Criminal Law Homicide

Provocation is defined in S.3 of the Homicide Act 1957; a defendant must show that he or she was provoked (R v. Acott) by something said or done (R v. Doughty) which made the D suffer a sudden and temporary loss of self-control and a reasonable person would have done the same thing. There have been many problems concerning the words “sudden and temporary” loss of self-control. In R v. Luc Thiet Thuan, Lord Goff stated that the provoking act that causes the D to lose self-control might be the last of a series of acts, which finally provoked the D to lose self-control. Devlin LJ in R v. Duffy created a requirement that stated that the D must have suffered a “sudden and temporary loss of self-control”; if there is a period of time between the provocation and the act of the D then the law assumes the D has killed in anger. A problem occurs in cases of murder arising out of domestic violence where in the majority of cases a woman has suffered provocation, over the years from a partner and then kills that partner as a result of a final act of provocation. This is referred to as a “slow burn” and goes against the test laid out in R v. Duffy. Women suffering from this sort of provocation are said to have suffered “Battered woman’s syndrome”. It was discussed in Ahluwalia that although it is necessary to show that the D suffered a loss of self-control because of provocation, a break in the time period between the provocation and death does not remove the availability of the defence. The sudden and temporary loss of self-control will only become harder to prove. In this scenario it can be said that Gary was provoked by Robbie when taking into account the “slow burn” factor Gary had been “beaten up on numerous occasions” throughout their relationship and the final provocative act was that of the abusive behaviour which Gary received when returning from the “pub” with Robbie. Gary received acts of provocation from Robbie in the format of the abusive comments he made and through the slap. It could be stated that Gary suffered from a form of “Battered woman’s syndrome” or even Battered persons syndrome as can be seen in Attorney General’s reference (No.24 of 2003) where it was seen that gender is irrelevant in battered woman’s syndrome cases. As cases throughout the years have been more about women it is called “Battered woman’s syndrome”. The Crown Prosecution Services definition of “domestic violence” and who it can be directed to states that it is “any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners regardless of gender or sexuality”.

In provocation cases it must also be asked whether a “reasonable man” would have lost control and acted as D did. The case of DPP v Camplin allowed juries to take account of D’s characteristics. Lord Diplock set out 2 separate distinct issues, the gravity of the provocation and the power of self-control. These may be psychological as well as physical characteristics (R v. Dryden). However the case of R v. Smith (Morgan) stated that it was no longer necessary to refer to the “reasonable man” but instead ask what could “reasonably be expected” of the D and therefore the Camplin distinctions were abolished. The case of A-G for Jersey v Holley restored the Camplin distinctions as it overruled Smith (Morgan) and followed Luc Thiet Thuan.

Gary lost his self-control through the provocation and it can be argued that a reasonable man with the same characteristics as Gary would have acted as he did. As Robbie abused Gary in a domestic setting, causing Gary to suffer provocation and then slowly “burn” from the provocation and suffer a battered persons syndrome, this caused him to lose self-control and react by killing Robbie. It can therefore be said that the murder charge against him can be reduced to one of manslaughter.

There are 2 types of Manslaughter – voluntary and involuntary. Voluntary manslaughter is an offence that could be referred to as murder except for certain circumstances or situations, which reduce the liability of the D, even though they have the actus reus and mens rea for murder. Involuntary murder is where D does not intend to kill or cause GBH but D has faulted and therefore can be criminally convicted. For the death of Robbie, Gary had intention and therefore can be accused of voluntary manslaughter.

In relation to Marge, the same approach can be applied to see what Marge’s death amounts to. Gary could be charged with murder, if it can be proved that he had the actus reus and mens rea necessary for this crime. If applying the law discussed above causation has a role to play in this scenario, as a causal link must be proved starting from Gary’s act or omission leading to Marge’s death. Therefore the prosecution must prove that his “act” or omission (failure to act) caused Marge’s death. It must be asked then applying the factual and legal tests for causation – “but for” Gary’s “act” would the harm have occurred to Marge? It must also be asked whether the actions of Gary were an “operating and substantial” cause of Marge’s death (R v. Cheshire) and whether it was “reasonably foreseeable” (R v. Pagett) that because of these actions Marge would die. As Gary left Marge alone without care it can be argued that he caused her death, however Gary can argue that the chain of causation was broken by a “Novus Actus Interveniens” an independent intervening act of the doctor giving her the wrong medication and of her being allergic to it and dying. However the “thin skull” rule shows that a D cannot argue that because of some weakness that the V has, that the cause of death was their own, the D must take them as they find them (R v. Blaue). If V dies because of some other cause of death then the offence of manslaughter is not committed even though the other elements of the offence including mens rea, are present. It is also unlikely that a claim that medical negligence caused someone’s death would be successful, as cases in the past have not succeeded, (R v. Malcharek and Steel) the case of R v. Jordan being the exception as it has been shown that only in the most unusual cases, will medical treatment break the chain of causation.

Robert Goff LJ in R v. Pagett stated that “the accused’s act need not be the sole cause, or even the main cause, of the V’s death, it being enough that his act contributed significantly to that result.” A judge directs the jury to see if D’s act was a factual or legal cause of V’s death. In Gary’s case it can be argued that “but for” his “act” Marge would not have died as he was aware that some harm would occur to her and that his act contributed significantly to Marge’s death.

It must also be proved that Gary has the necessary mens rea for the offence, therefore it must asked did Gary have an intention to kill or cause GBH if applying the direct intention question then it may appear that Gary did not have a direct aim or purpose to harm Marge. It must be asked then whether Gary had Oblique intention – whether he was aware that it was a virtual certainty that harm would occur to Marge and in applying the test in Woolin whether he appreciated that this was the case. It can be argued that he did not have the necessary mens rea for the offence, as he did not intend to kill or cause GBH to Marge but that because of his “act”, Marge died as a result. However he did tell Marge that she would die a slow death and left her alone therefore this could be seen as an intention to cause her death. He may therefore be charged with the lesser offence of Manslaughter. As discussed above, involuntary manslaughter would be fitting to Gary’s “actions” as it could be argued that he was virtually certain that harm would occur to her but that he was not aware that medication would be the cause of her death.

Involuntary manslaughter can be caused by either unlawful act (constructive) manslaughter or gross negligence manslaughter. Unlawful act manslaughter requires three elements to be proven, that the D caused an unlawful act (R v. Lamb) that this was a dangerous act (R v. Church), which was a direct cause of the V’s death (R v. Goodfellow). It must be asked then whether Gary’s ‘act’ can constitute an unlawful act. Phillimore J stated in the case of R v. Lowe that an omission cannot constitute an unlawful act and a D cannot be charged with manslaughter even if the omission is deliberate. Therefore Gary cannot be charged with unlawful act manslaughter as he omitted to do anything; therefore it must be asked whether he can instead be charged with Gross negligence manslaughter.

Gross negligence manslaughter was defined in the case of R v. Adamako as needing certain elements to be successful, the existence of a duty of care, breach of that duty of care causing death and gross negligence that the jury consider justifies criminal conviction. Lord Mackay in this case stated that the “ordinary principles of law of negligence apply to ascertain whether or not D has been in breach of a duty of care towards the V” To establish to whom a duty is owed, the principles laid out, in Donoghue v. Stevenson, Lord Aitkin in the House of Lords said that you must take reasonable care to avoid acts or omissions which you can foresee would be likely to injure your neighbour, i.e. persons so closely and directly affected by D’s act, that D ought to have them in contemplation as being affected when D directs their mind to these acts or omissions. It must be established at what point that D breaches the duty in the case of R v. Bateman, Lord Hewart CJ explained the gross negligence test however Lord Mackay in Adamako stated that the test for the jury to consider was whether the extent to which D’s conduct departed from the proper standard of care incumbent on him was such that it should be judged criminal. The case of R v. Misra challenged the decision in Adamako the Court of Appeal rejected the claims and stated that Adamako still stands.

It must be then asked whether Gary owes a duty to Marge. Sometimes an assumed duty can arise i.e. cases of parent and child or spouse where a duty to care for them makes them automatically responsible for their welfare. It can be argued that Gary did not start to care for Marge and therefore did not assume a duty of care towards her; he could try to argue that Dr Livingstone caused her death as he gave her medication, which she was allergic to. In the past cases on medical negligence have been adamant not to allow Doctor’s to be found liable and therefore not allowing relief to the original perpetrator of liability. This was first seen in R v. Smith (Thomas) but was taken over by R v. Cheshire where Bedlam LJ stated that the question to be asked was whether D’s act or omission could still be said to have contributed significantly to V’s death – only if medical treatment could be classed as “independent” of D’s original act, could D escape liability. The exception to this being R v. Jordan (as discussed above).

It can be argued that Gary contributed significantly to Marge’s death and that medical mistreatment was not an intervening act and Gary’s intention for her to die caused her death. However with all law, a decision can go both ways and it can also be argued that Dr. Livingstone owed a duty of care to his patient to care for them properly. In negligently giving medication, which she was allergic to, he caused an intervening act that broke the chain of causation and caused Marge’s death (if applying R v. Jordan). It is up to the jury to decide on cases such as these and therefore can go either way.

Bibliography

Books:

• Curzon, L, B, ‘Criminal Law 8th Edition’, (Great Britain, Pitman Publishing, 1997)
• Elliot, C, Quinn, F, ‘Criminal Law 5th Edition, (Great Britain, Pearson education Limited, 2004)
• Heaton, R, ‘Criminal Law Textbook 2nd Edition’, (United States: Oxford University Press, 2006)
• Herring, J, ‘Criminal Law: Text, Cases and Materials 2nd Edition’, (Oxford: Oxford University Press, 2006)
• Martin, J, Storey, J, ‘Unlocking Criminal Law’, (Great Britain: Hodder & Stoughton Publishing, 2004)

Cases:

• R v. Acott (1997) 1 All ER 706 (HL)
• R v. Adamako (1995) 1 AC 171
• A-G for Jersey v Holley (2005) UKPC 23
• A-G’s reference (No.24 of 2003) (2003) EWCA Crim 2451
• A-G’s references (Nos 74, 95 and 118 of 2002) Court of Appeal (Crim Division) (2002) EWCA Crim 2982 (2003) Crim LR414, (2002) All ER (D) 366 (Dec), (Approved judgement)
• R v. Ahluwalia (1992) 4 All ER 869
• R v. Atkinson(1985) Crim LR 314
• R v. Blaue (1975) 3 All ER 446
• R v. Byrne (1960) 2 QB 396 (CA)
• R v. Bateman (1925) 19 Cr App R 8
• R v. Cheshire (1991) 3 All ER 670
• R v. Church (1965) 2 All ER 72
• R v Cunningham (1982) AC 566 (HL)
• R v. Di Duca (1959) 43 Cr App R 167
• R v. Dietschmann (2003) UKHL 10; (2003) 1 AC 1209
• Donoghue v. Stevenson (1932) AC 562
• R v. Doughty (1986) 83 Cr App R 319
• DPP v Camplin (1978) AC 705
• R v. Dryden (1995) 4 All ER 987
• R v. Duffy (1949) 1 All ER 932 at 9 34
• R v. Egan (1992) 79 Cr App R 261 (CA)
• R v. Fenton (1975) 61 Cr App R 261
• R v. Gittens (1984) QB 698
• R v. Goodfellow (1986) Crim LR 468
• R v. Hobson (1998) 1 Cr App Rep 31
• Hyam v DPP (1974) 2 All ER 41
• R v. Janjua and Choudhury (1997) CR App R 91
• R v. Jordan (1956) 40 Cr App R 152 (CA)
• R v. Lamb (1967) 2 QB 981
• R v. Lowe (1963) QB 702
• R v. Luc Thiet Thuan (1997) AC 131
• R v. Malcharek and Steel (1981) 2 All ER 422 (CA)
• R v. Misra (2004) EWCA Crim 2375; (2005) 1 Cr App R 21
• R v. Pagett (1983) Crim LR 393
• R v. Sanderson (1993) Court of Appeal Criminal Division Lexis UKCD 408, 98 Cr App Rep 325
• R v. Smith (1961) AC 290 (HL)
• R v. Woolin (1998) UKHL 28; (1998) 3 WLR 382
• R v. Smith (Morgan) (2000) UKHL 49; (2001) 1 AC 146
• R v. Smith (Thomas) (1959) 2 QB 35
• R v. Stone ; R v. Dobinson (1977) QB 354 (CA) (1977) 2 All ER 341, (1977 2 WLR 169, (1977) 64 Cr App R 186
• R v. Tandy (1989) 1 All ER 267; (1989) 1 WLR 350
• R v. Thornton (1992) 1 All ER 306

Other Sources:

• Sentencing Guidelines Council –guidelines on Manslaughter by reason of Provocation (2005 All ER (D) 376 (Nov)

Word Count: 3,296

---