To begin, the behaviour and the defendant in question have to be identified as well as the offence they ve committed. This may be:

Transcription

1 Homicide Offences To begin, the behaviour and the defendant in question have to be identified as well as the offence they ve committed. This may be: Murder or voluntary manslaughter if partial defences apply Involuntary Manslaughter Corporate Manslaughter Murder Actus Reus: Per the case of Coke, the AR for murder is the unlawful killing of a human being under the Queen s peace! Poulton; R v A Doesn t not include unborn children In addition to the above, factual and legal causation also have to be determined Factual Causation In fact death was caused by the defendant if but for the defendant s action, the victim wouldn t have been killed (White). In certain situations the significant acceleration of death will suffice (Cheshire). Legal Causation They are likely to be of relevance in two main situations: a)! where an act by some other person intervenes between the defendant s conduct and the end result; b)! where some event occurs between the defendant s conduct and the end result

2 ! Malcharek v Steel If the event was foreseen or foreseeable or the injuries inflicted by the defendant was still a substantial operating cause in of death, chain of causation will not be broken! Pagett The defendant s act need not be the sole cause of the victim s death, it need only contribute significantly to that result (can be multiple defendants)! Blaue Victim refused blood transfusion and died, but didn t break chain of causation take you victim as you find them (egg shell skull rule)! R v Watson If it was foreseen or foreseeable that such an outcome could occur, the defendant can be said to have been the legal cause of death Medical negligence: Where death followed from normal medical treatment used to deal with an injury, causation not broken; but where the treatment was not normal the same inference could not be drawn (R v Jordan)! R v Smith If at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound! R v Cheshire Chain will be broken if so independent of the defendant s acts, and in itself so potent in causing death, that the jury regard the contribution made by the defendant s acts as insignificant! R v McKechnie The defendant caused victim to suffer severe head injuries but victim suffered from duodenal ulcer, so doctors couldn t operate defendant was found to have caused the victim s death Mens Rea: Malice aforethought i.e. Intention to kill or cause grievous bodily harm to a human being (Coke)! R v Moloney Direct intent if defendant desired something to happen, or it was his aim, purpose or goal! Nedrick/Woollin Indirect intent if the consequences were virtually certain and the defendant foresaw the consequence as virtually certain

3 Voluntary Manslaughter If a defendant is guilty of murder but can successfully use the partial defences, then he will be guilty of voluntary manslaughter. The partial defences include: Diminished Responsibility (S2(1) Homicide Act 1957) Its elements are: a)! abnormality of mental functioning; which! Byrne Abnormality of mental functioning means a state of mind so different from ordinary human beings that the reasonable man would term it abnormal b)! arose from a recognised medical condition;! CPS guidance Recognised medical conditions can be found in the World Health Organisation s International Classification of Diseases (ICD-10) and the American Psychiatric Association s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)! Dietschmann; Wood Can also include alcohol dependence syndrome! Dowds Voluntary acute intoxication, whether from alcohol or other substance, is not capable of being so relied upon c)! substantially impaired D s ability to understand the nature of his conduct, and/or form a rational judgment, and/or exercise self-control; and d)! provides an explanation for D s acts and omissions in doing or being a party to the killing Loss of Control (SS54-55 Coroners and Justice Act 2009) The three elements which need to be satisfied are: a)! D s acts and omissions in doing or being a party to the killing resulted from D s loss of self-control; and

4 b)! The loss of control had a qualifying trigger; and c)! A person of D s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D Qualifying Trigger (S55(3)-(5) CJA 2009). The requirements are: a)! Loss of self-control was attributable to D s fear of serious violence from V against D or another identified person b)! Loss of self-control was attributable to a thing or things done or said (or both) which i.! ii.! constituted circumstances of an extremely grave character, and caused D to have a justifiable sense of being seriously wronged c)! Loss of self-control was attributable to a combination of the above! R v Clinton Where sexual infidelity is part of the context of relevant triggers, evidence of the sexual infidelity can be used although not as the qualifying trigger itself. Further evidence is required to be able to rely on a trigger Other Defences for Murder Legal Insanity This requires the defendant to prove, on the balance of probabilities, that he was suffering from a disease of the mind causing a defect in reason so that either he did not know the nature and quality of his act, or he did not know that his act was legally (and morally) wrong (M Naghten s Case). It is a complete defence, resulting in a special verdict of not guilty by reason of insanity.

5 Intoxication Involuntary intoxication: Defendant had no knowledge of consumption of alcohol or drug, or administered drug had adverse effects (Hardie), or craving for alcohol was too strong to resist (Tandy)! Kingston If MR absent then will succeed as a defence to murder, voluntary manslaughter or constructive manslaughter, but if MR is present, may only get a reduced sentence Voluntary Intoxication: Anything not involuntary, including if the defendant underestimated the effects of drinking (Allen)! Majewski If MR absent, then voluntary intoxication will succeed for only murder or voluntary manslaughter specific intent crimes Involuntary Manslaughter Constructive Manslaughter Actus Reus: For constructive manslaughter the defendant must: a)! do an unlawful act;! R v Lamb Must have committed a crime requiring proof of intention or recklessness. Crimes of negligence will not suffice! DPP v Newbury Any unlawful act including criminal damage, burglary, theft etc.! R v Lowe Must have committed a positive act for the unlawful act element of the offence to be established (no omissions) b)! which is dangerous; and! Church; DPP v Newbury Dangerous means that the act carries the risk of some harm to some person, albeit not serious harm

6 ! Dawson; Watson The test is entirely objective. It is whether all sober and reasonable people would think the act was dangerous c)! which causes the victim s death (factual and legal causation also needs to be established) Mens Rea Intention or recklessness as to the unlawful act (R v P) Manslaughter by Gross Negligence The leading case on manslaughter by gross negligence is the case of R v Adomako. The elements are: a)! A duty of care owed by the defendant to the victim.! R v Willoughby Whether a duty of care exists is usually a matter of for the jury once the judge has decided that there is evidence capable of establishing a duty. However, in some circumstances where there is a clear duty b)! A breach of that duty of care! Khan May be an omission, provided there is a special relationship (Stone v Dobinson), contractual relationship (Pittwood), statutory duty to act or created a dangerous situation (Miller) c)! A risk that the defendant s conduct could cause death.! R v Singh Circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury or even of serious injury but of death

7 d)! Evidence that the breach of duty did cause the death of the victim (Causation) e)! A jury s conclusion that the defendant fell so far below the standards of the reasonable person in that situation that he can be labelled grossly negligent and deserving of criminal punishment Road Traffic Act 1988 Death by Dangerous Driving (S1 Road Traffic Act 1988) 10 years Requirement:! A person who causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence! Factual and legal causation also needs to be established There is no need to establish the risk of death, only that it was dangerous i.e. driving fell far below that of a competent and careful driver; and would be obvious to competent and careful driver that driving in that way would be dangerous The offence of dangerous driving does not require proof of such mens rea as it is a crime of negligence Death by Careless or Inconsiderate Driving (S2B Road Traffic Act 1988) 5 years Requirement:! A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence

8 ! Factual and legal causation also needs to be established This is an either-way offence which carries a maximum term of imprisonment of five years Corporate Manslaughter Brief History (Not important for exams) There were two limitations to corporate criminal liability (R v ICR Haulage): a)! certain offences, by their very nature, cannot be committed by a company; and b)! a company cannot be convicted of any offence where the only sentence that can be imposed is physical i.e. imprisonment The other major stumbling block to securing a conviction against a company is the problem of proving that the company had the mens rea required for the crime. To overcome this we use the identification principle. Identification Principle: If the prosecution could prove that senior executives of the company (the directing mind and will of the company ) had the necessary mens rea required for an offence, the company itself (as a separate legal entity) could be prosecuted and convicted of the crime (Tesco v Nattrass). The problem encountered by prosecutors, however, was that it was often difficult to determine: a)! who was the directing mind of the company; and b)! that the mind had the necessary mens rea

9 Corporate Manslaughter and Corporate Homicide Act 2007 Corporate Manslaughter (S1 CMCHA 2007) The prosecution will have to prove that: a)! the defendant is a relevant organisation ;! S1(2) This includes; a corporation; department; police force; a partnership, or a trade union or employers' association, that is an employer b)! the organisation owes a relevant duty of care to the deceased;! S2(1) Relevant duty includes; employer-employee; occupier s duty; any duty in connection with supply of goods, construction or maintenance, commercial activity or keeping of a thing by the organisation c)! the organisation breaches that duty; d)! the breach causes death (causation); e)! the breach is a gross breach; and! S1(4) Breach of duty will be gross if the conduct falls far below what can reasonably be expected of the organisation in the circumstances! S8 Consideration will be made on how serious the failure was, risk of death posed, attitudes that encouraged failure or its tolerance, health and safety guidance and other matters f)! a substantial element of the breach is in the way the activities were managed or organised by senior management (S1(3))! S1(4)(c) Senior management are those who are decision-makers or involved in the hands-on management There is an unlimited fine for an offence. The Sentencing Guidelines Council s 2010 guideline states that the court should consider: a)! the seriousness of the offence b)! aggravating factors and mitigation factors

10 c)! the size, nature and financial circumstances of the defendant d)! the financial consequences of a fine, such as the effect on the employment of innocent people In addition to any financial penalty, there are two other key sentencing options available to the court on conviction: a)! Under S9, the organisation can be ordered to remedy the breach of duty and any attendant consequences or circumstances b)! Under S10, the court will also have the power to name and shame by making a publicity order Cotswold Geotechnical (2011) One of its employees, a junior geotechnical engineer, died when the sides of an excavation pit collapsed on him, they were guilty of corporate manslaughter as a result The Liability of Individuals An individual could also be personally liable for gross negligence manslaughter as a result of a work-related death If convicted of an indictable offence in connection with the way the company was managed, the director can be disqualified (S2 Company Directors Disqualification Act 1986) S18 states that an individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter