Homicide Law in the UK

1. The current law of homicide has been criticised widely for being archaic, complex and in need of reform. The Law Commission has reviewed the state of the law and proposed a new statutory framework which simplifies the law of homicide.[1] One of the biggest criticisms of the current common law is the wide definition ascribed to murder. It is defined as when someone unlawfully kills someone with the intent to kill or to do grievous bodily harm.[2] The breadth of the definition can be seen in the following example. A kicks B who falls over hitting his head on the curb resulting in death. The conduct of A under the current definition could constitute murder because the definition includes the mens rea of intention to inflict grievous bodily harm. Clearly A is guilty of a homicide offence however it is nevertheless odd to find A guilty of the top tier homicide offence in the same category as serial killers and hitmen. By included an intent to do grievous bodily harm within the scope of murder, the current law has been criticised for being skewed and distorting the sentencing process for murder.[3] Judges will often treat cases involving grievous bodily harm as including mitigating circumstances and therefore not impose mandatory sentences. This results in a skewing the murder offence into two tiers. The law is therefore unsatisfactory because of its breadth. Currently judges are being having to ameliorate this problem upon sentencing. Research into public opinion also reveals that the public believes murder is reserved for when there is an intention to kill or a total disregard for human life.[4] The current law does not reflect the general societal view and leaves the judiciary in a quandary when sentencing. Reform is therefore essential. The Law Commission's proposals remove the intention to do grievous bodily harm rule from the definition of murder and introduce a ladder of homicide offences which reflect the seriousness of the crime in the sentencing guidelines suggested. The new offences would be split between first and second degree murder. First degree murder is defined as intentional killing or killing through an intention to do serious injury with an awareness of serious risk of causing death.[5] This offence would reflect the society's view of what constitutes murder and remove the current sentencing difficulties that judges may face. The current intention to do grievous bodily harm found in murder would be captured in the new offence of second degree murder which has a discretionary sentence attached. These two offencs would help better reflect in law public opinion and alleviate any sentencing difficulties faced by judges. 2. It has been firmly established that in English law that there is no defence of necessity in cases where a doctor administers drugs causing death to save a patient from pain.[6] However, according to case law this does not mean that a doctor has to calculate the effect on a patient's lifespan of administering drugs down to the day or the week.[7] The critical factor in such cases is mens rea of the doctor. Clearly, if the doctor knew that the act of administering the drugs was only to kill the patient and not to give pain relief he/she will be guilty of murder. This distinction was shown in R v. Cox[8] where the doctor administered potassium chloride with the sole intention to end the life of a woman in severe pain. A subtle distinction revealed in that case was that if the doctor had instead administered a high dose of pain killing drugs it would be more difficult to prove the intention was to kill the patient. Therefore it appears that the law will tolerate doctors shortening the lives of patients only where this is done under the guise of treating the patient for pain relief and not where it is blatantly intended to end the life immediately. Applying this to the present circumstances it is possible that the doctor could be found guilty of murder or manslaughter depending on the intention which can be shown from the facts. In the event that the doctor did admit to intending to kill the patient there is no defence in law. 3. It is likely that Pip will be charged with murder. It is clear that he pushed Victor into the river knowing that he could not swim; but is that enough to show causation? There are two tests to determine whether a person’s actions caused death. The first test asks ‘but for’ the person’s actions would death have occurred.[9] The second test is used where there was an novus acteus interveniens. It asks whether the person was the “operating and substantial cause” of death.[10] In this case there was no intervening act therefore the ‘but for test’ will be employed and probably conclude that ‘but for’ Pip's actions the death would not have occurred. However, this on its own is not enough to convict Pip of murder. It must also be shown that he possessed the mens rea to kill or cause grievous bodily harm.[11] This question will be decided by a jury on hearing further evidence. In the event that Pip can show that he did not intend to kill or cause grievous bodily harm he may be charged with involuntary manslaughter. Involuntary manslaughter is distinguishable from the offences of murder and voluntary manslaughter because the defendant lacks the mens rea required to establish those offences. For constructive involuntary manslaughter to be proven the offence requires that: the defendant committed an unlawful act; that the unlawful act was a crime; and the unlawful act was a substantial cause of death.[12] Clearly Pip committed an unlawful act when he pushed Victor into the river. The question remains whether Amy's omission to help Victor as he drowned in the river constitutes an offence. By and of itself, Amy's failure to help or summon assistance is not an offence because there is no general duty of care between private individuals to be ‘good samaritans’ recognised in English law. Hence, any charge of gross negligence manslaughter would be difficult to prove because the offence requires a duty of care to be owed by one party to the another, for example between and parent and child.[13] It is arguable that because Amy is a police officer, albeit off duty at the time, she may owe a duty of care to Victor. The direction of the judge was wrong in law as section 8 of the Criminal Justice Act 1967 states that a person cannot be held to have intended the natural and probable consequences of his act just because they were natural and probable. The common law requires that a jury must consider all the relevant evidence before they decide whether they are satisfied of having the necessary intention.[14] 1

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Footnotes

[1]Law Commission, A New Homicide Act for England and Wales, Consultation Paper No.177: Law Com No. 304: ‘Murder, Manslaughter and Infanticide’ (2006). [2]See R. v. Vickers [1957] 2 Q.B. 664; Hyam v. D.P.P. [1975] A.C. 55; R. v. Cunningham [1982] A.C. [3]Above ft 1 at p 5. [4]Ibid. [5]Above a ft 1 page 8. [6]Bodkin Adams [1957] Crim LR 365 [7]Ibid at 368. [8](1992) Winchester Crown Court [9] R v White 2 KB 124. [10] R v. Smith [1981] 1 AER 332. [11] Cunnigham [1982] AC 566. [12] See R v Creamer [1966] 1 QB 72, 82C–D where Lord Parker CJ stated that: “A man is guilty of involuntary manslaughter when he intends an unlawful act and one likely to do harm to the person and death results which was neither foreseen nor intended. It is the accident of death resulting which makes him guilty of manslaughter as opposed to some lesser offence”. [13] R v Bateman 1925 Cr. App R. 8. [14]See Moloney [1985] 2 WLR 648; and Hankcock and Shankland [1986] 2 WLR 257

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