MURDER & VOLUNTARY MANSLAUGHTER

MURDER
“It is an unlawful killing, in the King’s Peace, with malice aforethought.”

ACTUS REUS

1. HUMAN BEING

A. Birth
A fetus is not a human being until completely born i.e. complete separation
from mother

Poulton [1832]:
A child killed before leaving the birth canal is not a human being.

Enoch [1830]
It is required that the child is capable of breathing; not necessarily that it has
begun breathing.

Rance v. Mid-downs Health Authority [1991]:

Must be capable of maintaining an independent circulation.

Not required that the child be viable, but that it was alive.

Senior [1832]:
A mid-wife was guilty of manslaughter for so badly delivering a child that the
child died soon after birth.

West [1848]:
It was held that a person who performs an act with intent to procure an abortion
is guilty of murder if the effect of the act is to cause the child to be born
prematurely and die.

A-G’s Reference (No. 3 of 1994):

The Defendant stabbed his girlfriend, knowing that she was in an advanced stage
of pregnancy. The Child was born prematurely, suffering from stab wounds.
Defendant pleaded guilty to wounding the Girlfriend to cause GBH.

120 days later, the child died as a result of the premature birth and stab wounds.
The Defendant was charged with murder of the child, through transferred malice.
The HoL held that transferred malice only applied to living creatures. However,
the Defendant was guilty of constructive manslaughter.

B. Death
Life ends when a human being stops breathing, the heart stops pumping and the
brain ceases to function – ‘brain death’

When brain death has occurred, removal or life support will have no meaningful
consequences.

Malcherek [1981]
Actions of doctors in removing a brain-dead patient from life support was not to
cause death.

Inglis [2011]:
CoA upheld the conviction for murder of a mother whose son was suffering
persistent vegetative state, following a car accident, and to whom she had
deliberately injected with heroin as an act of compassion.

It was stated that, removal of life support by the medical practitioner would be
lawful, as their duty is to sustain life only as long as the patient’s interest are being
furthered. However, would be murder, if done by a stranger or member of the
patient’s family.

2. UNLAWFUL KILLING
Homicide is result crime. Usually, a positive act would be required linking to
the death.

Whether the D’s Act caused the V’s death is a matter of fact for the jury rather
than one of law for the judge.
 MENS REA
Vickers [1957]
Malice aforethought in murder is established upon proof of:
(i) An intention to kill (express malice); or
(ii) Intention to cause GBH (implied malice).

Intention may be proved through Woolen Test of virtual certainity.

Duff [1990]
It has to be proved that, had death or serious injury not occurred the Defendant
would have treated his act as a failure. (Specific Intent)

GBH is serious bodily harm, which need not be permanent or life-threatening.

Vickers [1975]:
The appellant was convicted of murder. He had broken into premises to steal
and had been disturbed by an elderly, to whom he struck with a number of
blows; causing death. The trial judge direct the jury that he was guilty of murder
if in striking the blows he intended to cause her grievous, in the sense of
serious, bodily harm. It was further directed that the harm intended need not be
permanent or life-threatening.

DPP v Smith (1961):

Intention to cause GBH was accepted by HoL as constituting implied malice,
although, the meaning of grievous was modified to really (rather than merely)
serious.

Cunningham (1981):
HoL unanimously agreed that the law was correctly stated in Vickers, as
qualifying Smith.

ACADEMIC CRITICISM OF GBH MURDER RULE:

It is argued that, as murder consists of mandatory life sentence, the intention to
cause GBH per se should be modified to require intention to cause life-
threatening harm as a minimum to ensure a proper correspondence B/w act and
culpability. L. Steyn confirmed that HoL were uncomfortable with GBH murder
and perhaps, under appropriate circumstances, may be emboldened to make
changes.

It Is also advised by the Law Commission that murder is divided into two degrees
of gravity:
I. Intention to kill, where mandatory life sentence is retained.
II. GBH murder, where mandatory life sentence will not bite,
This will welcome adoption of a form of killing by risk-taking which avoids the
difficulty to draw a clear line b/w risk-taking murder and risk-taking as
manslaughter by requiring it to involve an attack on the victim. Second degree
includes, intention to cause some injury, or fear of some injury or a risk of some
injury, while being aware of a serious risk of causing death.

VOLUNTARY MANSLAUGHTER

Murder is served with three partial-defences which turn the conviction into
voluntary manslaughter – rendering the mandatory life sentence unjust.

Syllabus covers two (i) loss of self-control; and (ii) diminished responsibility.

LOSS OF SELF CONTROL

A modified version of the old law of provocation.

Old Law of Provocation:

The defence of provocation was that was an external trigger, that would lead the
Defendant to lose self-control (subjective), and a man with same characteristics
of the Defendant would lose control in the same situation (objective, with a link
with subjective).

Horder (1992)
It applied where a killing was prompted by a provoking assault on self, or the
discovery of a wife committing adultery or of a family member or friend suffering
attack, were considered the natural response of an honourable man, and certainly
not such as would justify the mandatory life sentence.

The essence of the defence then was that a violation of honour (partly) justifies
retributive retaliatory reaction

Provocation expanded to cover more questionable behaviors, as in the following

case

Doughty:
It was held that the incessant cries of a baby were capable of provoking a
reasonable man to kill. HoL allowed the defence even though the Defendant
showed to have lacking self-control.

Loss of Self-Control (Current law):

This is only a defence to murder and the defence is only partial.

Section 54 of the Coroners & Justice Act 2009, states:

(1) Where a person (‘Defendant’) kills or is a party to the killing of another
(‘Victim’), Defendant is not to be convicted or murder if-
(a) Defendant’s acts and omissions in doing or being a party to killing resulting
from Defendant’s loss of self-control,
(b) The loss of self-control had a qualifying trigger, and
(c) A person of Defendant’s sex and age with a normal degree of tolerance and
self-restrain and in the circumstances of Defendant, might have reacted in
the same or in a similar way to Defendant.
(2) For the purposes of subsection 1(a), it does not matter whether or not the loss
of self-control was sudden.
Section 55 sets out the qualifying triggers:
(1)To D’s fear of serious violence from V against D or another identified
person, or
(2)To a thing or things done or said (or both) which –
(a) Constitute circumstances of an extremely grave character, and
(b) Caused D to have justifiable sense of being seriously wronged

The new law includes a subjective element and an objective element, namely:
(i) Defendant lost his self-control; - Subjective
(ii) The loss of self-control was not out of the ordinary for a person of
Defendant’s sex and age, with a normal degree of tolerance and self-
restrain and in circumstances of Defendant would have lost it.-Objective

Subsection 6 of the same, states that the defence cannot be relied upon if
Defendant incited the act which constitutes the ‘qualifying trigger’ for the purpose
of providing an excuse to use violence.

Success requires unrebutted evidence that the accused may have lost his self-
control and that it issued from a ‘qualifying trigger’. The defence is then
established unless the jury is convinced that in acting as he did the D’s behavious
has not measured up to the standard of self-control which ought reasonably to
have been expected of him.

The defence cannot be relied upon in cases of revenge. Which meant,

premeditation done, then defense would not be available.
Ibrams (1981):
The defence was held not available where two people carried out an attack on a
man who had subjected them to substantial acts of violence. Since the killing took
place at night a week after the last act of violence had been committed and while
the man was asleep, the evidence showed that the killing was not in hot blood.

Duffy (1949):
Devlin J explained the idea of revenge killings in the words:
“Circumstances which induce a desire for revenge are inconsistent with
provocation, since the conscious formulation of a desire for revenge means that a
person has time to think, to reflect, and that would negative a sudden temporary
loss of self-control, which is of the essence of provocation.”
The sudden and temporary requirement only made the defence available to
characteristics of men who are more disposed to react with violent outbursts than
women.

Ahluwalia (1949):
The D’s wife had suffered a long period of ill-treatment and savage brutality at
the hands of her husband. She had tried suicide on two occasions. Despite all, she
remained with her husband for over a decade, conceiving it a matter of wifely
duty supported by a cultural code of family honour. She discovered her husband
was having an affair and was threatening to leave her. She pleaded with him not
to desert the family. His response was to threaten to burn her with a clothes iron
if she did not leave. A few hours later, she threw petrol in his room, where he was
sleeping and set alight.

CoA concluded that women tend to ‘slow burn’, in cases of cumulative violence.
While stating that only Parliament could reverse the effects of duffy, stated that
as long as evidence remained that the D killing during a temporary and sudden
loss of self-control’ the time lapse was not fatal.

Current Position: A delay b/w the trigger and the reaction is not fatal so long as
a loss of self-control prompted the reaction. The longer the period between the
trigger and the reaction, the weaker the evidence will be that loss of self-control
actually did occur.

R v Dawes & Hatter:

Defence was held not available in just such a situation where the killings,
although triggered by the consequences of a break-up of relationships, were
apparently premeditated and considered, rather than spontaneous.

Acott:
It was stated that it was not enough to simply show that the accused lost his self-
control. He must have been provoked to lose his self-control.

Circumstances of Extremely Grave Character:

Extremely grave character would be constitute circumstances including a
previous rape, whether as a victim [Complin (1978)], or parent or close relative
of victim [Royley (1612)] and blackmail [Edwards v R (1973)].

Allegations of child molesting, serious criminality, professional incompetence

or wrongdoing, and other shameful activities would also count.

Justifiable Sense of Seriously Being Wronged

Justifiable sense means that the trigger will only be successful if the words are
untrue because only then will the sense of being ‘seriously wronged’ be
justifiable.

Bowyer:
D was having an affair with X, who was a prostitute. V, her pimp, discovered D
burgling V’s apartment. V threatened D with violence and also taunted him about
X being a prostitute. D killed V in reaction to the taunt. CoA held the defence
was not available, and by burgling the flat D forfeited any justification he might
have had in responding to V’s taunts.

R v Mohammad (2005):
It was held that the ethnic grouping to be taken into account. The word
‘justifiable’ rather than ‘justified’ is noteworthy, hinting that so long as the D’s
sense is culturally validated it does not have to be universally shared.

Sexual jealousy is no longer a qualifying trigger as excluded by S. 55(6)

R v Clinton, Parker & Evans:
CoA interprets the section to mean that sexual infidelity which prompts a loss of
self-control due to sexual jealousy, possessiveness, or family honour is not a
qualifying trigger. However, if the sexual infidelity provides the context within
which another trigger operates, it must be considered.

Defendant killed his wife, having found out she was unfaithful. When asked to
reconsider her wish to leave D, she abused him and made several extremely
wounding remarks including that she had had enough of looking after their
children. She also derided him for his weakness and for being too weak minded
to execute his desire to commit suicide.

D will not be allowed to avail himself of a defence if he causes the condition

under which he subsequently seeks to rely upon it.

Edwards (1973):
D was a blackmailer whose demands had stung his victim V into attacking him
with a knife. D killed V as a result of his own loss of self-control. The Privy
Council held that it was only because V had overreacted with a knife that D was
able to rely on provocation at all. If V’s reaction had been more predictable
response to D’s own conduct, the defence would not have been available.

R v Bowyer (2013):
So long as the D did not purposefully incite the violence of the victim so as to
provide an excuse to use violence in return the defence would remain to be
available to those responsible for their own loss of self-control.

Characteristics of the Defendant:

The jury shall take into account any characteristic of the D which may have
affected the gravity of the provocation to him or her but not any characteristic,
other than age sex, which may have affected his level of self-control.

R v Hill (2008):
It was agreed that having been a child victim of sexual abuse would be a
circumstance which the jury should take into account in deciding how a person
of reasonable tolerance might react to an alleged sexual approach.

R v Asmelash (2013):
The CoA confirmed that being voluntarily intoxicated is not a circumstance which
the jury shall take into account in deciding how D might be expected to react. The
jury should consider whether a sober person of D’s sex and age, with a normal
degree of tolerance and self-restraint would have reacted as D did.
If there is an inherent mental condition that renders a persons self-control to be
reduced they should plead diminished responsibility.
R v Willcock (2016):
CoA was to decide whether a personality or mental disorder of the D was one of
the circumstances the jury should take into account in deciding whether the D’s
reaction was to be expected. It was held that it would not be relevant and such
cases should be treated of diminished responsibility.

DIMINISHED RESPONSIBILITY:
It is a statutory partial defence defined under the Section 2 of the Homicide Act,
1957 as amended by Coroners & justice Act, 2009.

The burden of proof is upon the D and only the D can raise it.
Robinson v State Trinidad & Tobago:
Privy Council endorsed the present practice for prosecutors to accept the plea so
long as there “was no significant material dispute either of underlying fact or
medical analysis, and it is clear that the D’s mental responsibility for the killing
can properly be described as substantially impaired.”

It has been a more popular defence than insanity, largely because of the wide
discretion available for sentencing.

The defence is not available to attempted murder [Campbell (1996)].

Before 2009 any substantial emotional or mental abnormality could ground the
defence so long as it resulted from inherent rather than external causes.

Now, the defence is unavailable unless the D is suffering a clinically recognized

mental disorder which not only accompanies but explains his/her participation
in the killing.

Section 2 of the Homicide Act, 1957 states that:

(2)(1) A person (“D”) who kills or is party to the killing of another is not to be
convicted of murder if D was suffering from an abnormality of mental
functioning, which –
(a) Arose from a recognized medical condition,
(b)Substantially impaired D’s ability to do one or more of the things mentioned
in subsection (1A), and
(c)Provides an explanation for D’s act and omissions in doing or being a party
to the killing.
(1A) Those things are –
(a) To understand the nature of D’s conduct;
(b) To form a rational judgment; and
(c) To exercise self-control
(1B) For the purposes of subsection 1(C), an abnormality of mental functioning
provides an explanation for D’s conduct if it causes, or is a significant
contributory factor in causing, D to carry out that conduct.

Seers (1984)
It has been held that directions to the jury along the lines that diminished
responsibility is a form of ‘partial insanity’ or lies on the borderline of insanity
should be avoided.

The phrase ‘abnormality of mental functioning’ replaces ‘abnormality of mind’.

R v Baker (2012):
A person has an abnormality of mental functioning if the person’s mental
functions of understanding what she was doing, and/or forming a rational
judgment, and/or exercising self-control were substantially impaired such that it
would be inappropriate to treat her as fully responsible.

Medically Recognized Condition

The abnormality of mental functioning must be grounded in a recognized mental

condition.

While the phrase ‘recognized medical condition’ will clearly encompass all
relevant mental disorders which are officially recognized.

R.D Mackay points out, it must cover both ‘psychological’ and ‘physical’
conditions like epilepsy, sleep disorder and diabetes.
Following conditions have been recognized:
R v Gittens (1984):
Depression was recognized.
R v Inglis (2010):
Bipolar disorder was recognized.

R v Sutcliffe (1981):
Paranoid schizophrenia was recognized.

R v Byrne (1960):
Brain damage, psychopathy were recognized.

Reynolds (1988):
Post natal depression.

Martin (2002):
Paranoid personality disorder.

R v Blackman (2017):
Combat stress which induced in a soldier ‘a hatred of Taliban and desire for
revenge’ was ruled by 5 judges of the Court martial Appeals Court as a recognized
mental condition.

Following not recognized:

R v Osborne (2010):
CoA ruled that attention deficit hyperactivity disorder (ADHD) would not afford
any ground for allowing the appeal against conviction on the basis of diminished
responsibility.

Cases of intoxication alone would not support the defence.

R v Dowds (2012):
This does not as it is does not ‘arise from a recognized medical condition’.

Tandy (1988):
CoA held that, Chronic alcoholism could be a cause of mental abnormality, where
the D is an alcoholic who commits a criminal harm as result of becoming
intoxicated consequent upon suffering from this condition. The D was refused,
despite evidence of serious addiction.

R v Stewart:
CoA held, Alcohol dependency syndrome could be considered a mental condition
capable of producing, where it caused involuntary consumption of alcohol
depending upon the evidence, an abnormality of mind.

A related problem is, where the D suffers from abnormality of mind and, in this
condition, becomes intoxicated.
Egan (1992):
CoA said that the jury should be directed to ignore the effect of the intoxication
and consider whether ‘the combined effect of the other matters which do fall
within the section amounted to such abnormality of mind as substantially
impaired the D’s mental responsibility’. In short, this requires the D to prove that
the killing was due to his abnormality rather than the voluntary consumption of
alcohol.

Dietschmann (2003):
HoL ruled that diminished responsibility could be relied upon where a mentally
abnormal man killed while intoxicated so long as the mental abnormality played
a part in the killing.

Substantial Impairment

Simcox:
CoA approved direction by the trial judge, which indicated that the impairment
must be considerable (I.e quite sizeable) for it to be substantial test.

R v Lloyd:
CoA provided a less stringent test. It was suggested that juries should be asked to
approach the notion of substantial impairment in a board common-sense way,
referring to impairments which are more than trivial but less than total.

Golds (2016):
Supreme Court agreed with CoA that the jury should be directed on the meaning
only exceptionally and that, where a direction is necessary, Simcox is the correct
test.

Causal Link Between the Impairment & The Act

Osbourne (2010):
CoA concluded that the fact that D was suffering from ADHD did not mean that
the impairment was substantial. A person with ADHD can still form the necessary
intention and are not thereby deprived of the ability to understand what they are
doing, form a rational judgment, and exercise self-control.

There should be causal link b/w the abnormality and the killing.

The new provision requires that the abnormality must provide an explanation
for the D’s acts and omissions in doing or being a party to the killing. It must
form part of the story as to why this killing took place.

Whether, it does provides an explanation for the killing is a jury question.