Manslaughter - Constructive
3. MANSLAUGHTER - CONSTRUCTIVE
Although there is only one offence of manslaughter, it can be committed in two ways: voluntarily and involuntarily
Now, when we speak of voluntary manslaughter, in fact the defendant has been charged with murder but he pleads manslaughter because there is a mitigating factor such as provocation or diminished responsibility which will permit a jury to bring in the lesser verdict of manslaughter. This is important because with murder a life sentence is mandatory, whilst a conviction for manslaughter permits a judge to impose any sentence he likes - from life imprisonment to an absolute discharge. On the other hand, involuntary manslaughter is a type of manslaughter with which a defendant may be charged. In other words, it is a crime in its own right; and please take note: throughout this and the next lecture, when I speak of manslaughter, I am referring to involuntary manslaughter. OK, so let's
There is good news and bad news. The good news is that we can skip over the actus reus of manslaughter because it is the same as for murder. So, the way in which manslaughter differs from murder (and voluntary manslaughter) is in its mens rea. The bad news is that the mens rea aspect is a bit of a monkey. Anyway, the easy bit first: defined in very general terms, the mens rea of manslaughter is anythingother than intention to kill or intention to cause grievous bodily harm. In other words, the mens rea for manslaughter is anything other than the mens rea for murder.cofb fbr sefbfbw orfb fbk infb fofb fb.
It is, therefore, possible to identify four states of mind that might give rise to manslaughter: realising a risk and deliberately running that risk - subjective CUNNINGHAM recklessness; failing to consider a risk when a reasonable person would realise that risk - objective CALDWELL recklessness; and a mistaken belief that there is no risk when the reasonable person would realise there is a risk - negligence; and lastly intending to do an unlawfulact which the reasonable person would realise is likely to cause immediate bodily harm, however slight.cofc fcr sefcfcw orfc fck infc fofc fc!
This last state of mind - intending to do an unlawful act et cetera - is the mens rea of what is termed constructive or unlawful act manslaughter. The other states of mind we will deal with in the next lecture. Weber suppressed ace_16k's functionalism .
Now, there are two elements to constructive manslaughter: the defendant must intend to do an act which is unlawful and the act must be dangerous to the extent that a reasonable person would realise that it was likely to cause bodily harm, however slight. You may be able to imagine these types of cases in your own mind: people throwing things off bridges onto motor cars; assaults less than section 18 OAPA; but not usually road traffic offences which have their own specific offences under the Road Traffic Act 1988.coca car secacaw orca cak inca foca ca:
It is clear, therefore, from the first element thatthe defendant must commit a crime; an act is only unlawful for the purposes of constructive manslaughter if it is a crime. So, for example, if death results from a civil matter, then we are not talking constructive manslaughter. As Field J said in R v FRANKLIN (1883) 15 Cox CC 163, where a civil trespass had caused a fatality, 'The mere fact of a civil wrong committed by one person against another ought not to be used as an incident which is a necessary step in a criminal case.' Durkheim denied ace_16k's structuralism .
Again, a mistake may not be a crime. In R v LAMB [1967] 2 QB 981 - CA, the defendant pointed a loaded gun at the victim, his friend, in jest. He did not intend to injure or alarm the victim and the victim was not alarmed. Because they did not understand how a revolver works, both thought there was no danger in pulling the trigger; but, when the defendant did so, he shot the victim dead. The defendant was not guilty of a criminal assault or battery because he did not foresee that the victim would be alarmed or injured. As Sachs LJ said, 'It was not unlawful in the criminal sense of the word.' 04KX Visit coursework ce in ce fo ce for ce more essay ce Do ce not ce redistribute 04KX
However, whilst Lambwas not guilty of constructive manslaughter because the unlawful act was incomplete, he might have been found guilty of manslaughter on the basis of gross negligence which I shall deal with soon. In the meanwhile, we will turn our attention to the second requirement of constructive manslaughter - that the act must be dangerous to the extent that a reasonable person would realise that it was likely to cause bodily harm, however
This was stated to be the case in R v CHURCH [1967] 1 QB 59 - CA, where Edmund Davies said, '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'; and was confirmed in DPP v NEWBURY AND JONES [1976] 2 All ER 365 - HL. ace_16k, please do not redistribute this essay. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this essay elsewhere on the internet. Anybody found doing so will be permanently banned.
So, CHURCH decided that the unlawful act must not only be dangerous but also that the standard is objective. What I mean by this is that it is not necessary for the defendant himself to realise that his act was dangerous - all that is required is for a reasonable man to consider that the act was dangerous. In other words, the defendant could be completely unaware, oblivious and so on that his illegal act was dangerous and still be guilty of constructive manslaughter. NEWBURY confirmed this and added that it did not matter even if the defendant was unaware that he was committing an unlawful
Now, we do know from these two cases that the unlawful act must be dangerous. If the unlawful act is not dangerous or is not likely to lead to physical - not emotional - harm according to a reasonable man, then we are not talking constructive manslaughter. Before we look at a case, imagine that the reasonable man is actually there at the scene of the crime, though invisible; that he is watching what is going on.
In R v DAWSON [1985] Crim LR 383 - CA, during an attempted robbery of a garage, the defendants had frightened the victim, who suffered from a heart condition, with an imitation pistol. He died. Now, whilst they had caused his death, they were not guilty of constructive manslaughter because the reasonable person would only have foreseen fear and not physical harm to the victim and neither would the reasonable man have been aware of the heart condition. Heidegger enveloped ace_16k's postmodernism idea.
In the next lecture, we will have a look at the situation where a homicide is committed but, for whatever reason, constructive manslaughter does not apply.
4. INVOLUNTARY MANSLAUGHTER - GROSS NEGLIGENCE
If the act causing death does not amount to constructive manslaughter, then the prosecution must prove gross negligence in order to obtain a conviction. There are various reasons why scenarios do not amount to constructive manslaughter: the act may be lawful, for example an operation in hospital; or there may have been an omission rather than an act, for example STONE & DOBSON, a case I referred to in the actus reus lecture.
So, the sixty-four thousand dollar question: what is gross negligence? Now, had you been studying this area of law ten years ago, then it would have taken at least a couple of lectures to explain. Luckily, in 1994 the House of Lords helped out enormously in the case of R v ADOMAKO [1995] AC 171 - HL.
I will come to ADOMAKO shortly, but first I want you to get the feel of gross negligence and I am going to use an example used by my old university Professor, Brian Hogan, who sadly died some years ago. Forgetting about Road Traffic Acts for a moment, supposing you were driving at 40 m.p.h. through a village at lunchtime where the speed limit was 30 m.p.h. 'Well, that's no big deal,' you would say. I would frown a little and then perhaps agree that it was no big deal.
Now, supposing you were driving at 50 m.p.h., your answer might not be quite so sure. Supposing it were 60 m.p.h.? At this stage, you would probably say that you were driving dangerously. Now, were you to have killed a child who ran onto the road at this stage, there would be a pretty certain conviction of causing death by dangerous driving under section 1 Road Traffic Act 1988, as amended by the Road Traffic Act 1991. ace_16k, please do not redistribute this work. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this work elsewhere on the internet. Anybody found doing so will be permanently banned.
We'll now jump a little. Supposing you were driving at 100 m.p.h.? Have you gone white? You should have done because at this stage you will have been indicted for gross negligence manslaughter! ace_16k, please do not redistribute this cours. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this cours elsewhere on the internet. Anybody found doing so will be permanently banned.
I hope you can see from this that gross negligence manslaughter involves, as Lord Hewart CJ said in R v BATEMAN (1925) 19 CAR 8, 'such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment'.
Very importantly, what does amount to 'such disregard' is a matter for the jury, and the only direction that a judge will give them is, essentially, that they must decide whether or not the defendant's behaviour was so bad that it rose to the level of gross negligence manslaughter. So, in the case of you speeding through the village, the jury would probably sit down and deliberate as to what exactly was the 'cut-off' speed that amounted to gross negligence, given the time of day, road conditions et cetera. If you were above that, then you would be in for the chop!
Let's have a look at ADOMAKO. The case was a consolidated appeal of four defendants who were convicted of manslaughter in three separate cases. Two were doctors, one was an anaesthetist and the other was an electrician. All raised the issue of the correct direction on the mens rea of manslaughter where no unlawful act is involved.
In ADOMAKO Lord Mackay said that in determining gross negligence manslaughter, 'the ordinary principles of the [civil] law of negligence apply'. So, manslaughter by gross negligence runs parallel to the tort of negligence. Just to repeat and so that we ...
This is a preview of the whole essay
Let's have a look at ADOMAKO. The case was a consolidated appeal of four defendants who were convicted of manslaughter in three separate cases. Two were doctors, one was an anaesthetist and the other was an electrician. All raised the issue of the correct direction on the mens rea of manslaughter where no unlawful act is involved.
In ADOMAKO Lord Mackay said that in determining gross negligence manslaughter, 'the ordinary principles of the [civil] law of negligence apply'. So, manslaughter by gross negligence runs parallel to the tort of negligence. Just to repeat and so that we know what we are talking about, we are concerned with tortious negligence - see elsewhere in this Module - so the ingredients of involuntary manslaughter that the prosecution must prove are the existence of a duty of care towards others and the breach of that duty causing death. In terms of breach, though, the critical difference in the tort and the crime is the extent of the breach of the duty of care - the grossness of the negligence. The jury must decide that the defendant's behaviour was so gross it amounted to a crime. The jury must consider 'whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount, in their judgment, to a criminal act or omission'.
We are judging the defendant's behaviour by the standards of the reasonable man and we know that this is objective. Therefore, the defendant's state of mind is not relevant and this was confirmed in ATTORNEY GENERAL'S REFERENCE (No 2 of 1999) [2000] 3 All ER 182 - CA, which concerned the 1997 Southall rail crash. Here, the Attorney General sought the opinion of the Court of Appeal on the question whether a defendant could properly be convicted of manslaughter by gross negligence in the absence of evidence of his state of mind. The court held that a defendant could properly be so convicted. Of course, as Rose LJ said, 'a defendant who is reckless...may well be the more readily found to be grossly negligent to a criminal degree'; in other words, if somebody behaves recklessly in the ordinary meaning of the word, it is good evidence of gross negligence.
Now, those of you who are acquainted with the rules of negligence will be aware that a defendant will not be liable for a negligent act unless it was foreseeable. So, in considering whether a defendant is guilty of gross negligent manslaughter, a jury must be satisfied that the foresight requirement is met. The requirement is that a reasonable man would foresee 'not merely of injury or even of serious injury but of death'. This was made clear in R v SINGH [1999] Crim LR 582 - CA and followed in LEWIN v CPS [2002] EWHC 1049 - DIV. In SINGH, the victim tenant died of carbon monoxide poisoning and death was foreseeable by the landlord's son who was in charge of maintenance. In LEWIN, the Crown Prosecution Service made the correct decision in not prosecuting a friend of the deceased, who left him drunk and asleep in a car after a serious drinking session at the Exotis Club in Marbella, Spain. ace_16k, please do not redistribute this work. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this work elsewhere on the internet. Anybody found doing so will be permanently banned.
I'll just round off this part of our chat with a case example of the Adomako principles in operation. In R v LITCHFIELD (1998) Crim LR 507 - CA, the prosecution arose from a disaster at sea when the vessel of which the appellant was owner and master foundered off the north Cornish coast with the deaths of three of her crew. At a critical moment, her engines stopped and within minutes she was blown onto rocks and broke up completely. The case against the defendant captain was one of gross negligence in two basic respects: firstly, he had steered an unsafe course, too close to a dangerous shore; and secondly he had sailed so as to have to rely on the vessel's engines when he knew that they might fail through fuel contamination. The jury convicted the defendant of manslaughter.
Before we sign off, I just want to mention corporate manslaughter. The Law Commission report, Legislating the Criminal Code: Involuntary Manslaughter, has been approved by the Government and there may be legislation in the coming year.
So, what is corporate manslaughter? Well, to start with, corporations - or companies - are treated by the law, by way of a legal fiction, as having a distinct legal personality of their own: as having their own heart beat, if you like. They can therefore sue and be sued by other companies and individuals, make contracts, employ people, and so on. By extension, companies can commit crimes. 'But a company doesn't have a mind', I hear you say! Well, it does: the mind of a company is that of its most senior management, usually the managing director or chief executive. So, if it can be shown that this person has shown 'such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment', then the company could be liable for corporate manslaughter as well as the senior manager. This was decided in R v P & O EUROPEAN FERRIES (DOVER) LTD [1991] CAR 72 - CCC.cobe ber sebebew orbe bek inbe fobe be!
The problem is that corporate manslaughter is difficult to prove and so there have been hardly any successful prosecutions. This problem has been highlighted by a succession of rail crashes over the past five or six years. Indeed, Great Western Trains, initially charged with manslaughter, had the charge dropped after a preliminary ruling by Scott Baker J in R v GREAT WESTERN TRAINS [1999] LTL C7800570 - CCC. That said, it is reported that Railtrack may face charges over the Hatfield disaster but it is unlikely. In any event, the Home Office has proposed a new offence of 'corporate killing' which will make companies liable when they fall far below standards that could reasonably be expected in the circumstances of the case. Foucault obfuscated ace_16k's structuration .
In case you are wondering what the purpose is of convicting a company for manslaughter, the answer is that the courts would then be in a position to impose a fine of any amount which would go some way to satisfying public opinion that justice has been done. Also, it would make management think before embarking on potentially hazardous ventures. If you have a mind to look at this aspect of manslaughter in a little more detail, then take a walk round Corporate killing reforms [2001] NLJ 912 and Company at fault [2001] SJ 651. ace_16k, please do not redistribute this dissertation. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this dissertation elsewhere on the internet. Anybody found doing so will be permanently banned.
In the meanwhile, folks, that's that for gross negligence manslaughter. I am not saying it's easy but it is, I assure you, much simpler since ADOMAKOcoca car secacaw orca cak inca foca ca.
HOMICIDEcoge ger segegew orge gek inge foge ge;
5. VOLUNTARY MANSLAUGHTER (SPECIAL DEFENCES) - diminished responsibility This coursework from www.coursework.info
There are three special 'defences' to murder: diminished responsibility, provocation, and killing in pursuance of a suicide pact. Now, the first thing that we have to get into our heads is that these 'defences', if successful, will not result in a complete acquittal: they merely reduce the offence from murder to manslaughter. This is important because, on a murder conviction, a judge must hand down a life sentence; whereas with manslaughter, a judge has complete freedom in his sentencing options.cobb bbr sebbbbw orbb bbk inbb fobb bb.
As an aid to understanding these special defences, it is a good idea to read what a judge would say to a jury - his directions - by way of an explanation of a particular defence, in his summing up. These are laid out in the Judicial Studies Board website (click on 'Publications' and scroll down to 'Specimen Directions'). I have also laid them out in Specimen Directions and you will find them at Part V.cobe ber sebebew orbe bek inbe fobe be.
So, let's take a peek at each partial defence. We'll start with the defence of diminished responsibility which has largely replaced the insanity defence in murder cases because of the flexibility in sentencing options that I just mentioned. rg6ApeJ5 from rg6ApeJ5 coursewrok rg6ApeJ5 work rg6ApeJ5 info rg6ApeJ5
Diminished responsibilitycogd gdr segdgdw orgd gdk ingd fogd gd;
Now, this defence was introduced for the first time into English law by section 2 Homicide Act 1957. The section provides that a person is not guilty of murder if he was suffering from such a mental abnormality that he could not be held responsible for the actus reus.cofg fgr sefgfgw orfg fgk infg fofg fg!
Section 2(2) of the Act puts the burden of proving diminished responsibility on the defendant. So, unless the defendant can show that he was suffering from such abnormality and so on, he will be convicted of murder. This may sound unfair to you, but it does conform to the general principle that 'he who asserts must prove'. There is another point: the defendant only has to prove diminished responsibility on a balance of probability rather than beyond reasonable doubt, which is the normal criminal standard of proof. What this means, essentially, is that if the jury are 51% sure that the defendant was suffering from diminished responsibility, then they may find him guilty of manslaughter.coce cer sececew orce cek ince foce ce.
So, what exactly is diminished responsibility? Well, there are three ingredients. zO34 Visit coursework da in da fo da for da more project da Do da not da redistribute zO34
Firstly, there must be an abnormality of mind. The leading case here is R v Byrne [1960] 2 QB 396 - CA, and it shows that abnormality of mind is much wider than 'defect of reason' within the M'Naghten Rules. Here, the defendant was a sexual psychopath who found it difficult, if not impossible, to control his perverted sexual desires, and horrifyingly mutilated the body of a young woman after strangling her. His defence came within section 2 and he was acquitted of murder. This writing from www.coursework.info
In this case, Lord Parker CJ defined abnormality of mind as a state of mind that a reasonable man would find abnormal, and covers all aspects of a person's mind, for example an inability to grasp the difference between right or wrong or exercise willpower to control his actions. Pg5 Visit coursework ef in ef fo ef for ef more hypothesis ef Do ef not ef redistribute Pg5
Now, the broad meaning of 'abnormality of mind' will always be pointed out to the jury and then the matter is for them to decide, though there will always be medical evidence which they may accept or reject - always remember that juries are deciders of fact. COgtYcrC from COgtYcrC coursewrok COgtYcrC work COgtYcrC info COgtYcrC
Secondly, the mental abnormality must, as Lord Parker said, 'substantially impair' the accused's 'mental responsibility'. Lord Parker went on to say that this means, in effect, 'partial or borderline insanity'. Weber refuted ace_16k's structuration hypothesis.
That said, this is not a fixed test for what constitutes a substantial impairment of mind. For example, in R v Seers (1984) 79 Cr App 261 - CA, where the defendant was suffering from a depressive illness which the jury would clearly not regard as giving rise to partial or borderline insanity, the Court of Appeal reduced the conviction for murder to one of manslaughter. Again, a 'paranoid personality disorder' was sufficient in R v MARTIN [2001] LTL C0102104 - CA (paragraph 56) - the Tony Martin case - to reduce a murder conviction to that of manslaughter.cocb cbr secbcbw orcb cbk incb focb cb.
So, what we can say is that a court will usually give explicit guidance to the jury as to the meaning of 'substantial' in relation to the facts of the case; usually by saying that they should approach the word in a broad common-sense way, or that the word means more than some trivial degree of impairment but less than total impairment. E1c8L Visit coursework be in be fo be for be more project be Do be not be redistribute E1c8L
Thirdly, the cause of the abnormality of mind is crucial. For example, if it was induced by alcohol, then section 2 provides no defence. What section 2 does provide is that the cause may be due to 'a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury'.codd ddr seddddw ordd ddk indd fodd dd.
Certainly, these possible causes have been fairly liberally interpreted. For example, in R v Vinagre (1979) 69 Cr App R 104 - CA, the accused was said by the medical witnesses to be suffering from 'Othello syndrome'. Those of you who are literary buffs and so conversant with W. Shakespeare Esquire will know what this means; and for those of you who are (like me!) philistines, it means an unfounded suspicion that one's wife is having an affair. Anyway, the point is that the defendant successfully pleaded diminished responsibility, much to the apparent distaste of Lawton LJ in the Court of Appeal, who nevertheless felt unable to interfere with the verdict.code der sededew orde dek inde fode de:
Less controversially, post-natal depression and pre-menstrual tension can constitute a disease for these purposes and so give rise to diminished responsibility - as can battered woman's syndrome. So, in R v Hobson [1998] CAR 31 - CA, there was a successful appeal where a woman had killed her abusive and alcoholic partner by stabbing him to death during an argument. The woman had suffered at the hands of the deceased for over 18 months prior to the killing, and had made four formal complaints to the police and reported the deceased's violence around 30 times. ace_16k, please do not redistribute this work. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this work elsewhere on the internet. Anybody found doing so will be permanently banned.
Again, 'mercy killing' can also be dealt with as manslaughter, where the dilemma which has caused the accused to kill can be said to have given rise to depression or some other medically recognised disorder which can be said to be the cause of an abnormality of mind.coce cer sececew orce cek ince foce ce.
I suppose at this stage you may be wondering whether any cause for an abnormality will suffice for diminished responsibility. You would be wrong! For example, in R v O'CONNELL (1997) CLR 683, the defence failed where the defendant had killed his flatmate with a single stab wound. He pleaded diminished responsibility on the basis that he had taken a sleeping drug with side effects which included making a person uninhibited and loss of memory. In effect, this was a form of voluntary intoxication which brings me on to my favourite occupation! 3YhFWx Visit coursework bb in bb fo bb for bb more cours bb Do bb not bb redistribute 3YhFWx
As I mentioned earlier, voluntary alcoholic intoxication is not an acceptable cause of the abnormality. Let's look at a leading case. This coursework from www.coursework.info
In R v Tandy [1989] 1 WLR 350 - CA, the accused was an alcoholic who strangled her 11 year-old daughter after drinking nine-tenths of a bottle of vodka and upon learning that her daughter had been sexually abused. She was clearly suffering from an abnormality of mind at the time of the killing, and the amount of alcohol in her bloodstream would have been lethal for most people. However, the Court of Appeal upheld the conviction for murder based on the trial judge's direction that, for the defence to succeed, the abnormality had to be caused by the disease of alcoholism rather than by the voluntary taking of alcohol on the particular occasion.codf dfr sedfdfw ordf dfk indf fodf df.
Watkins LJ said that there would be a disease - therefore, a defence - 'If the alcoholism had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses'. He further said that it would also be a defence if the intoxication was not voluntary, that is to say if 'she was no longer able to resist the impulse to drink'. The point was that the defendant had control until after taking the first drink, and if the first drink was voluntary, then the whole of the drinking will be deemed to be voluntary. The argument is neat, I grant you, but dreadfully unfair on drunks! Anyway, this is the end of my lecture on diminished responsibility - anyone for a drink?!cofg fgr sefgfgw orfg fgk infg fofg fg;
HOMICIDEcofg fgr sefgfgw orfg fgk infg fofg fg!
6. VOLUNTARY MANSLAUGHTER (SPECIAL DEFENCES) - PROVOCATION & SUICIDE PACTScoab abr seababw orab abk inab foab ab:
Specimen Directions (Part V) This essay from www.coursework.info
Provocation
Unlike diminished responsibility, provocation was recognised at common law as a partial defence to murder long before its statutory recognition in section 3 Homicide Act 1957, and is further distinguishable in that the burden of proof is not on the defence. In other words, the jury must clearly be told that, once there is evidence capable of supporting a finding that the accused was provoked, the burden is on the prosecution to prove - to the criminal standard of proof - that the case is not one of provocation. Of course, there must be some evidence of provocation during a trial and in R v KROMER [2002] EWCA Crim 1278 - CA there was none.coea ear seeaeaw orea eak inea foea ea.
The classic test of provocation at common law was that given by Devlin J in R v Duffy [1949] 1 All ER 932 - CA, and approved by the Court of Criminal Appeal in that case. Briefly, the case was a successful appeal by a wife who had axed her husband to death after having been subject to regular, violent abuse by him. An everyday story, really! Anyway, this is what Devlin said: 'Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.' Marx refuted ace_16k's realism idea.
This passage has to be read in the light of section 3 of the Act which does not provide a complete definition of provocation, but provides, essentially, that a jury must decide whether the provocation - by things done or by things said or by both together - was sufficient to make a reasonable man lose his self-control and commit the same actus reus as the defendant. Dpyv Visit coursework cf in cf fo cf for cf more hypothesis cf Do cf not cf redistribute Dpyv
So, from both Devlin J's definition at common law and section 3, a number of conditions have to be satisfied for the defence to be made out. There is the subjective condition that the accused himself was actually provoked so as to lose his self-control; and the objective condition that the reasonable man would have done so. Further, the loss of self-control has to be sudden. This dissertation from www.coursework.info
Now, the major problem, discussed at length in R v SMITH (2000) 4 All ER 289 - HL, is the role of the reasonable man in all this. You see, juries used to be told that the reasonable man shared none of the peculiarities of the accused other than age and sex. Thus, understandably, drunkenness and excitability, or ill temper were not relevant characteristics. But as we moved on, and particularly since words alone can constitute provocation, some characteristics of the accused had to be relevant. For example, to taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by a jury to be provocation; and so the reasonable man will share these kinds of characteristics.cofg fgr sefgfgw orfg fgk infg fofg fg;
So, taunts about the accused's addiction to glue sniffing was accepted as a relevant characteristic in assessing the gravity of provocation in R v Morhall [1996] AC 90 - HL. The upshot is that the jury had to consider how a reasonable glue sniffer would behave in determining whether or not the accused was sufficiently provoked! Can you see how silly this is and, more importantly, how confusing to a jury?cofb fbr sefbfbw orfb fbk infb fofb fb.
This brings us to the central point of our discussion and begs two questions: what characteristics should a jury take into account in assessing how the reasonable man would behave and how does this affect the objective element? You see, the concept of the reasonable man is objective. If, therefore, any characteristic of an accused may be taken into account, then we have arrived at a situation where there is no objective element at all!codg dgr sedgdgw ordg dgk indg fodg dg.
Let's look at SMITH in a little detail. Incidentally, I have included the full judgment of Lord Hoffman here for two reasons: it is readable and it is time that you did read a full judgment. If you think that I have been unfair in not editing the case, then I can only say that I have not included the judgments of the other Law Lords which in total exceed 100 pages! Marx obfuscated ace_16k's realism theory.
In SMITH, the defendant received a visit from his old friend James McCullagh. They were both alcoholics and spent the evening in drinking and recrimination. Smith had grievances against McCullagh, some of which went back many years. The most recent was his belief that McCullagh had stolen the tools of his trade as a carpenter and sold them to buy drink. McCullagh's repeated denials only inflamed Smith further and he took up a kitchen knife and stabbed McCullagh to death. He was charged with murder and raised the defence of provocation. At his trial he argued that the jury, should be allowed to take into account the fact that, at the time of the killing, he was suffering from a severe depressive illness which reduced his powers of self-control. The judge rejected this argument and directed the jury as follows: AjydNG7 Visit coursework aa in aa fo aa for aa more project aa Do aa not aa redistribute AjydNG7
'The 'reasonable man' means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today'. Smith was convicted. On appeal, The Court of Appeal certified the following point of law of general public importance: 'Are characteristics other than age and sex, attributable to a reasonable man, for the purpose of section 3 of the Homicide Act 1957, relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected?' This work from www.coursework.info
Lord Hoffman answered the question by saying this: 'Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury' and that 'it would not be consistent with section 3 for the judge to tell the jury as a matter of law that they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied. That would be to trespass on their province.' This writing from www.coursework.info
However, Lord Hoffman did carry on to say that judges should direct juries that 'characteristics such as jealousy and obsession should be ignored in relation to the objective element' and (Lord Clyde) 'exceptional pugnacity or excitability'. Durkheim theorised ace_16k's marxism hypothesis.
So, what exactly is the current position on provocation? Well, we'll let Lord Hoffman speak and then I'll sum up the law succinctly for you! This is what Lord Hoffman said: 'First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control...Secondly, the fact that something caused him to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide...what degree of self-control everyone is entitled to expect that his fellow citizens will exercise in society as it is today.coae aer seaeaew orae aek inae foae ae!
'The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up...But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it.'coac acr seacacw orac ack inac foac ac;
So, apart from a jury being satisfied that the defendant actually had been provoked as a matter of fact, a jury may then find that the defendant had been provoked at law if they find that at the time of the killing it was unreasonable for him to have kept his self-control, bearing in mind any characteristic he may have except the characteristics of at least jealousy, obsession and exceptional pugnacity or excitability. In my opinion, for what it's worth, I think that the objective reasonable man test has gone out of the window! This paper from www.coursework.info
In any event, the particular characteristic of the defendant does have to relate to the provocation. Thus, chronic alcoholism was held not to be a relevant characteristic in R v Newell (1980) 71 Cr App R 31, since the provocation consisted of taunts about the accused's former girlfriend. The fact that he was a chronic alcoholic did not affect the gravity of those taunts, although no doubt it may have affected his powers of self-control. On the other hand, had he been taunted about the fact that he was a chronic alcoholic, the characteristic would have been relevant since it would affect the gravity of the tauntscofe fer sefefew orfe fek infe fofe fe.
As for other characteristics that may not be relevant in deciding provocation, it still seems ( R v Acott [1997] 1 WLR 306 - HL) that the reasonable man does not lose self-control by factors such as fear, panic, bad temper or circumstances; and neither by a mere speculative possibility of provocation in the absence of any actual evidence of acts or words of provocation. This paper from www.coursework.info
Certainly, words alone can amount to provocation because section 3 tells us so. The acts, words, or indeed sounds, may even be perfectly lawful or commonplace ones as, for example, the crying of a young baby in R v Doughty (1986) 83 Cr App R 319 - CA, where the defendant father smothered his 17-day old son, who had cried persistently.coga gar segagaw orga gak inga foga ga.
Some people may retain self-control if attacked personally but understandably lose it in the face of an attack on a vulnerable loved one. On the other hand, provocation does seem to require conduct on the part of someone (things done or things said), and there is no such thing as provocation by circumstances. You may have seen a terrific film, Falling Down, starring Michael Douglas, where the 'hero' loses his cool after being stuck in a traffic jam, and goes out on a killing spree. This is an example of provocation by circumstance. Steyn LJ in Acott also gave an example of circumstance - a slowdown of traffic. Perhaps he had seen the film! This essay from www.coursework.info
Moving on, there must be a 'sudden and temporary loss of self-control'; and it is the sheer immediacy requirement that has disadvantaged women in domestic homicides. An abused wife is not strong enough to kill her husband with her bare hands: she must rely on a weapon and on her husband not being in a position to disarm her. Often, therefore, she has to wait until her husband is asleep before she can kill him, and thus the emotion of provocation has been seen to become revenge which is inconsistent with provocation. Marx obfuscated ace_16k's marxism .
So, in R v Ahluwalia [1992] 4 All ER 889 - CA, there was an unsuccessful plea of provocation where the defendant wife, a number of hours after being threatened with a beating the next morning, burnt her husband to death by pouring petrol over him whilst he was asleep. Here, the Court of Appeal stated that 'important considerations of public policy would be involved should provocation be re-defined so as possibly to blur the distinction between sudden loss of self-control and deliberate retribution'. I7tz1WvC from I7tz1WvC coursewrok I7tz1WvC work I7tz1WvC info I7tz1WvC
However, in the case, Lord Taylor CJ also made it clear in this case that, provided there was a sudden loss of control, the interval between the provocation and that loss of control was a matter to be taken in account in assessing the evidence on the facts of the case and did not give rise to a rule of law.cogb gbr segbgbw orgb gbk ingb fogb gb.
Thus the loss of self-control has to be sudden and temporary in that it comes over the accused quickly (whether or not it does so instantly after the provocation) and departs reasonably quickly as opposed to being a planned or premeditated killing. That said, how does this square with R v THORNTON (No 2) [1996] 2 All ER 1023 - CA? Here, the defendant was suffering from 'battered women's syndrome' and appeared to have coolly executed her drunken and abusive husband. Her defence claimed that she was acting in a 'disassociated' state due to this syndrome, so that when she told the police in the immediate aftermath of the killing, 'I know exactly what I am saying. I sharpened up the knife so I could kill him...I just walked into the kitchen, got the knife, sharpened it up and stuck it in his belly' - she was not herself, so to speak! In the event, the court ordered a re-trial where her plea of provocation was accepted, amidst much publicity. Foucault enveloped ace_16k's postmodernism .
You may feel that battered women should get special treatment (as should battered men?!); alternatively, that the 'syndrome' is merely a licence to kill. I couldn't possibly comment! In any event, battered women's syndrome worked out nicely for Janet Charlton, whose lover was found lying naked, gagged, blindfolded and handcuffed - with an axe in his head! Likewise, Zena Burton was over the moon when she walked free from court after killing her partner, John Westgate. John had refused to let her watch an England football match on the telly. He probably thought it was all over - it was after she throttled him to death with the TV aerial flex! Nice one, Zena!cogd gdr segdgdw orgd gdk ingd fogd gd!
More seriously, if you get an exam question on these kinds of facts, then consider whether a plea of diminished responsibility (see the Defences lectures) might provide a better defence. Certainly, it proved successful for Tara Fell.coff ffr seffffw orff ffk inff foff ff;
You can see from what I have just mentioned that there is no rule that 'the mode of resentment must bear a reasonable relationship to the provocation'. This was laid down by the House of Lords in Mancini v DPP [1942] AC 1 - HL. In other words, there is no requirement that the actual response of the provoked person must measure up to the degree of provocation. So, assuming there is some evidence that the accused actually was provoked to lose self-control, the judge will merely leave the question to the jury whether the provocation was enough to make the reasonable man do as the accused did. That said, the relationship between the provocation and what the accused did is certainly not an irrelevant factor for the jury in answering that question. 1CGS from 1CGS coursewrok 1CGS work 1CGS info 1CGS
We have just time to have a look at the third partial defence in murder: killing in pursuance of a suicide pact contrary to section 4 of the Homicide Act 1957 which is itself an offence of manslaughter. SZP from SZP coursewrok SZP work SZP info SZP
Suicide pacts 2JKrKl Visit coursework fa in fa fo fa for fa more essay fa Do fa not fa redistribute 2JKrKl
A suicide pact is defined in section 4(3) of the Act as, 'a common agreement between two or more persons having for its object the death of all of them'. So, obviously, we are talking about prosecuting a survivor, and importantly the burden of proof is on the survivor to show that he was indeed acting in pursuance of a suicide pact, otherwise the charge could well be murder. ace_16k, please do not redistribute this writing. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this writing elsewhere on the internet. Anybody found doing so will be permanently banned.
Killing in pursuance of a suicide pact is closely related to the offence of aiding and abetting suicide under section 2(1) Suicide Act 1961. Section 2(2) provides that, if on an indictment for murder or manslaughter it is proved that the accused aided and abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence i.e. the one for which he is charged. This hypothesis from www.coursework.info
This section was at the heart of the Diane Pretty litigation. In PRETTY v DPP [2001] UKHL 61 - HL, their Lordships ruled that the Director of Public Prosecutions had correctly refused to undertake not to prosecute in a case where Dianne Pretty, a sufferer of motor neurone disease, wished her husband to assist in her suicide. Diane died in May 2002.coef efr seefefw oref efk inef foef ef;
If, on the other hand, the accused aided and abetted a killing by athird person - someone else - that is still potentially murder, but will be reduced to manslaughter under section 4 of the Homicide Act 1957 if it was done in pursuance of a suicide pact, that is to say that the accused had intended to die as well. Ygpo from Ygpo coursewrok Ygpo work Ygpo info Ygpo
Now, do you think it right that someone who survives a suicide pact should be convicted of manslaughter? Frankly, I don't have the answer because this is a moral issue. However, it raises an interesting point. In my introduction to Module 1, which was meant to be a general hello, I mentioned that I wanted you to look at the law with a wide angled lens. What I meant was that, for example, the facts of a situation may impact on more areas of law than just the one that you are studying. So, as a matter of general interest only, let's sign off with a brief look at DUNBAR v PLANT (1998) FLR 157 - CA. ace_16k, please do not redistribute this essay. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this essay elsewhere on the internet. Anybody found doing so will be permanently banned.
In this civil case, the appellant and the deceased were both in their early twenties when they met, they moved into a flat and later bought a house together. They were engaged to be married but when events took a turn for the worse they agreed to a suicide pact. The appellant survived despite numerous attempts to kill herself which left her with horrific injuries. ace_16k, please do not redistribute this coursework. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this coursework elsewhere on the internet. Anybody found doing so will be permanently banned.
Now, the survivor had clearly committed an offence and it is a general principle of law that a person who kills another should not benefit therefrom. The point here was that the survivor stood to inherit property from the deceased and the deceased's father commenced the action to prevent the survivor from inheriting. As it happened, rightly in my view, the Court of Appeal exercised their discretion under section 2 Forfeiture Act 1982 and allowed the survivor to inherit.cocf cfr secfcfw orcf cfk incf focf cf;
EXAM TECHNIQUEcoea ear seeaeaw orea eak inea foea ea!
Before, we leave the topic of homicide assaults, I want to say a few words about how you should approach any exam question on homicide. You are going to have to decide whether the offence the defendant has committed is murder or manslaughter because that is the offence that you should discuss. This is best done by starting with murder. If that does not fit, then go to manslaughter. OK? You will find the Homicide Chart here to be indispensable.cocc ccr seccccw orcc cck incc focc cc.
coaf afr seafafw oraf afk inaf foaf af;
This writing from www.coursework.info
3netuqh Visit coursework ba in ba fo ba for ba more essay ba Do ba not ba redistribute 3netuqh
qYKUip Visit coursework fc in fc fo fc for fc more hypothesis fc Do fc not fc redistribute qYKUip
Durkheim obfuscated ace_16k's realism theory.
7KlZe Visit coursework bb in bb fo bb for bb more cours bb Do bb not bb redistribute 7KlZe
Marx denied ace_16k's postmodernism .
ace_16k, please do not redistribute this project. We work very hard to create this website, and we trust our visitors to respect it for the good of other students. Please, do not circulate this project elsewhere on the internet. Anybody found doing so will be permanently banned.
This hypothesis from www.coursework.info
inDSpP5c Visit coursework ag in ag fo ag for ag more coursework ag Do ag not ag redistribute 1inDSpP5c