Homicide

Question 1

AR and MR for murder?

Answer 1

The actus reus- that the defendant unlawfully killed another human being under the Queen’s peace; and

· The mens rea- that the defendant committed the actus reus with malice aforethought, meaning intention to kill or intention to cause grievous bodily harm; and

· No valid defence- such as self-defence.

Question 2

A solider lawfully kills an enemy in battle. What criminal liability is the solider likely to have, if any?

Answer 2

None

Question 3

A disgruntled ex-employee feels he is owed money from his former employer and wants to make her pay. The ex-employee goes to his former place of employment and stabs the manager with his knife, killing her.

What criminal liability is the ex-employee likely to have, if any?

Answer 3

Murder

Question 4

A homeowner who had been previously burgled, suffers from paranoia and post traumatic stress disorder (which will be recognised medical conditions for the purposes of diminished responsibility). The homeowner, who now believes that everyone that comes onto his land is an intruder, shoots a delivery person in the back of the head as they are walking back to their van having dropped off a package. The delivery person dies.

Self-defence is only available if the homeowner uses force that is not grossly disproportionate.

What criminal liability is the homeowner likely to have, if any?

Answer 4

Voluntary manslaughter

On the face of it, the homeowner has the actus reus and mens rea of murder. As the homeowner suffers from paranoia and post traumatic stress disorder, this suggests he may be able to rely on the partial defence of diminished responsibility. Self-defence is unlikely to be available in this scenario as the homeowner has acted with grossly disproportionate force.

Question 5

When is it lawful to kill?

Answer 5

Killing enemy soldiers in battle;
* Advancement of justice- an example of this is the lawful application of the death penalty. Although we no longer have the death penalty in this country there are occasions when person could be tried in this country for a killing which occurred in a country which does have the death penalty;
* Self-defence- killing will be lawful where the force used was reasonable and necessary to prevent crime or protect self, others or property.

Question 6

What happens if a pregnant women is stabbed and this causes her child to be born prematurely and die?

Answer 6

The child was not a live person when stabbed and therefore this could not be murder.

Question 7

To be criminally liable for murder you must kill a human being.

Which of the following are not considered a human being?

A child fully expelled from the mother’s body but still attached by the umbilical cord

A corpse

A person born alive and capable of independent life

A child fully expelled from the mother’s body and born alive

Answer 7

A corpse It is not possible to murder a corpse.

Question 8

What are the types of voluntary manslaughter?

Answer 8

Diminished responsibility and loss of control

Question 9

Who is the burden of proof on for diminished responsibility?

Answer 9

he burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility

Question 10

What are the elements of diminished responsibility?

Answer 10

D must have an abnormality of mental functioning (s 2(1)), meaning ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’, R v Byrne.
* The abnormality of mental functioning must:
* Arise from a recognised medical condition (s 2(1)(a))which can be diagnosed or not at the time of the killing. D must not be acting out of hatred, jealousy or bad temper.
* Have substantially impaired (something greater than ‘more than merely trivial’, R v Golds) the defendant’s ability (s 2(1)(b)) to understand the nature of D’s conduct, form a rational judgment and/ or exercise self-control, s 2(1A).
* Provide an explanation for D’s conduct (s 2(1)(c)), even if it is not the only cause, s 2(1B) and Dietschmann.
* Diminished responsibility is not available for attempted murder, R v Campbell.

Question 11

Would an undiagnosed recognised medical condition at the time of the killing be sufficient for diminished responsibility?

Answer 11

Yes

Question 12

Which of the following best describes the sentencing powers available to a judge in respect of a defendant who is found to have killed under diminished responsibility?

Mandatory life sentence

Acquittal

Sentencing discretion

Answer 12

Sentencing discretion

Question 13

When would medical expert evidence be useful for diminished responsibility?

Answer 13

For all the elements

Question 14

What are the requirements for the loss of control defence?

Answer 14

There are three key requirements of the loss of control defence:
* D must have lost self-control;
* due to the fear and/ or anger qualifying trigger; and
* a person of the defendant’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of the defendant, might have reacted in the same or in
a similar way as the defendant did.

Question 15

What constitutes loss of control?

Answer 15

defendants must be unable to restrain themselves. A mere loss of temper would not be enough. This need not be sudden.

The defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’,

Question 16

What can be qualifying triggers for loss of control?

Answer 16

Fear

Anger

Question 17

What is needed for the anger trigger?

Answer 17

• things said and/ or done;
• that constitute circumstances of an extremely grave nature; and
• that caused D to have a justifiable sense of being seriously wronged.

Question 18

When can D not rely on the anger trigger?

Answer 18

D cannot rely on the anger trigger if:
* D incited it as an excuse to use violence, sections 55(6)(b); or
* The thing said/done constituted sexual infidelity- section 55(6)(c)

Question 19

What is the normal person test for loss of control?

Answer 19

‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’

Question 20

What are the limitations to the loss of control defence?

Answer 20

The defence of loss of control cannot be used:
* In an act of ‘considered desire for revenge’- section 54(4) CJA 2009.
* As an excuse to use violence- sections 55(6)(a) and (b). It is not enough that the defendant ‘started it’.
* If the thing said/done constituted sexual infidelity- section 55(6)(c). However, it is likely that in most cases where sexual infidelity has caused the defendant to lose their self-control, there will be other factors which could make up a qualifying trigger. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the ‘whole story’.
* For attempted murder,see R v Campbell and Smith, Hogan and Ormerod’s, Criminal Law.

Question 21

Can intoxication be used to find diminished responsibility?

Answer 21

Voluntary intoxication is not, on its own, capable of being relied upon to found the defence of diminished responsibility, Dowds. If the defendant has an abnormality of mental functioning (AMF) and is voluntarily intoxicated,

Can only be used if D has alcohol dependency syndrome

Question 22

How does intoxication operate within loss of control?

Answer 22

• Did D lose self-control?
• Did D act due to the fear or anger qualifying trigger? D’s drug or alcohol addition can be taken into account in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction.
• Normal person test- an intoxicated person is not precluded from using the defence. If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober, Asmelash.

Question 23

A defendant is a drug addict who kills under a loss of control having been taunted about his addiction by the victim. The defendant was intoxicated at the time. When considering the defendant’s criminal liability at what point in your loss of control analysis will you take into account the addiction?

Answer 23

The anger trigger and the normal person test

Question 24

In which of the following situations will D not be able to rely on diminished responsibility?

When D’s abnormality of mental functioning arises from alcohol dependency syndrome

When D has an abnormality of mental functioning and is voluntarily intoxicated

When D is voluntarily intoxicated and has no abnormality of mental functioning

Answer 24

When D is voluntarily intoxicated and has no abnormality of mental functioning

Question 25

What are the requirements for unlawful act manslaughter?

Answer 25

he court stated that to be guilty of the offence the prosecution must prove that:
(1) the defendants intentionally (voluntarily) did an act;
(2) the act was unlawful;
(3) the unlawful act was dangerous; and
(4) the unlawful act caused the death of the victim.

Question 26

What constitutes an unlawful act for unlawful act manslaughter?

Answer 26

There are three aspects to the defendant’s act being unlawful. It must be:
* a criminal act;
* an intrinsically unlawful act; and
* an act rather than an omission.

Question 27

How does supplying drugs work for unlawful act manslaughter?

Answer 27

(4) The unlawful act caused the death of the victim- the act must have both factually and legally caused the death of the victim. If D:
* directly administers a drug to V, D causes V’s death as consent by the V is no defence- Cato.
* merely supplies V with the drugs, or assists V, D does not cause V’s death, so long as V is a fully informed and responsible adult who freely and voluntarily self-administers, Kennedy.

Question 28

What is the test for whether the unlawful act was dangerous for the purposes of unlawful act manslaughter?

Answer 28

Sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm, albeit not serious harm

Question 29

What are the requirements for gross negligence manslaughter?

Answer 29

The basic requirements for gross negligence manslaughter as laid down in Adomako are as follows:
a) the existence of a duty of care;
b) breach of that duty;
c) that the breach causes death;
d) that there was a risk of death; and
e) that the breach of duty was so bad as to amount to ‘gross negligence’.

Question 30

What is duty of care?

Answer 30

The existence of a duty of care- everyone has a general duty to take care to avoid injury by a positive act to their neighbour. Liability can arise for an omission in circumstances where the defendant is under a specific duty to act.

Question 31

What is the test for whether there is a risk of death for the purposes of gross negligence manslaughter?

Answer 31

Was there an obvious and serious risk not merely of injury or even serious injury, but of death?

Question 32

A man believes the waiter is looking at his girlfriend. The man confronts the waiter saying, ‘when I finish with you, you will not be able to look at another girl again’. The man punched the waiter hard in the face. The waiter slipped and hit his head on a nearby table. The waiter died from his injuries.

Which of the following offences is the man most likely to be criminally liable for?

Answer 32

Murder

The man causes the waiter’s death by the punch. It is the man’s aim to cause grievous bodily harm by the hard punch to the face.

Question 33

A man was queuing to buy the latest smartphone. As he neared the front of the queue, a woman walked past him. As he thought the woman was going to jump the queue, he pushed her and shouted, ‘Hey we have a queue here!’ The woman fell off the kerb and she bumped her head on the road. She subsequently died from her injuries.

Which of the following offences is the man most likely to be criminally liable for?

Answer 33

Unlawful act manslaughter

Question 34

A zookeeper is showing some poisonous snakes to a group of school children. During the presentation the zookeeper’s phone rings. Distracted, the zookeeper fails to close the lid to the tank properly. The zookeeper notices that a dangerous snake is no longer in the tank but not wishing to alarm the children he says nothing. A girl starts screaming. The zookeeper sees that the missing snake has crawled onto the girl’s lap and bitten her on the arm, drawing blood. The girl dies later from her wound.

Which of the following offences is the zookeeper most likely to be criminally liable for?

Answer 34

Gross negligence manslaughter

Question 35

A man has an argument with his partner and punches her in the shoulder. She falls over and hits her head on the edge of a table, sustaining head injuries from which she dies. He is charged with murder. He tells you that he had no intention to seriously injure her.

How would you advise the man on his criminal liability for murder?

A. He is not criminally liable for murder on the basis that he has the defence of loss of control.

B. He is not criminally liable for murder on the basis that he has the defence of diminished responsibility.

C. He is not criminally liable for murder on the basis that, by his own account, he does not have the mens rea.

D. He is not criminally liable for murder on the basis that he was acting in self-defence.

E. He is criminally liable for murder on the basis that, by his own account, he does have the mens rea.

Answer 35

C

he mens rea for murder is an intention to kill or cause serious harm, R v Vickers. The man says he did not have either of these states of mind so he should plead not guilty to murder.
The other options were incorrect because:
· Punching his partner in the shoulder will not equate to serious harm.
· There is nothing in the facts to suggest, for example, that the man:
- could rely on the fear or anger qualifying trigger for the purposes of loss of control.
- was acting to protect himself, honestly believing that force was necessary for the purposes of self-defence.
- was suffering from a recognised medical condition for the purposes of diminished responsibility.

Question 36

A woman loses her temper very easily. She has been going to anger management classes in an attempt to overcome this failing, but they have not been working. One day she returns from work to find her boyfriend in a passionate embrace with her 15-year-old daughter. She picks up a heavy doorstop and hits him repeatedly on the head. He dies. She is pleading the defence of loss of control.

What effect would the woman’s short temper have on the requirement that she must have killed as a result of a loss of self-control?

A. She can use the defence of loss of control if she killed as a result of more than a loss of temper but loss of self-control

B. She cannot use the defence of loss of control as she does not have a normal degree of tolerance and self-restraint

C. She can use the defence of loss of control as a loss of temper is a loss of self-control

D. She cannot use the defence of loss of control as she will be unable to prove beyond reasonable doubt that she did not act out of a loss of temper

E. She can use the defence of loss of control as a loss of temper is only considered at the third requirement, the normal person test

Answer 36

A

s answer reflects the position in R v Richens.
The other answers are incorrect because:
· A loss of temper is not the same as a loss of self-control.
· The third requirement of the loss of control defence is that a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or a similar way to D. This means that the woman’s short temper will not be a characteristic given to the normal person, but it does not preclude her from using the defence of loss of control.
· The prosecution has the burden of proof to prove the woman acted from a loss of temper rather than a loss of self-control, s 54(5) Coroners and Justice Act 2009.
· Factors such as a loss of temper which go to the defendant’s capacity for tolerance and self-restraint are considered in the third requirement of the defence, where they may be excluded if they have not formed part of the qualifying trigger. However, loss of temper will be considered in the first requirement of the defence, that she must have killed as a result of a loss of self-control.

Question 37

A man spends the evening drinking a lot of alcohol with friends. At the end of the evening, while he is waiting for a taxi, a woman pushes in front of him in the queue. Furious, he deliberately pushes her in front of a passing car which crashes into her. She dies of her injuries.

Which of the following best describes why the defence of diminished responsibility is not available to the man?

A. Voluntary intoxication does not provide an explanation for the man’s actions.

B. Voluntary intoxication is not, on its own, capable of being relied upon to found this defence.

C. Voluntary intoxication doesn’t substantially impair the man’s ability to exercise self-control.

D. It was necessary for the man to have been suffering from an inability to resist the urge to drink.

E. It was necessary for the man to have been involuntarily intoxicated.

Answer 37

B

We are told that the man has spent the evening drinking a lot of alcohol. The case of Dowds makes it clear that this, on its own cannot give rise to a defence of diminished responsibility.
The other options were incorrect because:
· Section 2(1B) Homicide Act 1957 states that 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. The high amount of alcohol the man drank with friends is likely to have caused or been a significant contributory factor in causing him to push the woman in front of the passing car.
· It is likely that the man’s voluntary intoxication was the reason why he was not able to exercise self-control when the woman pushed in front of him in the queue. However, in order to rely on diminished responsibility, the man needs to satisfy all of the requirements in section 2(1) Homicide Act 1957, including an abnormality of mental functioning which arose from a recognised medical condition. There is no recognised medical condition on the facts.
· It is possible for the man to rely on the defence of diminished responsibility, even he was not suffering from alcohol dependency syndrome, R v Dietschmann.
· Being voluntarily intoxicated does not preclude the man from using the defence. A defendant might, at the time of the killing suffer from both an abnormality of mental functioning and from the effect of alcohol taken before the killing, R v Dietschmann.

Question 38

A man lives in an area where there has been a spate of burglaries in which violence has been used against the occupiers. He is very afraid of being the next victim, so he acquires a shotgun which he keeps by his bed. Early one morning, he hears the sound of breaking glass coming from downstairs. He picks up the shotgun and makes his way quietly downstairs. He sees that the window in the front room has been broken and a shadowy figure is moving about. He points the shotgun at the figure who, seeing him, dashes to the window and begins to climb out. Unable to restrain himself, the man shoots and hits the figure in the back, killing him instantly. The man is charged with murder.

Why can’t the man rely on the defence of loss of control?

A The man fails the normal person test

B The man has not lost control as a result of a qualifying trigger

C The man acted in self-defence

D The man acted in a considered desire for revenge

E The man didn’t lose self-control

Answer 38

A

person with a normal degree of tolerance and self-restraint in his circumstances would not have reacted in the same or a similar way, s 54(1)(c). As the victim is clearly intent on running away, a person with a normal degree of tolerance and self-restraint in his circumstances would not have shot him in the back.
The other answers were incorrect because:
· The facts state that the man was ‘unable to restrain himself’ which is a loss of self-control according to R v Richens.
· While acting in a considered desire for revenge is a reason why loss of control is not available (s 54(4)), there is no suggestion of this on the facts. Even if the man shot the person in the back to take revenge for breaking the window and entering his house, it was not ‘considered.’
· The man could potentially rely on both the ‘fear’ and the ‘anger’ triggers (sections 55(3) and 55(4) Coroners and Justice Act 2009). The man fears serious violence given the spate of violent burglaries. The man also reacted to a thing done (the broken window and figure entering his house) which could be argued to constitute circumstances of an extremely grave character which caused him to have a justifiable sense of being seriously wronged.
· In order to rely on self-defence, one of the requirements is that the level of force the man uses must be reasonable and in the case of ‘householders’, reasonable means not grossly disproportionate, by reference to the circumstances as the defendant believed them to be. A fatal force to the person leaving the man’s house is unlikely to be considered a reasonable level of force. See s 76 Criminal Justice and Immigration Act 200

Question 39

The defendant was a glue sniffer who was high on glue. The victim taunted the defendant. As well as other abuse, the victim told the defendant that he was a useless character who had wasted his life and his talents due to his addiction. This hurt, as the defendant knew it was true. As a result of this abuse and the other taunts, the defendant lost his self-control and killed the victim.

How will the defendant’s addiction to glue and the fact that he is high on glue affect a defence of loss of control?

A The defendant’s addiction to glue will not be taken into account at all but he can still use the defence of loss of control.

B The defendant’s addiction to glue will be taken into account as a qualifying trigger and will be a characteristic given to the normal man. However, the normal man will not be high on glue.

C The defendant’s addition to glue will be taken into account as a qualifying trigger but will not be a characteristic given to the normal man.

D The defendant’s addiction to glue and the fact he is high on glue will preclude him from using the defence of loss of control.

E The defendant’s addiction to glue and the fact he is high on glue will not be

Answer 39

B

his reflects the position in R v Asmelash. The defendant’s addition to glue and the effect it has had on his life will be taken into account as a qualifying trigger under s 54(1)(b) Coroners and Justice Act 2009. It will also be a characteristic given to the normal man when the jury considers s 54(1)(c). However, the normal man will have normal levels of tolerance and self-restraint and will not be high on glue.
The other answers may have sounded plausible but were incorrect.

Question 40

A man was driving his speed boat pulling his friend on water skis. As required for safety, a third person was in the boat to watch the water skier. The boat driver should have been looking forwards. Instead, he was looking back at the water skier, gesturing to him to be more adventurous and cross the wash. Because the driver was not looking forward, the boat hit a swimmer who had come a long way from the shore. The swimmer was killed.

Which of the following best describes the offence the man is potentially criminally liable for?

He could be liable for murder as it was virtually certain that the swimmer would suffer serious harm

He could be liable for unlawful act manslaughter as it is easier to prove that the act was dangerous than that it was grossly negligent

He could be liable for unlawful act manslaughter or gross negligence manslaughter

He could be liable for gross negligence manslaughter

He could be liable for unlawful act manslaughter as the swimmer was killed by an act rather than an omission

Answer 40

He could be liable for gross negligence manslaughter

Correct. It will not be murder as there is no direct or oblique intention to kill or cause serious harm to someone. It was not the driver’s aim or purpose, nor did he appreciate that it was virtually certain that the swimmer would die or suffer serious harm. As the man has caused the death of another but lacks mens rea for murder, he may be liable for involuntary manslaughter. Driving a speed boat is not an unlawful act in itself (although driving the boat dangerously may make it unlawful), so it is not an unlawful act sufficient for unlawful act manslaughter, Andrews v DPP. Gross negligence manslaughter will apply as the man owes a duty of care to the swimmer which has been breached and this causes the death; the breach carries a risk of death and is potentially so serious as to warrant criminal sanction, R v Adomako.

Question 41

A man is standing at the top of steps leading onto an aeroplane, arguing with a member of the cabin crew who tells him there is no room for his large hand luggage on board and that it would have to go into the hold. An elderly woman behind him shouts, ‘Come on, don’t be so selfish, we are all waiting to board.’ At that the man turns, puts his face up close to the woman’s and screeches at her, ‘Mind your own business and shut up or I’ll punch you.’ The woman takes a step back in fear and it is only the boy behind, gripping her elbow, who prevents her and others from falling down the steps. She then suffers a heart attack from which she dies. It transpires that she had narrow arteries leading to her heart. The man has been charged with unlawful act manslaughter.

Which of the following best explains whether the man’s act was dangerous?

The act was not dangerous as the reasonable person would not have known that the woman had a weak heart

The act will be considered dangerous if the man saw the risk that the woman might suffer harm as a result of his act

The act will be considered dangerous if a reasonable person would have seen the risk of the woman falling down the aircraft steps

The act will be considered dangerous if a reasonable person saw the risk that the woman might suffer serious harm as a result of the man’s act

The act will be considered dangerous due to the thin skull rule

Answer 41

The act will be considered dangerous if a reasonable person would have seen the risk of the woman falling down the aircraft steps

Correct. This is the test from **R v Church: **‘the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.’
The test of whether an act is dangerous is an objective test (from the perspective of the reasonable person) rather than a subjective one (from the perspective of the defendant, here the man).
The act is dangerous if a reasonable person would recognise it must subject the other person to the risk of some harm, not necessarily serious harm.
Although the reasonable person has the same knowledge as the man at the time the unlawful act is committed, R v Dawson, and so would not have known of the woman’s heart condition, it was held in R v JM and SMthat the type of harm foreseen (falling down the aircraft steps) does not have to be the type of harm actually caused (the heart attack).
The thin skull rule relates to whether the man caused the death of the woman which is the fourth aspect of unlawful act manslaughter.
All the other elements of unlawful act manslaughter are satisfied: the man intentionally committed an assault (a crime) on the woman, and this caused her to suffer a heart attack from which she died.

Question 42

The client has been charged with unlawful act manslaughter. She was acting as a security guard at a nightclub. The victim was causing trouble in the club so she ejected him. Shortly afterwards, he returned and rushed at her shouting ‘nobody throws me out of a club’. She pushed him in the chest and he fell over. The victim hit his head on the pavement and sustained injuries from which he died.

Which one of the following is the best advice to give to the client?

She should plead not guilty as she has not committed an intentional, voluntary act

She should plead guilty to unlawful act manslaughter

She should plead not guilty as her act was not dangerous

She should plead not guilty as she has not committed an unlawful act

She should plead not guilty as she has not caused the death of the victim

Answer 42

She should plead not guilty as she has not committed an unlawful act

Correct. She is acting to protect herself from an perceived imminent attack by the victim and, if her action is considered to be reasonable, the defence of self-defence will operate making her act lawful, R v Scarlett.
The other options were incorrect.
Not all of the elements of unlawful act manslaughter are fulfilled, so the client should not plead guilty.
The client has intentionally pushed the victim in the chest which results in his death. She does not need to intend the consequences which flow from the push.
The unlawful act will be dangerous if a sober and reasonable person recognises it carries a risk of causing some harm to the other person, R v Church. Her act of pushing the man in the chest may be considered to be dangerous in that a sober and reasonable person would recognise it carries a risk of causing some harm to the victim.
She has caused the death of the victim in fact and in law. But for her push, the victim would not have fell, hit his head on the pavement and died, R v White. Her push is the substantial (more than de minimis) cause of the victim’s death, R v Hughes and operating cause, as there are no intervening acts to break the chain of causation

Question 43

A client has been charged with gross negligence manslaughter. He is a safety engineer who failed to complete the necessary maintenance and repairs on construction equipment. This resulted in the death of a builder who was operating one of the faulty pieces of equipment.

Which of the following best explains how the judge will direct the jury on the meaning of gross negligence?

Whether the defendant’s conduct was, beyond reasonable doubt, below the standard to be expected of a reasonable person

Whether the defendant’s conduct was, on balance, below the standard to be expected of a reasonable person

Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission

Whether, having regard to the risk of death involved, the conduct of the defendant goes beyond compensation between subjects

Whether, having regard to the risk of death involved, the conduct of the defendant fell below the standard expected of a reasonable person

Answer 43

Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission

Correct. This is how the court in R v Adomako stated the jury should be directed on grossnegligence.The other options are incorrect. ‘On the balance of probabilities’ is the standard of proof which tends to be used in civil rather than criminal cases. ‘Compensation between subjects’ is the object of a civil action in Tort for negligence. The object of a gross negligence manslaughter prosecution is a criminal sanction for the defendant whose negligent act or omission shows such disregard for the life and safety of others that it is exceptionally serious and warrants punishment by the State.

Question 44

A man hosts adventure trips for groups at his chalet. He has made sandwiches which contain some nut paste and sets out the picnic for the group. At lunchtime, the tour guide reminds the man that he left instructions on his voicemail to ensure none of the food contains nuts as the tour guide suffers from a nut allergy. The man did not pick up the voicemail but decides to say nothing as he knows how awkward the tour guide has been. The tour guide dies from an allergic reaction to the nuts.

Which of the following best explains the man’s liability for gross negligence manslaughter?

He is not liable as there is no duty of care

He may be liable as he created a dangerous situation so will be under a duty of care

He may be liable as there is a special relationship between the man and the tour guide

He is not liable as this is a failure to act

He may be liable as has voluntarily assumed a duty of care

Answer 44

He may be liable as he created a dangerous situation so will be under a duty of care

Correct. The basis of liability here is the man’s failure to warn the tour guide of the fact that the sandwiches are made with ingredients containing nuts. Although there is no general duty to act or to prevent harm, R v Smith (William), a failure to act may be the basis of criminal liability if there is a legal duty to act. The most appropriate duty here is based on the fact that the man has breached the duty he owed to the tour guide by creating a dangerous situation (R v Miller), that is by including ingredients containing nuts in the sandwiches, albeit innocently, but then failing to say anything to warn the tour guide when alerted to the allergy. For gross negligence manslaughter, the breach of the duty of care must be the cause the death, carry a serious risk of death and be so serious as to warrant criminal sanction.
The other options are incorrect, or not the best answer.
A voluntary assumption is not the most relevant legal duty to act on these facts. For example, Brett J stated in R v Nicholls that: ‘If a person chooses to undertake the care of a person who is helpless either from infancy, mental illness or other infirmity, he is bound to execute that responsibility and if he by gross negligence allows him to die he is guilty of manslaughter.’
A special relationship it is not the most relevant legal duty to act on these facts. Examples of special relationships are doctors and patients, parents and their children along with spouses.

Question 45

Types of voluntary manslaughter?

Answer 45

The three situations where the law recognises that a person who has killed another with the
necessary mens rea for murder should be treated differently are:
(a) diminished responsibility;
(b) loss of control; and
(c) suicide pact.

Question 46

4 elements for diminished responsibility?

Answer 46

(a) an abnormality of mental functioning; which
(b) arose from a recognised medical condition; and
(c) substantially impaired the defendant’s ability to understand the nature of their conduct,
and/ or form a rational judgment and/ or exercise self- control; and
(d) provides an explanation for the defendant’s act or omission in doing the killing.

Question 47

Substantial impairment of the defendant’s ability?

Answer 47

they must also demonstrate that this impaired their ability to do one of the three things set out
in s 2(1A) of the Homicide Act 1957, specifically:
(a) to understand the nature of their conduct; and/ or
(b) form a rational judgment; and/ or
(c) exercise self- control.

Question 48

Factors that may satisfy the test for considered desire for revenge?

Answer 48

(a) the defendant arms themselves with a weapon;
(b) there is evidence of planning; or
(c) there is a significant delay between the provoking words or conduct and the killing.

Question 49

How can sexual infeditly be considered for loss of control?

Answer 49

*
Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence
does not prevent reliance on the defence where there are other qualifying triggers.
*
Where other factors suggest a qualifying trigger, sexual infidelity may also be taken
into account in assessing whether things done or said amounted to circumstances of an
extremely grave character and gave the defendant a justifiable sense of being seriously
wronged.
*
Sexual infidelity can be taken into account in the third component of the defence in
examining whether a person of the defendant’s sex and age, with a normal degree of
tolerance and self- restraint and in the circumstances of the defendant, might have reacted
in the same or in a similar way.

Question 50

Question 1
The defendant’s house has been burgled seven times in the past three years and he is
unable to afford the increased premium for home insurance. One night, he is awoken
by a noise. He picks up the shotgun that he keeps by his bed and goes downstairs to
investigate. He sees a burglar trying to break into a window in the kitchen and angrily fires the gun towards him. The shell from the shotgun breaks through the glass and kills the
burglar instantly. The defendant is shocked by the burglar’s death. He believed the glass
would deflect the shot because the gun is not very powerful and is only used for sport. He
is adamant that he only intended to frighten the burglar.
Which statement provides the best assessment of the defendant’s potential liability for
murder?
A The defendant had neither direct nor indirect intent to kill the burglar or cause him
grievous bodily harm.
B The defendant had direct intent to kill the burglar.
C The defendant had direct intent to cause grievous bodily harm to the burglar.
D The defendant had indirect intent to kill the burglar.
E The defendant had indirect intent to cause grievous bodily harm to the burglar.

Answer 50

Answer
The best answer is option A. The defendant does not have the direct intent to kill or cause
grievous bodily harm as he states that he only intended to frighten the burglar, so options
B and C are wrong. He does not have indirect intent either because the evidence suggests
that he does not foresee death or serious injury as a virtually certain consequence of his
action. The defendant thought that the glass would deflect the shot and his knowledge that
the gun is not powerful and only used for sport supports this view. Hence, options D and E
do not provide the best assessment of the evidence.

Question 51

Question 2
A woman is 40 years of age and has been married to a man for 15 years. During this time,
the man has subjected his wife to frequent and serious violent attacks and daily verbal
abuse. She also suspects the man of having an affair with her best friend and she is furious
about this. One evening, the man returns home and immediately begins to complain about
how untidy the house is and what the woman has cooked for their evening meal. As the
man is sitting eating his dinner with his back to her, the woman throws a pan of boiling
water over him. The man subsequently dies from his injuries.
Which of the following best describes the woman’s liability for the man’s death?
A The woman is liable for murder because of the manner in which she kills the man
particularly as he was no threat to her at the time she attacks him.
B The woman cannot argue the partial defence of loss of control because it is
unreasonable to lose control just because the man complains about the state of the
house and what has been cooked for dinner.
C The woman cannot rely on the anger trigger because sexual infidelity must be
disregarded as a thing said or done and this is a factor in her response.
D The woman may rely on the qualifying trigger of fear because she is afraid of serious
violence from the man as his abuse occurs on a frequent basis.
E The woman may rely on loss of control as a partial defence because a 40- year- old
woman with a normal degree of tolerance and self- r

Answer 51

Answer
The correct answer is option D. One of the qualifying triggers for loss of control is that a
defendant feared serious violence from the victim against either themselves or another
identified person. This would apply here as the woman suffered abuse from the man on a
frequent basis.
Option A is wrong because it is irrelevant that the man was no threat to her at the time she
attacks him provided that she is genuinely in fear of serious violence (the fear trigger). The
method the woman uses would be relevant to the third element when the jury consider how
a person of her age and sex with a normal degree of tolerance and self- restraint might
have reacted in those circumstances.
Option B is wrong because the final incident need not be significant in itself; for loss of
control, the defendant may rely upon an accumulation of events to explain their reaction to
the final one. Option C is wrong because, although sexual infidelity on its own may not be
relied upon for the anger trigger, it can be as part of the overall context. Here, there are
other factors, primarily the man’s physical and verbal abuse. Option E is wrong due to the
inclusion of the word ‘would’. The jury must be satisfied that a 40- year- old woman ‘might’
have reacted in the same or similar way.

Question 52

Question 3
A man is charged with murder after he kills his neighbour during an argument over loud
music. In a fit of rage, the man grabbed a spade which was lying on the lawn and hit the
neighbour over the head with it. The man was convinced that the neighbour was spying on
him and trying to get him evicted from his property. The man supplies a medical report to
the court which concludes that he is suffering from paranoia.
Which of the following best describes how this affects the man’s liability for his
neighbour’s death?
A The evidence suggests that the man killed the neighbour in a fit of rage so he cannot
succeed in his partial defence of diminished responsibility.
B Although paranoia is an abnormality of mental functioning arising from a recognised
medical condition, the man cannot plead the partial defence of diminished
responsibility as well as loss of control.
C The man need only prove that he is suffering from a recognised medical condition to
ensure that he is found not guilty of murder but only of voluntary manslaughter.
D As the man acted quite deliberately in picking up the spade and hitting his neighbour
with it, he cannot demonstrate an impairment of his ability to do various things as
required for diminished responsibility.
E The man’s paranoia substantially impairs his ability to exercise self- control and/ or form
a rational judgment and so he will be able to establish this element.

Answer 52

Answer
Option E is the correct answer. The other requirements, including that the paranoia is an
abnormality of mental functioning arising from a recognised medical condition, would also
need to be established.
Option A is wrong because whether the man was in a fit of rage is not the question for
the court when determining if the partial defences apply. Option B is wrong as the man
may plead both loss of control and diminished responsibility, although he is only likely to
succeed with one. Option C is wrong as there are other elements that must be proved by the
defendant before successfully pleading diminished responsibility, specifically that the medical
condition substantially impaired his ability to do various things and provides an explanation
for the killing. Option D is wrong; just because the man acted deliberately does not in itself
preclude him from relying upon his medical condition provided he can establish the other
elements of the partial defence.

Question 53

Test for dangerous act for unlawful act manslaughter?

Answer 53

all sober and reasonable people would inevitably recognise must subject the
other person to, at least, the risk of some harm … albeit not serious harm.

In determining whether the reasonable person would have recognised a risk of some harm,
they are deemed to have the knowledge the defendant had, or should have had, at the time
of the offence.

Question 54

How do the courts assess whether a duty of care exists?

Answer 54

A defendant will only be liable for gross negligence manslaughter if a duty exists. Determining
this issue is a matter of both law and fact.
*
Where there is a clear duty, as between a medical practitioner and a patient, or a
statutory duty, the judge can direct the jury that a duty of care exists.
*
Where the existence of a duty is not clear, the judge must decide whether there is any
evidence that is capable of establishing one. If not, the offence falls at the first hurdle.
*
If there is such evidence, the jury will determine whether a duty of care is present in the
scenario before it.

Question 55

Question 1
A lawyer in the Crown Prosecution Service is asked to provide charging advice to the police
in relation to a number of defendants.
A man sees a six-year-old child struggling in a swimming pool at a holiday park. The child
is clearly in distress, but the man does nothing to help and the child drowns. A mother
leaves her 18-month-old son unattended in a bath for 30 minutes while she talks to a friend
on the telephone. The child drowns. A heating engineer fails to notice he has wrongly
connected a customer’s boiler when he services it because he is in a rush to finish work.
The householder dies in her sleep from carbon monoxide poison that is leaking from the
boiler. A woman drops her cigarette onto the ground and walks away as she believes
(wrongly) that it has been extinguished. The ensuing fire destroys a nearby building.
Which defendants are most likely to be liable for gross negligence manslaughter?
A The man, the mother and the woman.
B The man and the heating engineer.
C The mother and the heating engineer.
D The mother, the heating engineer and the woman.
E All of them.

Answer 55

Answer
Option C correctly lists the defendants who are most likely to be liable for gross negligence
manslaughter. All the other answers either include a defendant who is not liable or miss
one who is.
The mother has a duty of care to her son – this is both a statutory duty and a special
relationship and she breaches this by leaving the child unattended for so long in a bath.
Given his young age there is a risk her conduct could cause death and it does. The heating
engineer has a contractual duty towards his customer to service the boiler with reasonable
care and skill, and he breaches this by allowing carbon monoxide – a toxic gas – to leak.
In both cases, the defendant’s conduct is likely to be regarded as so gross (bad) as to be
deserving of criminal punishment sufficient for gross negligence manslaughter.
In contrast, the man would not be liable for his failure to rescue the child. This is because
there is no general duty to act and the law only imposes such a duty in exceptional
circumstances – none of which apply here. Similarly, the woman is not under a duty of
care when she drops her cigarette as, although she created a dangerous situation, she is
unaware of this as she thought the cigarette had been extinguished.

Question 56

Question 2
The defendant is out with a group of friends at a pub. She sees a woman, with whom
she suspects her husband is having an affair, sitting on a stool at the bar and decides to
confront her about the situation. An argument ensues, during which the defendant raises her
hand to slap the woman across the face. The woman jerks backwards, overbalances and
causes the stool to topple over. She falls onto the ground awkwardly and suffers a fractured
neck from which she dies. The defendant is charged with unlawful act manslaughter.
Which statement correctly describes whether the defendant may be guilty of this
offence?
A Yes, because the act of raising her hand was dangerous as the woman was sitting on
a stool.
B Yes, because she was reckless as to causing death.
C No, because the defendant did not touch the woman.
D No, because the defendant did not intend to cause the woman’s death.
E No, because the defendant’s act did not cause death as the woman died as a result of
falling off the stool.

Answer 56

Answer
Option A is correct because raising a hand to slap someone who is sitting on a stool at a
bar is objectively dangerous given the likelihood of injury if they fall off.
Options B and D are wrong as the prosecution do not need to establish that the woman
either intended or was reckless as to causing the death. The mens rea required is that
of the unlawful act – in this instance, intention or recklessness as to causing the victim to
apprehend unlawful personal force. Option C is wrong as any unlawful act will satisfy the
actus reus, including simple assault as here. Option E is wrong because the rules of factual
and legal causation apply. But for the defendant’s act, the woman would not have fallen
off the stool and hit her head, and the defendant’s conduct was also an operating and
substantial cause of her death.

Question 57

Question 3
A defendant is angry at the proposal by the local authority to build houses on local fields,
as it will involve the destruction of the habitats of rare birds. He climbs up to the roof of the
Town Hall and hangs a banner of protest onto the railings. As he is attaching it, the metal
spike comes loose and falls towards the ground. A pedestrian who is passing is hit by the
spike and killed by the impact. The defendant is horrified by what has happened as he
thought the spike was secure.
Which of the following statements correctly describes the court’s approach when
determining the defendant’s liability for unlawful act manslaughter?
A Criminal damage is not an unlawful act for unlawful act manslaughter so the defendant
cannot be liable.
B The court will apply a subjective test in deciding whether the act was dangerous and
the defendant thought the spike was secure.
C For the act to be dangerous, it must carry a risk of death and this would be satisfied by
the spike falling to the ground.
D The defendant must have intended a physical assault which he did not on these facts.
E The defendant is liable for causing the pedestrian’s death even though he was horrified
by what happened.

Answer 57

Answer
The correct answer is option E because the usual rules of factual and legal causation apply.
But for the spike falling the pedestrian would not have died as and when they did, and the
defendant’s action was an operating and substantial cause of the death. The mens rea of the
unlawful act is satisfied as he was reckless as to causing criminal damage.
Option A is wrong as criminal damage can be the unlawful act. Option B is wrong as the test
for dangerousness is objective; whilst option C is wrong because to satisfy this test, the act
must carry the risk of some harm – not death. Option D is wrong because, for unlawful act
manslaughter, the mens rea must match the actus reus of the unlawful act, namely criminal
damage on these facts. There is no requirement that the mens rea is of an assault, although it
usually is.

Question 58

Question 18

A man finds a caravan in a field and decides to set fire to it. He gives no thought as to whether there is anyone inside the caravan before he sets fire to it.

In fact there is a woman inside the caravan who cannot escape because of the smoke and who is burnt to death when the caravan is destroyed by the fire. The man intended to unlawfully destroy property but not to harm anyone.

Which of the following best describes the man’s liability for unlawful act manslaughter?

A. He is not guilty because the unlawful act of destroying the caravan was not itself dangerous to life.

B. He is not guilty because he did not intend by destroying the caravan to endanger the life of anyone.

C. He is guilty because he was grossly negligent about harming anyone who might be inside the caravan when he set fire to it.

D. He is guilty because he has committed an unlawful and dangerous act that has killed the woman.

E. He is guilty because he was reckless about harming anyone who might be inside the caravan when he set fire to it.

Answer 58

D - He is guilty because he has committed an unlawful and dangerous act that has killed the woman.