CRIMINAL LAW MURDER & MANSLAUGHTER

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1 CRIMINAL LAW MURDER & MANSLAUGHTER This is basically a common-law offence and to constitute it there must be an unlawful killing of another human being under the Queen s peace with malice aforethought. Formerly, the victim had to die within a year and a day of the defendant s criminal conduct. The year and a day rule prevented the prosecution of defendants for murder as medical science developed techniques for keeping seriously injured persons alive for long periods. The Law Reform (Year and a Day Rule) Act 1996 abolished the year and a day rule, i.e. the irrebuttable presumption that applied for the purposes of offences causing death where more than a year and a day had elapsed. The Act abolishes the rule in regard to murder, manslaughter, abetting suicides, infanticides, causing death by dangerous driving when under the influence of drink, and aggravated vehicle taking causing death (s.1). It does not affect the application of the rule to acts or omissions occurring before the relevant part of the Act came into force, i.e. 17 June 1996 (s.3). Section 2 restricts the bringing of proceedings in that the consent of the Attorney-General is required before a prosecution can be brought in cases where the injury alleged to have caused the death did in fact occur more than three years before the death and also where the person to be prosecuted for a fatal offence has already been convicted of an offence, e.g. grievous bodily harm, connected to the circumstances of the death. The actus reus Since the killing must be of a human being, the unlawful killing of an unborn child is not murder. However, such killings are covered and made criminal in appropriate circumstances by s.58 of the Offences against the Person Act 1861, s.1 of the Infant Life (Preservation) Act 1929 and the Abortion Act The detail of these offences is not considered here. The expression another human being includes a child that has been born alive and has an existence independent of the mother. Where a person injures a child while it is in its mother s womb and it dies later from those injuries after being born, it may be appropriate to bring a charge of murder (see Attorney-General s Reference (No 3 of 1994) [1997] 3 All ER 936 House of Lords). The fact that the victim must be under the Queen s peace prevents the killing of the enemy in wartime from being murder. This refers to killing in action. It is

2 murder to kill prisoners of war. Under the Offences against the Person Act 1861 any British citizen who commits murder anywhere in the world may be tried in England or Wales. In addition, a killing in self-defence may be lawful and so not murder (see further Chapter 30). The mens rea Some consideration has already been given to this. However, the mens rea for murder is defined as malice aforethought. According to the House of Lords in Maloney (1985), murder is a crime which requires a specific intent, either direct as where the defendant desired the consequences, or oblique as where he foresaw the consequences as near certain. Recklessness is not enough. The court must be satisfied of the presence of such an intent either to kill or cause grievous bodily harm. In this connection, it should be noted that the decision in Maloney (1985) confirms that it is enough malice if the intention is not to kill but to cause grievous bodily harm. Maloney thus decides that intent to kill and intention to cause grievous bodily harm are the only forms of mens rea for murder. In so far as the expression malice aforethought suggests evidence of premeditation or plot, it is misleading since this is not necessary, provided the specific intent to kill is present. Manslaughter Manslaughter is divided into voluntary manslaughter and involuntary manslaughter. This is murder reduced to manslaughter by the presence under the Homicide Act 1957 of provocation, diminished responsibility or suicide pact. Once it is shown that one of these partial defences exists, the crime ceases to be murder and the fixed penalty of life imprisonment goes, giving the judge discretion as to sentence. The mens rea is, therefore, the mens rea for murder, but with the mitigating factors of provocation, diminished responsibility or suicide pact. Provocation generally

3 Section 3 of the Homicide Act 1957 applies. It provides as follows. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man. Diminished responsibility By reason of s.2(1) of the Homicide Act 1957 this defence is available in respect of a murder charge only. The burden of proof is 011 the defence which must how that the defendant was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. Lord Parker in R v Byrne [1960] 2 QB 396, 403 (CA) stated that abnormality of mind means: a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind s activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The question whether the requirement that the defence must prove diminished responsibility in terms of Art 6 of the Human Rights Convention (right to a fair hearing) was raised in R v Lambert [2001]1 All ER The Court of Appeal ruled that this burden of proof was not contrary to Art 6. The presumption of innocence still applied. This was a special defence and did not interfere with the general rule that the burden of proof is on the prosecution. The defence is wider than that of insanity and covers other mental conditions. In fact the defendant may know what he is doing and that it is wrong. His alleged problem is that he finds it substantially more difficult to control his actions than would a normal person, and this difficulty is caused by some abnormality of his mind. Suicide pact

4 The Homicide Act 1957 states in s 4(1) that: It shall be manslaughter and not murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other being killed by a third person. The defendant must show: that a suicide pact was made; and that he intended to die at the time the killing took place. A suicide pact is defined by the Homicide Act 1957 in s.4(3) as: A common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing being done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has a settled intention of dying in pursuance of the pact. Involuntary manslaughter It is apparent from the case law that involuntary manslaughter is based upon either an unlawful act resulting in death, sometimes called constructive manslaughter, or death resulting from gross (or criminal ) negligence Manslaughter from an unlawful act (constructive manslaughter) Constructive manslaughter has three ingredients as follows: An unlawful act committed by the defendant that results in the death of another person: as in the law of tort, the chain of causation can be broken and, in particular, this has resulted in drug dealers being regarded as not liable for the deaths of those supplied, as in R v Dalby [1982] 1 All ER 916. However, there may be liability where there is, in fact, little if any break in the chain of causation. Thus, in R v Kennedy [1999] Crim LR 739 the victim asked the defendant to get him something that would make him sleep. The defendant prepared a syringe filled with heroin and handed it to the victim. The victim paid the defendant and

5 injected himself and left. He died less than an hour later and the defendant was convicted of manslaughter. The act must have involved a risk that someone would be harmed: the risk is judged objectively, i.e. would a reasonable and sober person observing the act see an apparent risk. The harm must be physical. The risk of psychological or emotional harm is not enough. In R v Dawson [1985] 81 Cr App R 150 a petrol station attendant with a weak heart died of heart failure when the appellant attempted a robbery of the station. In judging whether this act was sufficiently dangerous, the Court of Appeal applied a test based on the sober and reasonable bystander who could be assumed to know that the use of a replica gun was likely to terrify people and so be a danger to those with a weak heart. The defendant must have had the mens rea for the unlawful act, such as an assault, that led to the victim s death: thus, in R v Lamb [1967] 2 QB 981 the defendant pointed a gun at his friend believing, as was the case, that the two rounds in the gun were not in the firing chamber. The defendant pulled the trigger, but with no intention of harming his friend. However, the barrel rotated so that a bullet moved into the firing chamber and the friend was shot and killed. The defendant did not know how the gun worked and saw the incident as a joke. He lacked the mens rea for assault and, therefore, was not guilty of manslaughter. Manslaughter by gross negligence To cause death by any lack of due care will not amount to manslaughter. A very high degree of negligence is necessary for the establishment of a crime. Whether the appropriate degree of negligence exists is a matter for the jury, following direction by the judge. The test according to the House of Lords in R v Adomaho [1994] 3 All ER 79 is that a defendant is properly convicted of involuntary manslaughter by breach of duty if the jury is directed and finds that the defendant was in breach of a duty of care toward the victim who died, that the breach of duty caused the death of the victim and that the breach of duty was such as to be characterised as gross negligence and, therefore, a crime. Lord Mackay LC said, giving an analysis of the law: in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the

6 seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. The circumstances to which a charge of involuntary manslaughter may apply are so various that it is unwise to attempt to categorise or detail specimen directions, but certainly civil liability, although sufficient to establish the duty of care, is not sufficient to amount to gross negligence, nor is Caldwell recklessness. The test as stated in Adomako is enough. In the case the defendant was an anaesthetist during an eye operation on a patient. A tube supplying oxygen to the patient became disconnected but the defendant failed to notice this for some six minutes. The patient suffered cardiac arrest and died. The defendant was convicted of manslaughter and his appeal to the House of Lords was dismissed. There would, of course, have been an action in negligence as a fatal accident but it is interesting to note that, because the negligence here is gross, criminal liability can also result. CAUSING DEATH BY DANGEROUS DRIVING Under s.1 of the Road Traffic Act 1988 as substituted by s.1 of the Road Traffic Act 1991 the offence of causing death by dangerous driving replaces the offence of causing death by reckless driving in earlier legislation. It was thought that while the general remarks about criminal recklessness in case law had relevance in regard to manslaughter generally, they were not entirely suitable in the road traffic situation. In particular, it was felt to be too subjective so that there was a need to move to an objective assessment of the standard of driving of the defendant. The offence of causing death by dangerous driving has two elements as follows: (a) there must be a standard of driving which falls far below that to be expected of a competent and careful driver; and (b) the driving must carry a potential or actual danger of physical injury or serious damage to property. The standard of driving will be judged objectively taking no account, e.g., of inexperience, age or disability though these will be reflected in the sentence. The requirements of the section would be met where the state of the vehicle was such that a competent and careful driver would not drive it at

7 all. If a driver was in an unfit condition to drive, e.g. by reason of drink or drugs, this would not be a defence if he drove dangerously as defined above. ASSAULT AND BATTERY It has already been pointed out in Chapter 25 that assault is a threat to apply force immediately to the person of the victim and a battery is the actual application of that force. This distinction also exists in the criminal law. Assault and battery are summary offences under s.39 of the Criminal Justice Act Assault The actus reus of assault consists of an act which gives the victim reasonable cause to believe that there will be an immediate infliction of violence. Assault requires basic intent and so actual intention or Cunningham recklessness is enough. Battery The actus reus consists in the actual application of force however slight to another without that other s consent. As we have seen, a battery can consist of an omission (see Fagan v Metropolitan Police Commissioner (1968). The mens rea is a basic intent and so once again actual intention or Cunningham recklessness will suffice. Defences The following defences are available. Self defence This is also called the private defence. Where an attack which is, e.g., of a violent or indecent nature, is made against a person who is put in fear of his life or the safety of his person, then that person is entitled to protect himself and repel the arcade but must not use more force than is necessary or

8 reasonable in the circumstances. If the defence is accepted, it is a complete and not a partial defence because it negates the unlawful nature of the assault carried out in self-defence in fact, there is no actus reus and mens rea. STATUTORY OFFENCES AGAINST THE PERSON (ABH, GBH, MALICIOUS WOUNDING, SEXUALLY TRANSMITTED DISEASES) Assault and battery are common-law offences, but the more serious offences against the person are contained in the Offences against the Person Act 1861 as follows. Assault occasioning actual bodily harm Under s.7 of the Offences Against the Person Act 1861 it is an offence punishable with imprisonment for a term not exceeding five years for a person to assault another thereby occasioning actual bodily harm. Actual bodily harm merely means that the victim has suffered some injury. Bruising or abrasions are enough. Psychiatric injury can amount to actual bodily harm as where, e.g., this results from harassment of a woman by obscene phone calls, but there must be properly qualified expert evidence before it can be left to the jury, since it must be something more than mere emotion such as fear, distress or panic (see Court of Appeal decision in R v Chan-Fook [1994] 2 All ER 552). The mental state of the defendant is set out in the judgment of the House of Lords in R v Parmenter [1992] 1 A.G The Queen s Bench Divisional Court has concluded that the lopping of hair without consent can constitute an offence under s.47 (see DPP v Smith (Michael Ross) [2006] 2 All ER 16). Malicious wounding Section 20 of the Offences against the Person Act 1861 provides as follows: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person either with or without any weapon or instrument shall be guilty of an offence and being convicted thereof shall be liable to imprisonment for five years.

9 The word unlawfully indicates that acts of genuine self-defence are excluded. As regards the actus reus, there are two possibilities, i.e. (a) wounding and (b) inflicting grievous bodily harm. Wounding is fairly straightforward and requires a breaking of the skin, though a graze would be enough. Grievous bodily harm must be some serious harm and where only slight harm is inflicted a prosecution under s.47 would be more appropriate. As regards inflicting grievous bodily harm, while one normally thinks of the application of force to the person of the victim the concept does not necessarily require an assault. Sexually transmitted diseases and ss.20 and 47 The growth of sexually transmitted diseases including HIV in society may well lead to an alteration in the criminal law landscape and in civil claims. The Victorian legal contribution to this problem was unhelpful to persons who had been infected with disease following sexual intercourse with a person who knowingly had the disease but did not inform the other person who consented to sexual intercourse without the relevant knowledge. The doctrine of informed consent that has been brought into civil cases has now it would appear been introduced into the criminal law of offences against the person. The Victorian case is R v Clarence (1888) 22 QBD 23. Clarence knew he had gonorrhoea. He had consensual intercourse with his unknowing wife. She contracted the disease and Clarence was prosecuted under ss.20 and 47 of the Offences against the Person Act He was convicted at his trial because the jury did not believe that his wife who did not know about his condition had truly consented. His conviction was quashed by the appeal court. The wife had consented to sexual intercourse and that was enough. Causing grievous bodily harm Section 18 of the Offences against the Persons Act 1861 provides as follows: Whoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person with intent... to do some grievous bodily harm to any person or with intent to resist or prevent the lawful apprehension or detainer of any person shall be liable to imprisonment for life. The expressions wounding and grievous bodily harm (GBH) carry the same meanings as they do for the purposes of s.20.

10 Statutory offences against the person and stalking Stalking, particularly of women, has become an increasing problem in our society and, although Parliament has responded in terms of remedial measures, there has been a significant response by the courts which has resulted from the development of the statutory offences discussed above into the field of psychological injury. As we have seen, a start had been made in R v Chan-Fook (1993) The Times, 19 November. This case was applied again in R v Burstow [1996] Crim LR 331, where it was held that a stalker could be convicted of the offence of unlawfully and maliciously inflicting grievous bodily harm contrary to s.20 of the Offences Against the Persons Act 1861, even though he had not applied physical violence directly or indirectly to the body of the victim. B had become obsessed with a woman who worked with him and after she ended the relationship he made telephone calls and sent letters and photographs and visited the victim s home; all of this had a profound psychological effect on her. There is no doubt that this decision of the Court of Appeal has made a major breakthrough in anti-stalking law. In R v Ireland [1997] 1 All ER 112 the defendant made unwanted telephone calls to three women on a number of occasions and remained silent when the telephone was answered. He was convicted of an offence under s.47 of the 1861 Act and the court of Appeal later dismissed his appeal holding that psychological injury could amount to actual bodily harm. In a case where the accused had telephoned women repeatedly without speaking, Swinton Thomas LJ said of decisions on the meaning of assault (at 115): The early cases pre-date the invention of the telephone. We must apply the law to conditions as they are in the twentieth century. On appeal to House of Lords in R v Ireland; R v Burstow [1997] 4 All E.R. 225 HL, it was confirmed that psychiatric harm can amount to an offence under either s.47, s.20 or s.18 and that there was no need for a prior assault in relation to s.20 in contrast to Clarence. Most recently, Brady [2007] EWCA Crim 2413, [2007] Crim LR 564 CA, held that grievous bodily harm need not be aimed at a particular victim and the act need not amount to an assault (grievous bodily harm where the defendant balancing on top of a balcony railing falls backwards and lands on top of a woman below). THE PROTECTION FROM HARRASSMENT ACT 1997 This act makes it an offence to pursue a course of conduct which the person pursing it knows or ought to know amounts to the harassment of another. There is thus an element of objectivity in the offence, i.e. knows or ought to know. The course of conduct must involve conduct on at least two occasions

11 and conduct is defined as including speech, e.g. nuisance telephone calls. The penalty on conviction by magistrates is the same as that under the 1986 Act (see above). A civil tort is also created under which an order restraining harassment may be sought. Criminal courts are also given power to make an order preventing further harassment, breach of which will constitute a criminal offence. The problem with the 1986 Act has been defining harassment, a word which everybody understands but nobody can define. The 1997 Act also avoids a definition stating only that references to harassment include alarming a person or causing them distress, and that conduct can include speech. However, the 1997 Act states that the test of whether conduct amounts to harassment is that of the reasonable man, which should make the test more objective. In 2005, the 1997 Act was amended by the Serious Organised Crime and Police Act so that pursuing a course of conduct could mean approaching two people just once. If these requirements are satisfied, the claimant may pursue a civil remedy for damages for anxiety: s.3(2). The use of civil law means that the standards of evidence are substantially lower than for criminal law. The requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. Some concern has been raised that the 1997 Act is now being used to stifle legitimate protest, an intent not meant by Parliament when it was enacted. For instance, RWE npower succeeded in 2008 in obtaining an injunction under the 1997 Act to prevent local protesters near the town of Didcot from coming to, remaining on, trespassing or conducting any demonstrations, or protesting or other activities on land near a lake that RWE npower wanted to drain and fill with pulverised fly ash. In connection with the requirement of harassing conduct on two occasions the following cases provide illustrations. In Pratt v DPP (2001) 165 JP 800, Pratt engaged in two incidents of offensive conduct towards his wife in their home. In one he threw water at her and in the second chased her threateningly around the house. The incidents were three months apart and different in detail. The High Court upheld P s conviction under the 1997 Act on his appeal from a Magistrates Court, ruling that incidents of harassment did not need to exceed two incidents but the fewer and wider apart the incidents were the less likely it would be that harassment could be proved. In this case the second incident was sufficiently similar to the first to amount to a course of conduct but it was a borderline case.

12 In R v Hills [2001] Crim LR 318 H and W lived together. H assaulted W on two occasions at their home. The first was in the nature of an indecent assault and the second was a fight. Between the incidents the pair appeared to have been reconciled at least for a while. The Court of Appeal quashed H s conviction. The incidents were too far apart and the claimed similarity of events, i.e. pulling W s hair on both occasions was tenuous. The Court of Appeal pointed out that by charging harassment under the 1997 Act the prosecution had lost its case. It should have charged the incidents as two separate assaults since conviction on those charges could not have been challenged. In two further cases the fact of harassment was not in question but the method was. In R (a child) v DPP [2001] 2 Current Law 127 the High Court held that a person can be harassed by threats to her dog. In Kellet v DPP [2001] All E.R. (D) 124 (Feb) the High Court held on judicial review that a person can be harassed by malicious telephone calls to her employer. RAPE Section 1 of the Sexual Offences Act 2003 defines rape. It provides that a person (A) commits an offence if: he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis where B does not consent to the penetration; and A does not reasonably believe that B consents. Whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents. Thus, where the defendant asserts an honest belief, the jury will have to assess all the surrounding circumstances of a case before deciding whether or not the belief was reasonable. So, for the first time, the common law defence of honest but mistaken belief appears in a statute but will not in itself entitle the defendant to an acquittal. It remains unclear as to whether the personal characteristics of the defendant should be taken into account by the jury, e.g. mental impairment.

13 The situation is further complicated by rebuttable and irrebuttable presumptions that rape has been committed set out in ss. 75 and 76. These are concerned with the victim s consent. Section 75 presumptions These can be rebutted by evidence to the contrary: They are: use of violence by the defendant or fear of the defendant s violence, either towards the victim or another person, e.g. the child of the victim; where the complainant was unlawfully detained; where the victim was asleep or otherwise unconscious at the time of the relevant act; where the victim s physical disability prevented communication to the defendant, whether or not there was consent; where the defendant or another person had administered or caused to be administered a substance enabling the victim to be stupefied or overpowered at the time of the relevant act. Section 76 presumptions These are conclusive presumptions and cannot be rebutted. They are: where the defendant intentionally deceived the victim as to the nature or purpose of the relevant act; where the defendant impersonated someone personally known to the victim. These presumptions will cover intercourse by deception and intercourse with a married woman by impersonating her husband. This can occur where, for example, the woman has gone to bed and the defendant has intercourse with her when she is in a drowsy state by pretending to be her husband just returned from work. A husband can now be guilty of raping his wife and would commit rape by aiding or assisting others to rape her.

14 It will be noted that the s.1 offence can only be committed by a man and covers anal rape of women or men and oral sex with a woman or a man. It should also be noted that the ruling of the House of Lords in DPP v Morgan (1975) (see below), where a defendant believed that there was consent and that belief need not be based on reasonable grounds, is replaced by the requirements of the 2003 Act. No degrees of penetration It is not necessary to constitute the crime of rape that sexual intercourse should be completed by male ejaculation of semen. In fact, the slightest penetration by the penis of the vagina (or vulva), anus or moth of another person will suffice. Assault by penetration Section 2 of the Sexual Offences Act 2003 creates a new offence of assault by penetration. Previously this was a form of indecent assault. Section 2 provides that a person (A) commits this offence if: he or she intentionally penetrates the vagina or anus of another person (B) with a part of his or her body or anything else; the penetration is sexual; B does not consent to the penetration; and A does not believe that B consents. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. The ss. 75 and 76 presumptions apply. This offence can be committed by a man or woman and in fact penile penetration may be charged as assault as under this section, so there is some duplication with the s.1 offence. However, this section is intended for penile penetration where the victim is not certain that the penis was used, as where

15 the victim is blindfolded. Note also that the penetration must be sexual, which excludes intimate searching and medical procedures.