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Homicide And Intent Notes

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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.
Coke, 3 Inst 47: 'Unlawfully killing … any reasonable creature in rerum natura under the King's Peace…[death occurring] within a year and a day [of D's act or omission which was a cause of that death]'
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

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 Nedrick followed, jury should consider whether the result was virtually certain and whether D was aware of the virtual certainty NOTE: was stated that the judgment applies specifically to murder - the wider Moloney definition could still apply to other offences
Intention: Woollin, Matthews & Alleyne - direct intention (purpose - the normal
MR test) - oblique intention (far rarer in practice!) - jury may find that had that intention where it was virtually certain that death could result and knew that was the case.
Core intent: D intends to cause death/GBH if he acts in order to cause death/GBH, or if he causes death/GBH as a necessary means to some other end
(Lord Bridge in Moloney [1985] AC 905 rules that "the judge should avoid any elaboration of paraphrase of what is meant by intent and leave it to the jury's good sense).
Alternatively, Woollin test applies (death/GBH was a virtual certainty, and D
appreciated that this was the case - but negatively phrased).
Simester criticises the negative phrasing for ambiguity, though acknowledges the medical exception
Actus reus and mens rea must coincide to produce a fair sentence

R v
Church (1965) - D attacked V, thought V was dead - threw body into river, which actually killed V - mens rea of the first attack was not to cause death/GBH
- thus there was no intention to kill/inflict GBH and no murder conviction possible.
Mens rea can be carried through a sequence of events:
o R v Le Brun (1991) - D had argument with wife, knocked her unconscious on street, dragged her into house, dropped her - hit her head on step, consequently died - held that there was a continuing act between initial act and resulting death.
o Thabo Meli v The Queen (1954) - group attacked V, intended to kill, thought they had beat him to death, threw him off a cliff - V not dead when thrown off cliff, died of exposure to the elements - held that his death was part of one continuing act - at the time of the attack Ds intended to kill, thus group had mens rea of murder.
Intent to cause GBH
Bollom [2003] EWCA Crim 2846 - evaluative approach to 'serious' harm (jruy's evaluation of whether harm is serious needs to be made having regard to the age and vulnerability of the victim, regardless of whether D was specifically aware of those and regardless of what he thinks; up to us to decide whether X is serious; something that is not serious harm to an adult may amount to GBH if victim is a baby - particular concern Bollom has).
Transferred Malice
D has required mens rea against one victim but satisfies the actus reus against another, towards whom mens rea is not satisfied.
Mens rea can be transferred

R v Mitchell (1983) - Fight in a post office after someone had jumped the queue - D hit a 72 y/o man, tumbled into an 89 y/
o woman - needed a hip operation, died some days later - issue was whether D
had intention to the woman - held that D's intention transferred to the woman, the person who throws a stone at A is still guilt even if instead of hitting and killing A the stone hits and kills B
o R v Latimer (1886) - D began a fight at a pub with another man, removed his belt to hit him - instead hit a woman in the face accidentally - held that D was liable for the woman's injuries, mens rea he had towards the man transferred to the woman
Limited to offences of the same type as per R v Pembliton (1874) - Fight started outside a pub - D threw a large stone at the people he was fighting,
missed and hit a window instead - conviction quashed, he did not have the mens rea for criminal damage when he threw the stone - held that because mens rea was difference it could not be transferred hence no transferred malice
Cannot be transferred twice

Attorney-General's Reference No. 3 1994 - D
stabbed pregnant girlfriend, V - as a result child was born early and died, V
survived - issue was whether D could be found guilty of murder when he intended to harm the girlfriend not the child - held that it was not possible to transfer mens rea from the mother to the unborn child as it was not yet a person in the eyes of the law, Court considered whether intention could be transferred once the child was born and hence became a person in the eyes of the law - Lords said this was not possible as it would require a double transfer of mens rea from mother to foetus and foetus to the person the child became, not possible.
The ambit of murder

Mandatory life sentence, although offence can range anywhere from serial killings to euthanasia.
Criticisms that such draconian measures are applied with murder centre around the "intent to cause GBH" mens rea element
Has been said that sentencing has distorted operation of law of homicide
(not just murder) as both judges and juries seek to avoid murder convictions when they really don't think mandatory life sentence is warranted; regular demands for life sentence to be abolished to give judges greater freedom to tailor punishment to crime. IMPORTANT where consequence is not considered justified.

The issue of 'constructive liability' - holding D responsible for harm greater than he or she contemplated - and related problems of fair labelling.Might not have vast amounts of sympathy for DF; line between death and
GBH can be a fine one; crossed moral threshold once committing act
(should be held responsible for all consequences of deliberate conduct).

Holding D liable for something he could not foresee - breach autonomy principle
(only held liable for something we intended to bring about, either by foreseeing risk or intending?) Big question through criminal law. Mustill ponders this in AG
Ref (No 3 of 1994). - Correspondence principle.
Are we diluting the moral gravity of that label if we include within that package of offences defendants who ONLY intended GBH (1) Are we therefore failing to draw relevant moral distinction between people who intend to kill and those who don't (only intend GBH)?.
Be under-inclusive in fault element, failing to capture some of what we might think are the most morally reprehensible killings? Terrorist example: should we actually widen mens rea of murder to capture these (reckless indifference)?
Reform - do we have an appropriate hierarchy of homicide offences?

For scope of murder, important not just in itself but because scope of murder begins to define the offences immediately below it on our ladder.
If we narrow or broaden murder, has effect on next step down (and creates impact down the ladder)
Overall question here: do we have an appropriate hierarchy of offences?
Law commission thinks not.
Law Com recommended a three-tier structure for homicide: - NOT
ADOPTED at that time because they did not secure the "total support" of all stakeholders

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