Homicide And Intent Notes

CULPABILITY (fault element)

• most serious homicide offences have subjective fault elements (intention or recklessness)

• intention and recklessness: D has acted in order to bring about a death or in the case of recklessness because he has in some sense chosen to cause/chosen to risk causing death

• But even if D did not actively choose to cause a death or risk of death, our concern for the sanctity of human life might imply us to punish D to some extent simply because of the serious harm he has caused – want less serious homicide offences with less fault element but one based on objective fault element or constructive liability (where D intends or foresees some harm but we hold him responsible for the fact of much more serious harm having been caused – actus reus harm that happens is much more serious than mens rea contemplated as a possibility).

THE EXTERNAL ELEMENTS/ Actus Reus – common for all common law homicide offences (differentiated by fault elements and circumstances). Common law, not in statute.

Common Elements to all Homicides

• Victim must be a human being : A-G’s Reference (No. 3 of 1994) [1998] AC 245 confirmed, obiter, that life as a human being begins after the first breath after birth (before birth rights of the foetus are protected by Infant Life Act 1929).

• Though there is no legislative authority, death is usually taken to mean brain stem death (cf. Bland [1993] 1 AC 789, Re A (a minor) [1992] 3 Med L Rev 303 (Fam D.)) medical definition (Malcherek): brain stem death.

• Death caused through act or omission of one or more human beings/corporations o Originally death had to occur within a year and a day of the act and omission that caused it, reformed by Law Reform (Year and a Day Rule) Act 1996.

• Now proceedings must have A-G’s permission if the death occurs more than three years after the original injury, or if D was previously convicted of an offence alleged to be related to the death.

• Death occurs within the Queen’s peace - It is not an offence if the killing if of foreign enemies in the course of war (and the killing was related to the proceedings of war)

Dyson [1908] 2 KB 454 – causing death = accelerating its (inevitable!) arrival o Has meningitis and is terminally ill – DF sees fit to injure victim. Held that even though victim is terminally ill, D can be guilty of homicide if his conduct brought that inevitable death forward.

Two categories of causation: (1) Factual causation (2) Legal causation.

D’s conduct does not need to be SOLE cause or MAIN cause – must make some significant contribution to the death occurring when it does. If we’ve got other factual causes floating around, need to ask whether those other causes break the chain of causation. i. Given that other factual cause, ought D’s act still to be regarded as a cause of death for legal purposes?

NB: can be guilty of a common law homicide offence by omission if (i) there was a duty to act, and (ii) death would have been averted had D acted as he should: Gibbins & Proctor (1918) 13 Cr.App.R 134: murder (parents deliberately failed to care for child) Stone & Dobinson [1977] QB 354 (grossly negligent manslaughter: failure of victim’s brother and partner to care for sick woman in their house) Evans [2009] [2009] EWCA Crim 650 (D gives V drugs, she overdoses, dies – creates later duty to act).

Murder (mens rea)

1. An Intent to cause death; or (2) An intent to cause GBH

Fault element: ‘malice aforethought’ (does not need pre-meditation – all count and treated the same way).

Authority - Vickers [1957] 2 QB 664 – straightforwardly asserted that GBH intent was sufficient.

Hyam [1975] AC 55 – Lords Diplock and Kilbrandon tried to abandon this leg of the mens rea for murder, but no definitive ruling as majority did not align with this view.

Cunningham [1982] AC 566 – reaffirmed that intent to cause GBH was sufficient.- There are strong criticisms of this view:

• Lord Mustill calls it a “fiction” (A-G’s Reference (No. 3 of 1994)).

• In his dissent in Cunningham, Lord Edmund-Davies argues that a broken arm is “really serious”, yet should not be sufficient mens rea for a charge of murder.

However, Cunningham was affirmed in Rahman [2008] UKHL 45.

Intent for murder is subjective :

• There was a contentious ruling in DPP v Smith [1961] AC 290 which held that D could be presumed to have intended to cause death/GBH if a reasonable person in D’s position would have foreseen death/GBH as a natural and probable outcome of her conduct.

• However, courts now view Smith as having been overturned (cf. Woollin [1999] AC 82).

Meaning of “intent” within murder :

Direct intent

A person directly intends a result of their conduct if it is their aim or purpose to bring it about.

• If a person aims to achieve result X and believes killing/seriously injuring is necessary means of achieving result X, they intend said death/serious injury.

R v Steane – D captured during WWII, forced to make broadcasts for the enemy under threat to kill his family if he refused – held that D intended to save his family, helping the enemy was a side effect – no intention to aid the enemy, no direct intention

Indirect/oblique intent

Exists where D embarks on a course of conduct to bring about a desired result, knowing that the consequences of their actions will bring about another result.

• R v Moloney – jury should ask two questions when issue of intention arises – was the consequence a natural and probable consequence of D’s actions – did D foresee the consequence as being natural – if yes, jury could imply intention.

• R v Nedrick – D wanted V to leave town, put paraffin in letterbox, set it on fire, D’s child died in fire – V had not intended to kill anyone but the consequence was virtually certain - definition in Moloney too uncertain and wide – wording should be whether the jury thought that the consequence was virtually certain NOTE: did not set aside Moloney, was a CA decision whereas Moloney was HoL

R v Woollin – current position – first part of...

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