Homocide

HOMOCIDE Murder: The unlawful killing of a person in being under the Queen’s Peace, with malice aforethought, express or implied by law. Voluntary Manslaughter: Intentional killing (i.e. actus reus and mens rea for murder is present) in circumstances which the law regards as mitigating the gravity of the offence. Involuntary Manslaughter: ‘Unlawful killing without intent to kill or cause grievous bodily harm’ (R v Taylor (1834) 2 Lew 215 Exams:     Murder could be examined by way of an essay or a problem question. Problem scenarios may ask you to discuss murder only, or you may be required to identify and apply the partial defences to murder or other general defences in a mixed problem question. Essay questions on murder might ask you to consider the proposed reforms to the definition of murder and the hierarchy of the homicide offences. May be asked for a critical evaluation of an aspect of the law or murder (such as causation or intention). What do we know about homicide? There were 790 homicides (murder, manslaughter and infanticide) in the year ending March 2017 in England and Wales.   o o o More than two-thirds (71%) of homicide victims are male. Children under the age of 1 have the highest rate of homicide victimisation (36 per million) and then males aged 16-24 years (25 per million) There were large differences in the victim-suspect relationship between men and women. Half of female adult victims aged 16 and over were killed by their partner or ex-partner (82 homicides) in the year ending March 2017. In contrast, only 3% of male victims aged 16 and over were killed by their partner or ex-partner. Male adults were most likely to be killed by a friend or acquaintance, with around one-quarter (24%, 112 victims) killed by such people in the year ending March 2017. Female victims were less likely to be killed by a friend or acquaintance (10%, 16 offences). Around one-fifth of adult male victims (104 males, 22%) were killed by strangers, compared with around one in eleven female victims (14 females, 9%). Is killing always wrong? VITALITY All life is sacred: must be prolonged There must be a death. SANCTITY Humans have inherent dignity, but no obligation to preserve it. QUALITY Life gets is value from the subject’s own assessment of its worth. There is little settled medical opinion as to when death occurs:  For example, is a person dead when they stop breathing, when their heart stops beating or when an EEG suggests brain death?  What about someone in a persistent vegetative state? (PVS) To work, the law and lawyers must draw lines, but death as a definitive, identifiable moment may be nothing more than a legal fiction. RE A (1992) 3 MED LR 303  The court made a declaration that A, who had been certified as brain stem dead, was dead for all legal as well as medical purposes – allowing ventilation to be lawfully discontinued. The death must be that of a human. Under the Queen’s Peace. Homicide is structured around the taking of a human life.  To be considered human a foetus must have sustained an existence outside of its mother.  For the purposes of the homicide offences, a person is classed as a human being when capable of independent existence from its mother (i.e. at birth).  If a foetus is killed before birth, whilst an offence might still have been committed (e.g. procuring a miscarriage), it will not be murder. A-G’s REF (No.3 of 1994) (1997) 3 All ER 936. This essentially makes it lawful to kill enemy combatants during a war, although the Law of War will still apply. MURDER “Murder is widely thought to be the gravest of crimes. One could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning” (per Lord Mustill in AG’s Ref (No. 3 of 1994) [1988] AC 245) There is in fact no statutory definition of murder. Actus Reus Mens Rea 3 Exceptions where the killing is not unlawful Murder is … The unlawful killing of another person under the Queen’s peace Killed Must be shown that the D caused the death of the V. Unlawful Will be lawful if done in self-defence killing Of a person Only problematic at the beginning and end of life.  An unborn child is not a person in being: RE A-G REF. NO.3 OF in being 1994 (1998) AC 245 (HL)  Life prolonged by artificial means ends when life support is ended: R v MALCHEREK AND STEEL (1981) 1 WLR 690 (CA) If D is brain dead, then turning of life support is not killing a person in activity. The law does not view a brain dead person as alive. Under the The killing of enemy aliens during war and under battle conditions is not a Queen’s criminal homicide. During war time, there are certain rules enshrined into conventions, such Peace as the Geneva Conventions – e.g. we cannot kill injured combatants. The requirement of death within a year and a day was abolished – it Within a became increasingly inappropriate as medical science was able to sustain year and a life and was abolished by the Law Reform Act 1996. day An intention to cause death or grievous bodily harm to the victim Can take direct or indirect forms ‘With Malice Aforethought’  With the intention to kill  Intention to cause grievous bodily harm  Four potential states of mind…too wide?  PVS (withdrawal of life support - was held to be an omis act)  Self-defence or prevention of crime  Necessity Direct Intention D intends either to kill V or cause him grievous (i.e. really serious) bodily harm. The defendant intends to kill or cause grievous bodily harm when it is his purpose to cause it. The jury MAY also infer that a result is intended, though it is not the actor’s purpose to cause it, when: (a) The result is a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and (b) That the defendant appreciated that such was the case. Oblique (Indirect) Intention DPP v SMITH (1961) AC 290 MALONEY (1985) AC 905 WOOLIN (1999) 1 AC 82 MATTHEWS AND ALLEYNE (2003) Crim LR 380 Jury told to apply an objective test of MR i.e. that the reasonable person would have thought that GBH was likely to happen.  Could such objective tests impose social standards on people who don’t appreciate the risk that people believe that they ought to. There could be liability based on foresight, even if the death was against the wishes of the killer. ‘Where the charge is murder and in the rare cases where a simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. The decision is one for the jury to be reached on a consideration of all the evidence.’ ‘In our view…the law has not yet reached a definition of intent in murder in terms of appreciation of virtual certainty…what is required is an appreciation of virtual certainty of death, and not some lesser foresight of merely probably consequences.’ EUTHANASIA AND ‘MERCY KILLING’: THE BOUNDARIES OF MURDER One area that is particularly contentious is that of so-called mercy killing. This is not however the same thig as assisted suicide, which is criminalised under the Suicide Act 1961; assisted suicide has received lots of legal, media and political attention in recent years. The 1961 Act Although this act decriminalised suicide, it did not make it morally licit. 2 major clauses: 1. The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated. 2. (1) A person who aids, abets, counsels or procures the suicide of another or an attempt by another to commit suicide shall be liable for a term not exceeding 14 years. (2) If on the trial of an indictment for murder or manslaughter it is proved that that the accused aided, abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence. ‘…the boundary between assisted suicide and euthanasia is so porous that in practice it may be crossed too often, sometimes even in cases where there was no true consent.’ (Per Lord Sumption, Nicklinson [2014] UKSC 38, para 226) Many think that law now supports the principle of autonomy. But in fact, the Act reinforces the principle of sanctity of life by criminalising any form of assisted suicide. On the other hand, the Act does not hold the vitalist position that all life is equally valuable and should be preserved at all costs because there are cases when allowing a person to die is the better course of action. Euthanasia VOLUNTARY ACTIVE PASSIVE A consents to B’s actively bringing A consents to B’s withdrawing about their death. treatment that preserves A’s life. NON-VOLUNTARY B actively brings about A’s death. A is B withdraws life-preserving treatment not in a position to communicate from A when A is not in a position to consent. consent. INVOLUNTARY B actively brings about A’s death B withdraws life-preserving treatment against A’s communicated will. from A against A’s communicated will. Neither the Suicide Act 1961 nor any statutes explicitly refer to euthanasia. Therefore, it can be said to have no recognised status in the UK. Kay Gilderdale Francis Inglis Denver Beddows  Examples of the law creating confusion “I do not normally comment on the verdicts of juries but in this case their decision... shows that common sense, decency and humanity which makes jury trials so important in a case of this kind.” - Mr Justice Bean “You cannot take the law into your own hands and you cannot take away life, however compelling you think the reason...” “…We can all understand the emotion and the unhappiness that you were experiencing. The fact is that you knew that you intended to do a terrible thing. You knew you were breaking society's conventions, you knew you were breaking the law, and you knew the consequences.” “Although this was a terrible crime the blame which attaches to you for what you did is far outweighed by the tragedy of the situation and the circumstances in which you found yourself. “You hit her out of bed with a pan and then subjected her to a repeated attack with a hammer in a determined effort to end her life for one reason and one reason alone – she did not wish to end her days in a home or hospital where she believed that her deteriorating mental health was leading her. “You were under immense pressure in the days leading up to your attempt to kill her and your acts were acts of last resort because you failed to persuade her that she was going nowhere.” Murder Criticisms - MANDATORY LIFE SENTENCE Having a mandatory life sentence for murder means the trial judge cannot take D’s motive into account when sentencing.   D will get a life sentence whether they are a mercy killer in a euthanasia case or cold blooded serial killer. Of course, the harshness of this can be moderated by the fact that the judge can state the minimum number of years’ imprisonment that the offender must serve before being eligible for release on license. The sentence for murder is life imprisonment, a position which can be supported by the argument that murder is a ‘special’ offence which should in this way be marked out as more serious than other forms of homicide. However, do you think some of the problems discussed above are exacerbated by the mandatory life sentence? Would it be more sensible to have a single offence of unlawful homicide and to leave sentencing discretion entirely in the hands of the judge – do you think should an approach would more readily reflect possible distinctions between ‘types’ of murder? It could be argued that the relative seriousness of the offence can be reflected in the time which someone actually spends in prison serving the life sentence (a tariff which the prisoner must serve prior to being considered for release is set by the judge at sentence), so in this way someone who murders others as a part of e.g. a terrorist plot will serve longer than someone who e.g. kills their partner in order to end the suffering they’re experiencing as part of a long-term, fatal illness. LAW COMMISSION PROPOSALS In 2006 the Law Commission recommended that murder be divided into two separate offences:  First-degree murder – a killing with intent to kill or cause serious harm knowing there was a serious risk of death  Second-degree murder – a killing with intent to cause serious harm but where D suffered diminished responsibility or a loss of control  Only the first of these would have a mandatory life sentence.  Second-degree would carry a discretionary life-sentence. This would allow sufÏcient differentiation in sentencing to cover the wide variety of levels of blameworthiness in crimes of murder. Murder Criticisms - TOO BROAD A second problem with the law on murder is that it is too broad.  The mens rea for murder is ‘malice aforethought, express or implied by law’. In the case of VICKERS, this was held to mean either the intention to kill or intention to cause GBH.  This itself is too wide, but if you consider the possibility of indirect intention, then there are four states of mind that can result in a murder conviction. For such a serious crime should it only be intent to kill?  In 2006 the Law Commission argued that the present offence of murder is too wide. In some cases D may not even realise that death to occur.  There is no moral equivalence between foresight of GBH as virtually certain and indirect intention to kill. Consequently, it has been argued that the offence should be broken up into different levels, each corresponding with the blameworthiness/seriousness of the killing. It is too broad or over inclusive D can be guilty of murder without even contemplating the possibility of causing death: an intention to do GBH is sufÏcient. This arguably fails to respect the principle of fair labelling and the correspondence principle. The correspondence principle for example suggests that the AR and MR of an offence ought to match up, yet D can be liable for causing death whilst only foreseeing GBH. The problems with the definition of intention are also relevant here. Should it be possible to commit murder with anything less than direct intention, in light of the mandatory life sentence? VOLUNTARY MANSLAUGHTER …the name given to an unlawful killing which is accompanied by the mens rea for murder, but which is covered by a specific, legally recognised mitigating circumstance. Murder is established but then a defence is applied – a reduced form of murder, a mitigation of murder. Essay questions:  What was the law prior to changes – law on provocation  What the perceived problems with the law were  How the new provisions have changed the defences Three situations in which voluntary manslaughter may arise: Diminished Responsibility s.52 CJA 2009 – replaced the previous provisions under s.2 HA 1957 Loss of Control s.54, 55 and 56 CJA – abolished provocation, which was previously defined under s.3 HA 1957.  Suicide Pacts s.4 HA 1957 – there is relatively little law relating to this section, and it falls outside the syllabus. These situations are referred to in the Coroners and Justice Act 2009 (which came into force on 4th October 2010), and the Homicide Act 1957.   A) DIMINISHED RESPONSIBILITY   Introduced by the HOMOCIDE ACT 1957. The law is set out in s.2(1) of the HOMOCIDE ACT 1957 as amended by the CORONERS AND JUSTICE ACT 2009. A partial defence to murder. The effect of successfully raising the defence is to reduce liability from murder to manslaughter, thus removing the mandatory life sentence. Until this defence was created, mentally disabled people who were charged with murder had to rely on the defence of insanity, which was not an attractive option. D must have suffered from an abnormality of mental functioning which: Arose from a recognised mental condition; and Substantially impaired D’s ability to: i. Understand the nature of his conduct; or ii. Form a rational judgement; or iii. Exercise self-control; and Provides an explanation for D’s conduct in doing or being a party to the killing. When D raises this special and partial defence, the burden is on D to prove it on the balance of probabilities. 1. D must have suffered from an abnormality of mental functioning. BYRNE (1960) – D was a sexual psychopath who strangled a young woman and then mutilated her body. The medical evidence was that, because of his condition, he was unable to control his perverted desires. The Court of Appeal quashed his murder conviction and substituted a conviction for voluntary manslaughter. The court said that an ‘abnormality of the mind’ was a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It is likely that the courts will still use the same test for abnormality of mental functioning. 2. D’s abnormality of mental functioning must be caused by a recognised medical condition. ‘Medical condition’ clearly includes both physical and psychological conditions. In short, this is a concept which is capable of covering any and all medical conditions. This covers psychological conditions such as: o Severe depression Paranoia Delusions Schizophrenia Severe learning difÏculties Battered woman’s syndrome (BWS) Alcohol dependency syndrome (ADS) – it does though depend on the nature and extent of the ADS (STEWART 2009) It also covers any physical condition which affects mental functioning such as: o Epilepsy o Sleep disorders o Diabetes 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) – lists of recognised medical conditions. o o o o o o Note however DOWDS [2012] EWCA CRIM 281 establishes that the fact that a recognised medical condition appears in the classificatory lists does not necessarily mean that it is capable of being relied upon. BUNCH [2013] EWCA CRIM 2498: Key to the success of the defence is finding a medical expert willing to support the D’s claim to be suffering from an abnormality of mental functioning’ arising from a medical condition. To rely on the defence a D will need to introduce, as a matter of practical necessity, expert evidence to support his or her claim. It is a question for a jury. They are not bound to accept medical evidence: R V SANDERS [1991] CRIM LR 781.  The requirement of a recognised medical condition would lead to greater concordance between the law and the medical profession, thus avoiding the strange situation that has arisen with regard to the disparity of meaning of insanity that exists in law and medicine. 3. D’s abnormality of mental functioning must have substantially impaired D’s ability to: i. Understand the nature of his conduct; or ii. Form a rational judgement; or iii. Exercise self-control As Herring points out (p 257), rarely will a D not understand the nature of his or conduct, but still have the necessary intent for murder. Substantial Whether D was suffering from a substantial impairment in this context is a question for a jury to decide. In GOLDS [2014] EWCA CRIM 748 the CA thought it best to give ‘substantial’ its normal meaning and did not support the Brown direction. CA held that ‘substantial’ did not have the narrow meaning of “more than trivially or minimally” but had a wider meaning which required juries to determine its meaning by applying common sense in the range from trivial or minimal to total; that a trial judge should properly refuse to provide an explanation of “substantially”, but that, if any explanation were given in response to a jury's request for help, it should be in terms stating that it meant an impairment which went beyond something that, although it might have made it harder for the defendant to control himself and to refrain from crime, did not really make any great difference. The court approved of the direction given in R v SIMCOX, The Times, 25th February 1964. There, the trial judge directed the jury in these terms: "Do we think, looking at it broadly as common-sense people, there was a substantial impairment of his mental responsibility in what he did?' If the answer is 'no', there may be some impairment, but we do not think it was substantial, we do not think it was something that really made any great difference, although it may have made it harder to control himself, to refrain from crime, then you would find him guilty..." See case commentary MacKay, [2014] Criminal Law Review 744-46 The CA has thus adopted a stricter approach to the meaning of ‘substantially’, the effect of which is likely to make it more difÏcult to prove diminished responsibility. Mitchell, MacKay, ‘The Golds standard of substantial impairment’ [2015] 4 Archbold Review 7-9 Whether D was suffering from a substantial impairment in this context is a question for a jury to decide. When the defence is disputed, a jury may be confronted with conflicting medical expert opinion proffered by the defence and prosecution. Some have queried whether jurors – as lay members of the public – are capable of making sense of expert opinion evidence that may be expressed in complicated psychiatric terminology. See Kennefick, Introducing a New Diminished Responsibility Defence’ (2011) 74 Modern Law Review 750 R v KHAN (DAWOOD) [2009] EWCA CRIM 1569, [2010] 1 CR APP R 4: ‘While he [the trial judge] needs to make it clear to the jury that, if there is a proper basis for rejecting the expert evidence, the decision is theirs —that trial is by jury and not by expert—it will also ordinarily be wise to advise the jury against attempting to make themselves amateur psychiatrists, and that if there is undisputed expert evidence the jury will probably wish to accept it, unless there is some identified reason for not doing so.” The impairment need not be total but must be more than trivial: LLOYD (1967). This is likely to remain the same under the amended defence of diminished responsibility. In BYRNE the amended defence of diminished responsibility could still succeed because D’s ability to exercise self-control over his perverted desires was substantially impaired. 4. D must prove that his abnormality of mental functioning provides an explanation for his conduct in doing or being a party to the killing. Causal connection: Since the CORONERS AND JUSTICE ACT 2009 there must be a causal connection between D’s abnormality of mental functioning and the killing. So the abnormality of mental functioning need not be the only factor which caused D to do or be involved in the killing. However, it must be a significant factor. This is particularly important where D is intoxicated at the time of a killing. Voluntary intoxication alone is not capable of establishing the defence of diminished responsibility.  DOWDS (2012) - D, in a state of acute intoxication, fatally stabbed his girlfriend. The Court of Appeal upheld his conviction for murder on the basis that voluntary acute intoxication is not capable of establishing the defence of diminished responsibility.  DIETSCHMANN (2003) - D savagely attacked someone while suffering depression. He was also very drunk. The House of Lords quashed his murder conviction and substituted a conviction for voluntary manslaughter. Diminished Responsibility and Intoxication It is clear that intoxication in its own will not amount to an abnormality of mental functioning - DOWDS [2012] EWCA Crim 28 In deciding how to respond to cases where D was suffering from an abnormality of mental functioning AND intoxicated, it is necessary to distinguish three types of cases: 1. D has brain damage as a result of alcohol abuse. In such a case the brain damage can be included as an abnormality of mental functioning 2. D’s alcohol consumption was involuntary If D suffers from alcohol dependency syndrome then that will be treated as an abnormality of mental functioning for the purposes of the defence if a jury is persuaded that D’s drinking was involuntary. To be involuntary, the D must have been unable to resist the impulse to drink. In STEWART [2009] EWCA CRIM 593 the CA held that a jury should consider all evidence, including medical evidence, and likely issues include: (a) the extent and seriousness of the defendant’s dependency, if any, on alcohol, (b) the extent to which his ability to control his drinking or to choose whether to drink or not, was reduced, (c) whether he was capable of abstinence from alcohol, and, if so, (d) for how long, and (e) Whether he was choosing for some particular reason, such as a birthday celebration, to decide to get drunk, or to drink even more than usual. Without seeking to be prescriptive about considerations relevant to an individual case, the defendant's pattern of drinking in the days leading to the day of the killing, and on the day of the killing itself, and notwithstanding his consumption of alcohol, his ability, if any, to make apparently sensible and rational decisions about ordinary day-to-day matters at the relevant time, might all bear on the jury's decision whether diminished responsibility was established in the context of the individual defendant's alcohol dependency syndrome. 3. D suffered from an abnormality and was voluntarily intoxicated at the time In such a case, the jury must decide whether the impact of the abnormality of mental functioning (and not the intoxication) was sufÏcient to substantially diminished his responsibility at the time of the killing, in the ways referred to in section 2(1A) In sum, D can rely on diminished responsibility even if he or she was drunk at the time of the killing, as long as the abnormality of mental functioning was a significant cause of the killing. Diminished Responsibility – REFORM  Law Commission, Partial Defences to Murder: Final Report (Law Commission Report No. 290, 2004)  Law Commission, Consultation Paper, A New Homicide Act for England and Wales? (2005)  The Law Commission Report No 304, Murder, Manslaughter and Infanticide (2006) The Law Commission recommended adoption of the following definition: (a) a person who would otherwise be guilty of first degree murder is guilty of second degree murder if, at the time he or she played his or her part in the killing, his or her capacity to: (i) understand the nature of his or her conduct; or (ii) form a rational judgement; or (iii) control him or herself, … was substantially impaired by an abnormality of mental functioning arising from a recognised medical condition, developmental immaturity in a defendant under the age of eighteen, or a combination of both; and (b) the abnormality, the developmental immaturity, or the combination of both provides an explanation for the defendant’s conduct in carrying out or taking part in the killing. The Government largely adopted the Law Commission’s proposals for reform of diminished responsibility in Murder, manslaughter and infanticide: proposals for reform of the law (Ministry of Justice, 2008) and subsequently in the Coroners and Justice Act 2009 although developmental immaturity in a defendant under the age of 18 is excluded from the definition. Absence of ‘developmental immaturity’ The Law Commission (2006) recommended that developmental immaturity be included as an explanation for the killing in the basis that children develop at different rates. The Ministry of Justice’s view was that this was unnecessary, and would widen the scope of the defence too far. The government took the view that a child’s immaturity should not preclude liability, with both children and adults who suffer from an ‘abnormal’ level of immaturity still having the defence available to them (see e.g. Ministry of Justice Response to Consultation CP(R) 19/08) There is an important policy/historical context to the use of the diminished responsibility defence. Criminal law, or at least the practical administration of it, is not just about applying the law as it might seem to be read. The criminal process is also about recognising the level of responsibility of the offender and recognising the public’s need to see an offender held to account.  A good example of this is the trial judge’s refusal to accept a manslaughter plea in the case of Peter Sutcliffe. AHLUWALIA (1992) 4 All ER DUFFY (1949) 1 All ER 932 Diminished responsibility and Domestic Abuse D, subjected to 10 years of spousal violence and degradation, threw petrol in her husband's bedroom and set it alight, causing his death. CoA accepted battered women’s syndrome was a depressive condition that could qualify for DR and therefore reduce a murder charge to voluntary manslaughter. However, Ahluwalia had not wanted to rely on diminished responsibility, but rather provocation. The reason that she couldn’t do this is the (now removed) requirement that the loss of control be ‘sudden and temporary’. A battered wife killed her husband with a hammer and hatchet. On the night of the killing Duffy maintained that she had been hit and sexually abused by her husband who had previously tried to strangle her. She left the room and returned with the weapons and killed him as he lay on the bed. “Provocation is therein defined as some act, or series of acts, done by the dead man to the accused 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 mind. … Indeed, 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 had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is the essence of provocation.” (per Devlin J). The jury returned a verdict of guilty to murder. This requirement attracted criticism on the basis that it rendered the defence too readily available to those who are quick-tempered and less accommodating of those who endure provoking circumstances before responding with lethal force (e.g. women who kill their abusive partners who may experience a ‘slow-burn’ reaction). THORNTON (1992) 1 All ER 306 AHLUWALIA (1992) 4 All ER 889 Losing self-control was also constrained almost exclusively to a state of anger or rage. Women, many commentators argue, may be more likely to respond with fear or despair. The law thus reflected an unfair gender bias in the view of some critics. D, a battered woman, in the course of an argument, went into the kitchen and returned with a carving knife with which she stabbed and killed her husband. Defence counsel argued that the Duffy ruling was wrong, that the legal concept of provocation did not require loss of self-control to be “sudden”, and that such a requirement had been incorporated into the law by a too literal adoption of the words used by Devlin J. Beldam L.J. in delivering the judgment of the Court of Appeal in Thornton did not agree: “The words ‘sudden and temporary loss of self-control’ have ever since [Duffy ] been regarded as appropriate to convey to a jury the legal concept of provocation”. D suffered years of violence and abuse at the hands of her husband. One evening the husband made threats to attack her. That night, while he was asleep, D poured petrol on him and set it alight. The husband was killed and D was convicted of his murder. In addressing the submission on the appellant’s behalf that expert evidence showed that women who have been subjected frequently over a period to violent treatment may react to the final act or words by “slow burn” reaction rather than by an immediate loss of self-control, Lord Taylor CJ sought to reconcile a ‘slow burn’ reaction with the requirement of ‘sudden and temporary’ but stopped short of overruling Duffy: “We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’ caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation” (at 139) While sympathetic, Lord Taylor said that the question of changing Lord Devlin’s formulation of ‘sudden and temporary’ was a matter for Parliament. As a result, uncertainty around the interpretation of ‘sudden and temporary’ remained. The CA went on to quash the conviction and order a retrial as evidence concerning diminished responsibility was not properly left to the jury. There was evidence suggesting that D was suffering a “major depressive disorder” at the time of the killing. Old Law Where a person kills or is a party to a killing of another, he shall not be convicted of murder… New Law A person (D) who kills or is party to the killing of another is not to be convicted of murder… …if he was suffering from such abnormality of mind… …if D was suffering from an abnormality of mental functioning… …which (a) arose from a recognised medical condition; (whether arising from a condition of arrested or retarded development of mind of any inherent causes or induced by disease or injury) …as substantially impairs his mental responsibility for his acts and omissions in doing…the killing (b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), namely, to understand the nature of his conduct, to form a rational judgement or to exercise self-control; and (c) provides an explanation for D’s acts and omissions in doing or being party to the killing in the section that, according to section 2(1B), it causes or makes a significant contribution to D’s conduct. B. LOSS OF CONTROL Comment No significant difference here. These words just introduce the defence and specific its application to murder only. Note the changes in wording here – just a modernisation of terminology. The new law is narrower as it only permits reliance on diminished responsibility if D’s abnormality of mental functioning arose from a recognised medical condition. Expert evidence will be crucial in determining whether diminished responsibility is established. The old law required that D’s responsibility for his actions was impaired. This was quite vague and general, whereas the new law specifies which of D’s capabilities must be impaired: his understanding of his actions or his ability to exercise judgement or self-control. It is likely that this will reduce the scope of this defence, excluding some definitions that would have fallen under the old definition. This provision has no parallel under the old law so, as with the previous elements of the defence, narrows its availability. Not only must the D have a recognisable mental condition that has a specific effect on his understanding reasoning or control, this must also be at least a significant factor in the killing that has occurred. Loss of control replaced the previous defence of provocation. Only a defence to murder (special defence) and partial defence as if successful the D is liable for manslaughter. When D raises this partial defence, the burden is on the prosecution to disprove it beyond reasonable doubt. Antony Bird Sarah Sands Case Studies Bird killed his partner, Tracy Kearns after learning that she was in new relationship. He attacked and strangled her after she returned home from work. Before the killing, the two argued and each used derogatory terms to the other. During the last stage of the argument, Tracy told Bird some of the details of the sexual intercourse between her and her new partner. Bird and Tracy had not had sexual relations for at least two years. This included describing the underwear that she had bought - suspenders, crotchless knickers and tights - and saying that Mr Jones enjoyed having sex with her wearing those. Sands was acquitted of murder but convicted of MS by LoC back in July in relation to her stabbing to death her 77 year old neighbour, Michael Pleasted. When she found out his past she armed herself with a knife and carried out a "determined and sustained attack" at his flat. She claimed that she wanted him to admit to his crimes so his young accusers would not have to go to court. She said she had taken the knife for protection. However she said Pleasted "smirked" when he answered the door and told her the boys were all liars who had ruined his life. Sands told the jury she was "frightened", adding: "It was not how it was meant to go. He was meant to listen to me". see http://www.bbc.co.uk/news/uk-england-35383470 Underpinning the defence is a view that someone who kills having lost self-control is less to blame than those who kill calmly in cold blood. As the D retained some control over his or her actions they are not granted a complete excuse and are still guilty of manslaughter. The law is set out in s.54 of the CORONERS AND JUSTICE ACT 2009. Three limbs to the defence of loss of control? 1. D must have lost self-control and this caused the killing; and 2. The loss of self-control had a qualifying trigger; and 3. 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. 1. D must have lost self-control and this caused the killing There must be a loss of self-control, not just self-restraint.  A subjective question for the jury.      COCKER (1989) - D had finally given way to his wife’s repeated pleas to ease her pain from an incurable disease and end her life. D suffocated her with a pillow. The Court of Appeal upheld his conviction for murder because the partial defence of provocation failed. He had not lost his selfcontrol, only his self-restraint. This would still apply for the new law on loss of control. Under the old law of provocation it had to be shown that the loss of control was ‘sudden and temporary’. This is no longer a requirement, meaning Lord Devlin’s test in Duffy is abolished. This could make it easier for victims of domestic violence and abuse to rely upon the defence. S 54(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. The loss of self-control does not have to immediately follow the qualifying trigger. This means there can be a delay between the qualifying trigger and the killing. Nonetheless, the longer the time after the trigger the more likely it is that the jury will decide that the trigger did not cause a loss of control. DAWES [2013] EWCA CRIM 322: ‘Provided there was a loss of control, it does not matter whether the loss was sudden or not. A reaction to circumstances of extreme gravity may be delayed. Different individuals in different situations do not react identically, nor respond immediately. Thus, for the purposes of the new defence, the loss of control may follow from the cumulative impact of earlier events’ per Lord Judge CJ The defence is not available if D acted in a ‘considerable desire for revenge’: s.54(4). The primary role of this requirement is to ensure that D was not acting out of revenge. S 54(4) Subsection (1)  does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. In essence, self-control is a person’s ability to resist an impulse or an urge to act. D loses self-control where his or her ability to restrain an urge or impulse to act is severely impaired or overwhelmed by emotion (e.g. anger, despair, fear, grief) or passion. 2. D’s loss of self-control must have had a qualifying trigger. Section 55 sets these out. The loss of control must be due to one or both of the following: (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person. (4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which— (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged. (5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) In determining whether a loss of self-control had a qualifying trigger— (a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded. (3) D’s fear of serious violence from V against D or another identified person.  The threat can be to D or another and must give rise to a fear of serious violence (there does not need to be actual violence). The trigger would apply even if D incorrectly believed that serious violence was to be used against him or her. The fear must be of serious violence so fear of minor acts of violence would not be sufÏcient.  The trigger applies in cases where D kills the person who was posing the threat of serious violence rather than some other person. There is a subjective test meaning that the fear needs to be genuine rather than reasonable. s.55(6) - In determining whether a loss of self-control had a qualifying trigger: (a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence. WARD (2012) - D successfully pleaded loss of control after killing V, who had physically attacked D’s brother at a house party. D did not fear serious violence personally, but this qualifying trigger nevertheless applied because he feared that V would use serious violence in his brother.  D who kills in response to serious violence may also rely on the defence of self- defence which operates as a complete defence. Things done and/or said which were extremely grave and caused D to have a justifiable sense of being seriously wronged.    ZEBEDEE (2012) – D claimed to have lost self-control and killed his elderly father who was senile, who whistled a tune over and over and who repeatedly soiled himself in the middle of the night. The Court of Appeal upheld his murder conviction. Although there were things done, they were not extremely grave nor did they give D a justifiable sense of being seriously wronged. Certain triggers are EXCLUDED by the CORONERS AND JUSTICE ACT 2009: Sexual infidelity Section 55(6)(c) - provides that sexual infidelity is not a thing said or done that can amount to a qualifying trigger. The government insisted upon the inclusion of this section as being necessary to ensure violent men could not rely on this as a reason for having murdered their partner. Things done and/or said which amount to sexual infidelity (having an affair) cannot on their own be a qualifying trigger: s.55(6). The provision proved controversial and has been considered by the Court of Appeal in Clinton. The decision has seemingly watered down the intended effect of this provision. In the case of CLINTON, it was held that sexual infidelity can be used to explain the context of other potential qualifying triggers. CLINTON (2012) – D was suffering from depression. The day before he killed his wife she told him she was having an affair. On the day of her death, they argued and she taunted him about looking up suicide websites, saying that he had not got the courage to commit suicide. He was convicted of murder, but appealed on the basis that the defence of loss of control should have been left to the jury. The Court of Appeal agreed, as the sexual infidelity should have been used to explain the context of other things done and said. His conviction was quashed and a retrial ordered.     CLINTON [2012] EWCA CRIM 2 - D admitted to killing his wife. He claimed that, just prior to the killing, his wife had taunted him about a range of matters including her sexual infidelity to him, that he did not have the courage to kill himself and that she did not care about their children. Mrs Clinton had been beaten about the head with a wooden baton, strangled with a belt, and then a piece of rope had been tightened around her neck with the aid of the wooden baton. The trial judge did not allow him to rely on evidence relating to sexual infidelity. He appealed against his conviction for murder Held: appeal against conviction allowed. The 2009 Act was designed to prohibit the misuse of sexual infidelity as a potential trigger for the defence of loss of control in circumstances where it was thought to have been misused in the former defence of provocation. Therefore, if sexual infidelity was the only potential trigger, the prohibition in s.55(6)(c) had to be applied. However, s.55(6)(c) did not eradicate the fact that sexual infidelity and loss of control were sometimes linked. … Events could not be isolated from their context; a judgement had to be made about the gravity of the circumstances, the extent to which the defendant had been seriously wronged and whether he or she had a justifiable sense of having been seriously wronged. Sexual infidelity could be compartmentalised and disregarded where it was the only element relied upon in support of a qualifying trigger, but it was unrealistic and potentially unjust to exclude it when it was integral to the facts as a whole. So, sexual infidelity might properly be taken into consideration where it was integral to the facts as a whole, being one of a number of factors which caused the defendant to lose control. In such circumstances, the prohibition in s.55(6)(c) would not operate to exclude it. Violence Also excluded under s.55(6) are situations where D has encouraged either the fear of violence or the thing done or said, in order to have the excuse to use violence. s.55(6)(a) – D cannot rely on the trigger if what caused the fear of serious violence was a thing which D incited to be done or said for the purpose of providing an excuse to use violence. In other words, D cannot rely on the trigger if he or she incited the attack for the purpose of providing an excuse. DAWES (2013) – D attacked V, who was asleep on the sofa with D’s wife. V attacked back and was killed by D. D was denied the defence of loss of control due to s.55(6). Honour Killings What about honour killings?  Note, section 55(5) explains that D can rely on both triggers. So, a D can claim that he lost selfcontrol in part due to a fear of violence and in part due to a sense of being wronged.  The Sentencing Guidelines Council stipulate that killings “motivated by fear or desperation” will normally be treated as carrying the lowest levels of culpability. 3. Whichever qualifying trigger is relied on, it must be that 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. Circumstances which only relate to D’s general capacity to exercise tolerance and self-restraint are to be disregarded: s.54(3). So things that made D lose control more easily, such as being drunk (ASMELASH, 2013), suffering from depression, epilepsy or being aggressive by nature, are ignored. If the D is particularly prejudiced or shorttempered, he will not be able to use the defence if a reasonable person in his shoes would not have acted as he did. The Act makes clear that only age and sex can be used to impact on upon the degree of self-restraint or tolerance expected.  So, a 15 year old is only expected to show the level of self-restraint and tolerance that one can expect of someone of that age. The relevance of sex is unclear - open to jury to consider that men have less – or more – self-restraint / tolerance than women. This seems dubious! Moreover, we are forced to reflect on who the reasonable person? Would a morally virtuous person ever respond to something by killing another person? N.B If a D has lower levels of tolerance or restraint due to mental illness, she or he could potentially rely on the defence of diminished responsibility. Circumstances that can be taken into account in deciding whether a person of normal self-restraint might have reacted in a similar way are:  Unemployment  The effects of sexual infidelity: CLINTON (2012)  A history of being sexually abused  If D had a severe problem with alcohol and drugs and was mercilessly taunted about the condition, so that it was a qualifying trigger, the alcohol or drug problem would then be taken into account. ‘Defendants’ circumstances’ Section 54(1(c) provides that the jury should consider how a person in D’s circumstances might have reacted. Section 54(3) explains that the reference to D’s circumstances ‘is a reference to all of the circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint’:  This means that the jury can take account of D’s circumstances when assessing whether the trigger was grave. D is, in other words, entitled to argue that his characteristics made the circumstances graver than they would be for other people.  For example, burning a copy of the Koran would be a graver provocation to a Muslim than an atheist.  The jury is also entitled to consider D’s history when considering the nature of the trigger.  Herring gives the example of a D who was sexually abused by her father. If the father later called her dirty and immoral this would be a graver wrong to D than if these words had been uttered by a stranger and the jury would be entitled to take this into account.  The law thus accepts that a relatively minor remark can be the last straw and, in fact, be a grave wrong when seen in the context of the history of the parties’ relationship. For example, in Clinton [2012] it was held that unfaithfulness could be considered when deciding how the ordinary person would have responded, even though it could not count as a qualifying trigger.  By virtue of section 54(3), D cannot argue that his characteristics entitled him to a lower level of self-restraint or tolerance. Old Law PROVOCATION Subjective: Was the D provoked, by things said and/or done, to suffer a sudden and temporary loss of control? Would the reasonable man have been provoked and acted in the way that the D did? New Law LOSS OF CONTROL Did the D suffer a loss of control (Which did not need to be sudden) as a result of one of the qualifying triggers listed in section 55? Would a person of the D’s sex and age with a normal degree of tolerance and self-restraint and in the same circumstances as the D have reacted in the same or similar way? Accommodating ‘slow burn’ or cumulative provocation:    One of the most obvious differences in the wording of the two defences is that provocation required a ‘sudden and temporary loss of self-control’ (DUFFY, 1949, 1 All ER 932) whereas the definition in s.54(1) refers only to ‘loss of self-control’ and s.54(2) makes it clear that the requirement for this to be sudden has been abandoned. The requirement of the old law that the loss of self-control must be sudden was based upon the nature of the defence in that it was developed to take account of killings that tool place ‘in the heat of the moment’ rather than those that occurred sometime after the provocation had occurred. This caused particular problems in cases involving abused women who killed their abusive husbands – as case law demonstrates that they often involved a lapse I time between the provocation and the killing (AHLUWALIA, 1992, 4 All ER 889). Despite this there were still concerns that the requirement of a sudden and temporary loss of control made it too difÏcult for battered women to rely on this defence. The removal of the requirement of a sudden loss of control does go some way towards achieving that objective. But the issue of timing may, to a certain extent, be relevant under the new law; this is because of the stipulation found in s.54(4) regarding revenge killings. Two justifications for having a loss of control type defence: A valid defence? Losing control is sometimes (partially) excusable: ‘…the defendant’s ability to exercise the level of self control/forbearance necessary with conformity with the law was significantly encumbered by the intensity of his emotional response to external circumstances.’ (S Uniacke, ‘Emotional Excuses’ (2007) 26 Law and Philosophy 95 Sometimes it is reasonable to lose control: Jeremy Hoarder gives the example of a paedophile approaching a child’s parents and telling them that he has just abused the child. (Provocation and Responsibility, OUP, 1992, c 7). Some commentators have taken the view that the loss of self-control defence should be abolished. The basic argument is that killing in anger is no more worthy of a defence than killing while overcome by greed or envy. Horder, 1992 Provocation and Responsibility (OUP) Are the two defences equal?    Loss of control sentences are shorter than that of diminished responsibility In diminished responsibility D is often hospitalised for mental condition – stigma surrounding this? Burdens of proof are different: Loss of control: placed on the prosecution, who must disprove the defence beyond reasonable doubt. Diminished responsibility: the burden is on the D to show that is more likely than not that he suffered from such abnormality of the mind, on the balance of probabilities. When we examine the crime statistics we see that victim-killer relationship is significant. Women are far more likely than men to be killed by partners/ex-partners. Nearly half of homicides result from an argument, a revenge attack or a loss of temper. Within the sub-category of partner killings, women who kill their partners tend to do so after a long history of a high degree of violence within that relationship. Men who kill their partners tend to do so when they are separated from that partner and are in dispute about something like a new partner or children. Given that battered women’s syndrome is now widely recognised, diminished responsibility is often available to women who kill abused partners, but as we have already seen such women often object to being pathologised in this way and would rather use loss of control. When a lawyer is advising their client which defence to run (it is very difÏcult to use both simultaneously) she has to balance up the difÏculty if using diminished responsibility (given the evidential burden on the defendant) with the difÏculty of persuaded a jury – usually involving men – to adapt their understanding of the reasonable person to that of the reasonable woman with BWS. Moreover, when we look at sentencing profiles, generally loss of control is seen as much more excusatory. Average sentences are much shorter and there is no possibility of indefinite hospitalisation. Is this fair? A further dimension to this argument is added by Taylor who, in the context of the provocation defence argued that, ‘Although women's use of violence scarcely figured in the definition of the "reasonable man" in provocation, women have been present as victims or provokers of homicide. Women are almost always killed by men, often by those with whom they have had an intimate relationship. Therefore, it is not surprising that in heat-of-passion killings of women, the passion often is connected to the victim's sexuality. Many defendants in the early English cases that define voluntary manslaughter were men who had killed their wives or their wives' lovers upon discovering them in the act of adultery… While the law sympathized with the jealous rage of men, it assumed that wives did not experience similar rage….In 1946, 275 years after a court first announced the defence of provocation,8 3 an English court finally stated that wives who killed their husbands or their husbands' lovers could also avail themselves of the defence.’ (Taylor, ‘Provoked Reason in Men and Women: Heat of Passion Manslaughter and Imperfect Self-Defence’ (1986) UCLA Law Review 1979, 1689-90) Does the construction of the reasonable person mean that the defences are constructed to respond to a particular ideal of violence which legitimises the oppression of women and justifies men feeling wronged by women but not the opposite?     Criticisms - REASONABLE MAN ISSUE The law on Provocation (Homicide Act 1957) was very confused as to what characteristics a reasonable man could have. The binding precedent was thought to be SMITH (2000), in which the House of Lords stated that juries could consider any relevant abnormalities of D. However, in HOLLEY (2005) the Privy Council decided that D must react as someone with normal restraint and self-control – the Court of Appeal followed this precedent. Consequently, people with an abnormality that impaired their general ability to control themselves would not be eligible for this defence. Subsequently, the Coroners and Justice Act 2009 has clarified the issue by making it clear that such cases fall under diminished responsibility, not loss of control.  Criticisms - SEXUAL INFIDELITY S.55(6) states that sexual infidelity cannot be a qualifying trigger for loss of control. This was in response to numerous cases where Ds had killed partners on discovering such sexual infidelity. However, the courts have held that sexual infidelity cannot be completely ignored because it may form an important part of the circumstances of the loss, as in CLINTON (2012). The Courts’ approach is sensible and the legislation could be amended to confirm this.  Criticisms - RECOGNISED MEDICAL CONDITION The requirement of a recognised medical condition for diminished responsibility adds clarity and        allows for new conditions to be added as they are recognised. However, this definition excludes ‘developmental immaturity’, which isn’t a recognised medical condition. It has been suggested that this should be included so that children who have not developed maturity such as the killers of James Bulger, aren’t denied a valid defence. Criticisms - BURDEN OF PROOF For those pleading diminished responsibility the burden of proof is reversed – the burden is on the defence to prove it on the balance of probabilities. It has been suggested that this breaches the right to a fair trial under the European Convention of Human Rights and should be reversed. However, the courts have consistently stated that there is not such breach: FOYE. INVOLUNTARY MANSLAUGHTER Involuntary manslaughter is the name given to an unlawful killing which is not accompanied by the mens rea for murder. “the unlawful killing without intent to kill or cause GBH” – R v Taylor (1834) 2 Lew 215 There are three forms of involuntary manslaughter, although we only focus on the first one:    Gross negligence manslaughter Constructive manslaughter (also known as unlawful act manslaughter) Reckless manslaughter (there is some debate as to whether this now exists as all cases could be subsumed within GNM). Gross negligence manslaughter Most serious crimes in England and Wales have two main elements: the act or omission itself; and the doing of that act or omission with intent or recklessness. The second element, the mental element, is very often determined ‘subjectively’ i.e. did the defendant know or intend that the consequence would be the one for which s/he is being prosecuted? But involuntary manslaughter is an exception to that – and for the type of manslaughter we are looking at the mental element is ‘gross negligence’. Case Studies Nut allergies The doctor Mohammed Abdul Kuddus and Harun Rashid have been accused of manslaughter following a nut allergy death after a girl ate food from their takeaway. Their trial began at Manchester Crown Court on 5/10/18. Jack Adcock, a severely ill child, had been admitted to hospital. Dr Bawa-Garba, a senior trainee paediatrician, was responsible for most of his clinical care. This was her first day back on an intensive care unit following a prolonged period of maternity leave. She had worked a double shift without a break and she had no senior assistance. To further confound matters a computer breakdown meant that the return of blood tests were delayed and nurses working in difÏcult circumstances failed to update her of Jack’s deteriorating health. At a critical time she had been heavily involved with treating other sick children. In the circumstances she believed that she had done her clinical best. Shortly afterwards, and due to overwhelming infection, Jack developed septic shock. His subsequent cardiac arrest led to his death about ten hours after admission. Note this view from a BMJ blog by two doctors: ‘It is questionable as to whether it is ethically or legally justifiable to impose criminal culpability upon unintended medical errors. If moral culpability depends upon making a free choice (either intentionally or recklessly), then an action that is not the result of such a choice surely cannot be blameworthy. Criminal culpability should be judged in the light of all circumstances of a particular case, and not based solely upon outcomes even where death has occurred if the perpetrator’s actions were neither intentional, nor reckless.’ Gross negligence manslaughter – the test 1. Did D owe V a duty of care? 2. Did D breach that duty of care? 3. Did the breach cause V’s death? 4. Was the breach so grossly negligent to justify a criminal conviction? The leading case in this area is ADOMAKO [1994] 3 W.L.R. 288:    D was an anaesthetist monitoring a patient who was paralysed during an eye operation. He failed to notice that the tube supplying the oxygen to the patient had become detached until the machine supplying the oxygen started to emit an alarm. According to expert evidence any competent anaesthetist would have recognised the disconnection within 15 seconds, and it was said that D’s conduct amounted to ‘a gross dereliction of care’. D was convicted of gross negligence manslaughter, but appealed on the basis that the judge had misdirected the jury. CA dismissed the appeal but certified a point of law for the HL to consider in order to clarify the law. HL held: ‘In cases of manslaughter by criminal negligence involving a breach of duty the ordinary principles of the law of negligence apply to ascertain whether the defendant had been in breach of a duty of care towards the victim. Once it has been established that there has been a breach of duty the next question is whether it caused the death of the victim, and if so, whether it should be characterised as gross negligence and therefore a crime. It is for the jury to decide whether, having regard to the risk of death involved, the defendant's conduct was so bad in all the circumstances as to amount to a criminal act or omission…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 caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the 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.’ (Lord MacKay at 187)    Whether a duty existed or not is a question of fact for the jury. Can be based on a positive act or omission – e.g. EVANS (2009), D gave heroin to V who failed to summon help when V overdosed. A trial judge should not direct the jury in such a case; though, struggling to establish a duty a care is very rarely problematic in such cases. The Adomako test was subsequently confirmed by MISRA (2004) EWCA CRIM 2375. DUTY OF CARE Who decides? Unless it is obvious, a two-step procedure make be taken. Firstly, the judge must look at the law. This decision of the judge is then to be decided by the findings of the jury. In ADOMAKO, Lord MacKay referred to the need for the ‘ordinary principles’ of negligence to apply, and the courts have generally been keen to keep this area of the law relatively simple. So, ‘duty of care’ is generally to be given the meaning it has in tort law – confirmed in WACKER [2003] CRIM LR 108. Herring offers the following summary “Much simplified, you owe a duty of care towards anyone who may foreseeably be harmed by your actions” p 275.    It will often be easy to establish if a duty of care exists where a positive act is done, for example: if there is a doctor/patient relationship, a driver owes a duty to other road users. In PRENTICE [1994] QB 302 the CA recognised the duty of an electrician to leave the house safe for the householder who employed him. The omission principles explored earlier in semester one apply where there is no positive act which has caused death. The ordinary principles of negligence in civil law could be used to determine this. A duty of care is owed to persons who are so closely and directly affected by D’s conduct that D ought to have them in contemplation when D acted or omitted to act: DONOGHUE v STEVENSON (1932). This will impose a duty of care in a wide range of situations. There are also various duty of care situations which the criminal law recognises: ADOMAKO held a duty of care was owed by a doctor towards a patient. ANDREWS v DPP (1937) – D had driven a van above the speed limit and overtaken another car. As he did so he struck a pedestrian and killed him. The House of Lords upheld D’s conviction for gross negligence manslaughter because motorists owe a duty of care to other road users and pedestrians. WACKER (2002) - D smuggled 60 illegal immigrants into the UK and 58 died of suffocation owing to his having shut the air vent in the container. D’s convictions for gross negligence manslaughter were upheld by the Court of Appeal. D knew that the safety of the immigrants depended on his actions in relation to the vent sand he clearly assumed a duty of care. It was irrelevant that the Vs were parties to an illegal act and that no duty of care was owed in civil law. EVANS (2009) - D2 owed a duty of care because she had contributed towards the creation of a state of affairs which she knew or ought reasonably to have known was life-threatening. What did Lord MacKay mean by ‘ordinary principles of the law of negligence’ in Adomako? EVANS [2009] EWCA CRIM 650: The appellant (E) appealed against a conviction for manslaughter by gross negligence. E had bought heroin and handed some to her half-sister (V), who later self-administered the drug. E noticed that V looked as if she had taken an overdose, and decided to spend the night with her. E did not call for medical assistance as she feared she would get into trouble. When E woke, V was dead. E appealed her against her conviction on several grounds (see earlier lectures on omissions), but the ground of relevance to this part of the course was that the judge was wrong to leave the jury to decide whether to extend the category of persons by whom and to whom a duty was owed for the purposes of manslaughter by neglect. BREACH Held: the existence or otherwise of a duty of care, or a duty to act, was a question of law for the judge and the question whether the facts established the existence of the duty was for the jury. If the existence of the duty was not in dispute the judge could direct the jury that a duty of care existed, but if the issue was in dispute and the judge had found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if specified facts were established a duty would arise but if other specified facts were present the duty would be negatived. Accordingly, the jury should not have been left to decide whether the appellant had owed C a duty of care but that, in the circumstances, that direction had not rendered the appellant's conviction unsafe  Essentially, once a duty is established it can be breached in a wide variety of ways, including both by act or omission.  Breach of duty requires that  the D acted in a way that a reasonable (objective) person would not have acted.  If the D is purporting to exercise some special skill (e.g. a doctor, driver, electrician etc) then the D must act as a reasonable person possessing that skill.  CAUSATION GROSS Thus, the test in ADOMAKO [1994] 3 W.L.R. 288 was whether D had acted as a reasonable anaesthetist would have done. This is an objective test. D had not and he was therefore in breach of the duty he owed V. D’s negligence must have caused V’s death. The usual rules on causation must be satisfied.  Factual causation  Legal causation  Intervening act which broke the chai of causation Lord MacKay in ADOMAKO explained that the jury should ask themselves whether D’s actions or omissions were so bad as to deserve a criminal conviction. “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.” ADOMAKO [1994] 3 W.L.R. 288, LORD MACKAY AT 187 In answering this question, the jury need to ask themselves whether a reasonable person in the same position as D would have foreseen a risk of death. This gives the jury lots of discretion and makes it circular; very circular test. Prior to ADOMAKO the law was unclear on this point (in Bateman for example, the court referred to ‘disregard to the life and safety of others’), but ADOMAKO and MISRA confirmed that D’s conduct must give rise to a risk of death. In Misra Lord Justice Judge stated: ‘In our judgment, where the issue of risk is engaged, Adomako demonstrates, and it is now clearly established, that it relates to the risk of death, and is not sufÏciently satisfied by the risk of bodily injury or injury to health. In short, the offence requires gross negligence in circumstances where what is at risk is the life of an individual to whom the defendant owes a duty of care. As such it serves to protect his or her right to life.’ (at 344) The test is objective, so the jury has to consider whether the risk of death was obvious to a reasonable person in the same position as D e.g. the reasonable doctor, carer etc. D need not foresee a risk of death. However, if D did foresee death it is more likely that the jury will find the negligence to be gross than if he or she did not. Confirmed in AG REFERENCE (NO 2 OF 1999) [2000] QB 796 Evaluating Involuntary Manslaughter Circular test, which could lead to inconsistent decisions: This argument relates the fourth limb of the Adomako test, namely: ‘the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the 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. (Lord MacKay at 187) The Law Commission, amongst others, have suggested that ‘this definition is circular – the jury should convict the accused of a crime if her behaviour was “criminal”’ (Law Commission Legislating the Criminal Code, Involuntary Manslaughter, 1996, p.14) In Adomako Lord MacKay addressed the issue: ‘It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission.’ (at 187) The jury is left with a wide discretion. The jury is given no further guidance on what factors to take into account in reaching their decision. Some critics have argued that this may lead to inconsistent verdicts. Herring gives the example of a junior doctor, exhausted after working a ridiculously ling shift, who negligently causes the death of a patient. He suggests that it is not difÏcult to imagine some juries being sympathetic to such a D and deciding that his negligence is not gross, but other juries being less sympathetic and convicting p297. Simon Gardner makes a similar point: “Under the approach to manslaughter now afÏrmed by their Lordships, the fate of thedoctors in question will depend heavily on the standards which juries expect from their medical service, and on where they are minded to place the blame for the deficiencies which occur. The thrust of the Patient's Charter is to create high expectations, and to suggest that any blame when these are disappointed will lie with the front-line providers, such as the doctors. On the other hand, various media treatments must have convinced many that the presently attainable reality is very significantly compromised, and that the blame for that rests with those who determine the very shape of the Health Service.” (Gardner [1995] LQR 22, at 25-6) The Crown Prosecution Service has complained that it is difÏcult to for it to decide whether or not to prosecute someone for gross negligence following an ‘accident’ in part because it is so difÏcult to predict how a jury will respond to a particular case. Law lacking in clarity: In MISRA AND SRIVASTAVA [2004] EWCA CRIM 2375, two medical house ofÏcers were convicted of manslaughter on the basis of causing the death of V by gross negligence. They had failed to diagnose the critical condition of their patient V, thereby failing to provide the supportive therapy and antibiotics that would have saved his life. Their convictions were appealed partly on the ground that that gross negligence manslaughter was so unclear in its formulation as to contravene Article 7 of the ECHR. Article 7 requires member states to attain minimum standards of clarity in the criminal law, so that citizens can reliably predict whether the particular form of conduct at issue will contravene the criminal law. The argument failed. More recently, ASHWORTH has highlighted a lack of clarity and certainty in the law regarding when a duty of care will arise in manslaughter cases involving omissions (see earlier lectures on omissions) “Rule-of-law principles must be upheld so far as possible. There is inevitably a penumbra of uncertainty in many legal terms, but, when it comes to criminal liability, it is wrong that citizens should be taken by surprise. The law should be as clear as it can be, especially if liability for a very serious crime like manslaughter is in contemplation. It has been argued here that the duty-situations developed by the courts in the current law of manslaughter by omission are unprincipled, unpredictable and capable of producing injustice. The new Government should refer this whole area to the Law Commission, requiring a review of all these positive duties and of the arguments for a good citizen/"easy rescue" law, in order to introduce a regime that is better proportioned to the wrongfulness of the omission and which meets the rule-of-law objections.” Ashworth, ‘Manslaughter by omission and the rule of law’ [2015] 8 Criminal Law Review 563-577 Medical manslaughter:  Can it be argued that medical manslaughter is morally distinct to other forms of gross negligence manslaughter? Both ADOMAKO and BAWA-GARBA concerned the negligence of doctors. The law, on its face, says that this is gross negligence manslaughter and that all cases of this will be treated the same. However, the practice is somewhat different. There seems to be a distinction between medical cases and ‘other’ gross negligence manslaughter cases. It here that we see the significance of pre-trial discretionary decision making before a matter even sees a judge or jury, it has to go through the police and CPS. If they look at doctors more favourable too then judges and juries will never even get to be lenient on many who might, strictly, fit the legal definition. Prosecutors argue that their decisions are based on the law and on the interpretations of/elaborations on the law set out in documents such as the Code for Crown Prosecutors and not because of emotion or political pressure. Although there is discretion to not prosecute on ‘public interest’ grounds, even if the evidence is strong, this discretion is eschewed in most homicide cases. For ‘seriousness’ is the most important factor taken into account when considering whether to prosecute. Homicide is almost always ‘serious’. In making their decisions, prosecutors are meant to apply a two stage sequential test: i) The evidential test ii) The public interest test However, research by GrifÏths and Sanders concluded that in many of the cases that were not prosecuted the public interest test was applied under the guise of the evidential test; and/or that in cases such as these the two tests merge. The tests could merge because juries would be expected to have the same feelings of sympathy towards the health care professionals in question that the prosecutors expressed (e.g. ‘tragic mistake by a dedicated professional’). Acquittals would therefore have been likely in many of these cases even if all the elements of Adomako were satisfied. They found that for many prosecutors ‘badness’ is often crucial in securing a guilty verdict. They look to a case called ROWLEY [2003] EWHC 693, in the belief that this confirms a 5th element to the test for GMN: It is clear from what Lord Mackay said [in Adomako] that there is a fifth ingredient: criminality … or ‘badness’. Using the word ‘badness’, the jury must be sure that the defendant’s conduct was so bad in all the circumstances to amount ‘to a criminal act or omission’. (Per Kennedy LJ) However, Mackay did not conclude in Adomako that the defendant must be ‘bad’ – i.e. subjectively culpable – in order to satisfy this test. Whilst a defendant’s recklessness may be one of the ‘circumstances’ that forms part of the evidence that negligence was ‘gross’, subjective recklessness is not a requirement. Thus as far as ‘the law’ is concerned (in the strict black-letter sense) it is hard to see how this really is an additional test. Indeed, neither the Law Commission nor most of the standard textbooks that we scrutinised for this purpose mention Rowley which is, after all, a rather obscure challenge to a decision not to prosecute for MM. And in no other substantial discussions of GNM have we seen mention of a ‘fifth test’. Homicide Evaluation: On the face of it the law on homicide seems relatively straight forward, but there are several problems which arise because of the structure of it. Manslaughter evaluation: We might also argue that manslaughter is too broad: it includes everything from someone with intent to kill but who loses their control to person to someone who makes a bad mistake with no intent to do harm at all. This arguably creates an issue of fair labelling. As Ashworth suggests: ‘Fairness demands that offenders be labelled and punished in proportion to their wrongdoing; the label is important both for public communication and, within the criminal justice system, for deciding on appropriate maximum penalties, for evaluating previous convictions [and] classification in prison, and so on.’ (Andrew Ashworth, Principles of Criminal Law (5th Edn, Oxford: OUP, 2006, p89). Proposals for reform The Law Commission have made what are, for England and Wales, fairly radical suggestions regarding the development of the law of murder, proposing the creation of a new ladder of homicide offences. This threetier system or hierarchy is intended to reflect the offence’s degree of seriousness. • The Law Commission, Consultation Paper No 177, A New Homicide Act for England and Wales? (2005) • The Law Commission Report No 304, Murder, Manslaughter and Infanticide (2006) Under the Law Commission’s recommendations… First degree murder (which would still carry a mandatory life sentence) would encompass: (1) intentional killing; or (2) killing with an intention to do serious injury with an awareness of a serious risk of causing death. Second degree murder (which would carry a discretionary life maximum penalty) would encompass: (1) killing with an intention to do serious injury (even without an awareness of a serious risk of causing death); or (2) killing where there was an awareness of a serious risk of causing death, coupled with an intention to cause either some injury, a fear of injury; or a risk of injury. Second degree murder would also be the result when a partial defence of provocation, diminished responsibility or killing pursuant to a suicide pact is successfully pleaded to first degree murder. Manslaughter (which would also carry a discretionary life maximum penalty) (see later lectures) would encompass: (a) Killing through gross negligence as to a risk of causing death. (b) Killing through a criminal act: (i) intended to cause injury; or (ii) where there was an awareness that the act involved a serious risk of causing injury. consultations/docs/murder-manslaughter-infanticide-consultation.pdf and subsequently, in the Coroners and Justice Act 2009. The Law Commission’s proposals to reform the structure of homicide were not adopted, with the Government indicating that these wider reforms may be considered at a later stage. The Act has nothing to say about the definition of murder or the mandatory penalty of life imprisonment for murder.