Criminal Law: Murder and Manslaughter

This document explains the provisions of murder, attempt to murder and manslaughter as a criminal offence under the Homicide Act 1957 and the Coroner and Justice Act. It discusses the elements of murder and manslaughter, partial defenses, and legal causation. The document also includes case studies and analysis to understand the application of criminal law in real-life scenarios.

Running Head: CRIMINAL LAW
CRIMINAL LAW
Name of the Student
Name of the University
Author’s Note

1CRIMINAL LAW
Question 1:
Issue:
The issue in the case is whether Carole is liable for the death of Louise.
Rules:
Homicide Act 1957 is the governing law for the provisions of murder,
attempt to murder and manslaughter as a criminal offence. In addition, the
Coroner and Justice Act is the governing act for the matters of homicide
including manslaughter and murder. Homicide is constituted of two offences
namely the murder and the manslaughter.
The elements for murder are that the alleged convict should be of
mentally sane state of mind, unlawfully kills (meaning without any self-
defense or any other justified cause of killing), and another living human
being and with the intention to kill that person. The person should be a
reasonable creature, living and breathing through his or her lungs. This has
been stated and confirmed in Rance v Mid-Downs Health Authority1. The
intention for murder holds the most important element to constitute the
crime. The person should have primary motive to kill or cause bodily harm to
the other person and the same shall be inferred by the jury through the
foreseeable harm. The principle was explained in R vs. Woollin2. The
necessary intention is drawn from the knowledge that the defendant feels
1 (1991) 1 All ER 801
2 [1999] 1 Cr App R 8 (HOL)

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sure that death or grievous bodily harm is what the defendant would
appreciate against the other person. However, the intention to kill is further
explained in R vs. Grimwood3, as murder requires the intention kill and not
just causes grievous bodily harm. Further, the causation is what makes a
man guilty other than the intention. The death of the person should have
arisen from the cause of actions taken or omitted by the defendant. In other
words, the actions taken or omitted by the defendant should result in t6he
death of the other person. This has further been explained in R vs. Dyson4.
In R vs. Reid,5 it has been held that the report of defendant’s medical
condition should be obtained from local Crown Court and the same should be
intimidated to the prosecution. In head injuries, the Crown’s pathologist
performs post-partum investigation including the neurological analysis for
which the production of report may take up to 12 days’ time. Further, in R vs.
Cokesix Lubemba6, it was held that the prosecution should take into
consideration the probability of mentally disorder offenders. Therefore, the
prosecution should consider the Psychological Evidence Kit.
Section 6 of the Criminal Law Act 1967 states that the prosecution for
murder may result in an alternative verdict called the manslaughter, which is
an indictment to murder where a person may not be found guilty, but that
person may be found guilty for manslaughter. Manslaughter offers partial
defenses to the alleged offender, as firstly voluntary killing, which is the loss
3 (1962) 3 All ER 285
4 (1908) 1 Cr App R 13.
5 (2002)1Cr App R21
6 [2014] EWCA Crim 2064 [2014] para 38.

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of control and other, is the involuntary killing involving diminished
responsibility and pursuant to the pact of suicide. The first element explains
the loss of control wherein Section 54(1)(a)(b) and (c) of Coroners and Justice
Act 2009, states the following three components to constitute the defense:
 Loss of control means the actual control lost by the party, which
led to the act committed or omitted.
 Triggering point means, the gravity of the act committed or
words spoken that led to the commission or omission of an act.
In R vs. Clinton and Others,7 it was held by the court that the
prosecution should take into consideration the gravity of the
circumstances and the degree to which the plaintiff leading to
the justifiable conclusion made by the defendant that he has
been seriously wronged and that he should now react wronged
the defendant.
 Objective test to ensure age, sex, tolerance potentiality by any
other reasonable man. In other words, it means that the
potentiality of the defendant should be tested to ensure the
tolerance capacity of any reasonable man in the given situation
so that the quantum of reaction may be assessed by the court.
7 [2012] EWCA Crim 2, at para.11

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In R vs. Christian8, it was held that the quantum of reaction should be
in the probable range of the triggering point. The damage should be
quantum to the trigger to lose control.
Section 52 of the Coroners and Justice Act 2009 states the elements
constituting diminished responsibility:
 Abnormal functioning of brain- this means that the mental
condition of the brain should be abnormal or disabled to think
about the natural consequences of the actions of the person.
 Such abnormality should have arisen from a diagnosed mental
condition- this means that such mental condition that led to the
commission or the omission of the act should be diagnosed in a
medical clinic by an expert of medical science so that the expert
assistance may be given to the defendant in normal course of life
prior to the happening of events.
 Such condition has led to the person’s disability to exercise self-
control or understand the nature of his conduct or both- this
means that the disability has led the person or to lose
consciousness about his or her ability to exercise the self-control
or understand the consequences of his or her actions.
 Such disability provides an explanation for his conduct- this
means the conduct resulting in the death or harm is the outcome
of such disability of the person.
8 [2018] EWCA Crim 1344

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In R vs. Byrne9, the Court as the disability in the process of thinking
explains the abnormal functioning of the brain or reasoning as any
reasonable man would do under the same facts and circumstances.
However, in R vs. Conroy10 the decision was based on the rule that the
person’s disability to should be diagnosed as a medical condition and not as
the spur of moment. Further, in R vs. Brennan11 it was confirmed by the
Court that an expert psychiatrist should be permitted to provide his or her
opinion on all the elements including the ultimate deciding issue of the case.
In R vs. Joyce Kay12, the partial defense was upheld by the court on the
ground the the diagnosed condition of schizrophinia was so severe that in
spite of voluntary intoxication, the condition would have prevailed even in
the absence of intoxication.
In unlawful manslaughter, negligence holds one of the most important
elements wherein, in case the parties are sound, the court assumes the
consent being exercised at free will. Mere supply of dangerous products does
not make the party liable for the unlawful killing. This was confirmed in R vs.
Kennedy (Simon)13.
Section 5 of the Domestic Violence, Crime and Victims Act 2004,
amended in 2012 extends its applicability to a vulnerable adult or child has
died or suffered grave injurious due to violence by family people.
9 [1960] 2 Q.B. 396
10 [2017] EWCA Crim 81
11 [2014] EWCA Crim 2387.
12 [2017] EWCA Crim 647
13 (2007) 3 W.L.R. 612

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Application:
In the given scenario, if we put in the facts and circumstances with the
elements of murder, we can understand that Carole had no intention to kill
her sister and hence the basic element of murder, which is mens rea or the
intention to kill, is not fulfilled. Carole was suffering from acute depression
due to continuous abuse by Louise. Therefore, she had a motive, which is
primary basis for murder. However, with the turn of events, it can be
understood that one unfortunate night, her sister again abused her and she
was repeatedly begging her to leave her alone. Still not reacting or
responding violently to the abuse inflicted upon her by Louise. But the
comment led a triggering point at which she lost control. Hence, she may
have a long-term secondary motive, but the turn of events prove that it was
not her intention to harm her sister as the primary motive lacked in the case.
If there was primary intention, then the response would have been
immediate and not wait till the loss of control or tolerance takes place. In
addition to it, Carole has been mistreated all her life, which gives her a long-
term motive, but she had never reacted upon it, which means the primary
motive lacked. Therefore, the element of murder constituting the intention or
the mens rea is not fulfilled in the given facts and circumstances of the case
and thus, Carole cannot be held liable for murder. However, she can be
charged for manslaughter.
We can analyze the facts and circumstances of the case with elements
of manslaughter. The first partial defense is loss of control. The three

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elements of loss of defense are fulfilled as Carole lost her control when
Louise made a comment about her. Therefore, the comment was the
triggering point for Carole to commit the act. Further, under the objective
test, we can discuss few points. Firstly, Carole was a victim of regular abuse
by Louise and that unfortunate night, and secondly, Carole repeatedly
begged her to stop bullying and leave her alone. However, she continued her
violence and under these circumstances, any reasonable man would have
reacted. but the quantum of damage can be discussed under the other
partial defense called the diminished responsibility. The elements of
diminished responsibility were satisfied as Carole was suffering from mental
disability, which was diagnosed by the doctors as acute depression. Further,
the mental condition led her to lose control during the incident and hence,
the act was committed due to the loss of control. Furthermore, the crowbar
is a dangerous weapon and it was left at the house by a worker.
Let us analyze if the worker can be held liable for assistance in
manslaughter. In R vs. Evans14, it was held by the Court that the mere supply
of dangerous product or weapon does not make the person liable for the
injury caused due to then use of such weapon provided that the person
receiving such product is an adult and is of sane mind. However, in the given
scenario, the worker did not know that the course of events may take place
14 [2009] EWCA Crim 650

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in a way he had not expected at all. Also, that the Court assumes that if the
product received by the other person is sane and an adult then the consent
is supposed to free and at will. However, it can also be contended by the
defense that the worker, because he works everyday there, knows that
Carole is suffering from a mental disability and that she did not receive the
weapon at free will. Therefore, the worker may be held liable for the
negligence on his part to forget and leave the crowbar behind. However, the
workman may contend that he had no knowledge of her mental disability.
She did not let her sister know, and therefore, even he did not know. The
facts of the case are however, silent on this information.
It can be contended by the prosecution, that the quantum of damage was
too much in comparison to the triggering point. The defense may argue that
due to repeated violence and abuse, her medical condition was very
vulnerable to reaction even at the slightest trigger. The prosecution may
actions. The defense may contend under section 5 of Domestic Violence,
Crime and Victims Act 2004, it was the duty of Louise to take care of her
younger sister and help her through the depression. The prosecution may
object that it was Carole’s decision to not let Louise know of her medical
condition.
Conclusion:
It can be concluded that Carole may not be liable for the death of
Louise.

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Question 2
Issue
Whether the actus reus of a crime has been fulfilled by Geoff, Fred, Ian and
Harry.
Rule
Actus reus and mens rea are considered the foundation of criminal law. The
literal meaning of “actus non facit reum nisi mens sit rea” is that a person is
not guilty for an act until and unless he or she has a guilty mind. A person is
found guilty if it is proved that they are blameworthy or culpable in both the
action and in thought. This is considered as the general difference between
manslaughter and murder. However, some complications like legal
causation, omission to act, recklessness and intention.
Generally no liability is carried for the failure or omission to act. This means
that criminal liability can only be imposed on a person when a positive act
has been performed by him or her. There is a classic example regarding this,
B was drowning and A was passing by him. A could have been saved by B if
he had held B’s hand. However, A had not held B’s hand and as a
consequence B drowned. A would not be held liable.
However, six exceptions are there to this rule. The first exception is the duty
which arises from any statute. As an example, omissions are made culpable
under the Children and Young Persons Act15, for failure in looking after any
15 Children and Young Persons Act 1933.

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children under the age of 16 years by any person above 16years of age.
Thus, inadequacy of clothing and food to any child would constitute actus
reus of the crime.
The second exception is the duty which is arising from any special
relationship. It was ruled in the case of R v Gibbins and Proctor16 that a man
along with his wife was found guilty for the commission of murder as a
consequence of failure in feeding the daughter of the man. It was sufficient
enough for making the wife liable for such crime as the daughter was hated
by the woman. The third exception to this rule is the assumption of care.
However, it has been stated in the statutory laws that the parents would not
be liable for the children after they complete their 16 years of age. In R v
Chattaway17, a duty of care was imposed on the parents when the child has
completed the age of 16 years but still resides with them and is also a
dependent. The other three exceptions are the official, public and
contractual duties; duty of averting danger of someone’s own making and
the failure in providing medical treatment.
Legal causation is the link between the conduct and result. Factual causation
can be established by way of conducting “But-for” test, whereas legal
causation is considered bit trickier in nature. It was held in the R v Cheshire18
that a break in causation chain is amounted by medical negligence, unless
16 [1918] 13 cr app rep 134.
17 [1922] Cr App R 7.
18 [1991] 1 WLR 844.

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the defendant independently acted in such way or the death caused in such
potent way.
Intention is considered important as it is the requirement of mens rea for the
serious offences which also includes murder. Two types of intention are there
which are oblique intent and the direct intent. Direct intent is comparatively
straight forward which links with the purpose or aim of the defendant. In
oblique intent, the consequences were not desired by the defendant but the
occurrence was known by him or her. In the case of R v Maloney19, two
questions were asked to the jury, which are, whether, a defendant’s act
naturally results in any serious injury or murder and whether the
consequence was naturally foreseen by the defendant as a natural
consequence.
Recklessness has been defined in the R v Cunningham20, as a foreseeing of
any harm of a particular kind but letting it go anyway. In R v Caldwell21
second recklessness detection way was outlined which says carrying out of
an act which creates damage or risk of obvious nature or recognition of a risk
and letting it go anyway constitutes recklessness.
Application
In this given scenario, a football match was attended by John who was
looking to fight with the rival fans. Geoff who was a rival fan attacked John
and punched him, and as a consequence John fell down. After such incident
19 [1985] 1 AC 905.
20 [1957] 2 QB 396.
21 [1981] 1 All ER 961.

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John was kicked on the head by Fred several times, which was seen and
ignored by Harry who is an officer of police. After getting head injuries John
was admitted to a hospital where a doctor named Ian treated him and
administered pain killer drugs of which John suffered rare allergy and
instantly died. In this given scenario, John was hurt by Geoff and Fred
however, they had no intention of killing John, all of such incident happened
out of excitement and due to their loyalty for the football team they support.
But there was intention of hurting John or causing serious injuries to him by
both Geoff and Fred. Thus they were blameworthy or culpable in both the
action and in thought. They were also presence of recklessness in their act
which can be supported by the case of R v Cunningham22 and R v Caldwell23.
They even had the intention which is considered as the requirement of mens
rea which can be supported with the case of R v Maloney24. Thus the actus
reus of the crime has been fulfilled by Geoff and Fred.
Harry was a police officer but he ignored the incident even after seeing all of
the things in front of him out of the fear of being assaulted by the supporters
present on the ground. Harry has violated his duty which has been imposed
on him for being a police officer, which constitutes the first exception to the
rule of omission to act. His act also constitutes the exception of oblique
intention which can be supported by the case of R v Maloney25. Recklessness
was also there in his act which can be perfectly supported with the cases of
22 [1957] 2 QB 396.
23 [1981] 1 All ER 961.
24 [1985] 1 AC 905.
25 [1985] 1 AC 905.

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R v Cunningham26 and R v Caldwell27. Thus the actus reus of the crime has
been fulfilled by Harry.
Ian was the doctor to whom John was admitted in the hospital for treatment
and pain killer drugs were administered by him to John resulting from which
John suffered rare allergy and instantly died. The third exception which is the
assumption of care has been constituted by Ian in this scenario. R v
Chattaway28 case perfectly fits in this case. There is presence of legal
causation in Ian’s act as there was medical negligence, which can be
supported by R v Cheshire29 case. There was also presence of oblique intent
from Ian’s part, in which the case of R v Maloney30 perfectly fits. Thus the
actus reus of the crime has been fulfilled by Ian.
Conclusion
Therefore, it can be concluded that, the actus reus of a crime has been
fulfilled by Geoff, Fred, Ian and Harry.
26 [1957] 2 QB 396.
27 [1981] 1 All ER 961.
28 [1922] Cr App R 7.
29 [1991] 1 WLR 844.
30 [1985] 1 AC 905.

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Question 3:
The case study given is based on the concept of recklessness under
criminal law which has resulted in the comparative opinions differentiating
whether a subjective test should be applied for the determination of the
outcome of recklessness or an objective test should be applied for the same.
The concept is broadly covered under the Criminal Damage act 1971, section
1 which lays does that when a person is aware of the risk that is associated
with the consequences of any task and he or she still decides to act upon the
task, ignoring such risk, then the person is said to have recklessly performed
the task. The knowledge of the risk is an essential element for the rule to
apply.
The cases prior to R vs. G and R31, were decided on two main
approaches. First approach was derived from R vs. Cunningham32 where the
rule was applied when the person has the knowledge of the risk associated
with the task and yet decides to act upon it anyway. Mere or slightest
knowledge of the risk was enough for the rule to be interpreted and applied
in the cases. The Act 1971 replaced the term malice with recklessness to
support the purpose of the statute. However, the meaning of recklessness
has always been a subject of debate and has been clarified in a number of
cases of which R vs. G and R embarks as the landmark judgment. The
subjective had failed because the court considered the knowledge of the
31 R v G and R [2003] UKHL 50
32 (1957) 2QB 396

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defendant the resulted in the injury or harm. However, if the defense proves
that the defendant did not have the knowledge, then the court would acquit
him assuming that the defendant did not know the risk but should have
known the consequences of the task or his actions.
The second approach to the interpretation of the rule of recklessness
followed the case of MPC vs. Caldwell33 in which the rule was interpreted in
the objective way. It is explained by the court that a person is obliged to
foresee any risk that has been associated with the task. It was held that if a
person foresees a task, and yet acts upon it, he or she shall be held liable.
However, if a person does not foresee the risk associated with the task, he or
she is yet liable for the recklessness because the court assumes that any
reasonable man shall have the obligation to foresee the risk associated with
the task. Nevertheless the approach was broadly criticized by the scholars34
as the defendants who genuinely did not foresee the risk associated with the
action acted upon by him or her were also held liable for recklessness. As
opined by Ibbetson35, the decision is a terrible outcome because the
difference between the criminal damage and the offences against the person
was based on unprincipled interpretation which led to unjust decisions
especially if the defendant is a child or an uneducated person who has no
capability to foresee a reasonable risk.
33 (1982) AC 341
34 Elliot C, “Recklessness: Caldwell test abolished” J.Crim.L.2004, 68 (1) 31-33
35 Ibbetson D, “Recklessness restored” C.L.J. 2004, 63 (1).

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In R vs. G and R, two boys aged 11 and 12 went camping for a night
without their parents’ permission where the children found few newspapers
and started setting them on fire in a dustbin near the supermarket. they left
the place without putting them out assuming that the fire would naturally
burn out. However, the course of events took a drastic turn and the burning
newspapers caught severe fire and it spread to the supermarket causing
severe damages. The court held that the children were not liable for
recklessness wherein the court applied the subjective approach as confirmed
in the Cunningham case. It was understood by the approach application that
the boys did not have the knowledge of the risk or the consequences of their
act. The approach justified the morality of blameworthiness where a child’s
innocence or stupidity cannot be accounted for criminal liability. Therefore,
the convictions of the defendants were quashed by the Court.
The decision of R vs. G and R is the turning point for the unprincipled
approach which as stated by Lord Bingham, led to unfair decisions especially
if the defendant is not capable to foresee a risk for example a child. The
Court did not overrule the decision or approach of Caldwell but reinstated a
new law in confirmation with the Cunningham approach which said that a
person shall be held liable for recklessness only when he or she has the
knowledge of the risk associated with a task and yet chooses to ignore it and
act upon the task anyway.

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Following the judgment in R vs. G and R, the courts have taken drastic
steps to apply the meaning and definition of recklessness in various cases
along with voluntary intoxication where the ability of the defendant to
foresee a risk associated with a task is lost due to intoxication which if sober,
would have been acknowledged by him or her. However, courts have taken a
mixed approach. In Booth vs. CPS36, the court upheld the criminal damages
stating that the defendant is liable for the recklessness. The defendant was
voluntarily intoxicated and stepped out of car leading to collision of cars. The
court held that in spite of intoxication, he shall be held liable on the ground
that he must have voluntarily chosen to ignore the risk associated with his
actions. Therefore, the court seems to taken an objective approach. This is
so because it has been explained by the scholars that if the approach is too
subjective then it is easier for the party to avoid liability based on
intoxication or minority or any other subjective grounds37.
It can be concluded that the subjective nature of the provision for
recklessness is still a matter of debate, however, the courts choose to apply
the rules not too subjective and at the same time not too objective,
depending upon the facts and circumstances of the case so that justice is not
denied to the victim. Recklessness is a vast provision and assessment of
knowledge of risk is a complex process and therefore, the judge has to look
into the intention or motive of the defendant before he acted upon the task
in order to acknowledge the willful ignorance of risk.
36 (2006) EWHC 192, [2006] ALL ER (D) 225 (Jan)
37 Stark F, “It’s only words: On meaning and mens rea” CLJ 2003 72 (1) 155-177

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Bibliography:
Cases
Booth v CPS (2006) EWHC 192, [2006] ALL ER (D) 225 (Jan)
MPC v Caldwell (1982) AC 341
R v Caldwell [1981] 1 All ER 961.
R v Chattaway [1922] Cr App R 7
R v Cheshire [1991] 1 WLR 844
R v Cunningham (1957) 2QB 396
R v Cunningham [1957] 2 QB 396
R v Gibbins and Proctor [1918] 13 cr app rep 134
R v Maloney [1985] 1 AC 905
R vs. Brennan [2014] EWCA Crim 2387.
R vs. Byron[1960] 2 Q.B. 396.
R vs. Christian [2018] EWCA Crim 1344.
R vs. Clinton and others [2012] EWCA Crim 2, at para.11.
R vs. Cokesix Lubemba [2014] EWCA Crim 2064 [2014] para 38.

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R vs. Conroy[2017] EWCA Crim 81.
R vs. Dyson (1908) 1 Cr App R 13.
R vs. Evans [2009] EWCA Crim 650.
R vs. Grimwood (1962) 3 All ER 285
R vs. Joyce Kay [2017] EWCA Crim 647.
R vs. Kennedy (Simon) (2007) 3 W.L.R. 612.
R vs. Reid (2002)1Cr App R21.
R vs. Woollin[1999] 1 Cr App R 8 (HOL)
Rance v Mid-Downs Health Authority (1991) 1 All ER 801
Legislations
(Legislation.gov.uk, 2019)
<http://www.legislation.gov.uk/ukpga/2009/25/pdfs/ukpga_20090025_en.pdf
> accessed 18 July 2019
Children and Young Persons Act 1933
'Criminal Damage Act 1971' (Legislation.gov.uk, 2019)
<https://www.legislation.gov.uk/ukpga/1971/48/contents> accessed 18 July
2019'

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Domestic Violence, Crime And Victims Act 2004' (Legislation.gov.uk, 2019)
<https://www.legislation.gov.uk/ukpga/2004/28/contents> accessed 18 July
2019
'Homicide Act 1957' (Legislation.gov.uk, 2019)
<http://www.legislation.gov.uk/ukpga/Eliz2/5-6/11/enacted> accessed 18
July 2019
Articles:
Crosby C, “Recklessness – the continuing search for a definition” JCL 2008 72
(313).
Elliot C, “Recklessness: Caldwell test abolished” J.Crim.L.2004, 68 (1) 31-33
Ibbetson D, “Recklessness restored” C.L.J. 2004, 63 (1).
Kibel D, “Inadvertent recklessness in criminal law” LQR 2004 (120) Oct, 548-
554.
Stark F, “It’s only words: On meaning and mens rea” CLJ 2003 72 (1) 155-
177
Books:
Smith and Hogan, Text, cases and material on Criminal Law (11th edition,
Oxford university press 2014) 902