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Simple notes on Murder and Manslaughter
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Simple and concise notes on Murder and Manslaughter, covering voluntary manslaughter and loss of control
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Criminal LawLecture 7
(1) Homicide – Sanctity of Life versus Individual Autonomy
(2) Murder and Manslaughter: Elements in Common
(3) Murder – Further General Principles
(4) Voluntary Manslaughter – Loss of Control (used to be provocation)
HOMICIDE
1. Sanctity of Life Versus Individual Autonomy- Re A [2001] Fam. 147 (co-joined twins)
- Equipoise between protecting life and individual autnomony i.e. we can do as we
with with our bodies and its not for law to interfere)
See facts: Operation to save the life of Jodie the viable twin would lead to the certain death
of Mary. Could the operation take place or would it constitute murder i.e. the ‘acceleration’
of the death of Mary – could this lawfully take place or would it be murder?
- Judges struggled to rationalise
Johnson J in the High Court, in line with Bland, viewed a 3-4 hour operation as an ‘omission’
so no potential liability. The Court of Appeal viewed the invasive treatment as a positive act,
but ‘lawful’ for dissonant reasons.
- Justified by supported a prima facie criminal act by necessity
RATIO:-
1. The operation could be justified on NECESSITY grounds. An individual may bring
about a prima facie criminal act in order to bring about a greater good, i.e. the future
prospects of life fulfilment for Jodie, contrasting with Mary’s certain death
regardless of the invasive treatment.
2. Brooke L.J., relying on necessity principles to support the determination, referenced
the pre-requisites of necessity set out by Stephen in his Digest of the Criminal Law:
(a) The act must be needed to avoid inevitable and irreparable evil;
(b) It should be no more than is reasonably necessary for the purpose to be achieved; and
(c) The evil inflicted must not be disproportionate to the evil avoided.
3. Brooke L.J. asserted that there was no dilemmatic problem over selecting the
person to die, and nature had already made that choice. Fate had intervened and
Mary was bound to die. V (Mary) had already been chosen by fate and by
circumstances, and is not chosen as an alternative to anyone else. Nonetheless
across 163 pages of judgments, their Lordships struggled with the legal, moral,
ethical and social issues engaged, and with sanctity of life principles generally –
asserting that there was no “morally correct path to follow.”
4. Ward L.J. utilised arguments in his judgment centred around PRIVATE DEFENCE
AGAINST AN INNOCENT PERSON. ‘This perspective modified QUASI SELF-DEFENCE
to the exceptional circumstances herein and made the intervention lawful by the
doctors.
,Criminal Law
5. Walker L.J. examined the motive/intention behind the surgery and viewed death as
an inevitable consequence of the surgery, but not the purpose if it.
NOTE – see further Case Comment on Re A by Professor Sir John Smith, and potentially a
broader principle: - If A is bound to die in any event, but a short continuation of the life of
A will inevitably kill B as well, then, in such circumstances, it may be lawful to kill A, i.e., to
kill one innocent party rather than another.
R (Pretty) v DPP [2002] 1 A.C. 800
See facts:
- Dianne Pretty, who was terminally ill with motor neuron disease, sought proleptic
immunity before the House of Lords on behalf of her partner if he subsequently
acceded to her wishes to end her life.
- By s. 2(1) of the Suicide Act 1961 it is an offence to aid and/or abet the suicide of
another.
- The proleptic immunity that was sought was confirmation from a letter from the DPP
that Dianne Pretty’s partner would not be prosecuted, and rights under Arts 2, 8 and
14 of the ECHR were sought to be invoked.
HELD: It was held, however, that an absolute ban on assisted suicide can in a democratic
society be justified as a legitimate legislative choice in favour of the most effective system to
protect vulnerable persons. It was necessary to protect the vulnerable and the
disadvantaged in society, and no defence of mercy killing was available, and Art 8 rights to
privacy were not effectively invoked.
R (On The Application of Purdy) v DPP [2009] UKHL 45
Interestingly, this was the final decision of the House of Lords in its judicial capacity before
the Judicial Committee’s metamorphosis into the Supreme Court.
See FACTS: -
- The issue here was different to that in the Dianne Pretty case.
- Herein Debby Purdy – a severe multiple sclerosis sufferer – rather than seeking a
letter of proleptic immunity for their partner from the DPP, challenged instead the
failure of the DPP to provide an INTERIM POLICY document as to the circumstances
in which a prosecution would be brought where assisted suicide takes place in a legal
jurisdiction where it is lawful.
HELD: -
(1) In light of the eventual ECHR determination in Pretty, it was wrong to state that an
Art 8 right to privacy concern was not invoked herein.
(2) It was incumbent on the DPP to publish a POLICY DOCUMENT as to when a decision
would be made to prosecute, and Lord Hope addressing issues of foreseeability and
accessibility, sought a Code for Crown Prosecutors to be promulgated.
, Criminal Law
(3) Note that a subsequent INTERIM POLICY DOCUMENT was published by the DPP
which set out a range of relationally relevant factors:-
(a) Age of V, i.e. if under 18;
(b) Lack of capacity;
(c) Terminal or degenerative illness;
(d) Any financial gain;
(e) Any improper pressure applied or malicious encouragement;
(f) physical ability of V to effect the act;
(g) Relationship – not a spouse/partner/close relative or close personal friend;
(h) Use of websites to encourage the act;
(i) More than one V;
(j) Not a paid carer;
(k) Organisation or group; and
(l) Assisted in a public place.
INGLIS [2010] EWCA Crim. 2637 (mother and son mercy killing)
See FACTS: -
- The facts in this case, one of mercy killing, were tragic.
- D’s son had been punched in a fight in a public house, and the injuries were
relatively minor, but whilst being transported to hospital he fell out of the back of
the ambulance and suffered catastrophic brain damage.
- D, a nurse, could not bear to see her son in such a state, and tried on two occasions
to inject him with a dose of heroin to end his life – the second occasion the dose
proved fatal.
- Diminished Responsibility was not the basis of appeal against murder, but rather
that the trial judge erred in not leaving the partial defence to murder of provocation
to the jury, and the issue of whether the stress caused by the belief that V was
suffering a living death amounted to provocation.
- D said that V, left in a vegetative state and with severe disfigurement, was dead in all
but a small physical degree, and D said that she was not taking V’s life, but ending his
misery as he was suffering a “living” death.
HELD: -
- The appellate court held that our law did not recognise that an individual who was
severely disabled was already dead in all but a small physical degree. Whilst it was
lawful to end the life of V in Bland that was not the case herein. There was no
evidence whatsoever or provocation, that D had lost self-control, but rather that D
was fully in control of her actions in achieving the objective of ending V’s life.
- However, in terms of mitigation of sentence the appellate court recognised the
terrible grief experienced by D at the loss of V, and mental responsibility was
diminished albeit not to the level of the partial defence itself, but ultimately the
minimum term to be served was reduced to 5 years imprisonment.
- Their Lordships concluded by asserting that any changes to the law on mercy killing
or assisted suicide were a matter for Parliament to address, not by judicial
legislation, and there was an awareness of contradictory strands of public opinion in
this arena.
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