c
 


  
   
     

  !"#c"#"$

Homicide occurs when D causes the death of V, provided that V is a person within the Queen͛s
peace. Personhood is acquired at the time of birth and terminates with death. Death is typically
confirmed by the permanent cessation of pulse and heartbeat. Further, the condition known as
͚brain death͛ ʹ the complete and permanent absence of electro- magnetic activity in the brain ʹ is
almost universally recognised as a conclusive indicator of death. Any neural dysfunction short of
brain death is taken to be compatible with life.

Our concern here is with unlawful homicides. (Homicide can be lawful as when D kills V in justifiable
self-defence) An unlawful homicide may be murder, manslaughter, infanticide or one of the several
forms vehicular homicides. Our study is limited to murder and manslaughter. Murder is a killing
done either with an intention to kill or intent to cause serious bodily harm. Murder is punished by
imposing a mandatory term of life imprisonment. Manslaughter is a sprawling, untidy offence
embracing a wide range of conduct and diverse forms of culpability. It comes in two varieties,
namely voluntary manslaughter and involuntary manslaughter. (The terminology is not apt but is
rooted). Voluntary manslaughter is a killing of V by D where D has the `
   for murder but
comes within the terms of the statutory defences of loss of self-control, diminished responsibility or
membership of a suicide pact.(the last defence will not be studied) These defences do not result in
the acquittal of D; rather D is to be convicted of manslaughter. Involuntary manslaughter comprises
unlawful and culpable killings, but where D lacks intent to kill or cause serious bodily harm. The
sentence for manslaughter is at the discretion of the trial judge (a discretion constrained by
sentencing guidelines and appellate sentencing decisions) and may be anything from life
imprisonment to an absolute discharge.

Remarkably, there are no statutory definitions of either murder or manslaughter. The political
insistence on a mandatory life sentence for murder makes necessary a body of substantive law to
separate murder from manslaughter. If the mandatory life sentence were abolished the entire
territory of homicide could be covered by a suitably drafted single offence of unlawful homicide,
punishable at the discretion of the judge in the light of the facts of the case. This is a pattern already
familiar elsewhere in the criminal law. Theft is the dishonest appropriation of property belonging to
another with intent to deprive permanently. Theft ranges from the taking of a single apple from a
market stall to the removal of millions of pounds from a bank account, differences reflected in
sentencing, not in different offences. Is this a suitable model for homicide?

%#!&!  

˜ince homicide involves the death of a human being, we need to establish what constitutes a human
being. Under broad headings, there are two points of time to focus on. Namely:

-Y reginning of life
-Y End of life

Crutchley (1857) 7 C & P 814, 173 ER 355

· th century case which established that for the purposes of homicide, life begins at the point of
birth. I.e. the child must be wholly expelled from the mother. This was confirmed in 
  
 

 [·
 AC 245.


 Reference (No. 3 of 1994) [1998] C 245

There was a quarrel between D and his pregnant partner. D stabs V and as a consequence of this
offence against V the pregnant mother it made it necessary to deliver the child well before term.As a
consequence of that, the child is born alive but dies some weeks later. The Q arose: could this be a
homicide where the causal incident was prior to the birth?

HL had no problem in finding this was a homicide because the child was born and died a human
being and the court found it to be irrelevant that the cause of death preceded the birth of the child.
All that mattered was that the child was born alive.

The HL was quite clear however that had the child been destroyed in the womb, a live birth would
not have ensued, that would not have been a case of homicide. The entity destroyed would not have
been a human being

As a background to this, there are other offences involving the unlawful destruction of a foetus or a
child yet to be born

Infant Life Preervation ct 1929

Creates the offence of child destruction

Y The intentional destruction of a child capable of being born alive

Y V. ˜erious offence. Max penalty of life

Vffence againt the Peron ct 1861 58; ortion ct 1967

Y The former prevents a mother from knowingly taking substances which might harm the
child. The latter can be made legal in certain circumstances.

Certain people find it a troublesome problem as it͛s well accepted that from the
th month of
pregnancy onwards, all significant development of a womb has occurred and the only significant
difference b/w a late term child outside the womb and in it is location.

On a side note, quite a number of jurisdictions in the U˜ have changed their homicide legislation to
incorporate late term children within the purview of the law of homicide. (!``
  

 (·
) 404 Mass 37
)

There are no real proposals to make that change in this country.rut there͛s an important civil case
(
   
[·
 3 ALL ER 673 which really underscores the difference in
status of a late term child and a baby at the point of birth.

˜t
eorge Healthcare NH˜ Trut v ˜ [1998] 3 LL ER 673

This was a woman who was advised that she required a caesarean operation days from the point of
birth. Were the operation not carried out the mother would die and also the child would die. The
woman refused and didn͛t give a reason. ˜he simply said she didn͛t want the operation.What the
doctors did was to take the law into their own hands and proceeded with their operation. It was a
forceful procedure. The mother survived unharmed and the child was born healthy.

The CA confirmed that the woman had been seriously assaulted and subjected to false
imprisonment. That it was an unlawful procedure and that humans have an absolute autonomy over
that decision making,

This vividly underscored the lesser status of a alter term child. If the procedure involves the death of
a human being then the mum as a mum owes a DoC to that human being and the legal position
would͛ve been much more complex.

rt 2 European Convention for Human Right

There are questions that the art 2 of the ECHR complicates this. It͛s the vital right to life provision.
There͛s a case from France (Vo v France(2005) 40 EHRR 259)that made the argument that by
allowing a late term abortion, the state was failing to protect the life of an unborn and a viable child
therefore art 2 was implicated and art 2 protected unborn children. ECtHR just said margin of
appreciation, custom of states etc... This was a well-known medical procedure and art 2 wouldn͛t be
implicated.

Moving from the point birth, it may be that once the child is born alive, the child is profoundly
handicapped. The provision of the law understandably is that once a person is born alive they have
legal status as a human being.There͛s no as it were quality check to see if they measure up to a
criteria. The point of birth is everything.

*Re  (Children) [2000] 4 LL ER 961

Involved the separation of conjoined twins and one of the twins was certain to die as a consequence
of the operation. The weaker conjoined twin had profound handicaps. For instance, she lacked a
heart and lungs of her own and so was entirely dependent on her sibling to whom she was conjoined
for oxygen and bloodstream. Life would͛ve been much simpler here if the law could say that the
weaker twin was not in fact a human being and submissions were put forward by council to that
effect. And the court invited counsel to put aside that submission and counsel complied with that.

The CA was happy the argument was set aside which underscores that no matter how profound the
disability, the entity is still a human. Certain forms of disability prevent any engagement in life;

Y ˜tates of profound and permanent coma

Y E.g. persistent vegetative state tony bland was in

*iredale NH˜ Trut v Bland [1993] 1 C 789

In the bland case, tony bland was in a PV˜ (persistent vegetative state) and that entailed that he
could feel some sensations but he lacked any form of sentience and the state of the art at the time
was that PV˜ was not merely persistent as its now called but permanent. Op to end his life (such an
op was authorised)
rut all the judges who heard this case were insistent that any condition such as coma or PV˜ was
compatible with a state of life. There would be no quality of life test applied even when the
condition made engaging with life completely impossible.

There was one form of ͚seeming life͛ however that the HL said was a form of death not a form of life.
It͛s the condition known as ͚brain death͛ that͛s a condition where there͛s absolutely no EM activity in
the brain. ˜o the function of the brain is eliminated. The something reading is completely flat and
the body can only be sustained on a life support machine.

˜o the classic indicia of death which was at one time just lack of pulse/heartbeat are still quite
sufficient. And we add to that, the condition of brain dead which is now a form of death but
anything else is a form of life however grievous the disability.

# &c'!( )#"#!##)"%c 

To be a homicide as we know, D must kill V and for historical reasons, death had to ensue within a
year and a day within the conduct alleged to have caused the death as a precondition to cause
homicide. It went after legislative appeal in · 6 though (Law Reform (Year and a Day Rule) Act
· 6).

The Queen͛s Peace

 (·
07) · Taunt 33, ·27 ER 74·; · Hale Pc 433.

Offences against the Person Act ·
6· s.

#%#'! 

Common to all forms of homicide is proof that D by his act or omission caused the death of V. Your
previous study of causation is relevant here. We will merely make brief reference to some matters of
particular relevance to homicide, namely cause and voluntary conduct; cause and constrained
conduct; omissions as causes; and medical interventions.

The resolution of causal questions one way or the other will have great impact on the fortunes of D.
If D shoots and kills V with intent to kill V, lacking any justification or complete or partial excuse, he
will be a murderer. If the bullet should jam in the breech he will be guilty of attempted murder.
When we examine the mandatory life sentence regime for murder, we will see that the sentencing
judge must set a minimum term before the lifer is eligible for parole. That minimum term must be
served in full. A 20 year minimum term means 20 years in prison. In cases of attempted murder, the
sentence is at the discretion of the judge. If he passes a heavy sentence of 20 years imprisonment,
typically the prisoner will be released on licence after serving ·0 years. Is that difference, in one
direction or the other, justifiable? ˜hould so much hinge on causation?

   * +



*Kennedy (No 2)[2007] UKHL 38;[2008] 1C 269

Casual stories start with a voluntary and sufficiently informed act which is immediately associated
withthe death and which supervenes over other physical causes of the death at the point in time of
the death.The facts of Kennedy make this point.

rut after this initial analysis, we move back to the old CL position that free, deliberate, informed acts
of TP͛s break the chain of causation so here, the person taking the drugs was the cause of their own
death.

(Check: When looking at the Kennedyprinciple don͛t forget the (complicit rule?). complicity does not
rest on causation)

 
 



rroadly speaking, ͚constrained conduct͛ refers to situations where D has caused V͛s conduct to be
constrained in some way. E.g. where V is frightened into taking their own life.

*Roert (1971) 56 Cr pp R 95

D was brutal to his 3 year old son. The terrified child essentially jumps downa flight of stairs and kills
himself. The court held that the father had killedthe boy because the reaction of the boy was not
unforeseeable. And when someone reacts ina foreseeable way as a result of the act of D the causal
link is intact.

Ë` [· 2 2 All ER ·
3. (V, a hitch-hiker, jumped out of a car and suffered fatal injuries. There
was no evidence of a threat by D. CA said that as the response was not proportionate to the threat,
D shouldn't be liable)

Blaue [1975] 1 WLR 1411.

Out of religious conviction, a blood transfusion is refused and a typically not fatal injury causes the
woman͛s death from loss of blood. Again D is responsible from V͛s death as the religious beliefs were
upheld so she had no choice in the matter and it was held as a constrained choice

*Daliwal [2006] EWC Crim 1139

rrutal husband who cause his wife͛s suicide. The question for the court was whether D could be
liable for causing someone else to commit suicide.

CA said in you could cause another person͛s suicide through your brutality in principle but onthe
facts of this case, causation was not made out. (You might ask if that analysis by the CA made sense)

Horder and McGowan, ͚Manslaughter by Causing Another͛s ˜uicide [2006 !`
    
·035.

 
 *  

Where relevant, the causal analysis may enter into questions of foreseeability as indeed we can see
in  .
In med cases however, for policy reasons, there is an extreme reluctance to apply a foreseeability
analysis even if the treatment is so bad as to foreseeably cause death and better treatment
would͛veensured survival, the courts effectively refuse to invoke the foreseeability analysis. The
intervention must be of ͚quite an extraordinary kind͛ before a medical intervention will severe the
causal link.

*Chehire [1991] 3 ll ER 670

D shot V however, V essentially only died due to bad medical treatment. D is convicted of murder
and appeals.

  dismissing the appeal, that when a jury had to consider whether negligent medical treatment
of injuries inflicted by a defendant was a cause of death it was sufficient for the judge to direct them
that it had to be proved that the defendant's acts caused the death, but that they need not be the
sole or main cause provided that they contributed significantly to it; that even though negligence in
the treatment of the victim was the immediate cause of his death, it should not be regarded as
excluding the responsibility of the defendant unless the negligent treatment was so independent of
his acts, and in itself so potent in causing death, that the contribution made by his acts could be
regarded as insignificant; but that it was not the function of the jury to evaluate competing causes or
to choose which was dominant provided they were satisfied that the defendant's acts could fairly be
said to have made a significant contribution to the victim's death; that although the judge had erred
in inviting the jury to consider a test of causation based on their assessment of the degree of fault in
the medical treatment, in the context of the remainder of his direction on the issue and in the light
of the evidence given no miscarriage of justice had actually occurred

! 
 [· 2 4 Cr App R 5·.

 
 

Technically omissions cannot cause anything. However, there is a strong normative pull to include
omissions where there was a duty to act in the causal field of homicide law. This is done by using a
counter- factual analysis. Imagine world as it might have been if the duty had been performed and
you ask if we͛re sure beyond a reasonable doubt that if D did his duty, V would not have died at all
or would have died in materially different circumstances.

The rule might make sense if applied carefully and cogently. In practice however, once the omission
is proved, there is often a tendency not to explore that parallel world. It͛s too easily assumed that
doing the duty would have changed the material facts of that case.



" (· ·
) ·2 Cr App r ·34

" (· 02) · TLR 37

˜tone &Doinon[1977] QB 254

Hopeless couple who were found to have undertaken a doc to v. The unfortunate victim suffered
from anorexia in the case and clearly had a very stubborn affliction. It was not addressed in any
cogent form by the trial court and the CA. They didn͛t focus on whether even if these people had
been super sensitive/competent whether they͛d have prevailed over the underlying anorexia
condition as the fact is many interventions in these cases are unavailing however focused. Example
of how it͛s not fully explored, particularly beyond reasonable doubt.

â
  [·
3 2 AC ·6· ʹ case of the hobo and the house that burnt down. Establishes the principle
that you are under a legal duty to remedy dangerous situations you create.

The distinction between acts and omissions are vital on the borderline cases in distinguishingb/w
acceptable medical practice and homicide.

iredale NH˜ Trut v Bland [1993] C 789

rland was in a PV˜ and the question was whether the doctors could withdraw treatment by way of
artificial feeding from the patient lawfully. Every judge was unequivocal that if the procedure was a
positive act, it would have been an act of murder as the death of rland was a certainty once the
artificial life support was withdrawn. The HL said it was an omission and it was perfectly legal for
doctors to withdraw treatment once they decide it͛s no longer effective. When you read the case,
think about whether it͛sacogent explanation of the act/omission distinction.

˜ullivan uses the following rule of thumb:

Essentially with a positive act, at the point you͛re acting, most of your behavioural options are no
longer available with regards to the time and place. Now the act may be very brief, almost
instantaneous but while you are doing it, there are not a lot of things you can be doing at the same
time.

If it͛s truly an omission then all of your behavioural options remain open save for thing you are
omitting to do. (As JonathanRogers puts it; it is the difference between making a decision to go to
Lichtenstein and being banished from Lichtenstein)

Re B [2002] 2 ll ER 449

A case where a woman who was fully sentient but tragically paralysed from the neck down asked her
medical team to cease respiratory support and allow her to die. The medical team refused and that
refusal is challenged before the CA.

The procedure involved is this; if a person is taken form artificial life support, they are typically first
sedated, life support is then removed and then the medical team places a person in an adjoining bed
and that person is then left to die. That procedure had to be characterised as an omission to be
lawful.

And indeed, the CA did find it was an omission (and not an act of omission) that caused the death.
However the technical question to be raised is how one can characterise the procedure as a mere
omission rather than an act of omission. Does the conceptual analysis carry the moral entity?

M URDER
Murder would be commonly regarded as the most serious peace time crime. As we know, a
sentence of life imprisonment must be passed following a conviction for murder. That makes it
especially important that the definition of murder should consistently capture those unlawful
homicides that merit such a sanction. The mental element for murder is an intention to kill or to
cause serious bodily harm. ˜ome senior judges have expressed the view that murder should be
confined to cases where D killed with intent to kill. The Law Commission proposed a division of
murder into first and second degree murder which we examine below, a proposal not enacted by
the previous government. The coalition government has indicted an intention to review the law of
murder (politics.co.uk ˜eptember
, 20·0) but no further details are yet to hand.

Currently an intention to cause grievous bodily harm suffices for murder. That form of culpability is
very important in practice. A large scale empirical study of murder carried out by Dorling (see below)
demonstrates that the large majority of murders would fall outside that category but for the fact
that the prosecution need only prove an intention to cause serious bodily harm. Whether this leaves
us with a morally convincing version of murder is something to be discussed.

Murder is a crime requiring an 


to cause death or serious bodily harm. Your previous study
of the legal meaning of intention is in point here. Recall that the courts have made rather heavy
weather of pinning down the legal meaning of intent. It is important not to overlook that typically
proof of intent requires nothing in the way of conceptual analysis. If D plunges his knife into V͛s
stomach, he has demonstrated, at the very least, an intention to cause V serious bodily harm. The
intention to cause serious harm is not something mysterious hovering over his conduct, it explains
his conduct. The meaning of intent in murder only requires the attention of lawyers where the killing
takes a less direct form, leaving room for legal dispute about D͛s intentions.

Note also that it is a crime of intent and the great dividing mark for serious crime is b/w intent and
recklessness on the one hand, most serious crimes can be created intent or reckless, and crimes of
negligence by strict liability on the other hand.rut for murder, it has to be intent. Recklessness
doesn͛t suffice.

ry way of introduction, it is first helpful to discuss the leading case on recklessness

R v
[2004] 1 C 1034

Involves 2 youths literally playing with fire. They cause an enormous amount of damage. The issue in
the case was whether they were reckless as to the full extent of the damage caused.

The HL ruled that proof of recklessness entailed proof that D foresaw an unjustifiable risk that his
conduct might cause the  of the crime.

˜o the person without that foresight wouldn͛t be reckless. He might be negligent though. D must
foresee the risk and run it regardless to be reckless. Note also the risk has to be unjustifiable. There
are certain risks that are quite lawful to run. Typical example would be a surgeon carrying out a
medical operation with informed consent etc perhaps aware that in a significant number of cases
the patient will die.

˜o note that reckless is not just a technical expression but also judgemental. There͛s criticism implicit
in the finding.Whereas with murder, it͛s intent. ˜o it͛s a more serious yet more neutral term. Intent
as such carries no moral baggage.
˜o we have to look at cases where serious bodily harm was intended not merely foreseen. If it was
merely foreseen and the risk was unwarranted it may well be manslaughter not murder.

' !'#c c!'! %"" 

 

The story for intent in murder is quite remarkable. All the cases starting in · 6· with smith are about
the meaning of culpability in murder.

˜mith [1961] C 290 caused a huge change in the law as there it was said that you did not need to
look into the state of mind of D but rather, merely look at the act.

*Criminal Jutice ct 1967 .8 ʹ essentially reversed the effect of`.

Frankland [1987] C 576 ʹ Here the PC essentially said that `was a mistake and should not be
followed.

˜o it is clear that intent needs to be proved in a subjective sense

The first leading case we can lightly touch upon is the case of:
Hyam [1975] C 55

Here, D set fire to a house. ˜he claimed only to want to frighten the woman sleeping in side not to
injure or kill her but she admitted that she was risking the lives of the persons inside. And the HL
here (but u can forget this after as its misleading) by a majority of 3-2 said that D could be taken to
have intended any consequence that she foresaw was the natural and probable result of her
conduct. On that basis, if proof of that foresight was established, D had intent to bring about that
consequence. In terms of pure culpability, there might be some merits to this approach but the
problem is that it distorts the natural meaning of intent.

We foresee risks and we might think they͛ll materialise but we often hope they won͛t. ˜o it may be
that though she foresaw the risk, it was far from what she intended.This was discussed again by
another appeal to the HL.

*Moloney [1985] C 905, 926 (Lord Bridge)

(note: this is essentially the precursor of Ë
. Ideally read both and them link them together and
view it as a whole.)

Here, D got into some sort of argument with his stepfather over who could load and fire a shotgun
he quickest and at some point, the stepfather is killed.

The HL here essentially recognises that the ruling in #`got intent wrong. That there was a
confusion of intent and recklessness and intent was overdrawn if it included recklessness and it had
to be narrower. Importantly, in his leading judgment Lord rridge said that in the typical case of a
killing with a weapon, there is no need to give any direction on intent at all.

In the straightforward case, it really confuses the jury to go into matters of intent because the
matter is so straightforward the jury can be left to themselves to make the inference.˜o in the vast
majority of cases we͛d rely on the plain meaning of the word and thus you can͛t be too prescriptive.
rut typically you intend to do something if you want to bring that result about.It͛s the reason or one
of the reasons you were acting. It informs your conduct.

Just because you see something as certain doesn͛t necessarilymean u intended to do it though.˜o
intent informs conduct, it may direct conduct but it shouldn͛t be fully associated with desire.

˜o there are cases where the law has a reading of intent that goes beyond its natural meaning and it
needs to be put to the jury. This is ͞the law of intent͟ so most of the time it͛sa natural meaning but
in some cases a technical meaningis applied to the word intent

Those cases are colloquially known as ͚dangerous act cases͛ where D does not want to bring the
event about.

Hancock [1986] C 455.

˜triking miners defying the strike ban were being taxied into their workplace and D͛s, a 3 man group
of striking miners,are on a bridge over the motorway.They see a taxi with the strike breaking miners
ride in towards the bridge, one of the striking miners handling a quarter of a paving stone releases
the stone as the taxi is under the bridge, it falls and kills the taxi driver. Charge of murder with
dropper as principal and 2 others as accomplices.

This is a case where you need direction of intent because on the miner͛s own account of their
actions which the prosecutors were willing to accept, what D and others wanted to do was to drop it
as closely as possible to the taxi without hitting it. Thoughthey conceded they were aware of a very
strong risk that their objective might fail. That instead of missing the occupants it might hit the taxi
with drastic results.

˜o taking them at their word they didn͛t intend to kill or cause serious bodily harm. Did they have
intent to kill in the extended sense? We answer that question by applying the ͚Ë
direction͛

Was death or gbh a virtual certainty? Was D aware at the time of his act that death or sbh was a
virtual certainty? ˜o that goes to the jury.Is it a case that if the jury makes those findings that they
have to convict them of murder?

It gives as somepeople argue merely an option to the jury to make a finding of murder. (Norrie
͞After Ë
͟[·  !`  25 . article in hand out) argues that when you use intent in an
extended sense Ë
makes clear that it͛s merely evidence on which the jury can make a finding of
intent if they choose.

˜o the law allows some moral element to the jury. If they don͛t a positive finding on the two
questions, it͛s not a case of murder but even if they do, there͛s a bit of jury equity in there.

The best support for this view of the lawcan be seen in

Mathew and lleyne[2003] Cr pp R 30.

D (and friends) were a group of lands and they find a Nottingham student wandering the streets.
They get hold of him and march him around various cash points to withdraw cash from his bank
accounts. After he͛s done withdrawing and he͛s of no use, they take him to a river bridge.
He pleads with them not to throw him in as he can͛t swim. They don͛t listen to him and throw him in
to his certain death. You may think it͛s a straightforward case of murder and might think the trial
judge was indulgent in allowing the defendants to say it was a Ë
style case rather than leaving
it to the jury to infer intent.

The trial judge says it͛s a dangerous act case so we need a special direction. On this topic, go back to
facts of Ë
where a small baby is picked up and smashed onto a hard surface. Is that a
dangerous act case? Was the Ë
direction needed in Ë
itself?

˜o this law doesn͛t seem very satisfactory. ˜o they get the Ë
direction from the judge. He
carefully goes thru the test and then says to the jury ͚if you find these tests satisfied, doubtless you
will find this is a case of murder͛. The CA say this is a misdirection. The judge should have made it
clear the Ë
test didn͛t constitute intent, merely evidence from which an inference of intent
could be drawn.

rut the CA then said something quite remarkable; they then confirm the verdict of murder saying
they had no doubt that had an appropriate direction been given the jury would have made a finding
of intent. ˜o that draws a lot of issues as to what the distinction is between finding intent and the
test of merely drawing the basis on which intent can be found.

˜o that is the law of intent and murder for the regular cases. Usually the natural meaning suffices
but there are exceptional situations where a ͚Ë
direction͛ is needed. Further, it is unclear
whether all the cases requiring a Ë
direction actually requite them.

  

 ,

Where doctors foresee a great risk of death, it is immediately apparent that he use of a might be
very uncomfortable if applied in a medical context. However, it is possible to conclude in medical
contexts where a doctor is acting in good faith, a narrower view of intent will be taken. " $ 



Re  (children) (Conjoined Twin ˜urgical ˜eperation)) [2000] 4 ll ER 961

Walker LJ found that the death of the weaker twin was an absolute certainty but said that the
surgeons involve did not intend her any harm. Their intent was simply to allow the stronger twin to
recover her full health and faculties.

  
   

+ 

For the law of murder as it currently stands, it is clear that either intent to kill or to cause serious
bodily harm will suffice. There was at one time however considerable uncertainty about the latter
part.

Homicide Act · 57 s.· ʹ abolished the doctrine of constructive malice under which the `
 for
murder could be attributed to D where the death was caused during the commission of another
felony.

%! &'()2 Qr 664 ʹ D was committing a robbery and was discovered by the owner. To prevent
recognition, he struck her on the head multiple times and she died as a result. D was convicted of
murder and appealed that on the basis of the Homicide Act · 57, "constructive malice" had been
abolished, and as the death occurred in the course of causing grievous bodily harm, the necessary
malice aforethought to establish murder could not be implied from that, and he was not guilty of
murder but of manslaughter.Held that the `
 for murder could be implied from the fact that
D had intended to cause grievous bodily harm.

*Cunningham [1982] C 566

The defendant struck another man several blows on the head with a heavy chair in an unprovoked
attack motivated by sexual jealousy. The man died as a result of a fracture of the skull. Charged with
murder, the defendant denied an intention to kill, but there was evidence from which the jury,
convicting him, could and did infer an intention to inflict grievous bodily harm.

The HL in !


` by a 3-2 majority confirmed that an intent to do serious/grievous bodily harm
was sufficient culpability for murder.

That term ͚serious bodily harm͛ is not defined. It͛s not a term of art. What is serious is a factual
matter for the jury. (*`[2003 EWCA Crim 2
46 - In determining whether injuries sustained by a
victim of an assault were "grievous" it was necessary to have regard to the effect of those injuries on
the victim, taking into account the victim's age and health.)

Intent to do serious bodily harm need not involve any foresight of death on the part of D. And
indeed the injury in its own right need not be life threatening (particularly important in medical
cases where the medical treatment exacerbate rather than heals the injury).

The intent to cause serious bodily harm is hugely important in practice. There is a case ˜tudy by
Dorling (Dorling, ͚Prime ˜uspect: Murder in rritain͛) which concludes that ͚serious bodily harm limb͛
is necessary in over 70% of murder convictions.

â
 
  [·
 AC 245 at 25
- per Lord Mustill ʹ (Where a pregnant woman was
stabbed eventually resulting in the death of the baby); ͞My Lords, in a system based on binding
precedent there could be no ground for doubting a long course of existing law, and certainly none
which could now permit this House even to contemplate such a fundamental change as to abolish
the grievous harm rule: and counsel rightly hinted at no such idea. rut when asked to strike out into
new territory it is, I think, right to recognise that the grievous harm rule is an outcropping of old law
from which the surrounding strata of rationalisations have weathered away. It survives but
exemplifies no principle which can be applied to a new situation

" 
+
  [·  · AC · at ·5 per Lord Mustill ʹ ͞In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It
is sufficient if it is established that the defendant had *·5an intent to cause really serious bodily injury. This rule turns murder into a cons tructive crime. The fault element does not correspond to the conduct leading to the
charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated: see Ë`  ,!!`
 , 2nd ed. (·
3), pp. 205-25·;  "
$ 
!`
 , 2nd ed. (· 5), pp.
5, 26·; ! !-.
 !`
 , ·2th ed. (· 2) pp. 203-204. This is a point of considerable importance. The Home Office records show that in the last three yea rs for which
statistics are available mandatory life sentences for murder were imposed in · 2 cases in · 4; in 2·4 cases in · 5; and in 257 cases in · 6. Lord Windlesham, writing with great Home Office experience, has said that 
`
# of defendants convicted of murder have been convicted on the basis that they had an intent to kill: "Responses to Crime," vol . 3 (· 6), at 342, n.2 . That assessment does not surprise me. What is the justification
for this position? There is an argument that, given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bod ily injury cannot complain of a conviction of murder in the
event of a death. rut this argument is outweighed by the practical cons ideration that immediately below murder there is the crime of manslaughter for which the court may impose a discretionary lif e sentence or a very
long period of imprisonment. Accepting the need for a mandatory life sentence for murder, the problem is one o f classification. The present definition of the mental element of murder results in defendants being classified
as murderers who are not in truth murderers. It happens both in cases where only one offender is involved and in cases result ing from joint criminal enterprises. It results in the imposition of mandatory life sentences when
neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory l ife sentence.

The observations which I have made a bout the mental element required for murder were not directly in issue in the appeals under consideration. rut in the context of murder the application of the accessory principle, and
the definition of murder, are inextricably linked. For that reason I hav e felt at liberty to mention a problem which was not addressed in argument. That counsel did not embark on such an argument i s not altogether
surprising. After all, in Reg. v. Cunningham [·
2 A.C. 566 the House of Lords declined to rationlise and moderni se the law on this point. Only Lord Edmund -Davies expressed the hope that the legislature would undertake
reform: see p.5
3b -c. In my view the problem ought to be addressed. There is available a precise and sensible solution, namely that a killing sh ould be classified as murder if there is an intention to kill or an intention to
cause really serious bodily harm coupled with awareness of the risk of death; ·4th Report of the Law Revision Committee on Of fences against the Person )·
0) (Cmnd. 7
44), p.·4, par a. 3·, adopted in the Criminal Code
for England and Wales (Law Com. No. ·77) (·
), clause 54(·) . This solution was supported by the House of Lords ˜elect Comm ittee on Murder and Life Imprisonment, H.L. Paper (·

-·
) No. 7
-·, p.25, para.6
.͟
`
[200
UKHL 45;[200  AC·2 ,para 5· per Lord rrown ʹ ͞My Lords, there are many more
murderers under our law than there are people who have killed intentionally. The    of
murder is, of course, the killing of the victim; the `
  (established in R v Cunningham [·
2 AC
566 ) is the intention either to kill the victim or at least to cause him some really serious bodily
injuryͶ͞grievous bodily harm͟ as it used to be called, ͞gbh͟ for short. As this appeal illustrates,
moreover, there is a further group of murderers too, those who did not intend even gbh but who
foresaw that others might kill and yet none the less participated in the venture.͟

' !'!("%"" 

˜o murder has a very broad form of culpability going beyond the natural meaning of intent and
encompasses sbhas well as death for culpability.

rut in every case of murder from understandable mercy killings to outright atrocities, the penalty is
always the same. A mandatory life sentence.˜ome details are found in the Criminal Justice Act 2003
s.26 and schedule 2·.

Under this, after the life sentence, the judge must fix a minimum term. This is known as the
retributive part of the sentence. How bad is the murder, how severely should d be punished? The
statutory regime gives the judge 3 bands and effectively lay down criteria which the judge must
follow in allocating the particular murder he͛s concerned with into · or the other of the 3 bands

˜ullivan [2005] 1Cr pp R(˜) 308.

In the case of ˜ullivan, the CA looked at this regime and didn͛t like it at all as it reduced judicial
discretion. Lord Woolf said there was an ultimate discretion for the judge if he found that he
bandings didn͛t suit the specifics of the case, he could operate outside the banding and give a lesser
term. Despite this, judges have readily confirmed that this statutory regime is very prescriptive

Look at the regime. The default is that each murderer must spend at least ·5 years in prison. If you
attempted murder but didn͛t succeed in killing, you still receive a heavy sentence but typically
eligible for parole after half the sentence.

If there are aggravating features, there͛s a radical upgrade from ·5 years to 30 years. And if there
are super aggravating features then the sentence is whole life. For the rest of the term, (after ·5 or
30), you have to make an application to the parole board and persuade the parole board you are
safe to be released and you are released on license and if you break any of those terms you can be
called back into prisons.

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nolecture. Read on it for essay.

Most of the time there͛s a great deal of automaticity of law. Low maintenance just goes along. True
in the law of murder particularly the bit on the intent to do GrH. Whether it͛s too broad or not, it͛s
typically easy for the jury to apply.
˜o there is an element of it͛s not broke why fix it? The crucial matter is whether it is over inclusive.
We have more life prisoners, on the basis of murder convictions, than the rest of the EU countries
combined. Our murder rate is lower than it has been for many years. It͛s around 700 per annum
which for around a population of 60 million it͛s quite impressive. (Around ·.4· per ·00, 000)

M ANSLAUGHTER
We move on to manslaughter. There͛s technically only one kind of manslaughter offence; so in a
sense when faced with a killing, it͛d either be a murder or manslaughter. That͛s over simple though.

The territory of manslaughter divides into what is called

(i)Y Voluntary manslaughter

(ii)Y Involuntary Manslaughter

Voluntary Manslaughter

%
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      `        !
 
   $  +  # 

 

  `
`   $ 
    

`
 
The major practical consequence is the displacement of the mandatory life sentence for murder. The
sentence for manslaughter can be a life sentence but also any other sentence or measure (including
hospital orders with or without restriction and various non-custodial provisions) that the presiding
judge considers appropriate.

There are 3 partial defences to murder:

I.Y New, statutory, loss of control defence (to reduce murder to manslaughter)
a.Y Created by the coroner͛s injustice act of 200 and it became operational in October
20·0
b.Y It abolishes and replaces the old and highly controversial defence of provocation
i.Y You will find textbooks have a large treatment on the old law. The reason
being there͛ll still be cases in the pipeline where the action occurred prior to
act and the old law of provocation may still be in play. However, it doesn͛t
really concern us.
II.Y Diminished responsibility (again a partial def to murder reducing it to manslaughter)
a.Y This is still to be found in s2 of the homicide act · 57 but is much amended by s52 of
the coroner͛s and justice act 200 . And again, it͛s only the new version of diminished
responsibility which concerns us
III.Y reing a member of a suicide pact
a.Y If you have a settled intention to die and kill with consent another party who wants
to die (both parties must intend to die)
b.Y Found in s4 of homicide act · 57

Involuntary Manslaughter

An unlawful killing where D lacks the `
 (I.e. does not intend to kill or cause gbh)

/c%!'#")#!c#% '" c( !'"c 

'  2 *
   


The terms of the loss of control partial defence are set out in sections 54, 55 and 56 of the Coroners
and Justice Act 200 .This new measure replaces the controversial defence of provocation, a defence
which was based on common law and the repealed s.3 of the Homicide Act · 53.

At the heart of the old defence was a sudden loss of self-control of D in response to something said
or done by the deceased, V. Here, D still has the `
 for murder. The defence required an
objective evaluation and asked whether a reasonable person placed int eh circumstances of D would
have lost control as well and further, if the reasonable person would have lost control, whether he
would have attacked V in the manner D did.

It͛s a very strange defence. In tort, defences involving the ͚reasonable person͛ defences typically
completely exonerate D. However, this was never true of provocation. While there are potentially
complete defences to murder such as self-defence, the question of when it was ever reasonable to
kill if you weren͛t in danger was always asked. Indeed it is this question which led to considerable
disquiet with regards to the manner of operation of the provocation defence.

A frequent example of a provocationplea was a man killing his female partner on the basis of actual
or suspected sexual infidelity.E.g. of a successful provocation please. There was a man (a solicitor)
who came home in a suspicious frame of mind, opened his wife͛s handbag, reads the content of a
letter not written by him. Enraged by this letter, he kills his wife immediately and spontaneously, in
front of their infant children.It͛s the success of such cases, where anything said or done could trigger
a successful defence of provocation, which gave rise to disquiet

A defence based on a sudden outburst of violence is particularly suited to a male temperament and
male physique. Woman in the same situation aren͛t able to react spontaneously in the same way.
The class of women that gave rise to these concerns are the case of ͚battered woman͛. These are
cases involving partners (typically female) subjected to a round of continuing violence who in the
nature of their case may have lacked any form of escape or familial support.And in a number of
cases, the woman might take events into her own hands and say kill the husband while he slept.
Those women didn͛t qualify for the defence as if there was any degree of premeditation or planning
it was hard to raise a plea that the woman had lost her self-control at the time of the killing.

˜o there͛s a very real reservation due to the gender bias here. Perhaps sometimes allowing too
much cultural latitude for the treatment of women.

A final separate concern was that anything, said or done, which provided D to lose his self-control
could count as legally adequate provocation and indeed, allow him to raise the defence. E.g. 
+# (·
6) ʹ here, D was raising a child. One day, when the three month old was crying
excessively, he beat the child to death and was allowed to raise the provocation defence on these
facts.

˜o it was thought that we needed a new start. This is to be found in s54-56 of the Coroners and
Justice Act 200 .

'  .-   3
#
44

˜o there was this idea to start afresh and indeed, in theoriginal LC proposals, there was a lack of
presence to any reference to a loss of self-control.LC lost its nerve (and so did the HO and MoJ) and
the new version begins with the loss of sc.

There still must be at the time of the killing, evidence fit to go to the jury that raises at least the
possibility that D killed V while he was out of control. ˜o it͛s still the basic rationale of this new
defence. That there are certain circumstanceswhere to some extent, a loss of sc can be condoned, or
at least partially excused.

It͛s that condonable loss of sc that reduce the crime of murder to manslaughter with the dramatic
impact that the sentence is completely up to the discretion of the judge and even if attract a long
sentence, e.g. ·4 years, you are typically applicable for parole after you serve 50% of your sentence
whereas the default for murder is at least ·5 years spent in prison.

What a psychological loss of sc implies is quite difficult to pin down with any exactitude. What we do
know is that a loss of sc must be compatible with the intention to kill or cause gbh because only if
the definitional elements of murder are present or conceded by the defence does this loss of control
defence arise

˜54(2) tells us that the loss of control need not be sudden. This was put in particularly with ͚battered
women͛ in mind. There must still be a loss of sc but it need not be by away of sudden and immediate
response to the last episode of provocation. It does allow for what is sometimes called the ͚slow
burn reaction͛. Where a person is in fear. In circumstances she finds grossly offensive to her. The
response isn͛t immediate but as long as it exhibits loss of sc as a possibility, the defence may arise

We͛re also warned in s54(2) that there must not be a considered desire for revenge. ˜o where there
is a gap b/w being provoked and the response to that provocation comes later, there must be a loss
of sc but it mustn͛t be indicative of a considered desire for revenge.

Its clear there͛s a fine line here. The exact psychological state the law is looking for is really hard to
pin down.Easiest way is to tell the jury they have to consider whether it was a considered desire for
revenge or simply indicative of the loss of sc.

As well as the loss of sc itself, it must come through a particular manner. Not any loss of sc will do. It
has to come through ͚a qualifying trigger͛ it must be linked to and explained by ͚a qualifying trigger͛

h+000 --

˜55(3)

˜traightforward and unwarranted (s55(3)); a fear of serious violence from V against D or another
identified person. We can talk about ˜D here. It͛s a complete exoneration but it must be in response
to an actual or almost certain violence. (very tight degree of pre-emption in the law of ˜D). Here we
are allowing as a partial defence to murder someone who anticipate serious violence and to protect
herself from it, she kills V. ˜o the timespan is much more receptive than ˜D.

This defence is crafted with the battered woman in mind. rut note the loss of control requirement. It
seems a bit odd. It͛s not merely that he woman must act in a way to protect herself. That is not
enough. ˜he must also be in a state of a loss of sc at the time she carries out the killing
The exact rationale of this seems hard to pin down and it unclear if the battered women situation
has been completely remedied. (note the old case raising the provocation defence of
(· 2) - D was subjected to things beyond belief.one day V says to his wife I͛m too tired of
beating you. I͛m going to sleep and I͛ll be up in the morning to keep beating you. D poured petrol
around him and set him on fire. ˜he was convicted of murder but this was later overturned and
replaced with manslaughter on the grounds of inadequate counsel) It is unclear if someone in an
situation would be able to raise the new loss of self-control defence as given the planning
in the way she killed V, it seems that she͛s not in a state of a loss of control.

˜55(4)

if we haven͛t got a threat of serious violence, the 2nd qualifying trigger will be a thing done or said
which constituted circumstances of an extremely grave character causing D to have a justifiable (not
excusable) sense of being seriously wronged.

˜55(6)(c)

The range of things that might have this impact is left at large say for one important exclusion (prov
put in too much opposition but pushed by harrietharmon as solicitor gen) namely that sexual
infidelity can never count as a qualifying trigger.

rut if say a woman thinks she has a good marriage an thinks she has a best friend. One day she
comes home from work early and just as she goes into her bedroom she finds her husband in bed
with her best friend. If she takes it out immediately on the best friend, the betrayal of trust and
loyalty can presumably be taken into account as the friend owes no sexual fidelity to her friend.
However, if she takes it out on her husband, she presumably will be guilty of murder

Or say woman returning home and find husband in bed with daughter. Perhaps the added element
couldbe seized upon. ˜ay it isn͛t just ˜I but ˜ infidelity plus and perhaps that could help allow the
defence.

˜55(6)(a) and (b)

Finally, a qualifying trigger of any kind (serious violence or words said and done) must not be incited
or induced by D as an excuse to use violence. ˜o Dmustn͛t contrive circumstances forcing V into a
corner hoping he͛ll respond in a certain way

˜o that covers what can be termed the subjective elements of a loss of control defence. After that,
you move to the objective element where some kind of moral evaluation has to be given to the
incident to see whether it͛sa case of manslaughter rather than murder.

˜54(·)(c)

A jury must think the following; that a person of D͛s sex and age (so to that extent you take the
actual person herself) (you ask questions based on the responses of what one might call ͚normal
person͛) with ͚the normal degree of tolerance͛ and self-control and is placed in the same
circumstances of D. The Q they have to ask is ͚might I have reacted͛ in the same or in a similar way.

The crucial term there is ͚circumstances͛ we͛re told we consider all the circumstances
˜54(3)

Reference to circumstances we͛re told there is all of D͛s circumstances other than those whose only
relevant to D͛s conduct is that they bear on D͛s general capacity for tolerance and self-restraint.

˜o basically everything counts apart from things that only bear on his gen cap for tolerance and self-
restraint. ˜o this tells us that at the very least, the loss of self-control defence is about ͚normal
people͛ who find themselves in exceptionally stressful circumstances. (contrast with diminished
responsibility) ˜o it͛s the situation that D finds herself in rather than any frailty of her own that
allows for the partial condoning of the act. To an extent, she is a victim of circumstance. ˜he has
found herself not under moral life stress but something quite exceptional which may partly condone
killing in those circumstances.

Personal Frailties

˜o things like depression for example. ˜o her normal temperament is destabilised by her depressive
condition that presumably must be left out of acct if that is something that has a general bearing on
her capacity for self-control

In response to that example, what if D has been taunted about her depression?

˜ee the old case of Humphrey [1995] 4 ll ER 1008. Where D is taunted/mimicked by her bf in front
of some of her friends of her self-harming activities) her depression has a bearing on her cap for self-
control but more than that, her condition might be the focus ofthe conduct of V. When we
contemplate how an ordinary person would respond, we have to assume an ordinary person with an
ordinary capacity for self-control and we͛d have to say that that case if replayed has to go under the
defence of diminished responsibility. Probably not a case of loss of self-control.

Clearly certain conditions are ruled out entirely. E.g. psychopathy. (anti-social personal disorder)
(propensity to use violence under any pretence)˜o when looking at personal frailties these are
merely in relation to the diminished responsibility defence.

Cultural Factors

These are perhaps the most problematic consideration. When we͛re talking about tolerance and
capacity for self-control in general terms, it is against the background of a society with a great deal
of cultural variations where for e.g. some people have a great deal of religious conviction.

E.g. some religions are against gay sex. And in certain African countries for example, it͛s still
extremely criminal. ˜o if a person has a particular flashpoint, if something is in play for which he has
very strong views, what are the rules. ˜ee the case Mohammed [2005] EWC Crim 1880.

It was claimed and accepted on D͛s behalf that he had a right within a religion to appoint the person
that his daughter should marry. The daughter refused and began a relationship with a person
outside the preferred religion. The father (all accepted by D and not contested) felt it was not merely
disobedience but a grave sin. No less than apostasy by the daughter for which the appropriate
response was death. And dad kills the daughter on the basis of her disobedience being apostasy.
˜o when you say a gen cap for tolerance and self-restraint, you have to at some point set a standard
and sometimes the standard will prove unacceptable to members of the society being policed.

The idea seems to be that we͛re not utterly condoning the behaviour, but asking whether it should
be reduced to manslaughter frommurder.In those circumstances, it is only fair to judge the
defendant on the basis of tolerance conditioned by his culture and his religion. And in such cases,
the jury should be asked to consider a case from his perspective (feels ˜).

However, if you exclude certain things (sexual I), if you want to get into the thorny q of trumping
religious beliefs, if you don͛t want them to count in the defence, you͛d have to say so explicitly as
we͛ve done with sexual infidelity. This was dropped at the last minute

recause of that it͛s fair to say that strongly held beliefs, even in difficult cases like
`` ,
however alien to others, cannot disallow the person͛s general capacity unless you explicitly make it
clear thatin a sense their abnormal which is a difficult thing to say about 
 religious beliefs.

(˜ullivan feels things like religion and honour killings should have been specifically recognised.
recause of the politicisation of the criminal justice process, that was seen as a step too far.He feels it
should͛ve been done explicitly but since it wasn͛t we take the letter of the law as we find it)

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The partial defence of diminished responsibility, which reduces what otherwise would be murder to
manslaughter, was introduced into English law by section 2 of the Homicide Act · 57. A new version
of s.2 (·) now applies; the change is to be found in section 52 of the Coroners and Justice Act
200 .refore turning to this change, some brief remarks on what remains of the original provision.

'   0 

˜.2(2) requires D to prove that he is not guilty of murder because of diminished responsibility. This
has been found to be compatible with the presumption of innocence guaranteed by Article 6(2) of
the European Convention for Human Rights: ` [200· · Cr App R 205. ˜.2 (3) provides for a
verdict of manslaughter rather than murder if the defence is successful.

There is an important difference in orientation between the defence of loss of self-control

contrasted with the defence diminished responsibility. The former defence partially excuses persons
who are of normal stability and temperament who act violently in stressful circumstances. In other
words, the reason for the loss of self-control is to be found in external circumstances surrounding
the killing of V by D. ry contrast, the focus in cases of diminished responsibility is on factors internal
to D which may diminish the responsibility of D with regard to his killing of V.

The former version of s.2 (·) required proof of an, ͞abnormality of mind......as substantially impaired
[D͛s mental responsibility for his acts or omissions in doing or being a party to the killing.͟ The
working reality of this provision was very much a matter of practice rather than law. Where the
medical evidence was clear and undisputed, the prosecution frequently accepted a plea of guilty of
manslaughter on the ground of diminished responsibility. Although the judge could intervene and
insist that the issue of diminished responsibility be contested, in just over 0% of cases where the
defence offered a guilty plea based on diminished responsibility the prosecution was permitted to
accept it.

The ready acceptance of uncontested guilty pleas has had two notable consequences.(, the
linkage between the medical evidence and the conduct of D which caused V͛s death was not
explored. It was enough, for example, for D just to be a schizophrenic. Whether that condition was
part of the causal history of the killing was an issue typically not addressed.

E.g. there was a case under the old regime where D, a schizophrenic who was in a residential
accommodation being treated for his condition, was gaming on a console. A fellow patient takes the
console again and this angers D. As a consequence, he kills V to get his console back. The defence
raised a diminished responsibility plea and this was accepted. However, the propensity of violence of
schizophrenics as a general class while slightly higher than the general population, is not greatly
elevated.

-Y
YYY

Y YY YYYYY Y Y Y

Y 
Y
YYYschizophrenics violent, it may have nothing to do with his schizophreniaY

A study of cases carried out for the Law Commission by Professor Mackay of guilty pleas based on
diminished responsibility (Law Com 2 0, Appendix r) is a useful resource for testing out the new law.
Take Case 50, a case where D was unequivocally diagnosed as schizophrenic. D killed his lover V in a
jealous rage because she had started on another sexual relationship. In the brief account of the case,
D͛s mental illness of itself, rather than a consideration of whether his schizophrenia explained his
actions, inclined the prosecution to accept a plea of guilty of manslaughter. Under that verdict a
court can deal with such a case by passing a restriction order of indefinite duration to be served in a
secure mental hospital until such time as a mental health tribunal considers the release of the
detained person to be safe. If such a case were to be contested under the new law, a murder verdict
seems likely. D would go to prison under a life sentence. He might be subsequently transferred from
prison to a special hospital but that would depend on various contingencies. 
Y
YY
Y
Y YY
YYY
YYY
YY
YYYschizophrenic (or
someone similar) got into trouble in such a manner, rather than imprisoning him for a minimum of
·5 years, it͛s better to put him in a secure mental hospital indefinitely where he can receive the
appropriate treatment. (Indeed it has been shown that there are thousands of mentally ill people in
prisons around the country)Y


+, broad conceptions of what constituted a condition falling within section 2 were not
contested in cases such as mercy killings and killings following domestic abuse where sympathy was
aroused for D. What might be considered responses to stressful circumstances rather than
destabilisation brought about by internal pathology were allowed to ground the defence. This
relaxed practice is unlikely to continue under the new version of s.2(·) which focuses more directly
on the part D͛s mental abnormality played in the killing of V.

' ! .c.
Note that for this particular defence the burden of the proof is, and always has been, on the
defence. Per s2(3), it is for the defendant to establish his diminished responsibility before the court
(whereas with loss of self-controlD just has to raise evidence and for other side to rebut it)When a
proP is on the defence, the burden is a lesser one. The Prosecution burden is proof beyond
reasonable doubt while the defence burden is the civil burden namely on the balance of
probabilities.

This has been found to be convention compatible with art 6(2) guarantee of presumption of
innocence (` [200· · Cr App R 205)

Note that now,It must be a recognised medical condition. Things like mercy killings, battered
women, won͛t count anymore unless they can be characterised as evidence of a recognised medical
condition.

Further, the mental condition must impair d͛s ability to do at least one of 3 things

·.Y To understand the nature of his conduct or (and/or ʹ the more the better)
2.Y form a rational judgement (or/and)
3.Y exercise sc

the last will include our psychopath (anti soc dis) where condition is categorised by propensity to
violence. Can raise defence not under loss of sc but under dim respon

˜o you need a recognised mental condition which impairs D͛s ability to do a particular thing and
finally, it must provide an explanation for D͛s conduct. It will be taken to provide an explanation
where it causes or is a significant contributory factor in causing D to carry out the killing.

* +0  

Involuntary manslaughter is the term for those forms of manslaughter where liability for the offence
may be imposed without proof that D intended to kill or cause grievous bodily harm to V. I.e. the
prosecution is not seeking to prove that D had `
 for murder.

There are three forms of involuntary manslaughter:

(i)Y Unlawful act or Constructive manslaughter

(ii)Y Gross negligence manslaughter
(iii)Y Reckless manslaughter

Unlawful act or Constructive manslaughter

Unlawful act or constructive manslaughter is the label for killings perpetrated by way of a criminal
and dangerous act (not omission). The only mental element that need be proved against D is
whatever mental element the predicate crime requires.

Gross negligence manslaughter

Gross negligence manslaughter occurs where D owes V a duty of care with respect to the relevant
act or omission and fails to discharge that duty, thereby causing the death of V. The breach of the
duty of care must be judged by the jury to be so bad as to merit a conviction for manslaughter.
Reckless manslaughter

The third form of involuntary manslaughter, namely reckless manslaughter, is less securely
established than the other two forms and is far less important in practice. None the less, there is
recent authority that it may be manslaughter for D to cause V͛s death foreseeing that his conduct
might kill or seriously harm V or even, perhaps, cause some risk of harm to the person or health of V.
As we shall discuss, it will rarely happen that a case of reckless manslaughter will not also fall within
either constructive manslaughter or gross negligence manslaughter.

Involuntary manslaughter covers a very wide range of conduct. The typical instance of constructive
manslaughter will be some form of violent assault by D upon V. It may be that the circumstances of a
particular killing seem indistinguishable from a case of murder and only a prosecutor͛s charging
decision, an acceptance of a guilty plea to manslaughter, or an inscrutable jury verdict explains the
verdict of manslaughter. ry contrast, incidents little removed from cases of accidental death may fall
within this variant of manslaughter as when D lands a single punch on V, but V falls awkwardly,
bumping his head to fatal effect. D does not need to foresee any harm to V. It is enough that from an
objective standpoint his act carried a risk of causing some physical harm, albeit minor harm, to
someone else.

Constructive manslaughter is in line with certain non-fatal offences against the person such as
assault occasioning actual bodily harm or malicious wounding/grievous bodily harm, offences where
the consequences arising from violent conduct rather than intent or foresight of the consequences
of conduct are the predominant elements of liability. This results driven approach is not without its
critics, but at least there is something to be said for the view that violent persons should not be able
to disown the consequences of their violence on the basis of not foreseeing how dangerous their
violence might turn out to be. ry contrast, gross negligence manslaughter focuses on non-violent
conduct, but conduct that may yet be dangerous if done with insufficient care. We encounter
defendants who are in regular employment and leading peaceable lives but on one occasion at least,
have fallen down on the job with disastrous consequences for V. Persons such as electricians, gas
fitters, ships officers, lorry drivers, surgeons, anaesthetists etc may find themselves facing a very
serious criminal charge and a custodial sentence if found guilty. Is a results driven approach
appropriate here? If it is should we extend the approach and create offences of causing injury and
serious injury by gross negligence?

!'"%'/#!c#% '"  #$#%!c#1(%c#'#!c#% '"

This is a CL creation and its history begins with the ͚felony murder͛ rule. (at one time, criminal
offences were divided into misdemeanours and felonies with the latter being more serious.) Under
this rule, if one caused the death of another during the commission of a felony (e.g. used violence
during the course of a burglary), that in its own right was murder. Hence the felony murder rule

As a subsidiary of this rule, there was an unlawful act rule in manslaughter. If it couldn͛t be proved
that the killing took place in the commission of a felony but nonetheless, some unlawfulness was
present that would suffice for manslaughter.

While the felony murder rule no longer exists, the unlawful act rule persists.

The unlawful act

The starting point is an unlawful act. At one time, this was completely at large. Indeed for a period,
even tortious acts would qualify for the unlawful act rule. (˜ome illegality causally connected to
someone͛s death)It is no longer the case that any unlawful act suffices. The predicate for liability is
significantly narrower these days.

Now, the predicate act (the crime which causes the death) must be a crime. Any other form of
illegality is not enough.The leading authority for the proposition that a mere tort will not suffice is
not impressive.

#



Franklin [1883] 15 Cox CC 163

D was walking along rrighton pier on a bank holiday afternoon. There are swimmers in the sea
below. ˜uddenly for no apparent reason, D grabs hold of a wooden crate outside a pub on the pier.
He suddenly picks it up and without looking, chucks it over the side of the pier. It hit a swimmer on
the head and the swimmer died as a consequence. D is charged with manslaughter and the
prosecution seek to prove this in two ways. They say it͛s either (or both) unlawful act manslaughter
and/or manslaughter by gross negligence.

What was the underlying unlawful act? Prosecution said it was trespass to goods and that was
enough. Mr Justice Fields insisted a tort wasn͛t enough. ˜aid the prosecution hadn͛t been able to
pinpoint a crime by D and said constructive manslaughter failed. The judge seemed to simply do it
for his dislike of this doctrine. This was readily taken up by practitioners though there was no
appellate case for a while.

Lam [1967] 2 QB 981

More recently, CA in `expressed the view that only something in the nature of an assault would
suffice and narrowed it down. As we͛ll see, that is too narrow. Nonetheless, it͛s clear they thought
only a crime would suffice.

*Newury [1977] C 500

The matter seemed settled but some doubt was thrown upon it by the HL in the case of
#.
The appellants, two fifteen year old boys, were convicted of the manslaughter of a railway guard
who was travelling in the driving cab of a train. The appellants had pushed over in the path of the
oncoming train part of a paving stone left by workmen on the parapet of a railway bridge. It went
through the glass window of the cab and killed the guard.

Here, there were some tortious acts committed which resulted in death and no specific crime was
identified. Though there was trespassing, there were clearly crimes as well. Most notably, criminal
damage. ˜o even though the crimes weren͛t identified, it͛s a safe assumption that the law is still as it
was stated in /
!
.

˜carlett [1993] 4 LL ER 629

In   (impt case in the law of self-defence), D was convicted of manslaughter at trial on the
basis that he had committed the crime of assault. He appeals to CA and succeeds in having his
conviction quashed on the basis that he had a mistake of fact defence. Note; CA thought he would
have a defence even if theforce he used had been objectively disproportionate if he considered his
response to be justifiable. (rE VERY CAREFUL OF THI˜ REMARK. There is no such defence based on
such a belief.) rut at the time, CA thought there was and on that basis quashed the conviction.

Though there may not have been a crime on the view of the CA, there was clearly a battery under
civil law. This was clearly a tortious act (of battery)on the part of D against V using disproportionate
force. rut there is no suggestion bythe CA that the conviction could be sustained on the basis of a
tortious act.

Ultimately it seems clear that some kind of criminal act is necessary for this kind of liability

What kind of criminal act is the next question?

#
 
 

If any criminal act would suffice, we would have a crime of enormous latitude. Judges have been
disinclined to give full range to the potential (though recently this has changed) and there have been
a number of limitations

First of these cases involves the necessity (as perceived by CA in  ) for an act of commission
rather than an act of omission. (this was a very important decision in limiting the breadth of unlawful
actmanslaughter)

Lowe [1973] QB 702

D was a mother who despite the fact that her child was obviously seriously ill over a protracted
period of time for no good reason failed to seek medical help for her child. Consequently, the child
dies and it was found that appropriate medical intervention would͛ve saved the child

On that basis, the mother was found guilty of the statutory offence of the wilful neglect of a child

Prosecution went further and said that is a criminal offence in its own right. The wilful neglect
explains why the child died. Thus, all the elements of manslaughter of this kind are present in this
case. The immediate impact would be to enlarge the scope of this offence.

The judge who presided over the CA was clearlyloathe to extend manslaughter into this domestic
area. ˜aid the statutory offence was a sufficient response. He drew a distinction b/w a child dying
because of violence (there he͛d have no doubt it was constructive manslaughter ʹ plain and simple
assault; excessive corporal punishment) and a child death brought about by ͚hands off neglect͛

The decision ever since then has been widely cited for the proposition across the board that an act
of commission is required. This is a proposition that is accepted in all leading texts.

An earlier case ˜enior [1899] QB 283must be disregarded where there was a successful prosecution
for manslaughter as a result of neglect.

˜o need a crime, of commission

#

2  
Now to an important limitation which is hard to put in words. The criminal act must be criminal ͚per
se͛. It must be something that is intrinsically criminal. ˜o not merely an act that is $` lawful
which can become criminal because of the manner it is done.

To be found in the leading case of 
  [· 37 (also on gross negligence manslaughter but
important for unlawful act manslaughter too)

*ndrew [1937] C 576 (Expressed by lord Atkin)

(Expressed by lord Atkin) This was a case of very bad driving indeed. Driving caused the death and
the driver was clearly guilty and convicted of the lesser homicide of causing death by dangerous
driving. No dispute. Prosecution, because it was such a bad case, wanted to go further and brought a
manslaughter charged based on the driving. And, it was the same kind of argument in  .

˜o if allowed,manslaughter would completely supersede the offence of causing death by dangerous

driving. It͛d make all such cases one of manslaughter at one and the same time. Clearly not what
parliament intended when it created this lesser form of homicide.

Atkin said essentially that the driving was not an unlawful act for the purposes of this form of
liability. The reason (which ˜ullivan thinks he gives) is that driving is something that is lawful. It only
becomes unlawful if for example you drive so badly that you constitute a danger on the road.

That͛s the heart of the case. It is seemingly easy to grasp but the difficulty is to apply that concept to
different criminal scenarios.

Is driving w/o a license intrinsically criminal or criminal by manner of performance?

Other commentators (smith and Hogan) rather than go with this reading (˜imister and ˜ullivan) say
the real meaning of 
 is that the doctrine of constructive manslaughter does not apply to any
crime of mere negligence or of strict liability. They say the doctrine is limited to crimes of culpability.
Intention and recklessness. ˜ullivan would be happy to take the reading if it seemed to reflect the
sate of the law.

ndrew [2002] EWC 3021; [2003] Crim LR 477

rut in 
 (02) there was a conviction for constructive manslaughter based on the supply of a
prescription drug w/o a license to do so. And the point about that offence (selling drugs/lacking a
license) is a crime of strict liability. (All that mattered here is that a license was lacked to make that
kind of sale)

˜o this shows we need to use the distinction b/w acts which are intrinsically criminal (criminal per
se) and acts which only become criminal because of the way they are done, (intrinsically lawful) and
are outside the purview of this doctrine

As a matter of day to day practice, most constructive manslaughter cases are based on assault. As a
result it͛s not too confusing in practice. ˜o by and large the law can be lived with in practice though
there are the odd cases like 
  (02) where the prosecution picks up on another criminal
offence to get a manslaughter verdict.
˜o we know that the unlawful act has to be a criminal act, of commission, which is criminal $  .
rut it must also be dangerous.

#0  



Further important limitation, the act must be dangerous.

Newury [1977] C 500Church [1966] IQB 59

The need for a dangerous criminal act was endorsed unequivocally by the HL in
#supporting
an earlier CA decision in ! (worth reading alongside Newbury). What constitutes a dangerous
act in this context is as follows;

Was the act from the perspective of an ordinary sober bystander likely to cause some physical harm
to V, the deceased. Few points to emphasise from this:

-Y D͛s perception is not in play. It͛s an objective form of liability. Once you͛ve proved he͛s
committed a criminal act. (Typically assault. Depends on mens rea of crime) and proved
causal connection b/w crime and death, next question to ask is whether that criminal act is
dangerous.
-Y It͛s so if from an objective standpoint it threatens to cause some physical harm. As stressed
in !, even minor physical harm will suffice.

˜o dangerous is quite a technical word in that sense.

# and ! stress quite importantly, that the test is to be applied ,
 (at the time of
the act itself). Obviously dangerousness could be inferred from the act itself. In theory at least juries
can͛t simply make that kind of inference. They must put themselves in the position of d at time of
act and ask themselves if it was dangerous in the above sense.

˜o in assessing the facts, they are to be put in the position of D and thus, to be attributed with the
knowledge of the facts which were reasonably available to D at the time of the act.

˜o forms of latent danger which were not to be observable by a bystander are to be disregarded.
(e.g. if you don͛t know there͛s some gas in the air and u light a match. Unless u could be aware it
should be disregarded)

Dawon [1985] 81 Cr pp R 150

Involves an overweight man in his late 40s who stood on the forecourt filling up cars which needed
petrol. V is working lawfully here and along comes D who produces a convincing replica gun. Can͛t
fire but V doesn͛t note it. V this porky man is extremely frightened. ˜o frightened in fact that he has
a heart attack and as a consequence he dies. Amongst the other offences D committed assault. ry
producing the replica, D put V in immediate fear of serious physical harm. It was that stress which
induced the heart attack from which he died.

The key issue here is whether it was a ͚dangerous act͛. In itself, the replica was not dangerous. It was
just a convincing replica weapon. The prosecution and defence agreed endorsed by the court that
fright $   however intensely experienced was not of itself physical harm. And from that
perspective, the CA quashed the conviction because as it considered from the perspective of an
objective bystander, this act did not threaten physical harm. Note that the objective bystander
knows that it is a replica weapon. (Given the informationD has of the nature of the act)

˜o that͛s the case of Dawson which is contrasted with Ë


Waton [1989] 89 Cr pp R 211

Here, an exampleof constructive manslaughter not being confined to assault. Here the predicate
offence was a burglary. D breaks into V͛s house. During the course of the burglary, V wakes up. V is a
frail
7 year old man. D obviously sees that V won͛t offer much in the way of opposition of burglary
offence. D just took note of him and carried on.

V clearly didn͛t like this, had a heart attack and as a consequence dies. This time, it is manslaughter
from the objective bystander perspective. The very fact of entry at night into the old man͛s house
was dangerous because
7 year old men are within the class of persons who were susceptible to
heart attacks if they experienced fright. He would seek risk of harm as D would know it dealt with a
very old man.

Ball [1989] Crim LR 730

Odd decision. Here, D was quarrelling with V. The quarrel intensifies and D raises the shotgun he
happens to be carrying, goes into his pocket, that he knows contains a mix of live and blank
cartridges, he loads a cartridge, aims the gun at V, squeezes the trigger, V is almost instantly killed by
the shot entering his heart. ˜eems to clearly be a case of murder not manslaughter but nonetheless,
the prosecution presses for constructive manslaughter.

Line of reasoning in light of decision in +
, the objective test must be applied by reference to
D͛s mistaken beliefthat he had loaded a blank cartridge. ˜o D is sort of trying to say this is like a
replica gun case. He just wanted to frighten V not cause physical harm. The judge withdrew from the
jury consideration of r's knowledge or belief that the cartridge was a blank one. r appealed, arguing
that the objective assessment of whether the act was dangerous must be based on the act which the
accused believed himself to be committing.

CA is clear that 
Y Y


Y
YY
Y Y
Y Y YYY Y
Y!Y
 Y Y  Y 
Y Y 
Y  Y Y  Y "Y  Y

Y  Y  Y  Y Y
Y 
Y Y Y 
Y
Y Y
Y  Y  Y Y
Y 

Y
Y
Y  Y Y
Y

(Note that at first instance, the characterisation of * as a +
case succeeded to a particular
point. The reading of +
which was accepted was that +
case involved mistaken belief of
the physical vulnerabilities of the deceased whereas *mistaken belief about the dangerousness of
the weapon. This distinction if it were accepted ʹ one rule for dangerousness of weapon and
another for vulnerabilities of V would lead to a contorted and useless jurisprudence.The better view
of the case is that the conviction in *is entirely square with +
. +
doesn͛t need to be
qualified in any way. recause on the facts of*it is surely the case that any reasonable bystander
would be aware of the danger of loading the gun with a live cartridge. ˜o the only issue is danger,
(not the source/nature of danger) only issue for the objective bystander is whether it was a
dangerous act.)

We turn to a limitation that needs to be mentioned but is no longer in play. May come across in
reading though

! 8 9 :  !c! "!7c#)

Daly [1982] 1 LL ER 916

D supplied drugs to V. V takes the drugs which are of a purity unanticipated by V and as a
consequence dies. D is charged with constructivemanslaughter. The predicate offence is the
unlawful supply of a controlled drug. The conviction at trial is quashed. Why? No good reason for the
quashing. (Maybe like Kennedy but its pre Kennedy)

CA quashed on the basis that there was a further limitation on the nature of the criminal act namely
that the act had to be something ͚aimed at V͛. These were words used in a famous murder case
` and at one time it was arguable there was this limit on the   of murder. It͛s legal
history though. However the CA snatched at this limitation (as clearly they didn͛t want to convict for
manslaughter here) and said there mere supply of drug isn͛t in the nature of being ͚aimed at͛
anyone.

Mitchell [1983] QB 741

This aimed at limitation as put to the test soon after in

 . Involved a queue at a post office.
What happened here is that there͛s a crowded post office and there͛s a queue. At the front of the
queue is V, an elderly lady. At the back of the queue, there is a quarrel b/w D and X. D punches X. X
bumps into another man at the back of the queue and there is a ͚domino effect͛. ˜o V dies from the
bump she receives from the aforementioned domino effect. With the recent case of +# in mind,
D tried to claim that he͛s not guilty of constructive manslaughter because his punch is aimed at X
and it cannot be said that the punch is in any sense ͚aimed at ͚V.

Nonetheless, he is convicted of constructive manslaughter. +#is ͚finessed͛ on the basis that

supply is described as something which is nearly ͚inert͛ whereas what has happened here is active.
There is some violence with the punch. The aimed at limitation isn͛t evaded. It͛s doubted in passing.
The distinction mentioned does the job so with an ͚active act͛ all that is necessary is a causal
connection b/w the positive act and the death of v.

˜o from
 it seems there is no aimed at requirement. We now know the better explanation of
+# is to be found in the important case of 0

#
 1 which insists (barring special
circumstances) that person taking drug, aware he is taking the drug, is responsible for his own death.
The causalchain is broken with the intervention of a voluntary informed act.

˜o the supplier merely gives the where and all for V to kill himself. He then drops out of the causal
story.

This leaves a conundrum in several cases (have a look at them)


 

When can we say that a person has effectively killed himself? Read carefully the case of  #. Good
discussion of it in smith v Hogan. Was it rightly decided? Courts decided there wasn͛t the necessary
causal directness. That v effectively killedherselfeven though she was put into a state of terror by the
act of D.

Alsso, a domestic violence case after repeated beatings and threat of more to come, woman
killed herself and D charged with manslaughter. Case fails on causal grounds. Indeed CA felt had
itbeen argued differently it may have succeeded.

 critique of contructive manlaughter

For decades, the majority ͚enlightened opinion͛ (judges/academics/barristers etc.) was that
constructive manslaughter of this kind was a relic of the past. That the focus was on the causation of
death. And that of itself was doing too much (?) at the neglect of the more important question of d͛s
culpability (whether d warranted conviction and a custodial sentence) and the view was thatin many
cases, that wouldn͛t be the case. Particularly in cases where D himself saw no risk of causing death
or serious bodily harm.

The argument was at one time the LC͛s position was all for abolishing gross negligencemanslaughter
and narrowing constructive manslaughter effectively to assaults where in the cause of the assault, D
would foresee at least the risk of causing death for serious bodily harm. (Only in those cases was a
serious conviction wanted)

Case which exemplifies the phenomenon of ͚one punch manslaughter͛

Mallet [1972] Crim LR 26

D and V had been anxious neighbours (regularly did things which annoyed each other). D and V are
having a quarrel over their garden fence. Things this time (and for the first time) do get out of
control. D inexcusably punches V. but D did that. V unfortunately falls awkwardly and hits his head
on the rock and as a consequence he dies.

Mallet͛s conviction for constructed manslaughter was upheld by the CA. The real issue here is in
sentencing. roth sides agree there is no culpability whatsoever as to the causing of death. It really
was in a sense ͚an accident͛. On-going tense relationship between D and V. Assault outright but no
one would foresee death.

CA agreed with all that but said; the fact of death itself must be recognised and here (in light of
some subsequent developments) the relatively modest minimum term of ·2 months imprisonment
was passed. And
  was frequently cited as the only acceptable (unacceptable?) face of
constructive manslaughter.

This appraisal is probably wrong. CA in December LCJ presided over a number of consolidated
appeals some of which involved one-punch manslaughter. And the question was whether the
sentences passed by the trial judge were too excessive. Too which lord Judge replied that they were
too lenient. (Lordhalsham in Cunningham saying we need a robust form of murder) Lord Judge does
exactly this in the consolidated appeals. He says that anybody who uses violence must do so at his
own risk. If you use violence, you pass a threshold and make yourself responsible for all the
consequences that flow from that act. ˜o the fact of death itself must be signified by a significant
custodial sentence

The object of criticism of Mallet from the perspective of lord judge, ·2 months would not be a firm
enough sentence in light of him causing death.

˜o the focus seems to be on the consequences rather than culpability when it comes to punishment.

For serious offences, focus has always been on culpability to capture the chance factors in life.

There is a sense these days that the sentiment probably plays well with the bulk of people.

Reform of Contructive Manlaughter

Law Com No 304:-

Manslaughter should encompass killing another person:

(a)Y through the commission of a criminal act intended by the defendant to cause injury, or
(b)Y through the commission of a criminal act that the defendant was aware involved a serious
risk of causing some injury.

˜o the modest LC proposal (0
) watered down version or earlier one; there we͛ll see for
constructivemanslaughter there must be an intention to cause injury or recklessness as to a serious
risk of causing injury. ˜o constructivemanslaughter would be subjectivised to that extent. Personal
subjective culpability of D would matter more in that reformulation. rut probably won͛t find favour
with lord judge.

c
  ; ! * 
 5  6 * + 0   0  
+ 0   00 
<

= 0  

#!c#% '"&) " ! c ! 

The first and radical difference is that no underlying illegality need be found. Here conduct which is
clearly and intrinsically lawful. E.g. a surgical operation which goes badly wrong and causes the
death of the patient may form the subject matter of a prosecution of gross negligence manslaughter.
so this is an offence, a serious offence,

Here you meet people frequently as defendants who lead non-criminal lives. They do tasks,
important tasks which if done badly, can cause death. You find people (rernard Williams) who are
͚ethically well disposed͛ no predicative intentions as to other peoples property. No violent feelings
against other persons. Can nonetheless find themselves (often to their great surprise) to defendants
of a homicide charge.

refore we get to the ͚modern͛ cases, we need to look at the leading case of * `


Bateman (1925) 19 Cr pp R 8

ƒ `  
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2 
    
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That has been criticised forits peculiarity and circularity. It͛s a pretty good summary however of a
rough area of law. Our template is civil law of negligence with some modifications. You have to find
at least a negligent act. Look into things like DoC etc͙ once you͛ve found a breach of DoC which has
a clear bearing on death of then you go back to the kind of conduct it was and say it͛s more than just
negligence. It͛s gross negligence. ˜o it͛s not enough to leave the parties to it to sort out rights and
remedies. The state needs to come in and use law of manslaughter as a deterrent.

The judgment in * `
has been approved in what is still a leading case on both constructive
manslaughter and manslaughter by gross negligence. Namely, 
 [· 37

*ndrew [1937] C 576

Here the Hl and in particular, Lord Atkin who was giving the leading speech said that Lord Hewitt got
it right in * `
. Further, he said ͚a word that might help juries is recklessness͛. ry way of
necessary parenthesis, you͛ll recall from the HL decision in
[2004 that recklessness now means
foresight of the relevant consequences and taking in an unjustifiable or inexcusable course of action
in running the risk of those consequences coming about. ˜o these days, recklessness is a purely
subjective state of mind. At the time of Andrews, it was perfectly clear from the context that lord
Atkin was using recklessness as simply an alternative way or expressing gross negligence. He wasn͛t
moving from away from a negligence standard to something else.

Unfortunately, the law of recklessness post Andrews goes into various forms of convulsion. The
meaning of recklessness kept changing. As a result of a group of HL decisions, recklessness was
expanded to cover not merely subjective recklessness which after 
is now the only form of legal
recklessness but was expanded after the name of the leading case to include ͚Caldwell͛ recklessness.
Caldwell recklessness took the form of failure to think of an obvious and serious risk. (It had always
included perception of running the risk but included in Caldwell the person whowas in the presence
of an obvious and serious risk but failed to think about it)

˜eymour [1983] 2 C 493

This was the leading case of manslaughter by gross negligence for a short period and here, the term
͚gross negligence͛ was superseded and in its place, ͚Caldwell-style͛ recklessness was substituted. ˜o
during the  #`era, liability could be imposed for manslaughter simply on the bases of causing
someone͛s death by failing to consider an obvious and serious risk which then resulted in the death.
One consequence of this is that many people were convicted of manslaughter who in the eyes of
practitioners (used to earlier form of law) wouldn͛t have been convicted under the rubric of gross
negligence.

*domako [1995] 1 C 171; ˜mith at [1994] Crim LR 758; Virgo at [1995] CLJ 14;
ardener at
(1995) 111 LQR 22 (mut read)
The matter was resolved in `!. When reading this case, there͛s a lot of ͚pussy-footing͛ about
 #`. The bottom line is real that  #` is put to one side as no longer the applicable test to
use and in its place gross negligence is restored. This concerned a range of appeals.

*domako [1995] 1 C 171; ˜mith at [1994] Crim LR 758; Virgo at [1995] CLJ 14;
ardener at
(1995) 111 LQR 22
This was a range of appeals

Facts: D, an anaesthetist, was in continuous employment by the NH˜ but never employed
permanently- essentially hopped from clinic to clinic looking for work. During an operation,
connection between the patient and oxygen was lost; a competent anaesthetist would have noticed
this and rectified the fault within 30 sec. rut D took
minutes to source the difficulty. The patient
entered a vegetative state.

Here D was not a bad man: he was trying to do his best at his job and was just very unskilled. Clearly,
should never practice again.

Held: outlined the 4-stage test of GNM

·.Y the existence of a duty of care to the deceased;

2.Y a breach of that duty of care (using ordinary tortuous principles) which;
3.Y causes (or significantly contributes) to the death of the victim; and
a.Y The criminal law account of causation to be applied here
4.Y the conduct amounting to breach should be characterised as gross negligence, and was so
bad as to warrant criminal punishment
a.Y Egregiousness of the negligence that was applied.

Further, conviction sustained and D got punishment

Analysis: On what grounds was the punishment? Retributive- but he wasn͛t a bad person! Utilitarian-
social deterrent effect to future shitty anesthetists?

˜ullivan argues that GN as a serious crime (not as a regulatory offense) is one that would also attract
a strong custodial sentence. To always mete this sentence is misconceived- especially in the case,
where, where he didn͛t have any intent to do harm.

The Law Commission for many years argued the total abolition of manslaughter- but now endorses
GNM. We can safely assume that the prospect of change in manslaughter is very slim.

A-G͛s Ref (no 2 of · ) [2000 3 All ER ·
2

LJ Roes:

GNM applies to corporations as well as personal individuals. (We don͛t study corporate
manslaughter). GNM is a standard that is applied to corporations and individuals

The direction approved in this case was with regard to gross negligence manslaughter
*Important loose end: there was no specific reference as to what kind of outcome the GN must
relate to

Y rest view: GN must correspond to a risk of death. IF it were to correspond to a risk of

anything else, then GNM would support constructive manslaughter
mY For CM, the act must be unlawful and the accused must possess whatever `

  is needed for the act. A simple requirement for some bodily harm suffices
for liability.

˜ingh [1999] Crim LR 582

CA: Confirmed that GN as to death is required- liability is triggered by the risk of causing someone
else͛s death

# 2  
0   .

retween the situation in `! and in
, one must examine the HOL decision in

[2004] 1C 1034

Facts: This is a leading case on recklessness- was a case of criminal damage.

Held: the HL overturned objective Caldwell recklessness and reinstated as the only form of legal
recklessness the 
>
* =0 >
 =.

Most Lords felt that subjective recklessness was the minimum culpability for serious crimes: that it
should be limited to those who choose to do something wrong. Assuming free will, if one intends to
do something then he has chosen to inflict the risk of harm onto another.

Contrast this with negligence: with the latter, there need not be any foresight of the harm intended
(** is he contrasting recklessness or GNM??)

Mira [2004] EWC Crim 2375

Argument ·: In light of subjective recklessness re-established in G, argue that liability for
manslaughter should be confined to those who in the very least assume the risk of serious harm

Held: Argument dismissed because in G there was no suggestions about GNM (effectively refused to
extend G decision to the area of GNM), or that liability for it was suspect.

Further, held that GNM was a form of liability that has been around for many years and it was up to
parliament to legislate if it wanted to change it.

Argument 2: GNM was in breach of A7 of the ECHR-

This $` bans retroactive law. rut ˜trasbourg jurisprudence has expanded the notion of
retroactivity: now the underlying concern is that D be put on fair notice of when his conduct may be
in breach of the law.

The argument here was that the terms of the direction in ` ! (·. Negligence was a tortuous
breach and 2. the jury must come to their own moral conclusion) did not offer a lot of guidance at
all. Contrasted with tort law, with criminal law all we know is that there `# be a finding by a jury.
Held: that GNM was a familiar form of liability and there was a public interest in punishing
regulations of the worst kind: individuals had all the guidance needed to make it a crime

Y rut if one is going to make regulation the starting point of a crime, then there is no way that
standard of scrutiny can be relaxed enough

%#")('c#1#('""# 

˜tarting point:

·. Does D owe a duty to V? This duty is measured in tortuous principles

2. Contributory negligence on the part of V doesn͛t break the chain of causation: because in criminal
law, there is no need for a breach that gives rise to compensation. Indeed, criminal law does not
care much about compensation. It is enough to ask if D͛s conduct is negligent beyond any
contributory negligence on the part of V- even if D and V are both to blame then V͛s conduct doesn͛t
need to be taken into account

Wacker [2003] 1 Cr pp R 22

Facts: D, a lorry driver, was transporting illegal immigrants across the border in his truck. To ensure
that customs officials didn͛t hear any noises from his truck and come and investigate, he insisted
that during the passage from customs the air ducts in the back of the lorry be taped up- assuring
them that there would be enough air. There wasn͛t: >30 people died of suffocation. D was convicted
of GNM

(*** Why can͛t a claim in constructive manslaughter be applied here? Clearly, smuggling immigrants
across the border is an illegal act, and its an act that gave rise to the deaths of the immigrants͙.)

Argued by D that the deceased were joint tortfeasors: they were parties to it and consented to the
risk and thus had any of the survivors brought a tortuous claim the action would have failed (there
was no DOC owed to the tortfeasors.

Y This is a wholly correct tort argument

Held: Conviction upheld that D͛s conduct was the exclusive concern of the criminal court. His
conduct had breached a DOC. The fact that the breach was not enforceable in civil courts was not
the concern of criminal courts

Willoughy [2004] EWC Crim 3365

Facts: 2 people, D and V, jointly conspire to burn down a house and claim the insurance. D was
negligently unsafe and V died as a result of D͛s negligence.

Held: same argument as in Ë!  succeeded: that they were joint tortfeasors was irrelevant
Herring, ͚The duty of Care in
ro Negligence Manlaughter [2007] Crim.LR 24

Evan [2009] EWC Crim 650 court overtretche to find reach of a DVC to utain a conviction
for
NM
Facts: Family get-together that involved the mutual taking of drugs. D, the half-sister of V, provided
V with heroin. V, aware that she was taking heroin, takes it. The drug was purer than expected and V
died as a direct consequence of injecting herself with the drug

Analyzed

a) as constructive manslaughter? The supply of drugs was illegal and there was a clear relationship
between the illegal act and the death. rut taking the drug was an intervening act that broke the
chain of causation (0

#) between the unlawful supply of the drug and V͛s death.

b) as GNM?

·. Was there a DOC? Drug suppliers don͛t owe a DOC to their victims- it͛s a criminal act and they
don͛t give a shit about their victims. ½ sisters don͛t owe a DOC either: at law, siblings have no
presumed DOC. If the mum had provided the drug then the mum would have owed a DOC, but the
mum was taking drugs somewhere else.

Held:

˜o how was GNM sustained???

Creation of a dangerous act:

  Principle that if one creates a dangerous situation (even
blamelessly) then one is under a duty to take reasonable steps to alleviate the damage

** There are huge problems with using

 as the underlying principle!

·.Y Miller caused a fire by his own direct act- but here, the danger of death was created by a
voluntary act! (the taking of the drug by V)
2.Y V realized the danger that she was in by carrying out the act. 0

#: taking of the drug is a
voluntary act by V.

Roger, ͚Death, drug and dutie[2009] rchold New 6 (availale on moodle)

Reckless Manslaughter

This is the 3rd form of involuntary manslaughter (the others being GNM and Constructive
manslaughter) and it has very little practical significance

#`&(')!'' 

HOL here divided on if a form of risk-taking (setting fire at a grave risk to those inside) was intention
or recklessness. rut all felt that D was guilty of RM on the basis of foresight of the risk of causing
   One can then question: what is serious harm??

Looking at the case from the other forms of involuntary manslaughter: Here, by setting fire Õ arson
so
a) Constructive Manslaughter? One can point to the arson as a dangerous act by a neutral standard.
The underlying conduct behind the risk to life would be dangerous- therefore only need recklessness
as culpability

b) GNM? Underlying conduct was lawful and recklessness (subjective) will deliver a result that was
not obtainable as GNM.


&(()3* ' 

Troublesome dicta:

Y D perceiving the risk of somehow there being a risk to his health would be sufficient
culpability
Y If this was reliable: a verdict where GNM may not be allowed
Y Criticized as being a throwaway

Ë 

!
  ,$ 
#&44)3*5( 

&1666)
 

COA here was dealing with reckless manslaughter- assumed that the perception of the risk had to
amount to at least bodily harm

Y ˜ullivan feels that this is a better view of the law: here no argument put forth for a broader
form of culpability.