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Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Friday, January 30, 2009


The law governing homicide in England and Wales is a rickety structure set upon shaky foundations – Justin Santiago

The crime of homicide denotes either murder or manslaughter. Murder is the unlawful killing of another human being and is committed with the intention to kill or cause grievous bodily harm. The defences of provocation or diminished responsibility reduced the charge of murder to manslaughter.

The rickety structure and the shaky foundations are as a result of looking at homicide in a very structured manner when the crime itself cuts across a broad range of situations covering everything from accidental killings to full blooded murder. The categorization of homicide into murder and voluntary manslaughter and involuntary manslaughter and the different penalties meted out including the maximum sentence (life imprisonment) for murder and far more discretionary given to sentencing for manslaughter has made it difficult of all parties – the accused, the prosecution, jury and the judges.

It gets even shakier considering a result crime like murder has an unspefici mens rea which is an intention to kill or cause grievous bodily harm : R v Moloney. Two issues of uncertainty crop up here.

Firstly the intention to cause grevious bodily harm does not correspond to the actus reus of the crime i.e. causing the death of another human being. The intention to cause grievous bodily harm is proof of a lesser offence than that charged and applies to constructive crimes whereas murder is a result crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death and the person is liable to conviction for a more serious crime than he foresaw or contemplated and is criticized. This criticism has come from Lord Steyn in R v Powell who also referred to Glanville Williams, Textbook of Criminal Law. As a result defendants are being classified as murderers who are not in truth murderers.

Secondly the inherent difficulties in defining intention. The old definition of murder required malice aforethought. In the 25 years following DPP v. Smith, the definition of intention experienced a turbulent time. This was especially true in a succession of cases--notably R v Smith, Hyam v DPP, R v Moloney, R v Hancock and Shankland, R v Nedrick and R v Woolin.

In DPP v Smith the defendant was found guilty of murder death or grievous bodily harm was foreseen by him as a likely result or natural consequence of his act and therefore this gave an indication of his intention.

In Hyam v DPP, the judges opted for the narrower approach in opting for the test of foresight of highly probable consequences as indicative of intent.

Moloney narrowed down the broad approach in Hyam and held that foresight was merely evidence of intent but was not to be equated with intent. In Moloney the House of Lords equated intention with a two stage objective/subjective approach

1. Was death or really serious injury in a murder case a natural consequence?
2. Did the defendant foresee that consequence as being a natural consequence of his act?

If the jury answered yes to both questions it is a proper inference for them to draw that he intended that consequence.

The House of Lords in Hancock and Shankland disapproved of Lord Bridge’s term ‘natural consequence’ as ambiguous as natural consequences need not be inevitable but approved Moloney in all other aspects. Hancock and Shankland stated that reference should be made to the degree of probability that the prohibited outcome would result from the defendant achieving his primary purpose. The nub of Hancock and Shankland is that the higher the probability, the more possible it is to find that the defendant foresaw it, and therefore he intended it.

Nedrick addressed the ambiguity between Moloney and Hancock and formulated the virtual certainty test which conveyed inevitability and foreseeability in which the jury would infer intention if they felt sure that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions.

The recent decision of the House of Lords in Woollin endorsed with slight amendments the law as stated in the earlier Court of Appeal case of Nedrick by accepting the need for foresight of a virtual certainty barring some unforeseen intervention. The House rejected the conclusion of the trial judge that foresight of a substantial risk of death or serious bodily harm could in certain circumstances be an alternative mens rea to intention as it blurred the line between intention and recklessness. . It has also distanced itself, in the lead judgment of Lord Steyn, from the earlier Hyam formulation of foresight of a probable, or highly probable, consequence as the mens rea for murder.

The law as it stands after R v Woolin is that the question of intention is that the jury may find that a defendant intended an outcome if it was his purpose to cause death or grievous bodily harm and grievous bodily harm or death was a virtual consequence of his act and he knew that grievous bodily harm or death was a virtually certain consequence. Thus it would seem that the law had resolved resolved the subjectivism/objectivism argument by covering a spectrum of the two. The law was also able to give an ordinary meaning to the word intention in the narrow sense of direct intention (defendant’s purpose to achieve the prohibited consequence) and a wider sense of oblique intention (defendant did not desire the consequence but could still be held to have intended it). The desire to include oblique intention was seen as necessary to broaden murder to cover instances where death was not intended at the time of execution but which happened.

There are several criticisms with this approach by Cathleen Kaveny in her article "Inferring Intention from Foresight" suggesting that intention should not be equated with any degree of foresight. She argues that foresight and intention are quite distinct mental states and no degree or type of foresight can be equated with intention and has argued that English Law should adopt the Scottish concept of ‘wicked recklessness” as a distinct prong of the mens rea of murder.

The Law commission in its report entitled "Murder, Manslaughter and Infanticide" has suggested that the two-category structure of the general law of homicide is no longer fit for purpose and there is a proposal to replace the two tier structure with a three tier structure in descending order of seriousness first degree murder, second degree murder, manslaughter and specific homicide offences such as assisting suicide and infanticide. First degree would encompass intentional killings or killing through an intention to do serious injury with an awareness of a serious risk of causing death. Second degree murder would encompass killing through an intention to do serious injury or killing where there was an awareness of a serious risk of causing death, coupled with an intention to cause either some injury, fear of injury or risk of injury. Second degree murder would also be the result when a partial defence of provocation, diminished responsibility or killing pursuant to a suicide pact is successfully pleaded to first degree murder.

Manslaughter would encompass death caused by a criminal act intended to cause injury or where the offender was aware that the criminal act involved a serious risk of causing injury or where there was gross negligence as to causing death.

However the categorization does not eliminate the problems arising out of the difficulties in defining provocation and diminished responsibility which would reduce first degree murder to second degree murder.

Also the crime of manslaughter does not resolve the problems associated with the presence of a mens rea without the intention to kill whereas manslaughter is a crime involving death of the victim.

Attempts to follow a US style categorization of homicide may not be the best solution as it complicates the definitions further. An alternate classification into a single crime of unlawful killing may be a better alternative coupled with discretionary sentencing based weighing aggravating factors such as deliberate intent, exceptional brutality or cruelty, significantly endangering public safety or committed against a public official engaged in enforcing the law as well as mitigating factors such as diminished responsibility, provocation, recklessness, negligence or unlawful acts. This would make the laws in line with countries like Finland which has relatively low numbers of unlawful killing.

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