Introduction.
Topics:
Murder.
Partial defences to murder/’voluntary’ manslaughter – loss of control and diminished
responsibility.
Involuntary manslaughter.
Introduction:
Murder and manslaughter are both common law offences that have never been
defined by statute – they have been modified by statute, however.
All murder and manslaughter offences have to be broad in order to incorporate all
facts of a case. E.g., mercy killings will be considered murder, not manslaughter.
Manslaughter can include direct intention for murder; however the defendant has
available a partial defence for murder, but also where D does not intend murder at
all.
- Law Reform: The Law Commission Report, No.304, murder,
manslaughter and infanticide 2006 conducted a thorough review of
homicide in England and Wales. This was a wide-ranging view of current law
on homicide, and the Law Commission proposed a number of changes.
However, the government only implemented changes to voluntary
manslaughter (partial defences to murder). The Law Commission also
proposed changes to the offences of murder and involuntary manslaughter,
however these were not implemented by the Labour government at the time
and there are currently no plans to implement these proposals.
The doctrine of fair labelling proposes a more distinct line be drawn between more
and less serious types of killings, in order to distinguish more and less morally
culpable individuals.
The sentencing for different types of killings also requires a further fair labelling
proposal of distinction between offences and the culpability of those offences.
- Murder has the highest sentencings – it is a required life sentence.
, Murder.
Actus reus of murder:
Unlawful killing of another person in the Queen’s peace.
Murder is a result crime – there must be a victim of the crime that has died as a
result of D’s actions.
D’s conduct has to be that of killing – causing death to another.
- This can include both act or omission – R v Gibbins and Proctor (1918) 13
Cr App R 134 [this is a rare case in which the defendants were guilty of
murder due to an omission].
o However, a lot of cases of killing via omission have resulted in
manslaughter, thought to be because of the lack of mens rea from the
omission – the offence of gross negligence manslaughter may be more
appropriate.
- The normal rules of causation apply to this offence – R v Adams (1957)
Crim LR 365 [D must have caused V’s death more than de minimus].
The killing must take place in necessary circumstances – D must have killed, under
the Queen’s peace.
A person:
Human life begins at birth – foetus’ or unborn children are not yet persons in the law
and therefore cannot be victims of murder or manslaughter.
- Foetus’ are, however, protected in other ways before birth – e.g., the
Offences Against the Person Act 1861, Section 58 makes it an offence
to procure a miscarriage – this law is not affected by otherwise legal practices
such as the supply of the morning-after pill and procedures permitted by the
Abortion Act 1967.
R v Poulton (1832) 5 C & P 329 – provides the moment at which the foetus
becomes a human being is when the child is born alive. The whole body of the child
must emerge into the world and must be capable of independent respiration,
although respiration (breathing) need not have already begun.
R v Senior (1832) 1 Mood CC 346 – where D harms a foetus that is subsequently
born alive, but later dies due to those injuries, D has still caused the death of a
person. The courts have long accepted such cases satisfy the actus reus of murder.
Attorney General’s Reference (No. 3 of 1994) (1998) AC 245 – an issue of
mens rea in such circumstances as Senior have been recognised in this case. The
courts did not convict D of murder, but of manslaughter, as transferred malice was
being applied twice to the death of the foetus. D stabbed X (pregnant with V), in
which V died 4 months after birth. The malice would have had to be transferred from
X to the foetus, to the human being (V) who subsequently died as a result.
Transferred malice can only be applied once, therefore D was convicted of
manslaughter.
The person dies when she stops breathing, the heart stops bumping blood and brain
ceases to function.
- Dead in law is brain death (R v Malcherek and Steel (1981) 1 WLR 690.
Brain death is an irreversible condition involving the complete non-functioning of the
brain stem, which controls reflexive functions of the body, including heartbeat and
breathing.
- Airedale NHS Trust v Bland (1993) AC 789 – brain death was accepted in
this case where the court said that someone short of brain death (in a
persistent vegetative state) is still alive and therefore, can be a victim of
murder. The same goes for patients in a coma.
Topics:
Murder.
Partial defences to murder/’voluntary’ manslaughter – loss of control and diminished
responsibility.
Involuntary manslaughter.
Introduction:
Murder and manslaughter are both common law offences that have never been
defined by statute – they have been modified by statute, however.
All murder and manslaughter offences have to be broad in order to incorporate all
facts of a case. E.g., mercy killings will be considered murder, not manslaughter.
Manslaughter can include direct intention for murder; however the defendant has
available a partial defence for murder, but also where D does not intend murder at
all.
- Law Reform: The Law Commission Report, No.304, murder,
manslaughter and infanticide 2006 conducted a thorough review of
homicide in England and Wales. This was a wide-ranging view of current law
on homicide, and the Law Commission proposed a number of changes.
However, the government only implemented changes to voluntary
manslaughter (partial defences to murder). The Law Commission also
proposed changes to the offences of murder and involuntary manslaughter,
however these were not implemented by the Labour government at the time
and there are currently no plans to implement these proposals.
The doctrine of fair labelling proposes a more distinct line be drawn between more
and less serious types of killings, in order to distinguish more and less morally
culpable individuals.
The sentencing for different types of killings also requires a further fair labelling
proposal of distinction between offences and the culpability of those offences.
- Murder has the highest sentencings – it is a required life sentence.
, Murder.
Actus reus of murder:
Unlawful killing of another person in the Queen’s peace.
Murder is a result crime – there must be a victim of the crime that has died as a
result of D’s actions.
D’s conduct has to be that of killing – causing death to another.
- This can include both act or omission – R v Gibbins and Proctor (1918) 13
Cr App R 134 [this is a rare case in which the defendants were guilty of
murder due to an omission].
o However, a lot of cases of killing via omission have resulted in
manslaughter, thought to be because of the lack of mens rea from the
omission – the offence of gross negligence manslaughter may be more
appropriate.
- The normal rules of causation apply to this offence – R v Adams (1957)
Crim LR 365 [D must have caused V’s death more than de minimus].
The killing must take place in necessary circumstances – D must have killed, under
the Queen’s peace.
A person:
Human life begins at birth – foetus’ or unborn children are not yet persons in the law
and therefore cannot be victims of murder or manslaughter.
- Foetus’ are, however, protected in other ways before birth – e.g., the
Offences Against the Person Act 1861, Section 58 makes it an offence
to procure a miscarriage – this law is not affected by otherwise legal practices
such as the supply of the morning-after pill and procedures permitted by the
Abortion Act 1967.
R v Poulton (1832) 5 C & P 329 – provides the moment at which the foetus
becomes a human being is when the child is born alive. The whole body of the child
must emerge into the world and must be capable of independent respiration,
although respiration (breathing) need not have already begun.
R v Senior (1832) 1 Mood CC 346 – where D harms a foetus that is subsequently
born alive, but later dies due to those injuries, D has still caused the death of a
person. The courts have long accepted such cases satisfy the actus reus of murder.
Attorney General’s Reference (No. 3 of 1994) (1998) AC 245 – an issue of
mens rea in such circumstances as Senior have been recognised in this case. The
courts did not convict D of murder, but of manslaughter, as transferred malice was
being applied twice to the death of the foetus. D stabbed X (pregnant with V), in
which V died 4 months after birth. The malice would have had to be transferred from
X to the foetus, to the human being (V) who subsequently died as a result.
Transferred malice can only be applied once, therefore D was convicted of
manslaughter.
The person dies when she stops breathing, the heart stops bumping blood and brain
ceases to function.
- Dead in law is brain death (R v Malcherek and Steel (1981) 1 WLR 690.
Brain death is an irreversible condition involving the complete non-functioning of the
brain stem, which controls reflexive functions of the body, including heartbeat and
breathing.
- Airedale NHS Trust v Bland (1993) AC 789 – brain death was accepted in
this case where the court said that someone short of brain death (in a
persistent vegetative state) is still alive and therefore, can be a victim of
murder. The same goes for patients in a coma.
