homicide Flashcards
(27 cards)
when does liability for omissions arise? (least to most difficult)
- special relationship (Evans 2009)
- statutory duty
- voluntary assumption of a duty of care (Stone and Dobbinson)
- contractual duty (Pittwood)
- failing to take reasonable steps to combat a danger he himself created (Miller)
[n.b. ‘combination’ cases e.g. S&D, Willoughby]
R v Clinton [2012] EWCA Crim 2
Sexual infidelity, although not a qualifying trigger, is relevant as context for the trigger
Facts
Clinton’s wife Dawn admitted to him that she had been having an affair, he told his wife that was going to commit suicide and she replied that he didn’t have the ‘balls’ to do it
He killed her by beating her head with a baton and strangling her
Trial judge did not allow evidence relating to sexual infidelity following s55(6)(c) of the Coroners and Justice Act 2009
Held (Court of Appeal)
Allowing the appeal and ordering a retrial as the judge erred in her direction
Lord Judge CJ
Sexual infidelity cannot form a sole qualifying trigger
However, sexual infidelity can be the context in which to evaluate whether other matters (in this case the taunting) amount to a qualifying trigger under s55(3) or (4)
Sexual infidelity can also form part of the circumstances under s54(1)(c)
Clinton at [12]
…The questions whether the circumstances were extremely grave, and whether the defendant’s sense of grievance was justifiable, indeed all the requirements of s 55(4)(a)(b), require objective evaluation.
(see also para [38]). However, Ormerod and Laird argue that a mistaken belief in events that would amount to a qualifying trigger should mean the defence is still available (Smith and Hogan p 534-5).
Dawes [2013] Crim LR 770
- Issue – whether the trial judges erred in their respective decisions not to leave the defence of loss of control to the jury in the cases of Mark Dawes, Mark Hatter, and Gary Suller.
- Facts –
o Dawes was convicted of the murder of Graham Pethard on 5 May 2012. The defence argued self-defence. Claiming Dawes had acted in response to finding his estranged wife with the victim on a sofa
o M hatter was convicted of the murder of Dawn Backhouse on 23 June 2011. The defence argued accident, contending that her death was a dreadful accident
o Gary Suller was found dead at his hoe 6 September 2011. The defence argued loss of control due to fear of serious violence - Holding –
o Court of appeal held that the trial judges did not err in their decisions not to leave the defence of loss of control to the jury in the cases of Dawes, Hatter and Suller - Reasoning –
o Dawes – trial judge correctly determined that loss of control should not be left to the jury due to insufficient evidence of loss of self-control
o Hatter – trial judge appropriately decided not to leave he defence to the jury as there was no evidence of loss of self-control
o Suller – properly left the defence to the jury based on evidence of fear of serious violence, but the jury ultimately rejected the defence - Analysis –
o Court emphasised that the loss of control defence must be supported by sufficient evidence to be left to the jury
o The judges correctly applied the provisions of the Coroners and Justice act 2009, which replaced the former provocation defence
o The court highlighted the importance of a fair summing up that accurately reflects the evidence presented to the jury, ensuring fairness to both the prosecution and defence - Disposition –
o The convictions were upheld as the lack of sufficient evidence supporting the defence in each case meant that it would not have been appropriate. - In Dawes it was noted that there was no qualifying trigger available – Clinton said that self-induced loss of control doesn’t count, and sexual infidelity is specifically removed. Mr Burton QC submitted that this conclusion was wrong and that the defence should have been left to the jury as the violence being used being excessive did not preclude loss of self control
- Hatter – prosecutions case was that it was a premeditated murder and defence was that her death was a dreadful accident. Judge Goldsack decided not to leave the defense of loss of self-control to the jury for three reasons – no evidence from any witnesses to this effect, no evidential basis that he might have lost control, couldn’t constitute circumstances of extremely grave character or justified sense of being seriously wronged.
- Bowyer (Gary Sullers killer) – the defence of loss of self control was left to the jury and they asked what qualifying trigger meant.
LOSC: can only apply to serious violence whereas self-defence to any amount of violence [59]
Asmelash [2013] EWCA Crim 157
- Facts – D was insulted and taunted by V, D was drunk when he stabbed the victim to death. It was claimed that direction given by the judge was wrong because it excluded evidence of intoxication. The judge directed the jury that voluntary intoxication was not within the circumstances of s54© Coroners and Justice Act 2009
o ‘Our conclusion does not bear the dire consequences suggested by Mr Davey. It does not mean that the defendant who has been drinking is deprived of any possible loss of control defence: it simply means, as the judge explained, that the loss of control defence must be approached without reference to the defendant’s voluntary intoxication. If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence just because he was not sober. And different considerations would arise if a defendant with a severe problem with alcohol or drugs was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger; the alcohol or drug problem would then form part of the circumstances for consideration.’
R v Dowds [2012] EWCA Crim 281, [2012] Crim LR 612.
- Key Point – diminished responsibility does not apply to voluntary intoxication
- Legal issue – whether acute voluntary intoxication can give rise to the partial defence of diminished responsibility in a murder case following the amendments to the Homicide Act 1957 by the oroners and Justice Act 2009
- Facts – D stabbed V 60 times and then claimed the partial defence of diminished responsibility because he had been acutely drunk
- Held in the Court of Appeal – D was rightly convicted of murder, voluntary intoxication does not fall within the scope of ‘recognised condition’ under s2(1) homicide Act 1957 as ammended by the Coroners and Justice Act 2009
- Reasoning for judgement –
o The law historically treats voluntary intoxication as an aggrivating factor not an excuse
o The ammendments to the Homicide Act were intended to ground the partial defence of diminihsed responsibility in valid medical diagnosis
o The presence of a recognised medical condition is necessary but not always sufficient to raise the issue of diminished responsibility
o Voluntary acute intoxication, even if severe, cannot form the basis for diminished responsibility
o Policy consdierations and the need for fair warning to citizens abuot punishable conduct support the interpretation that voluntary intoxication cannot lead to the finding of diminished responsibility
o The law in Scotland also estbalishes that voluntary intoxication cannot be relied upon in the context of diminished responsibility
o The WHO’s International Statictical Classification of Diseases and related Health Problems does not necessarily align with legal concepts of defense in criminal cases
o The supreme court of canada has ruled that the severe intoxication from voluntarily taken drugs cannot be a defense to instanity under the criminal code
o The law requires a strict interpretation of criminal statutes, and the presence of a recognised medical condition alone is insufficient to establish diminished responsibility
However, Dowds: Acute intoxication was not considered a recognised medical condition for purposes of DR even though it was listed in ICD and DSM
In absence of explicit Parliamentary intention, the CJA 2009 is to be read against the established law that voluntary intoxication cannot found DR
R v Brennan [2014] EWCA Crim 2387
- Key facts
o The appellant was charged with murder and raised a defense of dimished responsibility at trial
o The defence’s expert witness, Dr Gillian Mezey, diagnosed the appellant with schizotypal Disorder and Emotionally unstable personality disorder supporting the defence
o The crowns expert agreed with Dr. Mezey’s diagnoses
o The jury convicted the appellant of murder
o The defence argued that the jury’s verdict was unsaf due to the unchallenged expert evidence - Issues
o Whetehr teh jury’s verdict of murder was safe in the light of the uncontradicted expert evidence on dimished responsibility
o Whetehr teh trial judge erred in not withdrawing the charge of murder from the Jury - The conviction of murder was quashed and a verduct of manslaughter was subsitutited
- Reasoning for judgement
o The court emphasised that while decision incases of diminished responsibility lies with the jury, the verdict must be supported by evidece
o The court noted that unchallenged expert evidence on diminishe responsibility must not be lightly disregarded by teh jury
o The court highlighted that in cases where expert evidence is uncontradicted, the jury must have a rationla basus for departing from it
o The court referenced the amended provisions of s2, which gave importance to expert psychiatric evidence in cases of diminished responsibility
o The court found that the uncontradicted expert evidence in this case supported the verdict of manslaughter not murder
o The court stated that each case must be decided based on its own facts and circumstances, emphasizing the importance of evaluating all evidence
o The court concluded that the conviction of murder was not safe and should be substituted with a verdict of manslaughter - Disposition – the appeal was allowed, and a verdict of manslaughter was subsitituted. The court directed furtehr assesments to determine the approppriate sentence
- The court highlighted the importance of evidence in cases of diminished responsibility. It aslo emphasised the need for a rational basis for departing from unchallenged expert advice. Underscored the significance of evaluating all the circumsatnces in determining teh safety of a verdict.
R v Golds [2016] UKSC 61
- Key points – in the context of diminished responsibility, it has consistently been interpreted that the term substantially requires a significant and weighty justification for downgrading the offence from murder to the lesser charge of manslaughter. It is not enough to direct the jury that is only marginally more than trivial
- Facts –
o After an argument, the appellant violently attacked his partner with a knife at their home, inflicting 22 stab wounds with blunt impact internal injuries, which resulted in her death
o As a defence, it was raised that he had a history of mental illness that required him to receive treatment and medication as an outpatient. Two consultant forensic psychiatrists provided testimony indicating that his mental functioning was abnormal due to a medically recognised condition
o The issue was whether he was under the influence of a psychotic condition at the time of the incident, thereby meeting the criteria for the partial defence of diminished responsibility under s 2 Homicide Act 1957 - The appeal was dismissed
o ‘the renewal of the attack despite the warning presence of the children and removal of the first knife might perhaps be some indicator of self-control and give some support to the contention that the cause was simple anger rather than distorted thinking’
o The Court of Appeal dismissed the appellant’s appeal ([2015] 1 WLR 1030) but certified in relation to this ground that the following two questions of law of general public importance were involved:
1. Where a defendant, being tried for murder, seeks to establish that he is not guilty of murder by reason of diminished responsibility, is the Court required to direct the jury as to the definition of the word “substantial” as in the phrase “substantially impaired” found in section 2(1)(b) of the Homicide Act 1957 as amended by section 52 of the Coroners and Justice Act 2009?
2. If the answer to the first question is in the affirmative, or if for some other reason the judge chooses to direct the jury on the meaning of the word “substantial”, is it to be defined as “something more than merely trivial”, or alternatively in a way that connotes more than this, such as “something whilst short of total impairment that is nevertheless significant and appreciable”? - Previous formulation of the partial defence - “(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”
- Lord Parker CJ in Byrne -
o Assuming that the jury are satisfied on the balance of probabilities that the accused was suffering from ‘abnormality of mind’ from one of the causes specified in the parenthesis of the subsection, the crucial question nevertheless arises: was the abnormality such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing? This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called ‘substantial’, a matter upon which juries may quite legitimately differ from doctors. … This court has repeatedly approved directions to the jury which have followed directions given in Scots cases where the doctrine of diminished responsibility forms part of the common law. We need not repeat them. They are quoted in Reg v Spriggs. They indicate that such abnormality as ‘substantially impairs his mental responsibility’ involves a mental state which in popular language (not that of the M’Naughten Rules) a jury would regard as amounting to partial insanity or being on the borderline of insanity - Griffiths LJ in seers said –
o “It is to be remembered that in Byrne … all the doctors agreed that Byrne could be described as partially insane; he was a sexual psychopath who had hideously mutilated a young woman he had killed. In such a case the evidence justifies inviting a jury to determine the degree of impairment of mental responsibility by a test of partial insanity. But it is not a legitimate method of construing an Act of Parliament to substitute for the words of the Act an entirely different phrase and to say that it is to apply in all circumstances. We are sure that this was not the intention of the court in Byrne …, and the phrase was used as one way of assisting the jury to determine the degree of impairment of mental responsibility in an appropriate case, and no doubt to point out that Parliament by the use of the word ‘substantial’ was indicating a serious degree of impairment of mental responsibility.” - The question wasn’t about substantialness but about whether he was in the grip of a psychotic episode, If the jury decided he hadn’t been then it was murder not manslaughter
Louise Kennefick, ‘Introducing a new diminished responsibility defence for England and Wales’ (2011) 74 MLR 750
- Section 52 of Coroners and Justice Act 2009 introduces a causation elements of the mental disorder, making it harder for successful pleas?
‘A more appropriate process of reform would see a re-evaluation of the criminal law at all the points at which it meets issues relating to mental disorder, in order to ensure consistency and fairness in processes dealing with offenders with mental disorders
because the principles of law and psychiatry are based on opposing paradigms, they cannot work together
R Mackay, ‘The Coroners and Justice Act 2009 - partial defences to murder (2) The new diminished responsibility plea’ [2010] Crim LR 290.
Historical Context (1957 Act):
Introduced to reduce murder charges to manslaughter for mentally abnormal defendants.
Focused on “abnormality of mind” impairing mental responsibility, with burden of proof on the defendant.
Reform by Law Commission (2009):
Criticized outdated language and lack of clarity in the 1957 Act.
Proposed a new test based on medically recognized conditions and functional impairments.
Key Changes in Section 52:
Replaced “abnormality of mind” with “abnormality of mental functioning” from a recognised medical condition.
Focused on substantial impairment in three areas:
Understanding conduct.
Forming rational judgments.
Exercising self-control.
Added a causal requirement—abnormality must explain or significantly contribute to the killing.
Exclusion of Developmental Immaturity:
Proposed for under-18s but rejected due to concerns about widening the defence excessively.
Impact of New Criteria:
Medical focus: Requires formal diagnoses (DSM-IV, ICD-10), potentially excluding cases like personality disorders or emotional immaturity.
Narrower scope: Stricter requirements could lead to fewer successful pleas and more contested trials.
Causation Requirement:
Stricter than previous law—abnormality must be a significant contributory factor, not just a minor influence.
Raises concerns about proving causation, particularly in complex cases involving multiple influences (e.g., intoxication).
Practical and Statistical Impact:
Convictions under diminished responsibility fell from 109 (1979) to 39 (2005)—likely to decline further due to stricter criteria.
Most cases previously settled without trial may now face increased litigation.
Comparison with Scotland:
Scotland retained a broader definition, similar to the 1957 Act, without adding a causal requirement—highlighting diverging approaches.
Conclusions:
Reforms aimed at clarity and medical legitimacy but risk excluding borderline cases, leading to more murder convictions.
Critics question whether the changes were necessary given prior stability under the 1957 Act.
A Norrie, ‘The Coroners and Justice Act 2009 - partial defences to murder (1) Loss of control’ [2010] Crim LR 275.
Replacement of Provocation (1957 Act):
The defence of provocation abolished and replaced with loss of control under Sections 54–56.
Expanded triggers include fear of serious violence and anger from being seriously wronged.
Core Requirements (Section 54):
Defendant (D) must lose self-control.
Loss need not be sudden but cannot arise from a considered desire for revenge.
Judged against a normal person of D’s age and sex with ordinary tolerance and self-restraint.
Qualifying Triggers (Section 55):
Fear Trigger: Fear of serious violence from the victim (self or others).
Anger Trigger: Extreme provocation causing a justifiable sense of being seriously wronged.
Exclusions: Inciting the situation (e.g., provoking violence) and sexual infidelity cannot justify the defence.
Abolition of the ‘Suddenness’ Requirement:
Allows delayed reactions (e.g., battered woman syndrome) but may lead to disputes about whether self-control was actually lost.
Focus on Justification over Excuse:
Moves from compassionate excuse (prior law) to imperfect justification—actions seen as partly justified but morally wrong.
Protects against abuses like honour killings and defences based on immaturity or bad temper.
Judicial Control Over Cases (Section 54(6)):
Judges can dismiss weak claims before they reach the jury, limiting unmeritorious defences (e.g., trivial provocation).
Objective Test (Reasonable Person):
Applies age and sex as key traits, rejecting broader characteristics (e.g., mental illness or immaturity) unless tied to diminished responsibility.
Emphasizes moral standards and excludes subjective idiosyncrasies.
Impact on Vulnerable Defendants (e.g., Abused Women):
Introduces a fear trigger for victims of domestic violence who kill out of fear rather than sudden anger.
Provides clearer pathways than forcing such cases into diminished responsibility defences.
Practical Challenges and Restrictions:
Sexual infidelity explicitly excluded as a trigger, even in cases involving systematic taunting.
Narrower defence may exclude emotionally vulnerable defendants (e.g., Doughty, Humphreys cases) who relied on provocation.
Concluding Concerns:
Tighter focus on moral justification and exclusion of older, broader grounds (e.g., emotional immaturity) may lead to fewer successful claims.
Balances fairness with safeguarding against abuses, but risks excluding deserving cases and increasing contested trials.
Church [1966] 1 QB 59, [1965] 2 W.L.R. 1220
Key point
The principle in R v Thabo Meli [1954] 1 WLR 228 applies to manslaughter – the mens rea need not exactly coincide with the act causing death if the act is part of a connected series of acts which at some point of time coincided with the mens rea
To establish constructive/unlawful act manslaughter, the risk of harm have been capable of being foreseen by sober and reasonable people
Facts
D was knocked the victim unconscious during a fight
D dumped her body in the river, thinking that she was already dead
Medical examination showed that D died from drowning
The judge directed the jury to consider the ‘whole course of conduct of the accused as one’
Held (Court of Appeal)
D’s conviction for manslaughter was upheld
Edmund Davies J
In light of Meli the direction was correct
Citing Glanville Williams: ‘If a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter.’
An unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable, some additional element of mens rea is required
To establish manslaughter, ‘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’: p. 70
Lamb [1967] 2 QB 981, [1967] 3 W.L.R. 888
Key points
In constructive manslaughter, the unlawful act must constitute an offence on its own, thus its corresponding mens rea must be present
A reasonable mistake can vitiate intent
Facts
D pointed a revolver at his friend V and pulled the trigger as a joke, but killed V
D mistakenly thought that because the bullets were not in position, the striking pin could not hit them, but a bullet was brought into the firing position when the trigger was pulled
Expert witnesses agreed that such a mistake commonly made
Trial judge did not direct jury that the mens rea for the assault, which at that time was limited to intent, had to be found
D was convicted of constructive manslaughter
Held (Court of Appeal)
Appeal allowed – conviction was quashed
Intent for assault had not been proved
Sacks LJ
Intent for assault had to be proven, the judge had misdirected the jury
In this case intent was not present due to D’s mistake, which the jury should have been directed to take into account
DPP v Newbury and Jones [1977] AC 500, [1977] Crim. L.R. 359
Key point
In constructive manslaughter, the test for whether the unlawful act would likely cause harm is objective
Facts
Ds, both 15, pushed a paving stone left by workmen on the parapet of a bridge which killed a railway guard
Ds were convicted of constructive manslaughter
Ds appealed on the basis that they did not foresee the danger
Held (House of Lords)
Appeal dismissed – it is unnecessary to prove subjective foresight by Ds
Lord Salmon
‘The test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger.’
Commentary
In a later case R v Goodfellow, the court suggested that the unlawful act in this case was reckless criminal damage, so that Ds did have the mens rea for an unlawful act even if they did not foresee harm to another
Dawson (1985) 81 Cr App R 150, [1985] Crim LR 383
Key point
In constructive manslaughter, physical harm must be foreseeable to a sober and reasonable person with the same knowledge as the defendant
Facts
Ds robbed a petrol station with a replica gun and threatened a 60-year-old man V
V later died of a heart attack from the shock, Ds did not know of his heart condition
Ds were convicted with constructive manslaughter
The judge directed the jury that when considering whether all sober and reasonable people would realise that the unlawful act must inevitably create the risk of some harm that meant “all reasonable people who knew the facts that you know.”
Held (Court of Appeal)
Appeal allowed – the judge erred in his direction and the conviction was quashed
Watkins LJ
“the test [of whether an unlawful act is likely to cause harm] can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene and watched the unlawful act being performed … In other words he had the same knowledge of the man attempting to rob and no more”
The reasonable person would not have had knowledge of V’s weak heart and thus would not foresee his heart attack
Commentary
Although the test is mostly objective, it has a subjective element in relation to the knowledge of the defendant
- he did not intent to cause harm and could not have reasonably foreseen that the illegal act would cause harm
- The court ruled that ‘emotional disturbance’ did not adequately describe harm caused by shock from terror or fright. Any jury inference that emotional disturbance alone constituted harm was a misdirection. For manslaughter, it clarified the second element required an unlawful act recognized by sober individuals as likely to cause physical harm. The jury’s misdirection on the ‘sober and reasonable man’ knowledge, limited to a robber, was noted. Notably, the appellants were unaware of the victim’s heart condition, the court deemed the manslaughter convictions unsafe, allowed the appeals, and quashed the convictions.
- EMOTIONAL DISTURBANCE DOES NOT CONSTITUTE HARM – emotional disturbance alone does not adequately describe the injury caused by shock from terror – harm referred to was physical
Watson [1989] 1 W.L.R. 684, [1989] Crim LR 733
Key point
If D becomes aware of the vulnerability of the victim during his unlawful act, when determining whether a sober and reasonable person would find physical harm to be likely, the person has that knowledge
Facts
D broke into the house of an 87-year-old, verbally abused him, and left without taking anything
V had a serious heart condition and later died of a heart attack
D was convicted of constructive manslaughter, the unlawful act was burglary
D appealed, one ground being that burglary is committed at the point of entry, at which time he did not know the age or physical condition of the occupier
Held (Court of Appeal)
Appeal allowed – the above ground of appeal was rejected but appeal was allowed on another ground that is not relevant here
Lord Lane
The act of burglary does not end when D crosses the threshold of the premises
The jury were entitled to ascribe to the bystander the knowledge which the appellant gained during the whole of his stay in the house
A sober and reasonable person would have recognised V’s vulnerability at once
Lowe [1973] QB 702, [1973] Crim. L.R. 238
Facts: The defendant (D), a man of low intelligence, was alleged to have neglected his baby daughter by failing to summon medical assistance when she became ill. The child died some 10 days later of dehydration and gross emaciation (i.e. the state of being abnormally thin or weak). The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act (i.e. neglect that results in death would be sufficient for a finding of unlawful act manslaughter). The jury subsequently convicted him of both neglect and manslaughter. D appealed to the Court of
Held: The appeal was allowed. For constructive manslaughter there must be an unlawful ‘act’; the offence could not be committed by an omission.
The outcome of this case has been criticised as there seems to be little logical basis for this conclusion.
Kennedy [2007] UKHL 38, (2008) Crim LR 222
Key point
A voluntary and informed choice by the victim breaks the chain of causation
Fact
Kennedy prepared a syringe of heroin for Marco Bosque, Bosque injected himself and died
Kennedy was convicted for manslaughter
Held (House of Lords)
Appeal allowed; conviction overturned
Bosque had made a voluntary and informed choice to inject himself which amounted to a novus actus interviens
Lord Bingham
‘The criminal law generally assumes the existence of free will. The law recognises certain exceptions, in the case of the young, those who for any reason are not fully responsible for their actions, and the vulnerable, and it acknowledges situations of duress and necessity, as also of deception and mistake. But, generally speaking, informed adults of sound mind are treated as autonomous beings able to make their own decisions how they will act, and none of the exceptions is relied on as possibly applicable in this case. Thus D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another.’: [14]
Commentary
Had Kennedy injected Bosque himself he would have been responsible
Carey [2006] Crim. L.R. 842
Aimee Wellock, aged 15, and three friends went out for an early evening walk. They came across the three appellants who had been drinking. The appellants started making fun of Aimee and her friends and then became physically violent. Aimee had her head pulled back and was punched in the face. Two passing motorcyclists stopped and shouted at the appellants and they ran off. Aimee then ran off. She ran just over 100 metres but then unfortunately she collapsed and died. It transpired that she had a severely diseased heart and the run had induced a ventricular fibrillation which resulted in her death. The three appellants were convicted of affray and constructive manslaughter. They appealed against the manslaughter conviction.
Held:
The manslaughter convictions were quashed. The physical assault on Aimee was not the cause of death. The cause of death was Aimee running away in fear, however, this was not act which the hypothetical sober and reasonable person would regard as subjecting Aimee to some physical harm.
Dyson LJ:
“This is a most tragic case. Aimee and her friends were the subject of an entirely unprovoked attack whilst they were taking a walk on a pleasant summer evening at a local beauty spot. It was a thoroughly unpleasant attack accompanied by menace and bullying. But the injuries caused to the three girls which we have described were slight. None of the appellants intended to cause really serious harm to any of the victims, still less did they intend that Aimee should die. No doubt, but for the affray Aimee would not have died when she did. It is understandable that Aimee’s family in particular, but no doubt others too, should think that the appellants are responsible for Aimee’s death. In a sense they are. As we have said, but for the affray, Aimee would not have died when she did. But that is not sufficient to make them guilty of manslaughter. There are those who believe that the definition of unlawful act manslaughter is too wide and catches within its net persons who should not be held criminally liable for another’s death. The principle enunciated in Church is, however, clear and now well established as part of our law. It means that a person who inflicts quite slight injury which unforeseeably leads to the death of the victim is guilty of the serious offence of manslaughter: in law, he is criminally liable for the death. This principle must, of course, be loyally applied and without reservation.
For the reasons that we have given, to hold these appellants liable for the death of Aimee in circumstances such as occurred in this case would involve an unwarranted extension of the law. In our view, such an extension would come close to saying that if X commits an unlawful act but for which Y would not have died, X is criminally liable for the death of Y. That is not our law. Our law requires that X commits an unlawful act which is dangerous in the sense that it is recognised by sober and reasonable persons as subjecting Y to the risk of some physical harm which in turn causes the death. The only act committed against Aimee which was dangerous in that sense was C’s assault on her, but physical harm resulting from the assault itself did not cause Aimee’s death. It must follow that none of the appellants was guilty of manslaughter.”
Adomako [1995]
Key point
The test for gross negligence manslaughter is the same as the test for negligence in tort: see below
Facts
D, an anaesthetist, did not notice that a tube had been disconnected from the ventilator during an operation
V, the patient, suffered a cardiac arrest and died
D was convicted of gross negligence manslaughter
D appealed in relation to the basis of gross negligence manslaughter
Held (House of Lords)
Appeal dismissed – D’s conduct amounted to gross negligence
Lord Mackay
“…the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime”
Levenson LJ
(3) ‘The question of whether there is a serious and obvious risk of death must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty.
(4) A recognisable risk of something serious is not the same as a recognisable risk of death.’
Commentary
The elements of the tort of negligence are as follows:
a duty of care owed by the defendant to the claimant;
the defendant breach that duty; and
a relationship of causation between the breach and loss or damage to the claimant
R v Rose [2017] EWCA Crim 1168
Key Point
To establish gross negligence manslaughter, a serious risk of death must be reasonably foreseeable without considering the information which D should have had available had they not breached their duty.
Facts
D, an optometrist, performed a routine eye examination, determining that V did not need glasses
5 months later, V fell extremely ill from hydrocephalus (a buildup of brain fluid) and passed away
V’s cause of death was recognisable by any competent optometrist at the time of D’s eye-test through a specific examination
Furthermore, all optometrists had a statutory duty to perform such an examination during routine eye-tests
D had performed the examination at the time, but when looking at the tests, she accidentally viewed the images from the previous year
D was convicted by gross negligence manslaughter and appealed the conviction
Held (Court of Appeal)
Appeal allowed; D was acquitted of gross negligence manslaughter
There was no serious and obvious risk of death at the point of breach
Sir Brian Levenson P
“Put at its highest, what a reasonably prudent optometrist would or should have known at the time of the breach was that, if he or she did not carry out a proper examination of the back of Vincent’s eyes, there remained the possibility that signs of potentially life-threatening disease or abnormality might be missed. This is not enough to found a case of gross negligence manslaughter since there must be a ‘serious and obvious risk of death’ at the time of breach”: [86]
“The fact that the cause of the defendant’s lack of knowledge of a serious and obvious risk of death to the victim was the defendant’s own breach of duty to carry out a requisite examination or inspection is not to the point”: [91]
“The implications for medical and other professions would be serious because people would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death”: [94]
Commentary
Interestingly, this case means that medical professionals who fail to carry out their job by not performing examinations or looking at the wrong files may actually be acquitted whereas their counterparts who performed such tests or looked at the results but omitted from taking action or suggesting treatment may be convicted.
Rogers (2009) 6 Archbold News 6
Kennedy: Focused on causation principles—self-injection broke the causal link.
Evans: Imposed a duty of care based on creating a dangerous situation, despite the victim’s voluntary act.
Critique: The Evans ruling contradicts Kennedy, as the voluntary act in both cases should have absolved liability under causation principles.
The Evans ruling expands liability for omissions in drug-related deaths but conflicts with Kennedy’s causation-focused approach.
Reform should:
Impose stricter liability on professional dealers.
Clarify duty of care rules for those with close relationships or explicit undertakings.
Consider introducing legislative reforms to address gaps in the law rather than relying on inconsistent judicial rulings.
what constitutes a recognised medical condition for the purposed of a plea of diminished responsibility?
Lord Parker CJ in Byrne: Abnormality is “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”
Generally follows WHO’s international Statistical Classification of Diseases and Related Health Problems (ICD-11) and American Medical Association’s Diagnostic and Statistical Manual (DSM-5)
Can be long term mental disorders (e.g. schizophrenia, bipolar), or transient disorders of the mind (e.g. brought about by diabetes), includes addiction to drugs or alcohol
However, Dowds: Acute intoxication was not considered a recognised medical condition for purposes of DR even though it was listed in ICD and DSM
In absence of explicit Parliamentary intention, the CJA 2009 is to be read against the established law that voluntary intoxication cannot found DR
Direction for substantial:
“Substantial” in DR refers to an impairment which went beyond something that, although it might have made it harder for the defendant to control himself and to refrain from crime, did not really make any great difference (Golds)
church test for dangerous act?
Church: “The unlawful act must be such that all sober and reasonable people would inevitably recognise it as an act which must subject the other person to at least the risk of some harm resulting therefrom albeit not serious harm”
Dangerousness is objective, not subjective
Danger need not relate to a risk of death or GBH, minor physical harm is sufficient
AR for homicide?
Sir Edward Coke
1) unlawful
2) death (Brain stem death
Airedale NHS Trust v Bland [1993] AC 789)
3) of a human being (AG’s Ref (No. 3 of 1994) [1998] AC 245)
4) causation - acceleration of death, can be through omission for murder and GNM
5) within a year and a day = Law Reform (Year and a Day Rule) Act 1996
- abolishes year and a day rule (s 1)
6) under the King’s peace
