Criminal Law B (Murder)

Examine the AR circumstance requirements for Murder.

(2)Circumstances (A) Under the Queen's Peace 1. Includes all British citizens or where the crime is committed in England or Wales. 2. Only exception: Where soldiers kill alien enemies in the 'heat of war and in actual exercise thereof'. 1) Adebolajo [2014] D not accepting the Queen as much does not prevent V being under the Queen's Peace 2)Soldiers/police killing an alien enemy in a war zone in non-war situations still under Q's Peace: -Clegg [1995] Police killed suspected terrorist in N. Ireland - Page [1954] Soldier killed civilian in Egypt (B) V must be a person 1. Victim must be a human being. 2. Unborn babies- Poulton [1832] An unborn baby is not a person under criminal law, only a person after 'fully expelled from the womb and alive'. -Other crimes for killing an unborn baby e.g. children destruction, procuring a miscarriage 3. Issue of prenatal harms that cause postnatal deaths- A-G's Reference (No 3 of 1994)-Where D harms a foetus that is later born alive and dies as a result of D's harm, D has caused the death of a person at the time of death. However only AR is satisfied, MR probably not because the intent to kill or cause GBH is not directed towards a person and no double transaction malice allowed). -CP (A Child) v Criminal injuries Compensation Authority- Same logic still applies MR towards a non-person even if the D being accused is the previously pregnant mother Person in a vegetative state or disabled: (1) Airedale NHS Trust v Bland- Disaster victim still a person despite being in a vegetative state kept alive by support machines. -Only taken as medically dead at point of 'brain death' If V's body is being kept alive but there is no chance of recovery but V's condition still falls short of brain death e.g. permanent coma, not considered dead. (2) Re A- All disabled or handicapped patients are still people even if born that way

Examine [Cat 6] Duty to Act based on the creating of a dangerous situation and case law.

(EMdangerment: EvansMiller-dangerment) Following Evans which follows Miller and expands the duty: Miller- Duty to act only arises at the point where D becomes subjectively aware of the danger he has created. Widened in Evans- Duty to act rises where D either creates or contributes to the dangerous situation and if he either objectively or subjectively became or should have become aware of the danger. Contributed: supplying V with drugs that put her under an obligation to take reasonable steps e.g. call an ambulance. Duty is having created the danger D must inadvertently or otherwise try to prevent harm coming about. -Possibility of a case scenario giving rise to more than one duty to act e.g In Evans several duties were considered (1) duty based on familiar relationships (D was V's half-sister) (2) assumption of care (D did begin to try and look after V by putting her in the recovery position and let her sleep but did not attempt medical attention for fear of repercussions) (3) Duty from endangerment. -Sometimes hard to tell from judgement which duty the case is decided on or whether it is a combination of possible duties.

AC/problem question: Explain the current law of MR of murder (Intention) and its evolution with regards to its history.

-17th century roots of Coke's writings saying 'Malice Aforethought' -Vickers confirmed by Cunningham abolished constructive Malice (person kills another in the course or furtherance of some other offence) for Express malice (intention to kill) and Implied Malice (intention to cause GBH). -Rationale: Implied Malice pre-dated constructive malice and was unaffected by 1957 Homicide Act. and the D should take responsibly for V's life if he intents serious injury.

Examine the 3rd requirement of the Woollin OI test.

-Here the jury are entitled to find that D intended the offence element when presented with the evidence of the Obj and Sub VC. Means that despite the evidence and court findings the jury may or may not find intention if they so wish. -AC: There has been much debate (Norrie and Williams) about whether satisfying the obj and sub VC requirements should oblige the jury to 'rubber-stamp' it find intention and that they should not have discretion. -Some academics suggest that Woolin's 'finding' intention affords the jury less discretion than Nedrick's 'infer'

1. State and outline the MR for Murder. 2. Briefly explain the reason for severe criticism as a constructive liability offence.

1) MR for Murder: D must have an intention to kill or cause GBH. (Cunningham) 2) GBH means 'serious' or 'really serious' harm. Accepted examples include: an intention to break a major bone or to severely wound V (S&H). 3) Intention is the most serious standard of MR having the greatest culpability and blameworthiness. Current law lays out two different types of intention that satisfy the intention MR term: Direct and Oblique Intention. 4)Constructive liability offence- Murder's MR includes GBH and death. Thus where D only acts with the intention to cause GBH but the corresponding AR is causing death, so the MR and liability for the AR aka death and murder is NOT directly corresponding and is highly criticized. (Discussed below)

Explain the concept and requirements for Direct Intention.

1) Moloney [1985]: Direct Intention: D acts with the purpose or aim of achieving the crime/result. OR DI is present if it forms part of the purpose when acting. 2) Scope: -DI does not require premeditation or planning but must be present at the time of action. -DI not affected/does not require any foreseen likelihood of success or failure. E.g. Even if the result is highly unlikely, if the result is D's aim DI is still satisfied. 3) Anthony Duff's alternative definition of DI is to say that if D directly intents for a result to happen that D will consider it a failure if the result does not occur and a success if the result does occur respectively. However there is a limitation to this approach, as pointed out by S&H this does not work in relation to a 'means to and end' type of DI. E.g. D kills her mother with the intention/desire of obtaining her inheritance. The killing of the mother causes D grief and is considered a failure as D would have preferred to obtain the inheritance without killing her mother if possible. 4) Means to an end approach- Lord Hailsham in Hyam [1975] states that DI includes "the means as well as the end". Means to an end means that the result is an essential means to the desired end. (I would say that it is irrelevant whether there were other less unsavory methods to achieve the same end, only if that was the means that resulted or that D used.)

Personal opinion on 3rd requirement of Woollin's OI test.

1) Yes., agree for it. I think the purpose of the 3rd requirement is admirable being to give murder, one of the harshest convictions in Criminal law, a human element of understanding and forgiveness that it can sorely lack in the 'moral elbow room' of the jury. 2) Legal criteria exist in Lord Steyn's judgement -Disagree with some academic that there is no legal criteria for jury to apply per the words 'entitlement to find' of Lord Steyn. - Legal Criteria is: Using "consideration of all the evidence" (adhering to CJA 1967 s.8) to judge if there is an Obj VC and Sub VC. 3) Discretion used only for extraordinary factor -'Entitled' discretion to only be used where after the jury has used all the evidence (per CJA 1967 s.8) to answer the first two requirements that if there is some truly extraordinary factor in the case to warrant the jury to not find intention then they are entitled to do so. -The only possible explanation for setting out an entire detailed legal criteria for which factors to consider [obj & sub VC] and how/the tools to apply the legal criteria [evidence per CJA 1967 s.8] but then not giving it legal bounding power over the jury through the use of the word 'entitled'. That Nedrick's 'infer' is the same. -Logical here is why even bother putting it into such elaborate words if Lord Steyn just intents to have the Jury do whatever they want, to give them full unrestricted discretion and 'moral elbow room'? Only possible explanation is that it isn't what he means. My view is that Woolin's 3rd requirement is entirely justified in its desire to humanize and alleviate the law of murder. Mention principle of correspondence and mandatory life sentence of murder as characteristics of murder that sometimes allow justice to suffer. My criticism does not come as to the existence of the jury requirement and its powers but in its convoluted and thus confusing construction of wording which has led to the requirement being misapplied and expanded beyond its rightful competence. -Lord Steyn should be been clearer and more transparent in his construction of the 3rd requirement allowing this entire problem to be avoided.

Examine and explain the law for AR conduct for Murder (physical acts). (4 marks)

1. Any conduct will do as long as the end result of causing the unlawful death of a person is met. 2. Result crime rationale -D's method of killing is unspecified because murder is seeking to criminalise the harmful result of death by murder no matter how it is caused. 3. Voluntary- Voluntariness of D's action is essence to the physical act (Can be either part of AR or MR, Birch likes AR but S&H says MR). Examples of cases where D escapes liability because he is not acting voluntarily. a) Mitchell [1983]- D hit A who fell over into V and killed them. A not guilty just the unlucky domino, D is guilty. b) Hill & Baxter [1958]- hypothetical by Pearson J of if D is attacked by swarm of bees and loses control of car bangs down and kills V. 4. Coercion as a defense a) Coercion (e.g. duress) does not affect voluntarism but could be a defence

Examine the AR Consequence/Result element (causation in fact) for Murder

1. Causation in fact -But 'for' test- meaning that if not for D's conduct (conduct or omission) the death of V would not have happened. E.g. White [1910] D poisoned mother's drink but mother died due to a heart condition in her sleep. No causation because regardless of the poisoning V would still have died anyway. - Accelerating the result As long as D's conduct caused the result to come about earlier than it would have; it is irrelevant if it would have come about later without D's involvement. a)Authority- Dyson (1908) D injured a child with a terminal illness. Test by Lord Alverston: "proper question to have been submitted to the jury was whether the prisoner accelerated the child's death by the injuries which he inflicted". -Defence of Clinical Necessity exception-where the use of pain-killing drugs to treat the terminally ill accelerates death as a side effect unintentionally. - Multiple Causes Because a result may have one than one cause in law, D cannot escape merely by identifying someone else who is also to blame a) Authority Benge (1865) Foreman and railway driver both causes of death. D (foreman) still liable. Indirect Cause An indirect cause [cause of a cause] may be legally sufficient and operative. a) Authority Mckechnie (1992)- V had an unrelated uler problem but the treatment was made too dangerous by V's inflicted injury by D. Held that D's inflicted injury was a cause of death; had led to the inability to operate. -Simester & Sullivan- "[was] the omission to operate, which was a cause of death, in turn a consequence of D's action in inflicting the head injuries upon V?"

Examine the AR Consequence/Result element (causation in law (Conduct must be blameworthy)) for Murder

1. Causation link must be between blameworthy conduct (no just any conduct!) and the result aka death . E.g. Dolloway: Man driving house and cart ran over a child who ran out into the middle of the road killing him. Although D had lost control of the reins negligently, not blameworthy because found that even if D had control of the reins he could not have stopped in time to save V. -In Williams and H (causing death by driving without insurance or license), Dolloway's blameworthy requirement was not applied and Ds found liable for death they could not have avoided. -Criticisms from academics that Dolloway should have been applied (Sullivan and Simester: Causation without limits and Ormerod) Return and confirmation of Fault/Blameworthy requirement 1) Hudges followed Dolloway which was then again confirmed by Taylor. - Hudges: D was charged with 'causing death by driving without license/insurance' after a collusion despite his driving being faultless and in fact V was driving under the influence of drugs. Court held that the offense wording meant that common law principle of causation was a requirement which meant D's conduct needs to be (1) more than de minis and (2) fault/blameworthy. 2) Taylor was a 7 member Supreme court case that followed and confirmed Hudges.

Examine the AR Consequence/Result element (causation in law (more than de minis)) for Murder

1. D's conduct as a cause is more than de minis (minimal) -D's conduct must be a legally significant cause "It need not be the only or the principal cause. It must, however be a cause which is more than de minimis, more than minimal". Per Lord Hudges & Holuson in Hudges AC: Uncertainty of the terminology and thus exact standard required Hudges and Smith say 'substantial' whereas Pagett and Cheshire say 'significant' -In fact, L [2010] says more than 'negligible' and Cato [1976] more than 'insubstantial or insignificant' - Possible exploitation or method or reconciliation that following Cato that both the words 'substantial' and 'significant' have the same meaning here or are interchangeable or that satisfying either is sufficient -Principle of uncertainty problems

Examine whether the chain of causation is broken with regards to the supervening victim acts. (Drugs and Suicide)

1. Drugs Chain of causation (Novus actus) will break if V's decision and conduct to take the drug was (1) Free- V had a choice whether to take the drugs or not (2) Deliberate- Thinking clearly and not in a blind (3) Informed- Was aware of all relevant, important information (Negative example: Lying that the drug is candy before supplying it to V) Authority: Kennedy (No.2) held that D has not the legal cause of V because he self-injected the drug into himself in a free, deliberate and informed way. Rationale: Principle of autonomy of individual Lord Bingham Note: Still free, deliberate and informed despite V being addicted to the drug Burgress[2008] Involuntary CoC breaks example: Have to show that D administered or participated in the administration, as long as its not solely or entirely the conduct of V- will not break the chain of causation. ) 2)Committing Suicide (a) Dhaliwal [2006]: Courts hypothesized that where D inflicts an injury on V that causes her to commit suicide (particularly a psychiatric illness that cause V to commit suicide). Defendant's wife did not commit suicide as an immediate and reasonable response to the verbal abuse, but acted voluntarily No proper case. (b) Also suggested that V's "fragile and vulnerable personality" would not break the causation. S&H suggest treating Dhaliwal with "considerable caution" (maybe for the following discrepancies/issues:? 1. Not Voluntary? Goes against the free, deliberate, informed test in Kennedy No.2 but could be reconciled by saying that the suicide was not voluntary. 2. Form of Suicide- Reasonable foreseeable? Alternative argument that suicide is an extreme form of 'flight/escape' cases and that despite D's abuse he should not be liable for such an extreme reaction by V. Personally disagree, it would not necessarily be 'daft' or outside 'the range of reasonable reactions' depends on V's reaction. E.g. Husband physical abuses wife for years, every time she cries and is in obvious immense pain even says "One day I'm either going to run away from you or kill myself to escape you". I would assume her suicide the next day could potentially be within the range of reasonable reactions. (e) V Informed? S&S view it as the CoC not being broken because V was not making an informed decision.

Examine [Cat 4] Duty to act based on an assumption of care with case law.

1. Duty arises where D voluntarily undertakes to care for V, regardless of the formal relationship between them where V becomes dependent upon D's care. Based on case law suggest 2 types of promise of care: 1) Explicit promise of care: (Nicholls): Grandmother agreed to take care of granddaughter after mother died but neglected her and she died. 2. Implicit promise of care [Istan] (1893) (Elderly aunt (V) allowed D to move in with her and paid for her expenses (like her food) expecting D to take care of her. D failed to take care of V or summon help when V grew gravely ill and V died. Implicit promise of care arose, guilty of GNM. 2. Issue of how much or how little D must be before there is a duty to act: -[Ruffell]: Even a minor act of attempted assistance in briefly and unsuccessfully attempting to revive a fellow drug user after an overdose was enough to create a duty to act. -[Stone and Dobinson], both D1 and D2 were of low capabilities and thus only tried quite ineffectually to help V before her death.

Examine [Cat 5] Duty to act when providing Medical Treatment with case law.

1. Duty of medical caretaker is to keep the patient alive as long as it is in the patient's best interest. Per Lord Goff in Airedale NHS Trust V Bland. -(Bland) deemed that further treatment for a very seriously injured disaster victim was pointless, would have made no difference so not criminal to omit further pointless treatment. Different from still illegal active euthanasia

AC: (a) Issue of the relationship between Causation and Fault. By assessing the current case of Hudges and Taylor, can there be causation without fault? Does requiring fault in causation undermine the nature of a strict liability offence and parliaments wishes? (b)Whether the 'crim/homicide' definition/requirements of causation can be or should be used directly in other offences especially Strict Liability statutory offences (note majority of SL offences are Stat offences).

1. Is the decision in Hudges and Taylor correct? (1) Simester and Sullivan: Causation as fault: (a) That causation does not necessarily require fault. -S&S agrees that causation should be required (yes) and that in Hudges the more than de minis factor was missing. - But S&S disagrees saying that fault has no part to play in causation and, no part to play in a strict liability offence. S&S argues that fault and causation can be separated and attempted to identify a middle ground involving fatalities caused without fault their example being: a driver who swerves the wrong way in an emergency (causation with fault) and a driver who skids on black ice (causation without fault). - Also ask if this causation requirement for strict liability statutory offences undermines the very nature of a strict liability offence and thus the intentions of parliament when creating the offence? -In practicality, Birch thinks that Section s.3ZB is a homicide offence and the court ultimately could not bring themselves to convict a faultless man to a homicide offence if there was any other interpretation which is the real reason. -Evidence in Taylor: Where the offence was aggravated with a max penalty of 14 years in jail and it would be very unfair to oppose this aggravated penalty on a defendant if he was faultless in causing the aggravated factor. -Lord Sumption (Implying similar thinking as in Sweet and Parsley) "If the requirement of causation is satisfied by the mere fact that the taking of the vehicle accounted for its being in the place where the accident occurred, then all of the anomalous consequences which this court regarded as extraordinary in Hughes apply equally to the offence under section 12A. It means that the defendant is liable to be convicted and sentences to a long period of imprisonment on account of an aggravating factor for which he bears no responsibility." -This brings up another issue how choosing policy or moral judgements over law can subvert/undermine the principle of certainty. That the courts often decide a case based on a moral plane then create or pick the rules and legal principles that validate that chosen outcome.

Explain the concept and requirements for Oblique Intention.

1. OI is about likelihood and probability of results and can arise even where it is not D's purpose, aim or means to an end. 2. OI test: If an AR requirement (result [Murder is a result crime] or circumstance) is: (a) virtually certain to arise (Objective) (b) D recognizes that it is virtually certain (Subjective) and (c) the jury finds that this recognition amounts to an intention. Authority confirming the 3-part test for OI: Woollin [1998]

Explain under what circumstances OI should considered and how the 'golden rule' of directing the jury is affected and applied.

1. OI should only be considered if there is doubt /very unlikely that DI can apply. 2. 'Golden rule' for directing juries with regards to the definition of intention they are to apply is to avoid any elaboration unless truly necessary [Moloney (1985)]. Jury is to use the common everyday understanding of the word 'intention'. Only where a finding of DI is unlikely and in exceptional case, the court may direct the jury to apply the legal definition of I including DI and OI.

[Cat 4] Duty to act based on an assumption of care AC: Examine the problem/criticisms of the assumption of care case law.

1. Rationale- Rationale is that by assuming an assumption of care you deter, even prevent, others who might have also wanted to help and may have actually provided reasonable effective care. 2. Theory Backfires- Problem is that by imposing a possibility of a criminally liable duty on D, people become less likely to want to help and assume such a duty to act. The underlying message is that if you do not help, you will not risk failing to satisfy the duty. 3. Flawed moral logic- The inherent logic of the duty is flawed as well, on occasions when it actually punishes those put have attempted to perform a good deed and service to society. It goes against logic that the parties who chose not to help and perform a good deed are instead left better off than those who are convicted of murder or manslaughter. 4. Should the test for the reasonable standard of performance be on of a reasonable/normal person? -S&H--> A Duty to act imposes an obligation to do what is reasonable for the duty. And nothing but the same objective reasonable standard should be asked of D. Miller example of having a duty to put out the smouldering mattress or calling the fire brigade instead of single-highhandedly putting out the fire himself. (Ability to provide care and objective test): Stone & Dobinson (1977) D1 (an old, deaf man) and D2 (a low-intelligence woman described as 'ineffectual and inadequate') took in D1's sister and made incompetent efforts to take care of her but eventually gave up. Voluntary assumption of care duty arose. - The test is for a reasonable level of care and is objective thus it does not matter that is it not within your capabilities, great unfairness. -S&H suggest the courts at least allowing the reasonable standard to take into account D's physical and mental limitation. Personal Opinion-Alternatively, another option is to not impose such assumption of care duties on individuals who lack the capacity to assume such a duty in the first place. E..g To use a hyperbole, what if a paralyzed cripple wanted to assume responsibility of a child upon his parents death? Should the law really allow him to assume the duty to Act given that he is obviously incapable of performing the task? I assert that it was the same in Stone v Dobinson, the two were 'ineffectual and inadequate' they could barely look after themselves they cannot possibly reasonably effectively look after fanny (V) at the standard the law of DOA imposes. Is the law not setting them up to fail? Solution- Ds do not have the capability to assume a duty to act should not be allowed to assume such a duty. Explicitly, implicitly or otherwise.

Examine and explain the law for AR conduct for Murder (Omissions part 1) with regards to the test for omissions.

1. Result Crime- Any valid omission will do as long as the end result of causing the unlawful death of a person is met. 2. Test for a valid Omission: (1) D's offence must be capable of being a crime by omission (2) D must have legally recognised duty to act (3)D must have unreasonably failed to act on that duty.

AC: Should nature of the intent of D be relevant? E.g. Good intentions-Mercy killings and Should they be?

1. The role of Intent and motive in 'Intention' (MR terms) a) Is not part of the definition of DI. DI is about - if D acts 'in order to' kill V he intends it, whether his motive doing so is bad (he likes hurting people) or good (V is in pain and has asked D put him out of his misery) both defendants are guilty where they still intent to bring about death or 'serious injury'. (In Moloney [1985] it was irrelevant that the step-father had no animosity and malice intent towards V (the son) and in fact had a warm, close relationship.) b) Can affect sentencing by reducing the minimum term served by D after conviction not does not affect the MR itself 2. Issue of Mercy Killings using the VM partial defense of DR: -Mercy killings are the ultimate in killings with honest even sometimes magnanimous and virtuous intent or motivation. (1) Before 2009, the vague terms of the DR defence the flexible law could include mercy killers but the Coroners and Justice Act (CJA) 2009 s.54 & s.54 has since prevented the inclusion of such a defense unless D has a recognised medical condition under DR. Kennefick [2011] (2) Rationale: Most Ds in such a case will likely suffer from an anxiety or depression related medical condition. AND Either way the partial defense of DR was not enacted by CJA 2009 to aid or protect mercy killers and is entirely the wrong arena to discuss the highly controversial issue of euthanasia.

Test for valid omission requirement 1: Are Homicide offences like Murder and Manslaughter capable of being a crime by omission? Give evidence/example.

1. Yes long recognised that most homicide offences can be committed by commission. E.g. Gibbins and Proctor [1918]: Recognized parental duty to care for the child (D) but failed to feed the child and he starved to death.

Examine whether the chain of causation is broken with regards to the supervening victim acts. (Blaue and Flight/Escape)

3)Blaue (Eggshell skull Rule) ('HDB' cases) Religious Convictions -D 'must take his victim as he finds him' so that if as result of a much less harmful attack V is weaker and suffers much great harm and even death because of a pre-existing physical or mental condition, D will still be the legal cause of V's death. V's unique vulnerability will not break the chain of causation. -In Blaue, this was extended to V's religious belief as a Jehovah's witness and refusal to do a blood transfusion leading to death. -Lawton LJ explains the underlying principle as "he who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself". Personal Characteristics -Holland (1841) (previous case accepted by Blaue) Facts: D injured V's hand and doctor advised the amputation of a finger but V refused and later died of the infection. Court said question was not whether the V had accept the best treatment but whether the death was caused by the wound. -Dear [1996] Facts: D wounded V and then V choose to die by neglecting the wound or reopening it and the court says it does not matter if V neglected or reopened the wound, D caused the death. 4) Flight/Escape ('WLR' cases [Warick Law Reports]) -Question of objective foreseeability and reasonbility of V's flight actions in the circumstances of the 'heat of the moment' Uncertainty in terminology/standard 1. Williams (1992) test- Whether V's reaction to D was within the range of responses which might be expected from a V placed in his situation. 2. Lewis (2010)- Whether V's actions were 'daft' 3. Roberts (1971) Test- Whether V's reaction was unforeseeable to D or ordinary person

Examine whether the chain of causation is broken with regards to the supervening 3rd party acts.

3rd party 1) Normal Voluntary Test -Whether the 3rd party's actions were (1) voluntary (free, deliberate and voluntary), (2) 3rd party's actions must be unforeseeable by D and unforeseeable to the reasonable person. Authority: Pagett (D used V as human shield, X (a police) returned fire and killed V shooting at D. D charged and convicted for V's death). Held that X returning fire was an 'involuntary' reaction to being shot at by D. 2) Doctors (a)Test- Whether the doctor's act was "so independent of D's acts, and in itself so potent in causing death, that [the jury] regard the contribution made by D's acts as insignificant" Authority: Cheshire -As the court do not want to convict doctors, the bar is set very high and almost impossible to meet. (b) Only exception where doctor can be convicted: if the court considers the 3rd party doctor's acts as 'palpably wrong' and the injuries inflicted by D are almost completely healed Authority: Jordan (where V almost completely healed and doctor treated V with antibiotics which he had already shown an intolerance to) - Difference between Jordan and Smith: In the case of Smith even though treatment was described as 'thoroughly bad' which would probably meet the 'palpably wrong' standard. D's injuries were still ongoing and an operative cause despite that fact that if left alone V in Smith had a 75% chance of recovery. Shows the high standard of the test against doctors as 3rd parties -Difference is probably that in Jordan V's chances of recovery were probably almost 100%

AC: Assess whether the 3rd requirement of Woolin's OI test is valid.

Advantages of 3rd requirement: (1) 'Moral elbow room' discretion gives a human moral touch to difficult cases to allow justice. E.g. Re A [2000] Case on a doctor having to separate two twin conjoined twins to save one of them but the other would definitely die. Robert Walker J recognised this as a case where the surgeons do not intend to kill the weaker of the twins but were fully aware of the VC of death as a result of their actions. Or the loving father-son relationship in Moloney Disadvantages/Criticisms of 3rd requirement: (1) Suspicion and fear that the jury is being allowed to determine the law. Historically and theoretically, the jury is only suppose to determine issues of fact not law (left to the judges and courts). S&H says that the jury are not being asked to apply a legal rule but instead to define it. (I disagree with this) 2) 'Moral elbow room' discretion is unpredictable without a clear legal criteria different sets of juries can could to different conclusions when assessing the same facts. S&H however admits that there is a limitation as the first two requirement must first be satisfied. Issue of what the meaning/nature of 'intention' is? - Whether intention is a statement of fact or moral judgement [Norrie 'After Woollin']? Factual definition supported by 'orthodox subjectivists' [John Smith, Hogan] vs. Moral judgement [Duff, Horder]. -Changes how the law determines what is in D's mind with regards to intention, factual [subjective state of affairs in D's mind] vs Moral [sub + obj wrong-doing element and the moral quality of the act or rather the psychological belief of D] -Explanation of the 3rd Jury entitlement requirement of the Woolin OI test is that, it reflects the moral judgement approach with the jury being required to "make an assessment of whether or not the defendant's state of mind deserves the label 'intention'". Woollin [1999] HOL confirmed Nedrick "where the charge is murder and in the rare cases where the simple direction ... is not enough, the jury should be directed that they are not entitled to find [rather than infer] the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case, the decision being one for them to be reached on a consideration of all the evidence " per Lord Steyn

Explain the concept and application of Transferred Malice.

Allows for D to be convicted on the basis of his MR to cause harm/death to A where he misses A and strikes V instead. D's malice towards A can be transferred to V even where D did not foresee or did not negligently fail to foresee harm to V. -(Latimer and Gore) Restrictions 1) Grant suggest that transferred malice only applies to result crimes. 2) Pembliton- held transferred malice will only apply where the intended MR applies to the same crime as his AR. (D threw a stone intending injuring A but broke a window belonging to B, no transfer of MR because the required MR for OAP offence and criminal damage is different) 3) Per AG's Ref 3 of 1994- Held no double transfer of malice is allowed where malice would have to be transferred from pregnant mother to unborn child and then to the baby born alive). AC: - Horder criticises the doctrine for allowing a transfer of MR even where harm of V2 is unintended and the manner of harm unanticipated and suggest having a 'remoteness' limitation. Given example where D shoots at V1 and V2 hiding in bushes nearby is startled by the gunshot and dies of a heart attack. -Ashworth says doctrine is a legal fiction as attempt liability can normally still be found against V1 and a reckless or negligence based offence for liability against V2.

Also further question of whether omissions should be able to suffice as a supervening cause so as to break Novus Actus or the chain of causation?

Can a third-party's omission break the chain of causation? V's own omission: No 1) Omission against yourself Blaue suggest not. Blaue Holland and Dear all suggest that at least if it is with regards to V, an omission to reasonably prevent ones own death by act in ones best interest by taking care of yourself [accepting necessary medical treatment or not aggravating and neglecting a serious wound] will still not break the Novus Actus even if voluntary. 2) Compare this to the Voluntary 3rd party act in Kennedy [No.2] which can break CoC suggest that omission cannot break CoC. S&S support that omission cannot break causation. 3) Oversimplifies things. 2 issues (1) This might be a special case because the V is affecting himself. Not another person. Looks at the issue of self-harm not committing harm to another person. Principle of personal autonomy might protect V here (2) The egg-shell skull test does not have a DOA to oneself. Issue again of self-well being and whether you can have a duty to yourself. -Dear's reopening a wound might not be an omission after all but an act per Lord Goff's omissions vs. acts test in Bland. -All this might suggest that whether an act or omission to oneself the CoC will not break if the omission is to oneself and there's no DOA. AKA its not about omission but self-duty. 3rd party omission (Cheshire test?) 4) To look at the omissions of 3rd parties (not V) we must look to Cheshire where the test is really high, "so independent of D's acts, and in itself so potent in causing death, that [the jury] regard the contribution made by D's acts as insignificant". Just a matter of severity though because in Jordan the omission does break CoC. 'Palpably wrong' and V is almost completely healed. But one problem. Might be a high bar set only for doctors. Overall conclusion: there is no direct statue or case law dealing with this. Up to the courts for now can argue either way. I think that since omissions can make Ds liable for murder (the most serious criminal offence) even they should be able to do this too but

Examine [Cat 2] Contractual Duties with case law.

Contractual Duties -Where D has a contractual duty that is a possible basis for omission liability. Test- Failure of duty to contracting party to complete the contractual duty in the contract. E.g. Pittwood: -Gatekeeper forgot to close gate (which was his contractual job) resulting in a collision which killed the train driver. D convicted of Gross Negligence Manslaughter.

AR: Test for valid omission requirement 2: Explain rationale of having a DOA and list the 6 categories of duties to act. Explain the difference between a duty to act (omission) and a duty to care (tort).

D must have a legally recognised duty to act. Purpose: enables law to hone in on the individuals whose failure to act is criminal from all who fail to act 6 categories of Duties to act: (1) Offense-specific duties (2) Contractual duties (3) Family relationship (4) Assumption of Care (5) Medical Treatment (6) Creating of dangerous situation (Buckley believes each duty has its own test) Duty to act vs. Duty to care: 1. Duty to act is a very narrow set of duties that criminal law may as an omission. Duty to care is a tort law concept of negligence about taking care to avoid harming through conduct. 2. Where there is a duty to act, there is always a duty to care but not vice versa.

Examine the first 2 requirements of the Woollin OI test: objective and subjective virtual certainty.

Definition of Virtual Certainty 1. Woollin endorses and verifies the standard of 'virtual certainty' from Nedrick: result must be a nearly inevitable result. 2. S&H asserts that the word 'virtual' is only used because it is impossible to be completely uncertain about future events. Although not cited, this probably comes from Nedrick where VC was described as 'barring some unforeseen intervention'. D's foresight of a 'natural consequence' [Moloney] or that the relevant consequence was 'likely', 'probable' or 'highly probable' [Hyam] to occur is NOT enough, as clearly established in Woolin and Nedrick Requirement 1: Objective -Considers not the mind of D but the external objective situation. Requirement 2: Subjective -Only considers the mind of D so if the court and Jury believe that D honestly did not foresee the virtual certainty of the circumstance or result the second requirement is not fulfilled. -This is even if it is objectively VC to a reasonable person or would have been.

Outline the Test (AR +MR) for Murder.

Definition: D unlawfully kills another person under the Queen's Peace with the intention to kill or cause GBH. AR 1. Conduct (Action) -Either Physical Act or Omission (Conduct Offences & Result Offences) Murder: Result crime. requiring the death of V, type of conduct irrelevant as long as conduct or omission caused the result of death *Voluntariness requirement 2. Circumstance -For Murder: (1) Under the Queen's Peace (2) V must be a person 3. Consequences (Result) -Causation requirement (Result must be causally connected to the conduct of D) 2-tier: (1) Causation in fact- But 'for' test (2) Causation in law (a) More than de minis cause (b) Conduct must be blameworthy (c) Conduct must be an operative cause aka Chain of Causation must not be broken MR -Intention to kill or cause GBH (Grievous Bodily Harm) Intention: 1. Direct Intention- When D acts with a purpose or aim towards the crime/result OR D's purpose or aim is to bring about the result by her conduct. 2. Oblique Intention- D intended a result that: (a) was a virtual certain consequence of her conduct (Objectively) (b) she realized was a virtual certain consequence of her conduct (c) the jury finds that D's recognition amounts to intention

Examine [Cat 3] duty to act based on familial relationship with case law.

Duty to Act based on Familial Relationship 1. Established recognised duty to act between family members: (a) Parent's duty to care for child- Gibbins and Proctor [1918] Child neglected and starved to death. Substitute mother through undertaking of duty bullied and starved Child. Omission was the undertaking of duty as Child's mother. Biological father's omission was the duty to have prevented the death. Both convicted of murder. (b) Duty to Act between a married couple: Hood [2004]: D failed to summon for medical help for 3 weeks after wife fell and suffered broken bones. Held too breach familial duty to assist. Note: Wife's refusal to go to hospital and ability to sound an alarm to call for help treated as only mitigating factors instead of a defense.

AC: What relationships (if any besides familial relationship) should give rise to a duty to act and why? Should we instead focus on dependence if so how much dependence is enough? (Ashworth: Manslaughter by Omission and the Rule of Law [2015]) and S&H Essentials of Criminal law [2017]

General AC: S&H- Asserts that the lack of case law has led to considerate uncertainty. These areas include: 1. Besides parent and child and married couple, what other relationships, if any, will give arise to a similar duty? Does it extend to siblings (possible that Stone v Dobinson hints at a possibility, V was the sister to D1 suggest to be a contributing factor to a duty arising) or extended family? 2. The scope/limits of a duty within a recognised relationship. E.g. Does a parent owe a duty to act to emancipated child over 18? (Sheppard [1862] suggest not where mother held to have no duty to daughter over 18 but uncertain whether Stone and Dobinson changes this as the court held a duty to act between blood relatives where victim was an adult.) E.g. What if married couple is separated but not yet divorced? Ashworth 'Manslaughter by Omission and the Rule of Law' deals with some of these issues. I found the most interesting one the issue of self-determination becos in is juxtaposition to the law's imposing of a duty on someone often without them knowing. So the only solution is, can they discharge that DOA? - Can a duty be discharged? Hood suggest not (husband let wife stay there for 3 weeks with broken bones even though she made it clear she did not want to go to the hospital) but how is it different from Smith [1979] did not call doctor for several days when wife was ill, eventually went against her wishes but she died despite treatment. Smith was acquitted but hood not. Smith held that the wife's right to self-determination meant that the husband could be acquitted for observing his wife's wishes as long as she as capable of rational decision making. Ashworth prefers Smith because the law cannot impose such a duty on the husband to override the self-determination and autonomy of the wife. -Other ways to discharge duty? Tell the authorities you're discharging your duty on the same principle of self-determination? Does V need to agree to the discharging of duties? - To ashworth most issue could be answered by looking at V's dependence and whether there is an assumption of care -Solution? Lots of uncertainty suggest that codification in statue would be good but the Draft Criminal Code does not provide much agreement.

AC: What is the distinction between omissions and acts? Examine any AC theories on methods of determining if the conduct is an omission or an act.

Herring's Great Debates in Criminal Law: -Lord Goff's test in Bland disagrees with S&H arguing that it is not about whether there was movement but whether there was an interruption in the expected set of events or 'nature taking its course'. -Only an act would result in an interruption of 'nature taking its course'.

Comment on the law of Omission for the Blaue (Eggskull Skull Rule)

Issues to consider: 1)Foreseeability Herring: It is not foreseeable, how can you hold someone responsible for something they could not foresee aka a bizarre outcome? (Me: If it really is bizarre, could it not be more than an act of god omission?) -Tadros: that individuals weigh the probability of the consequences of their actions before they act. -Klimchuck: D should only be held responsible for reasonably foreseeable consequences of thier actions. 2) MR/Causation and Blameworthy -Tadros and Herring say that because D couldn't foresee it, D is not blameworthy and lacks causation and thus MR. -Tadros idea the D might have causation in fact (that D still caused it) but no causation in law (not blameworthy or in Herring's example because science was not yet aware of smoking causing cancer and death) -Herring's conclusion is that D may be responsible but will probably lack MR so Involuntary manslaughter aka lower sentence. 3) What beliefs/actions are reasonable for V to hold/take under 'Thin-Skull' Rule: 1) Probably quite extensive/broad rule- Lawton LJ in Blaue "does not lie in the mouth of the assailant to say that his victim's [belief or action]... was unreasonable". 2) Exception would be prob unless there is some special distinction about the belief or action in making it assertable then would distinguish it from Blaue 3) Hart and Honore argue that religion has a special place of importance in society's perspective having a privileged place in the 'true' identify of an individual. That it will depend on what value society attaches to the belief or action V performs. 4) Are Omissions and Acts treated the same way? -Blaue was an omission by V to do a blood transfusion but in Dear the reopening of the wound was a positive act. -Drawing from medical cases like Jordan: Whether Dear has more reason to be argued as a positive act that is 'independent' and 'so potent in causing death' that it breaks Notus Actus and is an entire new operative legal cause of V's death

AC Murder MR Issue: Assess the effective justifiability 'wicked recklessness' MR for Murder under Scottish land and whether English law should adopt it.

Lord Goff 'The mental element in the crime of murder' Another reform solution to the current murder MR problems 'Moral luck- no requirement for foreseeability of death 1)Argues that the scottish MR of 'wicked recklessness' is superior to the current English systems of DI and OI and even the issue of whether in the risk of death is foreseeable. -Requires more than just foreseeability but "a state of mind which is as wicked and deprived as the state of mind of a deliberate killer"[Gordon] -Asserts that English law has become "imprisoned within [her] own favorite concept of intention" and that the MR of murder be either (1) Intention to kill OR (2) Indifference to death (Goff's name for wicked recklessness)

Examine whether the chain of causation is broken with regards to the supervening Acts of God.

Naturally occurring events or 'Acts of god' will only break the chain of causation if (1) unforeseen by D and unforeseen to the reasonable person e.g. Example from Perkins [1946] D is still liable if D assaults V then leaves her on the beach with the tide coming in so that it is foreseeable that V might drown. Whereas another example from Perkins: D attacks V but leaves her in a safe environment where she gets stuck by lightning or a falling tree. D is not the legal cause of death is only liable for the harm/damage D has caused during the assault. (2) Lord Hoffman in Empress Cars also suggest 'an extraordinary act' can break the chain of causation where it is thought that he is the treating delinquents as 'an act of god'. Using the act of god test.

Examine the possible impact of specific types of offences when applying the causation rules with regards to Empress Car Co v National Rivers Authority.

Problem with Empress Car Co v National Rivers Authority -Empress Cars does not adhere to the same rules as the other cases. It is 'wrong' on two counts: 1. With regards to the causation test Lord Hoffman uses the act of good test instead of the normal 3rd party test in Pagett. 2. 3rd party voluntary test in Kennedy No.2. Ignored. 3.The company is not at fault thus violating the 'blameworthy' requirement of causation and violating the Hudges/ Taylor cases and although it is argued that it is because Empress is a strict liability offence that was the case in Hudges as well. Possible ways to reconcile Empress: 1. The courts looked at the result and seriousness of the crimes- where in Hudges the D would have been convicted of Murder in Empress the punishment would be a fine. 2. The purpose/goal behind the offence- Wanted in a pollution strict liability case to hold the company responsible so that company would be liable to strict regulation rules against preventing pollution while in the process of doing business 3. Kennedy No.2 [2007] has since isolated the Empress Cars precedent to pollution cases only but the since more recent case of Day [2014] has suggested it could still be applied more widely. -Empresses refuses to recognize Kennedy No.2's voluntary act of 3rd party breaks CoC rule. - Sets the test as: What is the intended scope of the offences with regard to such 3rd party acts? For pollution offences, its the distinction between abnormal and extraordinary' acts and events (e.g. Terrorist) and every-day acts or events. It's all about context. Kennedy does say causation is not a "single unvarying concept to be mechanically applied without regard to the context in which the question arises".

AC: Explain the legal justifications for the current MR for Murder

Reasons for the current law and lack of reform: (1) Practicality/Political reasons: (a) Reform of murder was not a priority per Justice Select Committee in Sept 2016 by New Minister Oliver Heald QC after Alex Chalk's Hansard June 2016 Debate. (b) Fear that parliament will seem weak, that public opinion want a tough stance on Murder: Philip Davis saying that his voters will a mandatory life sentence sentence for murder and will be happy to hear that the sentencing tariffs are increasing. (2) (Replying to the lack of Correspondence Principle) Constructive liability Offences are both prevalent in criminal offences and have a long history in criminal law. -Examples of SLO include: Homicide offences and OAPA offences 2) Legal/Conceptual: (a) Philip Davis: 'An eye for an eye', revenge concept: must not forget that somebody's life has been taken after all, with some Malice Aforethought. -The importance of homicide (particularly murder) as the most serious criminal offence one can commit, utmost importance of the ECHR Art 2 protection of the right to life aka human life. -On a more less political, more practical point--> provides very strong deterrence for murder (assump (b)Intention including GBH with no foresight risk of death - Argument is that any serious injury carries a risk of death and someone who attacks intending to cause GBH must be prepared to (per Herring) 'take their life into your hands' -Horder says where D intends serious harm rightly liable for an even more serious injury as long as injury caused is not disproportionate to injury intended. -Even more radically broad scope in Pedain 'Intention and the Terrorist Example' talks about risk-taking. -Asserts that a terrorist who plants a bomb not necessarily foreseeing death or serious injury as virtually certain, can nevertheless be found to have the intention required for murder if attention is paid to the terrorist's attitude to the risk he creates.

Discuss the issue of whether English law should have a duty requirement? (Ashworth's Omissions and duty requirement VS. Williams)

Social Responsibility View vs Conventional View a) Ashworth for Duty requirement SR view: 1.A society is a network of relationships and each individual life should be valued intrinsically and for his potential contribution to the community. Basing this on the need for social co-operational and responsibility to have individual autonomy. 2.He argues that this creates a good case for encouraging at the minimal level a duty to assist a person in peril, at least so long as that does not endanger the rescuer and that that duty could be enforced through the criminal law 3. He points out that although imposing liability for omissions might interfere with autonomy there are many offences that do this, such as the requirement to wear a seatbelt or pay taxation. As he points out, as he sees the duty to rescue arising only where there is a threat to life, it will not occur often in a person's life b) Williams for Conventional View against/very narrow scope of omissions: 1.Rejects Ashworth's assertion that there is no moral difference between an act and omission. Believes there is a huge fundamental difference between the two, evidenced by omissions only being criminal if there is a duty to act. E.g.For doctors there is a complete taboo against killing a patient where there is not in letting a patient die. A doctor will happily admit to friends and colleagues that she has given up the battle to keep a patient alive, while she would not do so if she had actually killed a patient. 2. Argues that the primary focus of the law should be to prevent active wrong-doing. He sees 'bringing the ignorant or the lethargic up to scratch' as a 'secondary endeavour' for the law, that although occasionally possible omissions are normally not as bad as a direct act. 3. The criminal law has limited resources and these should be focused on the real need rather than the failings of some. He argues that the law enforcement agencies 'have their work cut out' dealing with those who actively harm others, without pursuing those who fail to make the world a happier place Personal Opinion: I agree with Williams, Ashworth paints a pretty picture but is too idealistic. William is being pragmatic and to that I add that if a duty requirement is truly adopted at English law, is there not the fear of the 'slippery slope' problem and with it an overlooking of self-determination. A duty requirement is an imposition of good behavior per the majority of society's views on someone, how do we know we won't one day be legally imposed to eat our vegetables and say our please and thank yous?

Test for valid omission requirement 3: What constitutes unreasonably failing to act on a duty?

Test: If D had acted reasonably, the result might not have occurred. (Same test applies for all duties)

Examine the 'Woollin Lacuna' problem.

The 'Woollin Lacuna' Problem -Only one subjective/objective VC requirement is fulfilled but the other sub/obj VC requirement is not: Where D is virtually certain of a circumstance or result but the same circumstance or result is not VC in fact. (Sub-Obj Woollin Lacuna) or (Obj-Sub Woolin Lacuna) -Issue is whether the courts and parliament really foresaw and intending for the 'Woollin Lacuna' to stop MR liability. -It has been argued that this is not the intention of parliament or that just fulfilling one VC is enough. a) S&H in Essentials suggest the solution of removing the first part of the Woolin test as a requirement, instead using it as evidence for the second requirement. b) Stringer [2008]: In Stringer, D set fire to his family home intending to kill (with sub VC) his family, 6 escaped but 1 died. -Held to have sub VC and obj VC because it was unrealistic that everyone would escape without serious injury (GBH). -Personal argument is that (1) Not really a problem: Lord Steyn in Woollin thinks that a failure to satisfy the MR for murder is of little consequence or not a cause for concern. Makes reference to the terrorist bomb example (from Pedain 'Intention and the Terrorist Example') and acknowledges that the Nedrick/Woollin OI does not cover this because it does not look at risk-taking but that its not problematic because failing the MR for murder, D can still be convicted of Involuntary Manslaughter (where does not satisfy the MR for murder) which also has a discretionary life sentence if it is deemed necessary. (2) Clarification still best: Codify? -Common law lacks clarity and that whether this was the intention of parliament needs to be stated which could be a in a directive or guidelines but best solution would be a clearer more precise definition of intention through codification. Also this should come from parliament not the courts.

What does S&H say about Pagett with regards to policy and causation to explain the court's decision? Why does S&H not fully agree?

The courts are acting on the basis of policy: -Challenge from Hart and Honore, Causation in the Law (1985) cited by S&H about whether the courts are using the principles of law to make decisions in line with the rules of law or choosing between principles to justify a prior moral decision about D's culpability. 1) Policy rationale is that D's acts led to V requiring care so D should face the consequences of his actions. This creates uncertainty and violates the integrity of the judicial process and affects transparency and thus public trust/faith in the law. so 2) E.g. Pagett: Compromises the principle of causation by holding that X's instinctive reaction to return fire was 'involuntary'. (It was probably voluntary.) 3) The policy that D must be held accountable for his unsavory actions despite the fact that his actions may not have achieved the offence result at law is dangerous. E.g. In Pagett, court suddenly held that acts done in line with a duty to prevent crime would never break the chain of causation. Seems like a rule made up to support their decision and what exactly is the definition and scope of 'acts done in line'. 4) Alternative of an attempt charge under s.1(1) CAA 1981: S&H suggest that attempt liability be used instead of "maintaining the fiction".

Discuss whether Omissions should be liable as criminal acts at all? Should Omissions Liability be allowed?

Two issues: Result by Causation and MR 1) Causation: Omissions cannot cause a result: -'But for' causation test will not work for omission because whether or not D's omission exist the victim would still have died the same way. The misconception is that there are only 2 choices either omission or action, wrong!, causation must take D out of the equation entirely as though he had not been at the death scene at all. -Michael Moore the omitter has not put the child in a worse position, says "drowning a child makes the world a worse place, whereas not preventing its drowning only fails to improve the world". -Alternative view is that: Failure can be seen as a cause where 'but for' D's failure to rescue the child the child would have lived however then problem is showing how the defendant's omission caused the harm and too many people would be liable. (2) MR: a) Herring suggest that Mens Rea is nearly impossible to ascertain for omissions. Too difficult to understand what is going through the mind of someone performing an omission whereas in contrast when a person acts they tend to be thinking about that they are doing. -But I disagree because that is a great hurdle for DI, in OI intention the VC test can still be applied. E.g. Endangerment- D who watches someone get stabbed, and it told by a doctor friend on the phone that if he does not help him V will die. But D walks off and V dies, very clear obj and sub VC. Conclusion: More agreement than thought. Supporters of punishment of omission do not claim all omissions should be criminalised and academics strongly opposed to omissions still accept that certain exceptional omissions such as a parent who fails to feed their child deserves a punishment. Real argument is really over which omissions should be punished

List the types of supervening causes that can potential break a chain of causation. (Operative cause)

Types of Supervening Causes 1) 3rd party (Normal and Doctors) 2) Victim acts (Drugs, self-harm, Blaue (Eggshell rule) and Escaping/flight) 3) Act of God