses medical treatment which will save their life, or even the life of another, doctors who agree to that refusal are not responsible for the resulting death. -In St George\'s NHS Health Care Trust v S, it was unlawful for a doctor to nerform an emervency caesarean on a woman without herboth the woman and her unborn child. A human victim: -The law of criminal homicide only protects living human beings. \- In legal terms, human life begins at birth, killing a foetus en ventre sa mere (in his mothers belly) is not defined as a criminal homicide, but may represent the offence of abortion or child destruction depending upon the age of the foetus at the time of killing. \- A foetus does not become a human being until completely born, when there is complete extrusion from the mother, therefore a child killed while being born is not a human being for the purpose of criminal homicide. \- Complete extrusion requires no part of the child remain in the birth canal, it does not require the umbilical cord to have been severed. \- The foetus will become a living person if born alive- minimum requirement is capable of breathing, it is not necessary that he has begun to breath (Enoch 1830). \- The test, is not whether the child is capable of living independently but whether it is living independent of its mother. \- A child whose breathing and circulation are so weak and erratic that it can only survive indefinitely on life support is a living person for the purpose of homicide. In Senior, a midwife was held guilty of manslaughter for so badly delivering a child that the child died soon after birth. In West, it was held that a person who performs an act with intent to procure an abortion is guilty of murder if the effect of the act is to cause the child be born prematurely and die. In Attorney General\'s Reference (No. 3 of 1994): \- R stabbed his girlfriend knowing that she was in an advanced state of pregnancy. \- As a result, the child was born prematurely suffering from stab-wounds. \- R subsequently pleaded guilty to manslaughter for the death of his girlfriend. \- When 120 days later, the child died he was also charged with murder of the child. \- COA held that the trial judge was wrong to withdraw the case from the jury on the murder charge. \- If R intended to kill or seriously injure the mother, this intent would transfer to feed the mens rea requirement of the murderagainst the child. HOL rejecting these conclusions stated that the doctrine of transferred malice applied only to living persons, -They beld he was guilty of constructive manslauter, on the ground he committed a dangerous and unlawful act which cammed death -Another focal element in the establishment of the killing of a human being is determining when there is an end of life: -Life stops when a human being stops breathing, heart stops pumping or a brain ceases to function. -Advances in medical sciences have rendered the possibility of one these functions continuing whilst the remainder cease to function, although, conventionally usually all three halt simultaneously. -The legal position is that a person whose brain ceases to function is legally dead. -Such a person cannot be \'killed\' by a medical practitioner. In Malcherek: \- the actions of a doctor in removing a brain dead patient from life support was said not to be the cause of the death, since it had occurred already. \- thus, leaving the person who brought about this condition responsible for homicide. \- In all other cases, the removal of artificial life support where brain death has not occurred results in the death of a person in being. \- The duty of medical practitioners to sustain life remains only as long as the patients interests are being furthered. 4\. The formal distinction between murder and manslaughter hangs on the presence or absence of malice aforethought. Having discussed the actus reus common for all types, we will now move on to the mens rea. 5\. Murder Malice aforethought post 1957: -It was after R v Vickers where it was decided that malice aforethought in murder is established upon proof of i\. an intention to cause grievous bodily harm (implied malice) it an intention to kill (express malice) GBH murder: -In Vickers, the C was convicted of murder, whichijat the time was a capital offence (death punishment). -He had broken into premises to steal, and had been disturbed by an elderly lady, struck her a number of blows which caused her death. -Trial judge directed jury that he was guilty of murder if in striking the blows he intended to cause her grievous bodily harm. -Harm need not be permanent or life-threatening, serious interference with victim\'s health/comfort was sufficient. COA approved this direction, dismissing appeal In DPP v Smith: \- Intention to cause GBH was accepted by HOL as constituting implied malice, although the gravity of harm denoted by grievous was modified to really serious. \- In Hyam: \- Lord Diplock attempted to reinstate the old common law position but was unsuccessful. Cunningham laid to rest the matter by the HOL which concluded almost unanimously that the law was correctly stated in Vickers as qualified in DPP v Smith. \- Thus, a person intending to do really serious harm to another person may be guilty of murder even where it is clear that death was neither intended nor contemplated nor even objective foreseeable. Intention to kill: \- A killing done in the heat of the moment is just as much murder as one which has been planned and premeditated. An intentional killing is murder if prompted by compassion as much as if it is prompted by greed. -In Inglis, COA upheld the conviction of a mother who injected her son with a dose of heroin due to his PVS state post to his car accident. \- It means having death or GBH as one\'s aim or objective. -Duff commentates as if death or GBH did not occur, the actor would consider his action a failure. -In majority cases, judge must give the jury the standard direction which does not define intention except to say that intention is different from motive. -Woollin direction, must be virtual certainty, not foresight of high probability. 66270386/homicide \- there is a general dissatisfaction with the law relating to murder. The major problem from which all others derive is the mandatory life sentence. -A cold blooded serial killer receives the same sentence as a caring spouse who performs euthanasia on a terminally ill partner. 6\. Malice mitigated: voluntary manslaughter: -Murder is served by three special partial defences which if successful reduce a murder conviction to a conviction for voluntary manslaughter. \- It is called voluntary as the prosecution may prove that the killing was voluntary (intended etc), but the context provides a degree of mitigation which would render the mandatory sentence unjust. -We will be covering two of these defences namely loss of self control (previously provocation) and diminished responsibility. They are all governed by the Homicide Act 1957. -We will begin with Provocation to provide a background: Provocation: -Most jurisdictions embody (represent) some forms of crime of passion defence but what should such defence encompass? In England, uncontrollable anger, per se, did not excuse. -The defence was usually available where the defendant killed to vindicate personal honour, at a time where personal honour was considered as is important as autonomy today. -The essence of this defence was that a violation of honour partly justifies retributive retaliatory action, -Provocation became a doctrinally awkward defence as criminal liability is normally blind to context. -The arguments against this defence could be as such: why did passion, but no compassion negate murder? which is powered by good motive. -In recent years, provocation went on to cover more morally questionable behaviours such as in the case of Doughty where the incessant cries of a baby were held to be capable of provoking the reasonable man to kill. More recently, the HOL, made the defence available to the defendant despite the fact that he was incapable of showing the self-control required and expected from a reasonable man. \- At the timeelements of provocation were an external trigger which caused the defendant to lose self control. Loss of self-control: \- Replacing provocation is a partial defence of loss of self control. \- Like provocation the defence operates only for murder and it is only partial. \- The reasons for this is that only murder has the existing mandatory life sentence which might justify the sentence of the existence of this specialised mitigating defence. -S54 of the Act defines the offence into subjective and objective elements. The subjective element is that the defendant lost his self- control. \- The objective element is that the loss of self-control was not out of the ordinary for a person of D\'s sex and age, with a normal degree of self-restraint and tolerance in the circumstances of D. \(i) The subjective element: \- The subjective element requires evidence that the D lost his self-control. - It is not enough that the conduct of the victim was objectively capable of causing a loss of self control, if the D could have killed without it. \- Moreover by subsection 6, the defence cannot be relied upon if D provoked act which constitutes the qualifying trigger. \- In Ibrams, the defence was held not available where two people carried out an attack on a man who had subjected them to substantial acts of violence. -Since the killing took place at night a week after the last act of violence had been committed and while the man was asleep, the evidence showed that the killing was not in hot blood. \- In Duffy: -Circumstances which induce a desire for revenge are inconsistent with provocation. -Since the conscious formulation of a desire for revenge means that a person has time to think, to reflect -This points how it would negate a sudden temporary loss of self control, which is the essence of the defence. A long standing issue was whether the sudden and temporaryrequirement meant that provocation may only be relied upon if the D was carried away in the first transport of parsion. In R v Ahluwalia: -D (wife) suffered a long period of ill-treatment and savage brutality at hands of her husband. -Tried suicide on 2 occasions. -Despite this, she remained with him for over a decade, conceiving it a matter of wifely duty supported by a cultural code of family honour. -Matters came to a head when she discovered her husband was having an affair and was threatening to leave her. \- She pleaded with him not to desert the family, his response was to threaten to burn her with a clothes iron if she did not leave him alone. \- Few hours later, via petrol set his room on fire where he was sleeping. \- Her husband died from burns. There was evidence the killing was premeditated rather than sparked off spontaneously by a provocative act. \- Also a significant time lag between last provoking act and reaction of defendant. \- Defence argued how sudden and temporary test was inappropriate in cases such as this, it discriminated against women. \- Women tend to \'slow burn\', there anger simmers more or less constantly and unleashed in a sudden eruption. \- COA held that while stating only Parliament could reverse Duffy, as long as evidence remained that D killed during a temporary and sudden loss of self control, the time lapse was not fatal. \- A cold blooded killing cannot be mitigated, a delay between the trigger and the reaction is not fatal so long as a loss of self- control occurred as the new defence replicates. \(ii) Qualifying triggers: \- Under the old law, so as long something was said or done which provoked the defendant to lose his self control, the subjective element was satisfied. (Acott) \- The Act explicitly excludes sexual jealousy from the range of qualifying triggers which are substantially attenuated. -S55 describes the qualifying triggers: 1. to D\'s fear of serious violence from another against D or another iden 2. 2\. to a thing or things done or said which constitut circumstance of an extremely grave character. 3. 4. 3\. caused D to have a justifiable sense of being seriously wronged 5. 6. 4\. A combination of the matters mention above. 7. 8. -It is not necessary that threat be actualized, it is necessary that the fear be of serious injury. 9. 10. Perhaps in Ahluwalia, there was no threat of immediate harm. 11. 12. -In Clegg, the reaction was out of proportion to the threat. 13. 14. -Defence recognises how people under conditions of extreme fear can be expected to act unreasonably, without regard to consequences. 15. 16. \- It applies only if the acts or words relied upon as a trigger constituted circumstances of an extremely grave character. 17. 18. -Trivial triggers such as nagging, a screaming baby and every day taunting, and anti-social behaviour which grounded as qualifying triggers for provocation are no longer available. 19. 20. \- The third requirement that the trigger caused the defendant to have a justifiable sense of being seriously wronged underlines the restrictive focus lent to the new defence. 21. 22. -It is not enough that D feels seriously wronged, it must be a justifiable sense, it is unclear, however, much it adds to the extremely grave character element. 23. 24. \- The judge would withdraw the defence from the jury if of the opinion that the trigger relied upon would only elicit (extract/bring out) a loss of self-control in a defendant who was racist or homophobic. 25. 26. \(iii) Self-induced loss of self-control: (creating the qualifying trigger) 27. 28. -In most cases, a defendant will not be allowed to avail himself of a defence if he causes the conditions under which he subsequently seeks to rely upon it. 29. 30. \- In the case of loss of self control, the strict wording of \$56 of the Coroners and Justice Act, has the same rulings as it did in provocation. 31. 32. \- What matters is whether the jury believed the defendant to have lost his lost self-control, not whether the defendant rendered himself vulnerable to such a loss. 33. 34. The conclusion of the Privy Council in Edwards stated how if A was the author in the course of the loss of his self control, he should not be able to rely on the defence. 35. 36. In Edwards, they stated how it was only because of V who had overreacted with a knife that D was able to rely on provocationattacking him with a knife, D killed V as a result of his own loss of self control). 37. 38. In Johnson: 39. 40. the approach of Edwards was misconceived. 41. 42. \- it was stated that just because one has created a situation where he causes a reaction in others, which in turn led him to lose his self-control. 43. 44. \- Under the new law, so long as the defendant did not purposefully incite the violence of the victim so as to provide an excuse to use violence in return, it is arguable that the defence will remain available to those responsible for their own loss of self control. 45. 46. \- The Act does not refer to the loss of self control being caused by a qualifying trigger but rather the loss of self control had a qualifying trigger. 47. 48. Although the blows constitute circumstances of an extremely grave character, D\'s initial responsibility may well be thought not to have cause the D to have a justifiable sense of being seriously wronged 49. 50. \(iv) Loss of self-control, self-defence and the burden of proof 51. 52. \- Although loss of self control and self defence are conceptually quite distinct, the same here configuration may raise both possibilities. 53. 54. \- If the defendant does not wish to raise the defence of loss of self control, the judge is nevertheless bound to leave the defence to the jury provided there is sufficient evidence 55. 56. \- Where evidence of loss of self-control is sufficient in the judge\'s opinion to justify the jury reaching the conclusion that the defence might apply, the burden is on the prosecution to disprove it rather than upon the defendant to prove it. 57. 58. \(b) The objective element: 59. 60. -Once the jury are satisfied on the subjective elements stated above, they must consider whether 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. 61. 62. -The 2009 Act allowed the jury to take mto account any characteristic of the defendant which may have affected the gravity of the provocation to him or her but not any characteristic at all. (D, a blackmailer whose demands sg his victim V into attacking him with a knife, D killed V as a result of his own loss of self control). 63. 64. In Johnson: 65. 66. the approach of Edwards was misconceived. 67. 68. \- it was stated that just because one has created a situation where he causes a reaction in others, which in turn led him to lose his self-control. 69. 70. \- Under the new law, so long as the defendant did not purposefully incite the violence of the victim so as to provide an excuse to use violence in return, it is arguable that the defence will remain available to those responsible for their own loss of self control. 71. 72. \- The Act does not refer to the loss of self control being caused by a qualifying trigger but rather the loss of self control had a qualifying trigger. 73. 74. Although the blows constitute circumstances of an extremely grave character, D\'s initial responsibility may well be thought not to have cause the D to have a justifiable sense of being seriously wronged 75. 76. \(iv) Loss of self-control, self-defence and the burden of proof 77. 78. \- Although loss of self control and self defence are conceptually quite distinct, the same here configuration may raise both possibilities. 79. 80. \- If the defendant does not wish to raise the defence of loss of self control, the judge is nevertheless bound to leave the defence to the jury provided there is sufficient evidence 81. 82. \- Where evidence of loss of self-control is sufficient in the judge\'s opinion to justify the jury reaching the conclusion that the defence might apply, the burden is on the prosecution to disprove it rather than upon the defendant to prove it. 83. 84. \(b) The objective element: 85. 86. -Once the jury are satisfied on the subjective elements stated above, they must consider whether 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. 87. 88. -The 2009 Act allowed the jury to take mto account any characteristic of the defendant which may have affected the gravity of the provocation to him or her but not any characteristic his level of self-control. 89. 90. -If a person with a painful condition such as gout loses self control and kills a tormenter who repeatedly kicks his leg, the jury has to consider whether a person with this condition might have reacted as the accused did. 91. 92. \- If a person was teased about his impotence, religion, shameful incident from past, or colour, the jury was to be asked to consider whether the reasonable man with this characteristic would have been provoked to kill. 93. 94. The reasonable person does not have characteristics which merely render him more provokable, such as he is particularly volatile, intoxicated or aggressive. 95. 96. \- In such cases, the court ruled that with exception of age and sex, such characteristics are not endowed with the reasonable man. 97. 98. 7\. Diminished responsibility: the internal trigger 99. 100. \- The defence of diminished responsibility is a statutory defence defined by S2 of the Homicide Act 1957 as amended by the Coroners and Justice Act 2009. 101. 102. \- The burden of proof is upon the defendant and only the defendant can raise it. 103. 104. \- Mitigates murder to manslaughter. 105. 106. \- Defence was introduced largely to counteract the narrow application of the M\'Naughten rules which afforded no excuse or mitigation of sentence to those who killed while suffering from severe mental illness falling short of M\'Naughten insanity. 107. 108. \- Defence is not available to attempted murder. 109. 110. \- Any substantial emotional or mental abnormality could ground the defence so long as it constituted an internal rather than external cause. 111. 112. \- The defence is now unavailable unless the defendant is suffering a clinically recognised mental disorder which not only accompanies but explains his/her participation in the killing. 113. 114. Elements of the defence: 115. 116. \(a) Abnormality of mental functioning: 117. 118. \- Although it is not defined, it is traditionally regarded as an objectively significant deviation from what would be regarded as normal by a reasonable person 119. 120. \- The scope of diminished responsibility is far wider than the notion of mental illness captured in the M\'Naughten rules. 121. 122. -Diminished responsibility is a form of partial insanity or lies on the borderline of insanity, such directions to the jury must beavoided. (Seers) 123. 124. A defendant may rely on the defence even if he is aware of what he is doing and that it is wrong, as long as his condition involved a specified abnormality arising from a recognised medical condition. 125. 126. A person has an abnormality of mental functioning if the person\'s mental functions of understanding what she was doing, and or forming a rational judgment were substantially impaired such that it would be inappropriate to treat her al fully responsible. 127. 128. \(b) A recognised mental condition: 129. 130. -The abnormality of mental functioning must be grounded in a recognised mental condition. 131. 132. \- Under the previous law there was no such requirement, battered woman\'s syndrome, mercy killings etc all grounded the defence. 133. 134. \- As Mackay points out, it must cover both psychological and physical conditions including conditions like epilepsy, sleep disorders and diabetes. 135. 136. Before, a person\'s mental abnormality could result from an inherent condition. 137. 138. \- Recognised medical conditions can be found in authoritative classificatory lists, including the World Health Organization\'s International Classification of Diseases and the American Psychiatric Association\'s Diagnostic and Statistical Manual of Mental Disorders. 139. 140. \- Arrested or retarded mental development 141. 142. Depression (R v Gittens) 143. 144. Bipolar (R v Inglis 2010) 145. 146. \- Paranoid schizophrenia (R v Sutcliffe) 147. 148. \- Brain damage 149. 150. \- Psycopathy 151. 152. Paranoid personality disorder 153. 154. \- Postnatal depression 155. 156. The new law requires testimony of expert witnesses in any case where the condition relied upon by the defendant is contested or ambiguous. 157. 158. -In R v Osborne, the COA ruled that attention deficit hyperactivity disorder (ADHD) would not afford any ground for allowing the appeal against conviction on the basis of diminished responsibility. 159. 160. This suggests how the decision is ultimately one for the judge. in deciding whether the D\'s condition amounts to a recognised medical one 161. Alcohol and drugs: 162. 163. Intoxication is not a \'medical condition\' (R v Fenton), it will therefore not ground the new defence. 164. 165. -A difficulty encountered under the previous law was the availability of the defence in cases of alcoholism or drug abuse, since both can be treated as causing or synonymous with mental abnormality and, for the purpose of the new defence, lead to loss of rational judgment, loss of self-control and so on. 166. 167. -Three situations should be distinguished: 168. 169. (i): This involves intoxication alone, it does not support the defence under new or old law since the D\'s condition will not be due to disease (old law) or inherent cause or arise from a medical condition (new law). 170. 171. (ii): Where the D is an alcoholic who commits a criminal harm attributable to the brain damage or psychosis which may be caused by this condition. In Tandy the COA acknowledged that chronic alcoholism could be a cause of mental abnormality within the meaning of s2. 172. 173. (iii): Where the D is an alcoholi ho commits a criminal harm as a result of becoming intoxicated consequent upon suffering from this condition. In Tandy the defence was refused on this basis, despite evidence of serious addiction. Since the basis for excusing D\'s is the D\'s inability to make rational choices as to how he would like to act, tying this excuse to a specific cause is arguably an unjustifiable restriction. 174. 175. \- In R v Stewart, COA clarified position following Tandy indicating that alcohol dependency syndrome could be considered a mental condition capable of producing, where it caused involuntary consumption of alcohol depending upon the evidence, an abnormality of mind. Furthermore, chronic alcoholism could ground the defence, not intoxication. 176. 177. -In Dietschmann the HOL, nevertheless ruled that diminished responsibility could be relied upon where a mental abnormal man killed while intoxicated so long as the mental abnormality played a part in the killing. This presumably will continue to be the case under the new law. So a person who kills due to the combine effects of intoxication and a recognised mental condition may still have a defence. 178. 179. \(c) Substantially impaired D\'s ability to do one or more of the things mentioned in subsection 1A: 180. 181. \- This provision tightens up the previous formulation which referred to substantial impairment of responsibility. 182. 183. -In Lloyd, it was suggested that juries should be asked toapproach the notion of substantial impairment in a broad commonsense way, referring to impairments which are more than trivial but less than total. 184. 185. -In Price a father of a mentally handicapped son who caused his death by casting him adrift on a river succeeded with the defence, whilst Peter Sutcliffe did not despite the strong medical evidence that he suffered from paranoid schizophrenia. This suggested how juries sometimes showed sympathy towards the defendant. 186. 187. -The new formulation set aside these problems by setting clear parameters for the defence by specifying what consequences of abnormal mental functioning are relevant to responsibility. 188. 189. \(d) Providing an explanation for the killing: 190. 191. \- Under the previous law, there was no requirement of a causal link between the abnormality and the killing. 192. 193. \- A jury was entitled to conclude for example that a person suffering from clinical depression was less responsible for their actions than normal people and so should not be treated as comparably blameworthy. 194. 195. \- New provision requires that abnormality must provide an explanation for the D\'s acts and omissions in doing or being a party to the killing. 196. 197. \- It must for part of the story as to why this killing took place. 198. 199. \- The actor\'s reason was impaired, they did not fully understand what they were doing, or their self control was lacking and that is why or one of the reasons why they did what they did. 200. 201. \- A psychopath is unlikely to be able to avail himself of this defence, since they lack either ordinary powers of self control or normal cognitive abilities. 202. 203. -S52 (1B) of the Coroners and Justice Act 2009 states how an explanation will be provided if it causes or is a significant contributory factor in causing D to carry out that conduct. 204. 205. 8\. Involuntary manslaughter: 206. 207. It can be one of: 208. 209. foresight or reckless manslaughter 210. 211. unlawful act or constructive manslaughter 212. 213. -gross negligence manslaughter 214. 215. Overlap between forms of involuntary manslaughter: 216. 217. -Hyam and Smith were both killed in the course of doing something extremely dangerous. In the former, Hyam threw a petrol homb, whilst in the latter. Smith drove his car extremely dangerouslyarrest him. Both victims were killed. If the cases were brought to court today, they would not be charged with murder, but could be charged with: 218. 219. \- Reckless manslaughter, if prosecution could prove foresight of death or serious injury. 220. 221. \- Gross negligence manslaughter, if jury considered actions to be grossly negligent as to risk of death. 222. 223. \- Constructive manslaughter, since both D\'s killed in course of doing something illegal and dangerous. 224. 225. \- We will be mainly discussing constructive and gross negligence manslaughter: 226. 227. 9\. Constructive manslaughter: 228. 229. \- It is also known as unlawful act manslaughter. 230. 231. Called constructive manslaughter because liability does not derive as it usually must from the combination of the actus reus and the mens rea. 232. 233. \- Liability for one crime is constructed out of the elements of another. 234. 235. \- For example, one can be guilty of manslaughter if death results from the commission of an assault, criminal damage, burglary, robbery or even theft. 236. 237. \- Prosecution\'s task is to prove: 238. 239. elements of the core offence: assault 240. 241. objective likelihood of causing harm 242. 243. causal connection between assault and death 244. 245. This offence, in opinion of most commentators, is unjust since the criminal label may seriously misrepresent the nature of the defendant\'s wrongdoing. 246. 247. 10\. Actus reus of constructive manslaughter: 248. 249. Unlawful act 250. 251. (i)-The actus reus of constructive manslaughter is a criminal rather than merely an unlawful act. 252. 253. -The focal case of constructive manslaughter is an ordinary case of assault which goes wrong and ends in death. 254. 255. Cannot be committed by omission 256. 257. In Lowe: 258. 259. -D was charged with constructive manslaughter of her chikt whom she had badly neglected 260. 261. -She was convicted on the hasts that she had caused her child\'sdeath through the commission of a criminal offence; that offence is the willful neglect of a child 262. 263. COA ruled that an act was of the essence for constructive manslaughter. 264. 265. Dangerous Act: 266. 267. (i): The act committed must be dangerous and this was assessed objectively, it was enough that the accused\'s act was objectively dangerous. 268. 269. \- 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. 270. 271. (ii): The unlawfulness of an act must be constituted independently of its dangerousness: 272. 273. The interplay between these two elements is well illustrated by the case of Lamb: 274. 275. \- Accused and his friend were playing around with a loaded gun. 276. 277. \- Checked that no bullet was opposite the firing pin, the accused pointed the gun at his friend and pulled the trigger. 278. 279. \- To his surprise, the gun went off, killing the friend. 280. 281. \- He had forgotten, or did not know, the chamber of a revolver revolves upon firing. 282. 283. \- His conviction of constructive manslaughter was quashed on appeal. What Lamb did was undoubtedly dangerous but it was not a crime. 284. 285. \- Constructive manslaughter requires more than a breach of duty of care. 286. 287. \- Neither the actus reus or mens rea of an assault were present and since it is not a criminal offence negligently to shoot someone, no other crime had been committed either. 288. 289. -It would only have been an assault if his friend has apprehended injury, which he did not, and if the accused had intended, foreseen, hurt or alarm to his friend. 290. 291. \- Lamb illustrates how liability can only be incurred for this type of manslaughter if the act which causes death is criminal in itself, rather than become criminal simply because it is performed in a negligent dangerous fashion. 292. 293. This point is particularly important in connection with deaths arising out of road traffic offences. If the criminality of an act could be provided merely by drink driving or carelessly driving this would make one automatically guilty of manslaughter. 294. 295. -Such a result would be inconsistent with the mens rea requirementmanslaughter by gross negligence. 296. 297. \- Church illustrates how the requirement that the act be unlawful is separate from the requirement that the act be dangerous meaning the prosecution need prove only that the defendant committed and unlawful act and that objectively, that act provoked a risk of physical injury. 298. 299. In DPP v Newbury and Jones: 300. 301. \- the HOL confirmed that the subject matter of constructive manslaughter did not have to be a crime of endangerment. 302. 303. \- the sole question be considered was whether the crime, in circumstances in which it was committed provoked the risk of physical injury. 304. 305. \- In Jennings it was stated that the prosecution must specify the unlawful act relied upon, which is undoubtedly a step forward. 306. 307. -In Dhaliwal the absence of such a criminal act was fatal to the charge of constructive manslaughter, although itavas conceded that the defendant\'s behaviour may have contribued to the deceased\'s decision to kill herself and could as a consequence have been the subject of a conviction for manslaughter. 308. 309. \(iii) An act directed against a victim: 310. 311. \- It has been suggested in a number of cases that the unlawful act must be directed at a person, even if not necessarily at the victim herself. 312. 313. \- In Dalby, the accused had supplied the deceased with a drug for intravenous use. 314. 315. Deceased overdosed on the drug and died, it was held that the accused was not guilty on manslaughter since the act of supply was not directed at the body of the victim. 316. 317. \- This directed at doctrine is of fundamental importance in the context of constructive manslaughter in that it indicates, in a manner similar to murder, that the essence of this form of homicide is an attack rather than an endangerment. 318. 319. -The obvious reasons here for not delivering a manslaughter conviction was because the act of supply had not caused the deceased\'s death, it was the caused by the deceased\'s own voluntary act 320. 321. \- Although occasional statements still surface suggesting that the unlawful act must be directed against a person, the orthodox view is that it is necessary only to show that the accused\'s conduct provoked a risk of harm and that the chain of causation linking death with the initial unlaw ful act is unbroken(iv) Emotional shock: 322. 323. \- In Dawson, it was held that the harm foreseeab must be physical harm, however trivial, and not merely emotional shock. 324. 325. The victim who had a heart condition had died of heart failure during the course of an armed robbery. 326. 327. \- The convictions of the robber for constructive manslaughter were quashed. 328. 329. \- COA held first that if emotional shock and nothing more was foreseeable this would not be sufficient harm to satisfy the Church test (requiring a risk of physical injury). 330. 331. 11\. Mens rea of constructive manslaughter: 332. 333. \- Constructive liability involves the D being held liable for crime A on the basis of their liability for committing crime B. 334. 335. \- Therefore, if D is being charged with constructive 336. 337. manslaughter on the basis of having committed an assault, all the prosecution has to establish is that V\'s death was caused as a result of having committed an assault. 338. 339. \- Setting aside proof of causation, which is a given, its first task is to prove the actus reus of assault, its second task is to prove the mens rea for assault. 340. 341. 12\. Manslaughter by breach of duty: 342. 343. \- This is the second form of involuntary manslaughter. 344. 345. \- It is otherwise known as gross negligence manslaughter. 346. 347. \- People whose gross carelessness results in death may be charged with gross negligence manslaughter, the essence of which is a breach of legal duty to be careful. 348. 349. \- Following Adomako, the requirement of gross negligence returned where the hospital anesthetist had failed to notice that a patient\'s ventilation tube had become disconnected. The position is now such that whether one kills in a motor car, in the course of treating a sick patient, or rewiring a house, test for manslaughter is the name 350. 351. 13\. Elements of Gross Negligence Manslaughter: 352. 353. -They are as such, 354. 355. i\. Dowed V a duty of care. 356. 357. ii\. D breached the duty. 358. 359. iii\. Breach of duty caused that death 360. 361. iv\. Breach of duty was gross 362. 363. i: The duty: 364. 365. -The basis u foreseeability of injury to those who might be put in danger by careless acts or omissions. 366. 367. \- Wacker asserts how a judge can take into account the degree of foreseeability of injury, the relationship of the paties and the justice of the case. 368. 369. \- In Willoughby, D was liable for gross negligence manslaughter when V was killed at D\'s premises in a fire which they had together started as an insurance scam. Duty of care here arose, notwithstanding the unlawful context and V\'s own voluntary running of the risk because of the dangerous context which D precipitated. 370. 371. \- Death by omission can only occur where duty was voluntarily assumed. 372. 373. \- Evans confirmed how the question whether a duty was owed was a question of law; for the judge. 374. 375. ii\. Standard of care: 376. 377. \- The standard is determined objectively. 378. 379. \- However, unlike civil law, a mere failure to conform to the standard of care of the reasonable man is not enough to incur liability for manslaughter. The failure must be gross. 380. 381. \- In Adomako, Lord Mackay stated how the essence of the matter was whether having regard to the risk of death involved, the conduct of the D was so bad in all the circumstances as to amount in their judgment to a criminal act or omission. 382. 383. Adomako further elaborates how responsibility will depend on the seriousness of the breach of duty committed by the D in all the circumstances in which the D was placed when the breach occurred and whether the conduct of the D was so bad in all the circumstances as to amount in their judgment to a criminal act or omission, (Jury) 384. 385. \- The fault element may be identified as foresight or indifference to the risk. 386. 387. \- The argument that gross negligence manslaughter breaches Article 7 was rejected in Amit Misra.