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What are the distinctions between homicide, culpable homicide, muder and manslaughter?
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
Homicide is culpable when it consists in the killing of any person: (i) by an unlawful act, (ii) by an omission to perform a legal duty, (iii) by both combined, (iv) by causing through (threats etc.) a person to do an act which causes his death or (v) by wilfully frightening a person under 16 or sick person. (s160).
Manslaughter is culpable homicide that is not murder (or infanticide).
Structure of homicide offences
1) Is it homicide?
2) If it is homicide is it culpable or not culpable?
3) If it is culpable homicide is it murder or manslaughter?
4) All culpable homicide is at least manslaughter; separate list of mens rea states set out in s167 and s168.
Is it homicide? (Relevant sections)
s158 Homicide defined: Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
s162 (1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.
s159 (1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
(2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
Homicide causation rules
1) Basic principle - homicide may be attributed to a persons conduct even if it was not the sole cause of death.
2) Start with 'but for' test. Ask but for D's conduct would V have died? (Hawkins)
3) Then establish good legal causation: Was D's conduct an operative and substantial cause of death - not merely part of the background or totally insignificant in light of some other cause (Smith, Myatt).
4) D's actions do not have to be the only cause, however if there is reasonable doubt that the conduct was not operative and substantial then NG.
5) Various stautory rules underlining this e.g. s164 acceleration of death, s165 preventable and s166 medical treatment.
Difference between murder and manslaughter
Both murder and manslaughter may be committed by either an act or omission; the distinction lies in the state of mind at the time. Focus on intention fur murder.
s 160(2)(a): Killing by unlawful act
1) Identify the unlawful act ('predicate offence').
2) Apply the relevant law:
- Must be a criminal offence (not a tort) (R v Franklin).
- If the crime is one of negligence, it is not really an unlawful 'act' and Crown should pursue s 160(2)(b) which attract s150A gross negligence standard (R V Powell).
- Not all crimes of intent or recklessness will suffice. An UA must be objectively dangerous, i.e. pose a risk of harm to V or a class of persons of which V was a member (R v Myatt). No need to show risk of danger to life, just a risk of some/any harm.
3) All elements of the crime must be proved.
4) The unlawful act must have caused V's death (causation slides).
s 160(2)(b): Killing by omission to perform a duty
1) Identify the relevant duties. Describe their scope and explain why D falls within them. Starting point is stautory duties (ss 151-153; 155-157). But common law duties may be engaged.
2) Identify the standard required by each duty and assess if D has breached that standard. If so (and if applicable), was there any lawful excuse? e.g. general defence, consent by V.
3) The breaches of duty must also have caused V's death (Myatt).
4) Were the breaches of duty ''major departures'' from the standard of care expected of a reasonable person/professional? (s 150A(2)).
- A question of degree. An objective test "in the circumstances"
- The accused's state of mind (hamer) or peronal characteristics / extra qualifications (Myatt) are not directly relevant to the inquiry but wilful omissions can strongly suggest a major departue (viewed objectively).
s167. Murder defined:
s167. Murder defined
Culpable homicide is murder in each of the following cases:
(a) if the offender means to cause the death of the person killed:
(b) if the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not:
(c) if the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed:
(d) if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
s 160(2)(b) + multiple alleged breaches
Either consider duties separately or apply structure to all duties at the same time.
R v Piri
Expressions commonely used to express the degree of foresight required to be proved against a defendant regarding ''likely to cause death'' from s167b are "real risk", ''substantial risk'' and ''something that might well happen.''
R v Aramakutu
No requirement that the "dangerous act" must be something distinct from the ''unlawful object''. In cases of arson, the unlawful object and the dangerous act ''merge and may be said to be one and the same; yet it is perfectly natural to say that with the unlawful object of burning the house down the offender lit a fire."
If the unlawful object is personal injury it is best to use s167(b).
Section 167(d) can be used in such cases IF the unlawful object was personal violence of a different kind from that which resulted in the victims death.
Requires: (i) D had an unlawful object (satisfying Downey/McKeown/Aramakutu); (ii) D did an act to further this object, known to be likely to cause death.
Act: Do not need to prove D knew death was more likely than not to occur. Just appreciation of "real" or "substantial" risk it might cause death (Piri at CM17)
s168. Further defintion of murder
s168. Further definition of murder
(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:
(a) if he means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury:
(b) if he administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:
(c) if he by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.
Is it murder?
D must kill V concurrently (Ramsay) with a mental state in ss 167 or 168.
When were the injuries causing death inflicted? What was D's state of mind then?
Only one paragraph of 167/168 needs to be satisfied but more than on may be at issue.
Did D set out to cause some injury (more a 167(a), (b), 168(1) case) or to achieve a goal without necessarily permanently hurting anyone (s 167(d))?
s 168 can apply if D killed to facilitate a 168(2) crime, or to resist arrest from any crime.
Liability for Manslaughter
s160 (2) (a) Manslaughter by unlawful act
s160 (2) (b) Manslaughter by breach of duty (negligent manslaughter)
Unlawful act manslaughter
Unlawful act must involve a criminal offence (Franklin)
This is sometimes known as the predicate offence (i.e. liability for homicide is predicated on proof of this offence).
All elements of the predicate offence must be established (both actus reus and mens rea). Once the predicate offence has been established there is no further mental element; unlawful act manslaughter does not require knowledge that the act is dangerous or poses a risk to life.
R v Myatt
"before a breach of any Act, regulation or bylaw would be an unlawful act under s160 for the purposes of culpable homicide, it must be an act likely to do harm to the deceased or to some class of persons of whom he was one."
"safety of the public need not be the primary objective" of the predicate offence. It may have been enacted for some other reason.
The qualification of "unlawful" is dangerousness: so unlawful is "unlawful and dangerous" and not all homicide resulting from an unlawful act will be culpable.
Test for liability under unlawful act
1) Identify the relevant unlawful act (it should not be an offence which involves negligence - if it does use s160 (2) (b) instead).
2) Can you establish both the actus reus and mens rea of that offence?
3) Was the unlawful act also dangerous, i.e. was there a risk of some harm?
4) Was the unlawful act an operating and substantial cause of the death of the victim?
Omission to perform a legal duty (manslaughter)
s160 (2) (b) Manslaughter by breach of duty (negligent manslaughter)
s150A (2) ... only if, in the circumstances of the particular case, the omission or neglect is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances.
R v Powell
Court of Appeal: in cases where 'act' is a crime of negligence, s 150A should apply/Crown must rely on 160(2)(b).
- At : (see also )
It is quite artificial to distinguish between acts and omissions in this context. Where the unlawful act relied upon as a basis for a charge of manslaughter involves negligence, carelessness or other omission there must be applied the same standards for conviction as apply to the omissions giving rise to criminal responsibility to which s 150A expressly applies. The legislature cannot have intended that different standards would apply.
- Why? S 160(2)(b) and s 150A will be engaged in careless driving cases (see )
- Arbitrary if test for liability for msl differed depending on how the Crown framed the charge (gross if s 156 omission/160(2)(b); civil if s 35 act/160(2)(a)).
- Effect is to read s 160(2)(a) as excluding 'acts' which are unlawful due to negligence/failure to take care.
Test for liability under negligent manslaughter
1) Ensure there is a homicide capable of being culpable.
2) Identify the relevant duty.
3) Did the accused omit or neglect to perform or observe that duty? (this may include asking whether the accused had a "lawful excuse").
4) Was that omission a substantial and operating cause of the victims death?
5) Was the omission or neglect a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances?
Answer structure for homicide problem
2) Law and Analysis
i) Is it homicide?
- s158 human beings
causes death (''but for'', sub and op cause)
- s162 one year and one day rule
ii) Is it culpable?
- s160 (a) unlawful act
- (b) omission
Means to cause the death of the person killed.
The most culpable paragraph.
Requires: Intent to kill
Can be satisfied either by direct or indirect/Woollin intention (Piri, CM 20 RHS)
D wanted to kill V as his/her ultimate goal, or as a means to some end.
D knew that killing V was a 'virtual certainty' as a result of his/her actions, and this was in fact the case.
Means to cause to the person killed any bodily injury known to the offender to be likely to cause death and is reckless to whether death ensues or not
Requires: (i) Intent to cause bodily injury; (ii) Known to be likely to cause death (recklessness toward death).
Both are clearly subjective tests. For (ii), D must actually appreciate a risk his conduct could kill V; it is not enough the risk was obvious or serious (Harney).
The test is whether D knew death was a "real risk" or "substantial risk" or that it "could well happen" - NOT whether death known to be more probable than not (Piri - in relation to (d), but same reasoning applicable to (b)).
Could infer appreciation (or not) of risk from the type of blow D envisaged (eg. where on V's body D claimed he intended to strike) (Harney)
s 168 explained
Constructive malice / modified felony murder rule (see Shadrock HC at ).
Requires: (i) Intent to cause GBH - (1)(a); stupefy - (1)(b); or administer an overpowering thing - (1)(c);
(ii) For the purpose of escaping any crime, or [facilitating] a crime in s 168(2).
Where D kills someone trying to exercise a citizens arrest, for this to be "for the purpose of ... resisting lawful apprehension", D must know the arrester was attempting to exercise a lawful power of arrest (Shadrock HC at ).
For s 168(2), aggravated robbery triggers that section (since it includes the offence of robbery within it) (Rapira, ).
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