Law For The Accused

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Murder & Manslaughter

Murder is defined as:-

Subject to three exceptions, the crime of murder is committed where a person of sound mind and discretion, unlawfully - kills - a reasonable creature - in being - under the Queens peace - with intent to kill or cause grievous bodily harm.

The offence which would otherwise be murder is reduced to manslaughter if the accused

(a) was provoked or

(b) suffered from diminished responsibility or

(c) was acting in pursuance of a suicide pact.

It is for the Crown to prove the offence beyond a reasonable doubt to a Jury.

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A new law - Criminal Justice and Immigration Act 2008 Section 76 states:-

Reasonable force for purposes of self-defence etc.

(1) This section applies where in proceedings for an offence -

(a) an issue arises as to whether a person charged with the offence ("D") is entitled to rely on a defence within subsection (2), and

(b) the question arises whether the degree of force used by D against a person ("V") was reasonable in the circumstances.

(2) The defences are -

(a) the common law defence of self-defence; and

(b) the defences provided by section 3(1) of the Criminal Law Act 1967 or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (use of force in prevention of crime or making arrest).

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.

(4) If D claims to have held a particular belief as regards the existence of any circumstances -

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not -

(i) it was mistaken, or

(ii) (if it was mistaken) the mistake was a reasonable one to have made.

(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

(6) The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case) -

(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

(9) This section is intended to clarify the operation of the existing defences mentioned in subsection (2).

(10) In this section -

(a) "legitimate purpose" means -

(i) the purpose of self-defence under the common law, or

(ii) the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);

(b) references to self-defence include acting in defence of another person; and

(c) references to the degree of force used are to the type and amount of force used.

Section 76 came into force on July 14, 2008 (Criminal Justice and Immigration Act 2008 (Commencement No. 2 and Transitional and Saving Provisions) Order 2008 (S.I. 2008 No. 1586)). It applies whenever the alleged offence took place: 2008 Act, s.148(2), and Sched. 27, para. 27(1); but it does not apply in relation to (a) any trial on indictment where the arraignment took place before the commencement date or (b) any summary trial which began before that date, and nor does it apply in relation to any proceedings in respect of any such trial: ibid., para. 27(2).

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Murder Defences

Provocation

Also see Section 3

At common law, provocation reduces murder to manslaughter; and is available as a potential defence both for a principal and an accessory. It is irrelevant on the issue of guilt in all other crimes.

The jury should be directed that before they have to consider the issue of provocation the Crown must have proved beyond reasonable doubt that all the other elements of murder were present, including the necessary intent.

It proposes a new defence of "loss of control", which will reduce murder to manslaughter if the killing resulted from the defendant's loss of self-control, the loss of self-control had a qualifying trigger, and a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the defendant's circumstances, might have reacted in the same or a similar way.

Circumstances the only relevance of which to the defendant's conduct is that they bear on his general capacity for tolerance and self-restraint are to be ignored. If the defendant's loss of self-control was attributable to

(a) his fear of serious violence from the victim directed against himself or some other identified individual,

(b) a thing or things done or said, or both, which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged, or

(c) a combination of matters mentioned in (a) and (b), there will have been a "qualifying trigger". Among the more detailed provisions are:

(i) it does not matter whether the loss of self-control was sudden;

(ii) the defence will not be available if the defendant acted out of a considered desire for motive or revenge;

(iii) things said or done are generally to be disregarded if they were provoked by the defendant;

(iv) sexual infidelity is to be disregarded; and

(v) it is for the prosecution to disprove the defence once sufficient evidence has been adduced to raise an issue with respect to the defence.

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Homicide Act 1957, s.2

Diminished responsibility

Persons suffering from diminished responsibility

(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it.

This defence is not available on a charge of attempted murder: R. v. Campbell[1997]

Who may raise the issue?

In R. v. Kooken,74 the Court of Appeal "very much" doubted whether the trial judge has a discretion to call evidence of diminished responsibility.

As to the entitlement of the Crown to call evidence of diminished responsibility where the accused is contending he was insane at the material time and vice versa, see the

Criminal Procedure (Insanity) Act 1964.

Abnormality of mind

Abnormality of mind - substantial impairment:

(a) "'Abnormality of mind', ... means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment. The expression 'mental responsibility for his acts' points to consideration of the extent to which the accused's mind is answerable for his physical acts, which must include a consideration of the extent of his ability to exercise will-power to control his physical acts."

(b) "Whether the accused was at the time of the killing suffering from any 'abnormality of mind' ... is a question for the jury. On this question medical evidence is, no doubt, important, but the jury are entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence, if there is other material before them which, in their good judgment, conflicts with it and outweighs it"

(c) "Assuming that the jury are satisfied on a balance of probabilities, that the accused was suffering from 'abnormality of mind' from one of the causes specified in the parenthesis of the subsection the crucial question nevertheless arises: was the abnormality such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing? This is a question of degree and essentially one for the jury. Medical evidence is of course relevant, but the question involves a decision not merely whether there was some impairment but whether such impairment can properly be called 'substantial' a matter upon which juries may quite properly differ from doctors"

(d) "The step between 'he did not resist his impulse' and 'he could not resist his impulse' ... is one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble the jury can only approach in a broad, common-sense way. This court has repeatedly approved directions to the jury which ... indicate that such abnormality as 'substantially impairs his mental responsibility' involves a mental state which in popular language a jury would regard as amounting to partial insanity or being on the borderline of insanity ... "

(e) "Inability to exercise will-power to control physical acts, provided that it is due to abnormality of mind from one of the causes specified in the parenthesis of the subsection, is ... sufficient to entitle the accused to the benefit of the section; difficulty in controlling his physical acts, depending on the degree of difficulty, may be sufficient"

The mental abnormality need not have existed from birth

The Court of Appeal subsequently advised judges, at least where alcohol is a factor, that guidance as to the meaning of "substantial" should be explicitly provided to the jury by using one or other of the directions in Lloyd, viz.

(a) to approach the word in a broad common sense way, or

(b) that the word means "more than some trivial degree of impairment which does not make any appreciable difference to a person's ability to control himself, but it means less than total impairment":

Drink and mental abnormality

In a case where the defendant suffered from an abnormality of mind of the nature described in section 2(1), and had also taken alcohol before the killing, and where there was no evidence capable of establishing alcohol dependence syndrome as being an abnormality of mind within that subsection, the subsection meant that if the defendant satisfied the jury that, notwithstanding the effect of the alcohol he had consumed and its effect on him, his abnormality of mind substantially impaired his mental responsibility for his acts in doing the killing, the defence should succeed; this was because section 2(1) did not require the abnormality of mind to be the sole cause of the defendant's acts in doing the killing; even if the defendant would not have killed if he had not taken the drink, the causative effect of the drink did not necessarily prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for the killing; a jury should, therefore, be directed along the following lines, "Assuming the defence have established that the defendant was suffering from mental abnormality ... the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that ... [he] had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant's mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question ... to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts.

Where the defendant's alcoholism has reached the stage at which the brain has been injured by the repeated insult from intoxicants so that there is gross impairment of judgment and emotional responses, the defence will be available to the defendant provided that the abnormality of mind induced by alcoholism was such as substantially impaired his mental responsibility for the act which caused death: R. v. Tandy,87

"Borderline of insanity"

Criminal Procedure (Insanity) Act 1964, s.6

Where on a trial for murder the accused contends -

(a) that at the time of the alleged offence he was insane so as not to be responsible according to law for his actions; or

(b) that at that time he was suffering from such abnormality of mind as is specified in subsection (1) of section 2 of the Homicide Act 1957 (diminished responsibility),

the court shall allow the prosecution to adduce or elicit evidence tending to prove the other of those contentions, and may give directions as to the stage of the proceedings at which the prosecution may adduce such evidence.

The onus on the prosecution to prove "the other of those contentions" is the usual one of proof beyond reasonable doubt.

Plea of guilty to manslaughter.

As to the propriety of the Crown accepting a plea of guilty to manslaughter on the grounds of diminished responsibility.

"Borderline of insanity"

It will sometimes be inappropriate to direct the jury that the test is the borderline of insanity, as where the abnormality of mind cannot readily be related to any of the generally recognised types of "insanity". If, however, insanity is to be referred to, as will usually be the case, the word must be used in its broad popular sense.:

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Homicide Act 1957, s.3

Provocation

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

Where provocation is not left to the jury when it should have been, a conviction for manslaughter will be substituted unless the court is sure that the jury would inevitably have convicted

Onus of proof

Once there is evidence from any source, sufficient to be left to the jury on the issue of provocation, the onus remains throughout upon the Crown to prove absence of provocation beyond reasonable doubt.

"Provoked ... to lose his self control"

Meaning of "provocation"

In R. v. Whitfield,63 the Court of Appeal said that the meaning of provocation was "Provocation is some act, or series of acts, done [or words spoken] [by the dead man to the accused] which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind" .

Loss of self-control must be associated with the act which causes death

Provocation is available only in the case of a sudden and temporary loss of self-control of such a kind as to make the accused for the moment not master of his mind: Circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect and that would negative a sudden temporary loss of self-control, which is the essence of provocation. But the mere existence of such circumstances does not mean that the judge should not leave the issue to the jury if there is evidence that the accused was in fact provoked; it is for the jury to decide.

build up of events as provocation

Although it is established that a temporary and sudden loss of self-control arising from an act of provocation is essential, it is less clear to what extent previous acts of provocation are admissible. Each case must be considered against the background of its own particular facts: a direction that the jury had to find provocation in something done on the morning of the killing was approved.

Self-induced provocation

The mere fact that the defendant caused a reaction in others which in turn led him to lose his self-control does not preclude a successful defence of provocation: R. v. Johnson (C.),89.

Provocation and lies

Lies and attempts to cover up a killing are not necessarily inconsistent with provocation. In directions about lies, when the issue was murder or manslaughter, the jury should be alerted to the fact that, before they could treat lies as proof of guilt of the offence charged, they had to be sure that there was not some possible explanation which destroyed their potentially probative effect. A failure to give such a direction, coupled with an indication that the jury might regard lies as probative of murder rather than manslaughter, amounted to a material misdirection:

Provocation and good character

Where there is evidence of the defendant's good character, the judge should direct the jury as to the relevance of that both to credibility and propensity; and, in particular, should reminded them that, as a man of good character, the defendant might have been unlikely to indulge in serious violence without first being provoked: Paria v. Queen, The[2004]

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Homicide Act 1957, s.4

Suicide Pacts

(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other ... being killed by a third person.

(2) Where it is shown that a person charged with the murder of another killed the other or was a party to his ... being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other.

(3) For the purposes of this section "suicide pact" means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

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Manslaughter by an unlawful act

In respect of manslaughter arising from the unlawful act of the accused, the following propositions appear to be established:

(a) the killing must be the result of the accused's unlawful act (though not his unlawful omission)

(b) the unlawful act must be one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to, at least, the risk of some harm resulting therefrom, albeit not serious harm

(c) it is immaterial whether or not the accused knew that the act was unlawful and dangerous, and whether or not he intended harm; the mens rea required is that appropriate to the unlawful act in question: see post,

(d) "harm" means physical harm:

What are unlawful acts?

"Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter."

The act must be unlawful. However, an act which is otherwise lawful (such as driving a vehicle) does not become an unlawful act for these purposes if it contravenes the criminal law merely by the manner of its execution, e.g. by driving carelessly: see Andrews v. DPP ([1937]. Similarly, a clear distinction should be drawn between an act of omission and an act of commission likely to cause harm. If the latter act is unlawful and death results, an accused may be charged with manslaughter. If death results from an act of omission, a charge of manslaughter will not inevitably follow. Nevertheless a charge of manslaughter may arise by way of gross negligence involving breach of duty:

In R. v. Lamb[1967], the accused had pulled the trigger of a revolver in jest. The court pointed out that this was not an unlawful act and therefore the prosecution could only establish manslaughter by proving gross negligence. Injecting another person with heroin which the defendant had unlawfully taken into his possession for that purpose, is an unlawful act and if death results the offence is manslaughter notwithstanding that the victim consented and the heroin is only one of the causes of death.

In R. v. Kennedy (Simon)[2008], it was held that a person is not guilty of unlawful act manslaughter if he is involved in the supply of a class A controlled drug to a fully informed and responsible adult, which drug is then freely and voluntarily self-administered by the person to whom it was supplied, and the administration of the drug then causes that person's death, since the act of supplying the drug, without more, cannot harm the person supplied in any physical way, and so cannot form the foundation of a charge of unlawful act manslaughter, and, in any event, the act of supplying cannot be said to cause death because the informed voluntary choice of the person supplied to administer the drug to himself breaks the chain of causation.

Where pleas of guilty to manslaughter and an offence contrary to section 23 of the 1861 Act were entered on the basis of the Court of Appeal's decision in R. v. Kennedy (Simon) ([2005] before its reversal by the House of Lords, the convictions fell to be quashed, the entire proceedings having been conducted on a fallacious basis.

Sporting contests

All struggles in anger are unlawful and death occasioned by them is manslaughter at the least: R. v. Canniff(1840) However, contact sports, fairly conducted, are not unlawful. Thus it is not manslaughter where death occurs from an injury received during a gloved sparring match, fairly conducted. Such a match may become unlawful if the fight continues unreasonably and the parties are placed in danger thereby and it was held that however "fair" a contest might be, if it took place with swords or other dangerous weapons, those taking part and all who were parties to it would be guilty of manslaughter. As to injuries caused during contact sports, such as football, see R. v. Barnes (Mark)[2005]

Harm

In R. v. Dawson, 81 , the court expressed the obiter view that whilst "harm" means physical harm, in the context of manslaughter this includes injury to the person through the operation of shock emanating from fright. This is consistent with Watson ([1989] . Neither Dawson nor Watson were referred to in R. v. Perman (Sam)[1996] in which the court said that robbery with an unloaded gun, used for the purpose of causing fright or hysteria, would not found a conviction for manslaughter; if the intention were the same but the gun, being loaded, went off accidentally. It should be noted, however, that R. v. Perman (Sam) was actually concerned with the liability of an accessory where the principal went outside the scope of a joint enterprise by intentionally shooting the victim.

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Manslaughter by gross negligence

The law relating to manslaughter by gross negligence was clarified by the decision of the House of Lords inR. v. Adomako[1995] .There is a mass of authority on this topic which pre-dates R. v. Adomako; it is submitted that whilst the test as set out in R. v. Adomako may prove difficult in its practical application, there is no warrant for referring back to the old cases, save: (a) in relation to two authorities specifically approved by the House of Lords and which may prove useful in formulating directions to juries.

The test

The ordinary principles of the law of negligence apply to determine whether the defendant was in breach of a duty of care towards the victim; on the establishment of such breach of duty the next question is whether it caused the death of the victim, and if so, whether it should be characterised as gross negligence and therefore a crime; it is eminently a jury question to decide whether, having regard to the risk of death involved, the defendant's conduct was so bad in all the circumstances as to amount to a criminal act or omission: R. v. Adomako ([1995] 1 A.C. 171

The question for the jury is not whether the defendant's negligence was gross and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal.

The existence of the duty of care

The duty of care belongs more to the fields of civil law, however, the following should be noted.

The existence, or otherwise, of a duty of care or a duty to act is a question of law for the judge, whereas the question of whether the facts establish the existence of the duty is for the jury once they have been directed as to the law; whilst in simple cases it may be proper for a judge to direct the jury that a duty of care exists, in any case where the issue is in dispute, and therefore in more complex cases, assuming that the judge has found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if the relevant facts are established, a duty arises in law.

A person may become liable for manslaughter by neglect of a positive duty arising from the nature of his occupation.

There is old authority which suggests that liability for manslaughter does not arise where the death is not the direct and immediate result of the personal neglect or default of the defendant.

It is no defence, where the death of the deceased is shown to have been caused in part by the negligence of the defendant, that the deceased was also guilty of negligence and so contributed to his own death. For the purposes of the criminal law, the courts will not decline to hold that one person owes a duty of care to another because they are jointly involved in a criminal enterprise.

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Meaning of the Law

Of Sound Mind and Discretion

This means anyone who is not insane or under ten years old can commit the offence.

Unlawfully

This means without legal justification or excuse e.g. self-defence.

Kills

This means that the defendant's actions must be the cause of the death.

All that has to be proved is that the defendant was the substantial cause of death and that no separate act intervened to cause the death.

Any Reasonable Creature

This relates to the appearance rather than the mental capacity of the victim and relates to old definitions of a human being.

Special rules apply to unborn or newly born children.

Under the Queens Peace

This relates to killing during the course or war or rebellion.

With Intent to Kill or cause Grievous Bodily Harm

The prosecution have to prove that there was an intention to kill another person or at least cause serious bodily harm to that person.

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