Chapter 7 (Fatal Offences against the Person)

Question 1

0What is the definition of Murder?

Answer 1

The definition of murder comes from Sir Edward Coke and is the unlawful killing of a reasonable creature in being under the Kings peace with malice aforethought express or implied.

Question 2

Element 1 of Murder - Unlawful

Answer 2

In murder, the killing must be unlawful/ no legal justification for it.

There are some circumstances in which a killing may be lawful such as.. a person killing in self defence, a doctor withdrawing life support, a police officer performing their duty.

Question 3

Element 2 of Murder- A reasonable creature in being

Answer 3

A foetus is only considered to be ‘in being’ when expelled from the mothers body and has an independent existence

Case: Attorney Generals ref No3 1997: the defendant stabbed the child’s mother whilst pregnant. The mother went into premature labour as a result of this and the child survived for 121 days. The defendant had the mens rea for murder as he intended to cause the mother GBH. However, the mens rea could not be transferred as at the time of the act the child was a victim and did not qualify to be a reasonable creature in being.

Question 4

Element 3 of Murder- Under the Kings peace

Answer 4

This means that killing an enemy in the course of war is not murder. However, it may be if a soldier uses excessive force

-killing of a prisoner of war would be sufficient for the actus reus of murder.

Question 5

Element 4 of murder- Killing/ causation

Answer 5

Killing is defined as’ to cause the death’. The defendant must have caused the victims death in fact and in law.

In fact: But for the defendants actions would the victim have died- R v Pagett/ R v White

In law: was the defendants actions the significant and operative cause of the death. R v Smith (1959)

Question 6

Element 4 murder: causation/ intervening acts

Answer 6

it is possible that the chain of causation will break, providing that the intervening act is sufficiently different and serious. This intervening act could be the result of an act by a third party, some unforeseeable event or by the victim themselves.

R v Jordan (1956)

Question 7

Can murder be committed by omissions?

Answer 7

the actus reus of killing can be by an act or omission, but it must cause the death of the victim. Usually the actus reus is an act, but an omission can make a person liable for an offence. This was seen in R v Gibbins and Proctor (1918).

Question 8

What is the Mens rea of murder?

Answer 8

The mens rea for murder is stated as being ‘malic aforethought express or implied’. Murder is a specific intent crime/ can not be committed out of recklessness.

-Malice aforethought expressed translates to intention to kill which can be direct intent (aim, purpose and desire to kill), seen in R v Mohan or…. indirect intent (virtually certain death would occur and the defendant knows this, seen in R v Woolin

-Malice aforethought implied translates to intention to cause grievous bodily harm. This can be direct intention or indirect intention.

Legally, no malice is required/ R v Inglis: parents gave a fatal dose of drugs to their terminally ill child, found guilty of murder.

A person can be guilty of murder even though they did not intend to kill. This was decided in R v Vickers(1957)- Vickers broke into the cellar of a sweet shop. He knew that the old lady who ran the shop was deaf. The old lady came into the cellar and saw Vickers. He hit her several times with his fists and kicked her once in the head. She died as a result of her injuries. The court of appeal upheld Vickers conviction for murder. It pointed out that where a defendant intends to inflict GBH and the victim dies, that has always been sufficient in English law to imply malice aforethought.

Question 9

What is voluntary manslaughter?

Answer 9

Voluntary manslaughter arises where the defendant appears to satisfy the actus reus and mens rea of murder. However, there are two special defences to a charge of murder which reduce murder to manslaughter. These are where the killing occurs when the defendant suffers from:

1. Loss of Control
   2.Diminished responsibility

These defences are available only to murder. They are also only partial defences, meaning the D is not completely acquitted. Instead when one of these defences are successful, the offence of murder is reduced to manslaughter

This type of manslaughter is known as voluntary manslaughter because the defendant had the necessary mens rea for murder.

This verdict of manslaughter instead of murder is important because it means that the judge has discretion in passing sentence (rather than imposing a mandatory life sentence)

Question 10

What is the defence of loss of control?

Answer 10

Replaced the old defence of provocation. The law on loss of control is set out in s54 of the Coroners and Justice act 2009.

s54 (1a): Defendants acts or omissions resulted from the defendants loss of control

1b: The loss of control had a qualifying trigger of either : fear of serious violence from the victim against the defendant or another identified person, or a thing said or done which constituted circumstances of an extremely grave character or caused the defendant to have a justifiable sense of being wronged.

1c: A person of the defendants sex, age with a normal degree of tolerance and self-restraint and in the same circumstances of the defendant might have reacted in a similar/same way.

-it is a decision for the judge as to whether the defence is available and it is for the prosecution to disprove beyond reasonable doubt.

Question 11

What is the first qualifying trigger?

Answer 11

The defendants fear of serious violence from the victim against the defendant or another identified person. Has to be serious violence/ equivalent to GBH.

-The defendant does not have to fear violence by the victim. Fear of violence on another person can amount to a qualifying trigger. This was illustrated in R v Ward

R V Ward (2012): The D successfully pleaded loss of control after killing the victim, who had physically attacked the Ds brother at a party. In response, the defendant then hit the victim with a pick axe handle, the injuries from which caused his death.

Question 12

What is loss of control?

Answer 12

-Section 54 (2) of the 2009 act sets out that the defendants loss of control does not have to be sudden.

-There is currently no statutory or judicial interpretation of the meaning ‘loss of control’. It is a matter for the jury to decide. Juries are expected to draw upon their own life experiences when considering the evidence to decide if this part is satisfied. To be tested OBJECTIVELY

Restrictions: temper, anger or a reaction out of character are not sufficient. The defendant must have really ‘lost it’. Must be a total loss of control.

Case law: R v Jewell (2014): The D shot the victim with a shotgun and fled in his car. When he was arrested, his car was found to contain a survival kit with clothes, passport etc. He claimed he lost control but there was insufficient evidence oft he D losing control and it was clear that it was a planned decision through the survival kit.

Question 13

What are the restrictions in the 1st qualifying trigger of loss of control?

Answer 13

Where the defendant has incited the violence, he or she cannot rely on the qualifying trigger. This was emphasised in R v Dawes (2013)

R v Dawes (2013): The defendant had returned home to find his wife and the victim asleep on the sofa with their legs entwined. There was an altercation and he stabbed and killed the victim. He could not rely on fear of violence where he had induced that violence.

Question 14

What is the second qualifying trigger in loss of control?

Answer 14

Things said or done- s55 of coroners and justice act 2009

Under the old law of provocation, sexual infidelity was allowed for a reason for provocation-example a jealous man killing his wife because she was having an affair.The government felt that such male violence acceptable in the 21st century

Things said or done is the anger trigger. It is an objective test. Therefore the jury decides where a reasonable person is like lose control.

If the defendant is relying on ‘things said or done’ or both there are two points which must be established

1.things said or done or both were of an extremely grave character and…

2. Things said or done caused the defendant to have a justifiable sense of being seriously wronged.

This was seen in R v Zebedee (2012): the defendant lost control when his 94 year old father, who suffered from Alzheimer’s, repeatedly soiled himself. He killed his father. He put forward his defence of loss of control . The court ruled that neither condition was present in the case. Convicted of murder.

R v Bowyer (2013): the defendant and the victim were both having a relationship with the same prostitution. The victim was also her pimp. The defendant didn’t know she was a prostitute. The defendant went to the victims house to burgle him but the victim disturbed him and a fight developed. The victim taunted the defendant. The d lost control and beat the victim and tied him up. He was left alive but was found dead the following afternoon. The defendant had no justifiable sense of being wronged as he was committing burglary.

Question 15

What are the restrictions of the second qualifying trigger in loss of control?

Answer 15

Restrictions include:
Breakup of a relationship will not be judged grave or seriously wronged.

Sexual infidelity alone cannot amount to a qualifying trigger, however it can be considered if it was integral and formed an essential part of the context where there would be other qualifying factors.

This point was made clear by the court of appeal in R v Clinton 2012: Both the defendant and his wife suffered from depression and required medication. He lost control due to a number of factors and killed his wife as she had previously told him she was having sexual relations with many men, taunted him about suicide websites.

Revenge is not a defence that can be use.

Question 16

What are the standards of self control ?

Answer 16

The defendant is expected to show a normal degree of tolerance and self control. Being hot tempered cannot be taken into account when looking at the level of self-control expected.

Age and sex is tested SUBJECTIVELY- a person of the same sex, age and with a normal degree of tolerance and self restraint and in the circumstances of the defendant, might have reacted in the same or similar way to the defendant.

Circumstances of the defendant that could be took into account:
Depression, illness or epilepsy, history of sexual abuse, addiction

Might have reacted in the same or similar way is a matter for the jury. If the jury considers that the normal person might have lost control but not have reacted in the same way, the defence fails.

If the defendant is taunted about their race or a disability then the hypothetical person of the defendants age and sex will also be given that disability or quality

Restrictions:hot temperedness and voluntary intoxication /in R v Asmelah 2013, the court refused to allow voluntary intoxication to be considered for either loss of control or diminished responsibility.

However if a sober person in the defendants circumstances with normal levels of tolerance and self-restraint, might have behaved in the same way when confronted by the relevant qualifying trigger, then the D might still be able to use the defence of loss of control, even if they were intoxicated.

Question 17

Sufficient evidence in loss of control

Answer 17

The Coroners and Justice Act of 2009 has given the trial judge the task of deciding if there is sufficient evidence of each three components to leave the defence of loss of control to the jury.

Question 18

What is Diminished Responsibility?

Answer 18

Diminished responsibility is a partial defence to a charge of murder which reduces the offence to one of voluntary manslaughter.

The diminished responsibility defence was introduced by the Homicide Act of 1957. The defence is set out in S2 (1) of the Homicide Act as amended by S52 of the Coroners and justice Act 2009.

A person who kills is not to be convicted of murder if he or she was suffering from an abnormality of mental functioning which;

1(a) Arose from a medical condition

1(b) substantially impaired defendants ability to: understand the nature of their conduct, or form a rational judgement or exercise self control

1(c) Which provides an explanation of the defendants acts or omissions

The burden of proving the defence is on the defendant, but the defendant need only prove it on the balance of probabilities.

Question 19

What is meant by abnormality of mental functioning?

Answer 19

A state of mind so different from that of ordinary human beings that the reasonable man finds it abnormal.

This definition came from R v Byrne (1960): The defendant was a sexual psychopath who strangled a young woman and then mutilated her body. The medical evidence was that because of his condition, he was unable to control his perverted desires. He was convicted of murder but the Court of Appeal quashed the conviction and substituted a conviction for manslaughter.

Although this case was on the old definition of ‘abnormality of mind’ , amended by s52 of the Coroners and justice act 2009, the courts still use the same standards of abnormality. Example of a medical condition in cases before the 2009 act are R v Ahluwalia 1992 (Battered Spouse Syndrome)

Question 20

What is a recognised medical condition?

Answer 20

The phrase ‘recognised medical condition’ as a cause of the abnormality of mental functioning was introduced into S2 of the 1957 Homicide Act by the 2009 act.

Has to be recognised by the WHO - world health organisation

‘recognised medical condition’ is wide enough to cover: psychological and physical conditions and any recognised mental disorder. Also, any physical condition which affects mental functioning such as epilepsy, sleep disorders or diabetes.

Psychological conditions can include chronic depression, Paranoia personality disorder.

The defence must produce medical evidence of a recognised medical condition in the trial.

Case law: In R v Conroy (2017)- all 4 psychiatrists and the court of appeal agreed that Autism Spectrum Disorder is a recognised medical condition.

Question 21

What is a substantial impairment?

Answer 21

The abnormality of mental functioning must substantially impair the defendants mental responsibility for his acts or omissions in doing the killing.

1. In R v Byrne (1960)- the appeal court said that the question of whether the impairment was substantial was one of degree and it was for the jury to decide.
2. in R v Llyod (1967)- it was held that substantial does not mean total, nor does it mean trivial or minimal. it is something in between and it is for the jury to decide if the defendants mental responsibility was impaired and if so, whether it was substantially impaired. However, the judge can withdraw the point from the jury if there is not sufficient evidence.

3.R v Golds (2016)- The d killed his partner and admitted to the killing. Medical evidence showed he had a AMF arising from a medical condition. The only issue was whether he was in a psychotic state at the time of the killing. It was decided that the judge must direct that.

In a murder trial where diminished responsibility is an issue, the judge is not ordinary required to direct the jury beyond the terms of the statute and should not attempt to define the meaning of “substantially”. However if there is a risk that the jury will misunderstand the meaning of substantial, then direction is required.

The judge must direct that while an impairment must be more than merely trivial to be substantial, it is not the case that any impairment that is more than trivial will suffice.

Question 22

What must be substantially impaired?

Answer 22

The defendants ability to do one of three things must be substantially impaired.

1.The ability to understand the nature of his conduct: this covers situations such as where the defendant is in an automatic state, does not know what he or she is doing or suffers from delusional. It also covers people with severe learning difficulties.

2.Ability to form a rational judgement: Those suffering from paranoia, schizophrenia or Battered Spouse Syndrome may well not be able to form a rational judgement. The judge may consider all relevant circumstances before/after the killing.

3. Ability to exercise self control: This was the situation in R v Byrne (1960), Byrne was a sexual psychopath and this condition meant he was unable to control his perverted desires. The defence of diminished was therefore available to him.

Question 23

Provides an explanation for the defendants conduct

Answer 23

The defendant has to prove that the abnormality of mental functioning provides an explanation for his acts or omissions in doing or being a party to the killing.

This is a new principle of diminished responsibility, introduced by the amendments made by the Coroners and Justice Act 2009. There now must be some causal connection between the defendants AMF and the killing.

The AMF does not have to be the only factor which caused the defendant to do or be involved in the killing. However, it does have to be a significant factor. This is particularly important where the defendant is intoxicated at the time of the killing.

Question 24

What happens to the defence of diminished responsibility if the defendant is intoxicated?

Answer 24

The defence of intoxication becomes more complicated when the defendant is also intoxicated at the same time of the killing. There are three situations to cover.

Question 25

1st situation in intoxication

Answer 25

There is a clear rule that intoxication alone can not support a defence of diminished responsibility as shown by the case of R v Dowds (2012): The defendant and his girlfriend, the victim, were heavy-binge drinkers. In a drunken state, he stabbed her 60 times, killing her. He was convicted of murder and appealed. His appeal was rejected and his conviction for murder was upheld on the basis that voluntary intoxication is not capable of founding the defence of diminished responsibility.

Question 26

2nd situation in intoxication

Answer 26

There are difficulty in cases where the defendant has some pre-existing abnormality of mental functioning but, in addition was intoxicated at the same time of the killing. Where there is a combination of the both, the jury must ignore intoxication. This occurred in R v Diestchmann (2003): The D felt that the victim was disrespecting the memory of the Ds aunt who had just died. He killed the victim by repeatedly kicking him. The defendant had drunk about a third of a bottle of whisky and cider before the killing. Psychiatrists called by the prosecution and the defence agreed that the defendant was suffering from an adjustment order. However they disagree don whether this had substantially impaired his mental responsibility for the killing. He was convicted and appealed. It was decided that if the defendant satisfied the jury that his AMF substantially impaired his mental responsibility for his acts , then even though he was intoxicated, the jury should not find him guilty of murder, but manslaughter.

Question 27

3rd situation of intoxication

Answer 27

Defendants intoxication is due to an addiction. Alcohol dependant syndrome ADS. Where the D is an alcoholic this can amount to an AMF. R v Wood (2008) : The defendant after drinking heavily had gone to the victims flat and fell asleep. He was woken by the victim trying to perform oral sex on him. The D killed the victim with a meat cleaver, repeatedly hitting him. At the trial, medical experts agreed that the defendant was suffering from ADS, but disagreed as to whether this had damaged his brain. The judge directed the jury that the defendant could only use this defence if he was drinking involuntary. The defendant was convicted but successfully appealed as the judges direction of the jury was wrong.

Question 28

Rules on voluntary and involuntary intoxication

Answer 28

-In cases where the defendant has an addiction the jury have to consider the effect of the alcohol consumed because an addiction is classed as involuntary drinking. -However, if the consumption is not due to the addiction it is classed as a voluntary addiction and its effects can not be taken into account. -If there is both voluntary and involuntary drinking, the jury can only consider the effects of the involuntary thinking.

Question 29

What happened in R v Stewart (2009) ?

Answer 29

The court of appeal set out a three stage test for juries in such cases to consider a)was the defendant suffering from an abnormality of mental functioning? (It was pointed out that the mere fact that the defendant has ADS would not automatically amount to an abnormality. The nature and extent of the ADS should be considered.) b) If so, was the Ds AMF caused by the ADS c) if so was the defendants mental responsibility substantially impaired? To decide this, medical evidence should be considered such as the extent and seriousness of his dependency and to the extent to which he could control his drinking.

Question 30

What is involuntary manslaughter?

Answer 30

Involuntary manslaughter is an unlawful killing where the defendant does not have the intention, either direct or oblique to kill or to cause GBH.

Question 31

What is unlawful act manslaughter?

Answer 31

It is a type of involuntary manslaughter- no mens rea for murder. It is where somebody is killed by the defendant committing another crime.

Question 33

What are the elements of Unlawful Act Manslaughter?

Answer 33

Element 1: Clearly identified criminal offence of which all the elements must be satisfied and must be committed via an act not an omission. The defendants conduct must be something that is itself unlawful and there is no need for the act to be aimed at anyone. Element 2: The act must be dangerous and ass the Church test/ this is an objective test Element 3: Causation must be established Element 4: The mens rea is that of the unlawful Act.

Question 34

Element 1 of unlawful act manslaughter: identified criminal offence

Answer 34

There must be a clearly identifiable criminal offence, it can not be satisfied by a civil wrong: R v Franklin: D threw a box into the sea off Brighton pier, the box struck a swimmer who died as a Result, can not be unlawful act manslaughter because littering was a civil issue and not a criminal offence All elements of the offence must be established, if there are any missing than the D won’t be liable. R v Lamb(1967): 2 boys playing with a revolver, both believed it would not fire. One boy pointed it at the other, pulled the trigger and it killed the boy. No offence as the V did not believe the gun would go off. The offence must be committed via an act not an omission. Unless it meets one of those 6 exceptions Shown in R v Lowe(1973): the D was convicted of wilfully neglecting his baby son and of his manslaughter. The court of people quashed the conviction for manslaughter because a finding of wilful neglect could not support a conviction for unlawful act manslaughter

Question 35

Element 2 unlawful act manslaughter: act must be dangerous and pass the church test

Answer 35

The unlawful act must be dangerous on an objective test. In R v Church (1965) it was held that the sober and reasonable person would recognise that the act is dangerous and would risk some harm It is enough that the sober and reasonable person would foresee SOME HARM, not the actual harm that was caused. Seen in R v JM and SM (2012): 2 brothers kicked out of a nightclub, tried to get back in and started a fight between them and the doormen. The victim, the bouncer was pushed and due to a pre- existing heart condition he died as an artery had ruptured. Found guilty of UAM, never a requirement for the D to foresee any specific harm, the test is whether the sober and reasonable person would foresee that the unlawful activities of the defendant would subject the victim to some harm. The test is objective- there is no need to prove that the D realised the risk- R v F and E

Question 36

Actus reus for unlawful Act Manslaughter

Answer 36

The defendants conduct must be something that in itself is unlawful, not which later becomes unlawful Seen in Andrew’s v DPP: D drove a van above speed limit to overtake a car, as he was doing so he hit and killed a pedestrian. guilty of UAM There is no need for the unlawful act to be directed at anyone in particular Seen in R v Goodfellow (1986) : the D wished to move from his council accommodation into another as he was being harassed by two men. He set fire to the house making it look as though it had been petrol bombed. His wife, son and son’s girlfriend all died in the fire. Shows Arson wasn’t directed at anyone . Shows all the elements of manslaughter- arson is a criminal offence, it is dangerous, caused the death, committed intentionally and a reasonable person would foresee a risk of some harm For the actus reus, you must outline and apply to the crime. If it was Battery you must outline the law surrounding battery and apply the scenario to the law

Question 37

What happens if the D is intoxicated in Unlawful Act manslaughter?

Answer 37

There is no need for the D to foresee this risk, so it is irrelevant if he is intoxicated as it is an objective test. Newbury & Jones: two 15 year- old boys threw a paving slab off a railway bridge as a train approached. The paving slab went through a glass window on the cab of the train and struck the guard killing him. Did not matter about intoxication as the objective test is of the reasonable, sober person

Question 38

Risk of harm in unlawful act manslaughter

Answer 38

The risk of harm refers to physical harm. Something which causes fear and apprehension is not sufficient In R v Dawson (1985): 3 men attempt34 to rob a petrol station, the 60 year old petrol attendant sounded the alarm and the robbers fled he then suffered a heart attack and died. Convicted quashed as the robbers did not know of the Ds heart condition- when applying of same knowledge to a reasonable person they would not have foreseen some harm as they didn’t make contact. However, where a reasonable person would be aware of the victims frailty and the risk of physical harm to him, then the defendant will be liable. This was stated in R v Watson (1989): when an elderly man died of a heart attack ninety minutes after being physically abused in an attempted burglary of his home

Question 39

Element 3 of Unlawful act manslaughter: causation must be established

Answer 39

The unlawful act must cause the death. Factual causation: but for test, but for the actions of the defendant would the defendant have died. Legal causation: De minimise principle/intervening acts of the victim/ intervening acts if the third party/natural events/ thick-skull rule

Question 40

What happens in cases that involve drugs/ unlawful act manslaughter?

Answer 40

If a person supplies drugs or materials to administer a drug to someone else, who then administers the drug to himself and dies, this is not an unlawful act. This is because the criminal law assumes a persons free will. Subject to certain exceptions, informed adults of sound mind are able to make their own decisions on how to act. This can be seen in R v Kennedy (2007): the victim asked the defendant for a bit of heroin. The defendant prepared a dose of heroin for the victim, then passed the syringe so he could inject himself. The victim did so and then died hours later. As the victim was a fully informed and consenting adult, who had freely and voluntarily self- administered the drug without any pressure from the defendant, this was an intervening act and the defendant was not liable for manslaughter

Question 41

Element 4 of unlawful act manslaughter: the mens Rea is that of the unlawful act

Answer 41

The mens Rea is that of the unlawful act, there is no need to prove any mens Rea with regards to the death of the victim For example if the unlawful act was assault, the mens Rea would be intentionally or recklessly causing an individual to fear immediate, unlawful violence. It is not necessary for the defendant to realise the act is unlawful or dangerous. As seen in the case of DPP v Newbury and Jones (1976)

Question 42

How can GNM be committed?

Answer 42

Where the defendant owes the victim a duty of care but breaches that duty in a way that is so criminal it is negligent, causing the death of the victim. -It can be committed by an act or omission , neither of which has to be unlawful

Question 43

What is gross negligence manslaughter?

Answer 43

A form of involuntary manslaughter where the defendant is grossly negligent in breach of a duty to care towards the victim and this results in the victims death. Where the defendants conduct , whether act or omission, which is not otherwise unlawful causes the Vs death, defendant may be liable for manslaughter by gross negligence Leading case on gross negligence manslaughter is: R v Adomako (1994): the D was an anaesthetist. During an operation, one of the tubes supplying oxygen to the patient became disconnected. The defendant failed to notice this until some minutes later when the patient suffered a heart attack caused by a lack of oxygen oxygen. The patient suffered brain damage as a result and died six months later as a result . Doctors giving evidence in court trial said that a competent anaesthetist would have noticed the disconnection within 15 seconds. The trial judge directed the jury on gross negligence manslaughter and they were convicted. House of Lords dismissed the appeal against conviction. From Adomako it can be seen that the elements of gross negligence manslaughter: the existence of a duty of care by the defendant towards the victim, a breach of duty of care which causes death, gross negligence which the jury considers to be so bad as to be criminal

Question 44

GNM 1. Duty of care

Answer 44

Lord Mackay in Adomako makes civil liability for the tort of negligence a perquisite for criminal liability and to ascertain whether there was a duty of care and whether that duty had been breached. This was confirmed in R v Wacker (2002): The defendant brought 60 illegal immigrants into England into his lorry. The driver failed to provide ventilation. It was found that 58 out of 60 were dead. The defendants conviction for manslaughter was upheld by the Court of Appeal, claiming the defendant knew that the safety of the immigrants was dependent of his own actions and he clearly assumed duty of care. In civil law of negligence this would make the victims unable to make a claim against their defendant, but in criminal, it is irrelevant that the victims were parties to an illegal act. These principles come from the three stage test of Capro v Dickman: 1-Proximity of relationship (are they close in space or relationship) 2- Reasonable foreseeability of harm (would the reasonable man forsee some harm and... 3. is it being fair, just and reasonable to impose a duty of care (is there any reason not to be owed) OR.. under the criminal law under liability for omissions, Miller, Wacker

Question 45

Existence of a duty of care (who decides one)

Answer 45

Originally in Khan v Khan, the CoA held that the existence of a duty of care was a question for the jury - a question of fact not law. BUT, in R v Singh (1999), the CoA held that it was a question of law on which the Judge should give a conclusive ruling. This was again altered in Willoughby where the CoA stated that whether a duty exists is a matter for the jury once the judge has decided that there is evidence capable of establishing a duty. Financially, in Evans, it was held that the existence of a duty is a judicial, not a jury function.

Question 46

GNM 2. Breach of duty

Answer 46

Once a duty is established, it must be shown that the D breached that duty and that breach caused death. The defendant will be in breach if their conduct falls below the standards of: -The reasonable man -If the D is a professional, what the reasonable competent body of that profession would do. E.g. a doctor ( Bolam test; Bolam v friern NHS Trust) -or if the D is a child, a reasonable competent child of the same age and gender as the D (Mullin v Richards) -If the D is inexperienced, then he must still achieve the required standard, that of the reasonably competent person with that skill. Example-a drive/ Learners are still compared to the reasonable competent driver.

Question 47

GNM 3. Risk of death

Answer 47

The breach must carry an obvious risk of death, not merely serious harm. R v Misra -A patient developed an infection in the wound which was undiagnosed and therefore untreated despite obvious symptoms, V died of toxic shock as a result of the infection. Two doctors were convicted of gross negligence manslaughter following the Vs death./ Not diagnosing a wound has an obvious risk of death. -Normal negligence does not need an obvious risk of death, this distinguishes between civil/ criminal.

Question 48

GNM 4. Causation

Answer 48

Must be proven that there is a link between the actions of the defendant and the death. Establish factual and legal causation.

Question 49

GNM 5. Fault element

Answer 49

The defendants conduct must move from civil to criminal liability -the fact that a defendant has been negligent is not enough to convict them of gross negligence manslaughter. The negligence has to be gross. Where the defendant has shown such a disregard for life and safety of others that the Ds conduct is deserving of a criminal punishment A high degree of negligence is required ( Adomako) there is no need to prove any mens rea for GNM however if the D was subjectively or objectively reckless, this will help the jury when deciding on the grossness of the Ds conduct.