Murder and Manslaughter
Murder
• Mens rea: intention to kill or to cause serious injury, proved beyond reasonable doubt. Presumption is that accused intended the natural and probable consequences of the conduct. R v Woolin: looks at indirect or oblique intention i.e. where accused foresaw death or serious injury as a virtually certain consequence of the conduct, jury is entitled but not bound to find that he intended to kill or cause serious injury. R v Campbell: accused found guilty of attempted murder where he loaded a gun at a person even though the safety catch was on and he did not pull the trigger. Murder is made criminal under Section 4 Criminal Justice Act 1964. Clifford v DPP: accused person will be guilty of the offence if they intended to kill, or cause serious injury to some person, whether the person is actually killed or not.
• Actus reus: result offence i.e. must be proved on conduct. By directing a gun towards someone fulfils actus reus. People (AG) v Dwyer: SC held that trial judge should inform the jury that if they determine that the accused was acting in self-defence employed more force than was necessary but no more than he honestly believed to be necessary, then they should return with a verdict of manslaughter. This differs to UK approach where the only option is conviction or acquittal under Palmer v R and conversely UK cts are more lenient on what constitutes reasonable force. The option to acquit an accused must always be left up to the jury as was held in COCA in People (DPP) V Nally.
Manslaughter
• Basis of crime: if killing is not murder, it is manslaughter. Manslaughter has the same actus reus as murder. Manslaughter is when a person commits a dangerous and criminal act and as a result the person dies. Cts have held that where a person commits a crime that is objectively dangerous, and he intends to commit a crime thereby causing the death of another, he is guilty of manslaughter: R v Holzer. Where there is a high degree of negligence i.e. failing to observe conduct that is necessary to avoid risk of injury to others, then there will be manslaughter: People (DPP) v Dunleavy. People (DPP) v Mullane: offence is capable of a variety of manifestations ranging from a case which will border on murder to one which will come nearer to misadventure than to homicide. Most cases involving unlawful and dangerous act manslaughter include assaults. It is not necessary for death to be a likely and foreseeable consequence of the actions. LRC noted that liability in constructive in that than accused intention to inflict some trivial injury to another person would make it justifiable for the law to hold him accountable for the unexpected result of his behaviour being death.
• Voluntary and involuntary manslaughter distinction.
o Voluntary: when intended to kill or cause serious injury but was either acting in self-defence, lost self-control due to provocation (DPP v McEoin).
o Involuntary: suffering from a mental disorder that diminished his responsibility as per Section 6 Criminal Law (Insanity) Act 2006. DPP v Mullane: death does not have to be a foreseeable consequence of the action. LRC paper on involuntary manslaughter: liability is constructive in that an accused’s intention to inflict some trivial injury to another person would make it justifiable for the law to hold him accountable for the unexpected result of his behaviour i.e. death.
• Assault manslaughter: accused intended to cause serious injury and the person dies as a result, then a manslaughter charge is appropriate: R v Holzer.
• Criminal and dangerous act manslaughter: People (AG) v Crosbie and Meehan: where a person commits a crime which is objectively dangerous and commits a crime which causes the death of another will be guilty of manslaughter. AG Reference No. 3: all that needs to be proved is that accused had an intention, that the death was caused by it and by applying an objective test, all sober and reasonable people would recognise the risk that some harm would result. Mitchell: accused hit a man who fell against an old lady who broke her leg and later died of a blood clot. He was convicted of manslaughter.
• Criminally negligent conduct: see below at omissions.
• Recklessness: R v Cunningham: actual awareness of the accused of the risk of the prohibited conduct occurring. Recklessness is subordinate only to intention. There are two types of recklessness: subjective and objective. DPP v Murray: subjective recklessness is where accused consciously took an unjustified risk which the accused knew existed. Objective recklessness is where the accused again took an unjustified risk however he didn’t actually know that it was an unjustified risk but he should have been aware of it. An unjustified risk involves the weighing of factors justifying the risk against those indications of the absence of justification. A justified risk is one that can be vindicated. If the risk is justified then there is no recklessness. Sometimes a justified risk might be fraught with risk. Whether a person is aware of a risk will determine whether he acted subjectively reckless or objectively reckless. In UK, recklessness encompasses both objective and subjective. R v Caldwell: subjective recklessness as where one had recognised a risk of harmful consequences resulting from his actions but took it anyway. He also defined objective recklessness as failing to give any thought as to whether there was such a risk where if any thought were given to the matter it would be obvious that there was. Where d stopped and considered whether there was a risk but mistakenly concludes that there isn’t one, he does not fit either definition of recklessness. This is known as the Caldwell lacuna or gap in the law of recklessness. Subjective recklessness has essentially the same meaning in Ireland as it does in the UK. However in Ireland objective recklessness has a broader scope. In the UK, the test is based on whether or not the accused considered the possibility of a risk existing.
• Use of excessive force: if a person uses excessive force in homicide, he cannot avail of self-defence, he will be guilty of murder. If he mistakenly used excessive force, he may be able to reduce it to manslaughter. Ross v Curtin: d was defending his supermarket from being warned, fired a warning shot that hit the d but was defending property so was reasonable to defend himself. People (DPP) v Barnes: there is no formula as to how the degree of force can be instantly calculated. There must be both an objective and subjective component as to the degree of force used. DPP v Nally. R v Clegg: there is no halfway house when a d uses a greater degree of force than is necessary. Keatley: accused brother was being attacked and he sought to defend him. On appeal for manslaughter held that if force was reasonable accused was entitled to be acquired. There does not need to be any special relationship between the accused and the person they are defending. There appears to be a half-way house in Ireland ass was seen in People (AG) v Dwyer: argument in a chip shop, where the accused was held to have used excessive force. On appeal, accused must have intended to cause death or serious injury. Here did not have intention to kill, so reduced to manslaughter. Therefore, half-way house in Ireland. If the accused knowingly uses more force than is necessary and the victim dies, then will be convicted of merger as was seen in: People (AG) v Commane. Use of force out of revenge will not be tolerated as was seen in AG v Coffey. Where the accused initiated the attack, it is not appropriate to use the defence of self-defence: R v Browne. DPP v Doran: accused broke into deceased home when deceased ran after him with a golf club, he knifed him which was held to be disproportionate. The lawful use of force does not extend to acting in revenge or using unnecessary force: People (AG) v Keatley. The concept of what is reasonably necessary is an objective one. The Criminal Law (Defence and Dwelling) Act 2011 Section 3 confirms that there is no obligation for an owner or a lawful occupant to retreat from the dwelling. The use of reasonable force including reasonable force causing death against a person believed by the occupier to be entering as a trespasser to commit a criminal act is expressly prohibited under The Criminal Law (Defence and Dwelling) Act 2011 Section 2(7). Force must be reasonable in the circumstances.
• Vehicular manslaughter. Section 51a Road Traffic Act 1961 driving without reasonable consideration and Section 52 Road Traffic Act 1961 careless driving and Section 53 Road Traffic Act 1961 dangerous driving. AG (Ward) v Thornton: SC held that Section 53 created a single offence with 2 modes of prosecution. Dangerous driving test comes from Quinlan case i.e. driving in a manner, which a reasonably prudent man, having regard to all the circumstances, would clearly recognise as having a direct and serious risk of harm to the public. As applied recently in DPP v Connaughton. Amendments for blameworthiness enacted in 2011, were discussed in People (DPP) v O’Shea: concept of intention has always played a limited role in bad driving. There must only be an intention to drive. Recklessness arises where the accused knowingly takes an unjustifiable risk. Dangerous driving, whether causing death or not, has a lower degree of negligence than gross negligence manslaughter. Careless driving comes below dangerous driving on the continuum.
Omissions in criminal law
• Voluntary Assumption of responsibility: R v Gibbins and Proctor: wife of d1 had left him and he had moved in d2. Both d1 and d2 had children and they all lived in the same house. There was no shortage of money.D1’s daughter was physically abused and was eventually left starve to death. Both d’s were found guilty of murder which both subsequently appealed. Their appeals were refused on the basis that d1 must have noticed how ill the child was and did nothing, no doctor was called. Implicit in this judgement is a condemnation of the d1’s failure to come to his daughter’s aid. D2 had taken charge of the child while under no obligation to do so. The child’s welfare was therefore the d2 responsibility; despite this the child had been physically abused and deliberately denied food by the second defendant which caused her death. R v Stone and Dobinson: deceased, an old woman, had been lodging with her brother, d1, and his housekeeper who was also his mistress, d2. The deceased used to pay her brother for her lodgings which consisted of a small room. She had a morbid fear of putting on weight and she refused to eat proper meals. She then became bedridden. D2 attempted to wash her with the help of a neighbour. An attempt was also made by them to get a doctor but it failed. Weeks later she was found dead in her room. Doctor gave evidence saying that if she had received assistance anytime up to two weeks before she was found dead she may have survived. Defendants claimed that she was more like a stranger and that they were not responsible for her but the Court of Appeal decided since the first defendant was a blood relative and the second defendant fed and washed her that they claimed responsibility. They were both charged with manslaughter.
• Omissions: criminal law does not punish a failure to act: R v Paine. Exception is when law recognises a positive duty to act. These scenarios are listed below. People (AG) v Dunleavy: distinction between tortious and criminal negligence.
• Familial relations: R v Senior: d was a member of a religious organisation that believed any form of medication was immoral and constituted a lack of faith in god. His 8 month old child got pneumonia and d refused for his child to be treated. The child subsequently died and d was convicted of manslaughter as ct found that d was under a duty to act because of the close relationship with the child. R v Hood: manslaughter upheld where wife fell and suffered broken bones and he did not assist. Similarly, in DPP v Joel looking after mother who died due to neglect.
• Contractual duty: R v Pittwood. R v Dytham: duties arising as a police officer.
• Creation of danger: R v Miller. Re a Ward of Court and NHS Trust v Bland. DPP v Cullagh: ride at a fun fair where the chair was faulty, and a girl died. R v Adomako: d anaesthetist was operating on a patient when a tube became detached from a ventilator, the patient suffered cardiac arrest and died. Check to see if the lack of duty of care caused the death of the victim and then whether it was gross negligence and thus a crime.
• Statutory duties: Road traffic Act 1961 or Section 52 Offences Against the State Act 1939. Section 176 Criminal Justice Act 2006 notes that a person with the authority or control over a child abuser who failed to take reasonable steps to protect a child who they know is at a substantial risk of serious harm of sexual abuse.
Causation
• Definition: causal relationship between d’s conduct and end result i.e. the actus reus (action) from which the specific injury or other effect arose and is combined with mens rea (state of mind) to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses (See Chapter 3). Where establishing causation is required to establish legal liability, it usually involves a firstly establishing 'factual' causation, then 'legal' causation. Factual causation must be established before inquiring into legal causation, perhaps by assessing if d acted in p’s loss. Determining legal causation often involves a question of public policy regarding the sort of situation in which, despite the outcome of the factual enquiry, d might nevertheless be released from liability, or impose liability. The ‘but for’ test was illustrated in R v Pagett where a question was asked that whether the hostage would not have died but for d’s conduct. The factual causation was established as: If the accused had not fired first, the police officers would not have fired their weapons, and then the hostage would not have died. R v White: accused putting cyanide in his mother’s drink was not liable for murder on her death, if prosecution fails to prove that d’s conduct was a factual cause of the prohibited consequence, then the accused cannot be liable for an offence on that consequence, although he may be still liable for an attempted offence.
• Novus actus: difficulties arise when there is something that happened after d’s conduct, i.e. an intervening factor. Not every intervening factor amounts to a novus actus interveniens which is voluntary and independent thus breaking the chain of causation. A chain of causation must be established linking conduct and result. Conduct must be operating and substantial cause of result. R v Jordan: d stabbed the deceased who was subsequently hospitalised. While in hospital he was given antibiotics, which he was allergic to. He was also given abnormal amounts of liquids which waterlogged his lungs. In this case the medical treatment was not only not normal, but it was palpably wrong. The wound was not the cause of death, it was the medical treatment received in the hospital which was independent of d’s actions. D’s conviction was quashed, the medical treatment constituted a novus actus. R v Smith: soldier was stabbed in the arm and back by d. Wound punctured a lung which doc did not appreciate and treatment was inappropriate and he died from haemorrhaging in his lung. COA accepted that the stab wound was still the operating and substantial cause of death. Ct noted the actual chain of causation – the stab in the back, his lung was pierced and haemorrhaged, he died from the haemorrhaging, and in the interval there was sufficient time for a proper examination. Appeal was dismissed. There is also a duty to continue life support when it is no longer in the best interests of the patient similar: Airedale NHS Trust v Bland. Bland suffered severe brain damage that left him in a persistent vegetative state whereby the hospital, with the support of his parents, applied for a ct order allowing him to 'die with dignity'.
• Egg shell rule (exception to novus actus): naturally occurring events and reasonably foreseeable events are not generally treated as breaking the chain of causation because of its predictable effect. An objective test as shown in R v Roberts in establishing reasonably foreseeable events and it is not necessary to attribute characteristics of d to the reasonable person. Therefore, d cannot argue that it was the peculiarity or vulnerable characteristic of the victim that caused the prohibited consequence. The notion ‘take your victim as you find him is illustrated in R v Blaue where d was liable for the death of the victim after a blood transfusion. And it was affirmed in many cases that a victim’s failure to seek or follow medical treatment or advice, even unreasonable will not be treated as a novus actus.