lecture notes. htm CRIMINAL LAW LECTURE NOTES 1998/99

H O M I C I D E: AN OVERVIEW

Consists of an unlawful killing of a human being. 




Homicide encompasses Murder, Involuntary Manslaughter, Voluntary Manslaughter, Gross Negligence Manslaughter, offences ancillary to murder (Solicitation, Threats to Kill, Concealment of Birth, etc), Complicity in Suicide and Suicide Pacts, Infanticide, Child Destruction and Genocide.

Essentially a creation of the Common law, that is law made by judges. Some of the areas of homicide have been created by statute such as Suicide Pacts and Child Destruction.

We will focus on the areas of Murder, Manslaughter and Gross Negligence. Areas not covered in the lectures should be read in Dine and Gobert.

When we examine the various offences of Homicide we will be looking at how they are defined through the use of the "tools" of actus reus and mens rea. We will also examine the question of causation and concurrence.
 

MURDER

is a common law offence
 

CLASSIC DEFINITION (COKE)

Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura (the person) under the King's peace, with malice aforethought, either expressed by the party or implied by law, [so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same].
 

Cokes definition should not be read literally because any person may be guilty of murder. Since Coke's time there have been changes to part of the common law definition of murder:

The year and a day rule has been abolished by Section 1 of the Law Reform (Year and a Day Rule) Act 1996. Note that Section 1 does not affect the continued application of the rule where the act or omission which caused the death occurred before the day on which this Act was passed, that is before the 17 June 1996.

This means that where a person's conduct can be attributed to the death of the victim after the Act came into force the year and a day rule will no longer apply. The person accused will not be able to rely on that rule if the victim dies after a year and a day. Under the old rule the accused could rely on the rule to avoid a homicide charge and the resultant severe punishment. However, where the conduct of the accused, which lead to the death of the victim, occurred before the Act came into force, the accused can still rely on the old rule. In other words the accused should be charged with an offence less that homicide and may receive lighter punishment. This distinction exists to take account of the general rule of law that law should not have retrospective effect.
 

ACTUS REUS

The actus reus of murder requires that a person is killed unlawfully under the King's peace.

King's Peace - in times of peace rather than war time.

Unlawful - that there is no lawful excuse or justification.

Person means a human being.
 

DISCUSSION POINT: What is a human being?

What do the Courts say about this?

The courts have asked this question in relation to the foetus and a corpse. In this context the courts are very much guided by medical opinion, and less by moral principles. The central question they ask themselves is at what stage in the process of birth does a foetus become a person, and at what stage in the process of death does a person become a corpse. Essentially the courts have decided that foetuses and corpses are not persons. As such then they cannot be human beings and therefore cannot be killed.
 
 

Discussion Point: Should a foetus be defined as a person for the purpose of murder?

WHEN IS A FOETUS A PERSON FOR THE PURPOSE OF THE ACTUS REUS OF MURDER?

Poulton: The accused tied a string around the neck of her baby and killed it. The court held that for the baby to be considered as a person it must be fully expelled from the body, it is not enough that the baby has breathed. There was no medical evidence that the baby had been fully expelled from the body of the mother when it was strangled.

Brain: The accused delivered her baby into the world and subsequently threw the baby into a river. Medical evidence was that the baby had never breathed. The court held that a child must be actually wholly in the world I a living state to be the subject of a charge of murder. If it is wholly in the world and in a living state it not essential that it breathed at the time it was killed. Many children are born alive and yet do not breathe for some time after their birth.

It would appear that the victim should have been born and have an existence independent of its mother (Smith & Hogan, p. 339).
 

WHAT IF THE CONDUCT WHICH CAUSED THE DEATH OF THE CHILD OCCURRED BEFORE THE BIRTH OF THE CHILD TOOK PLACE?

Senior: The accused was a midwife who attended the birth of a child. During the birth the child's head became visible. The accused compressed and crushed the skull of the child before it was fully expelled from the body of the mother. The child died immediately after it was born as a result of the pre-natal injury. The court held that the conduct of the accused was sufficient for the conviction of manslaughter on the basis of gross negligence.

Note that the position is the same where the injury that has caused the death of the child occurred at the time the child was entirely in the mother. On this point see West (1848) 2 Car & Kir 784. Also see below:

A-G Reference (No 3 of 1994) (See [1996 ] 1 Cr App Rep 351, [1996] Crim LR 268, which is the Court of Appeal judgement and the House of Lords judgment of 24 July 1997 at URL http://www.parliament.the-stationery-offi…a/ld199798/ldjudgmt/jd970724/gneral01.htm)

The accused stabbed his pregnant girlfriend in the face back and abdomen, with a long bladed knife, whilst she was between 22 and 24 weeks pregnant. The girlfriend went into premature labour. The baby was born alive and lived for 121 days. It was discovered that the knife had penetrated the baby's lower abdomen. The baby died after she had succumbed to broncho-pulmonary dysplasia from the effects of premature birth. Lord Hope: "There was a respectable body of medical evidence that the child was born prematurely as a result of the stabbing, and that it was as of result of the pre maturity of her birth that she died. It was not disputed that the injury to a foetus before birth which results in harm to the child when it is born can give rise to criminal responsibility for that injury. So the fact that the child was not yet born when the stabbing took place does not prevent the requirements for the actus reus from being satisfied in this case, both for murder and for manslaughter, in regard to her subsequent death."
 

Discussion Point: When people are on life support machines are they really corpses or should they be treated as persons for the purpose of murder?

What do the courts say?

R v Malcherek and Steel: The "victim" was on a life support machine.. The machine was switched off by the doctors. The court said that according to medical evidence there is only one test of death and that is the irreversible death of the brain stem which controls the basic function of the body such as breathing. In the case of brain stem death, the body has died, even though, by medical means the lungs are caused to operate and some blood is in circulation.

Airedale NHS Trust v Bland: The "victim" was injured as a result of the Hillsborough Football Stadium disaster. His lungs were crushed and the supply of oxygen to the brain was interrupted. He was left in a permanent vegetative state and on life support for three years. There was an application to the court by way of declarations to lawfully discontinue life sustaining treatment and medical support designed to keep the victim alive, and to lawfully discontinue medical treatment. The court held that the sanctity of life is not violated by ceasing to give medical treatment and care involving invasive manipulation of the body, to which he had not consented and which conferred no direct benefit upon him. The omission to perform the duty to save a life was no longer unlawful given the circumstances.

The medical profession has accepted brain stem death as the test for determining when a patient is dead. Should the law adopt this standard? Should the law develop its own standard?
 
 

CAUSATION

In the context of the actus reus of murder we also need to address the question of causation. Why?
Everyone will die.  What we are looking for is the conduct that has accelerated the death.

The test devised by the courts in determining the responsibility for the death of the victim has two threads, one is the 'but for' principle and the other is the 'legal' or 'proximate' cause.

The but for test works on the principle that it must be proved that, but for, D's conduct, the event would not have occurred.  The act must be a sine qua non of the event.  The but for test is a necessary starting point but it is not a sufficient test of causation in the context of homicide.  A further thread of the test has to be satisfied is the legal or proximate cause.  This terminology is often expressed in cases as the substantial and operating cause, of the death.

Once the but for test has been established the troublesome area is this substantial and operating cause. This area of the law is made more problematic by the fact that the victim, of indeed a 3rd party may have contributed in some way to the death.

Discussion Point: where there is more than one cause of death who should be held responsible?  On what principle should the cause of death be based?
 

What do the courts have to say about this question?

The courts do not draw hard and fast rules.  What they have to say very much depends on the material facts.

ACT OF THE VICTIM

Benge:    Fatal railway accident.  Both the defendant and the  flag man and engine driver shared some responsibility for the accident. However the court held that the substantial cause of the accident was that of the defendant who had taken up the rails at  a time when an express train was about to arrive. The court held that the primary cause was the taking up of the railway line.  It was the duty of the defendant t o take reasonable care which he had not done. The involvement of the victim in contributing to his own death was deemed as irrelevant.
 

Swindall: In this case the defendants had driven their carts and horses at a furious pace along a public road.  They drove over the deceased and killed him.  The fact that the victim was deaf, drunk or negligent was not seen as a relevant factor in the eyes of the court.

Blaue: The victim was 18 and a Jehovah's Witness. She was attacked by the defendant with a knife one of which pierced her lung.  She was eventually admitted to hospital where she received treatment. She required surgery and a blood transfusion, but refused the transfusion based on  her belief as a Witness.  She was told and fully appreciated that without the blood transfusion she would die.  She died and it was admitted that her refusal to have the blood transfusion was a cause of death.

Discussion: who should be held accountable for the death, the defendant or the victim of the stabbing?

The court held that those who use violence on other people must take their victims as they find them.  This means the whole person, not just the physical man.  It does not lie in the mouth of the defendant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The fact that the victim refused to stop this end coming about did not break the casual connection between the act and the death.

PRESSURE OF THREATS

Hayward:  The defendant chased his wife out of the matrimonial home onto the road and kicked her whilst she was on the ground.  She was found dead.  The post-mortem showed that the cause of death was a weakness to the heart.  Any physical exertion and fright or strong emotion might cause death.  The court held that there was a sufficient chain of causation.  No proof of actual physical assault was necessary, death from fright alone, caused by an illegal act, such as threats of violence would be sufficient.  The abnormal state of the victim did not affect the question of the defendant's responsibility for the death.
 

VICTIM FRIGHTENED INTO TAKING OWN LIFE

Halliday: The defendant had come home drunk and threatened his wife's life.  She got half in and of a window and was held by her daughter.  The defendant threatened the daughter who let the mother go and the mother fell to her death. The court held that if a man creates in another man's mind a sense of danger which causes such a person to try and escape, and in so doing that person is injured, the person who creates such a state of mind is responsible for the injuries which result

ACTS OF THIRD PARTIES
Jordan, Smith, Roberts:  in these types of cases the court enquires whether the intervening conduct is so bad as to make the original cause merely a part of the history of events.

WHERE THE DEFENDANT HAS THE MENS REA FOR MURDER BUT DOES NOT CAUSE THE DEATH

White: It appeared that the defendant had every intention of killing his mother.  He had left poison for her to drink that would have killed her had she consumed it.  However, she was found dead and it was shown, as a result of the post-mortem, that the mother had died of a heart attack.

HUMAN SHIELDS

Pagett:  The defendant was armed with a shotgun and used his pregnant girlfriend as a shield to prevent arrest by armed police officers.  He fired at the police, who returned his shots.  One of the bullets fired by the police killed his girlfriend.

Discussion:  who should be held responsible? Surely the police officer who returned fire.

The court held that the defendant's act need not be the sole, or even the main, cause of death for his act to be held to have caused the death.  The defendant's act of firing at the police officers and of using the girlfriend as a shield - either act could be held to have caused the death.