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Difference Between Murder And Manslaughter

The prosecution must prove beyond all reasonable doubt Woolmington [1935] that the defendant committed the offence (actus reus) and also had the necessary state of mind for committing the offence (mens rea). Murder is the intention to kill or cause grievous harm. The actus reus of murder is if the act committed is intentional, unlawful and is the main cause of death. In Alf’s case this is setting fire to Pete’s house. For Alf to be legally responsible, the prosecution must provide evidence that Alf’s act was the factual and legal causation of Vera’s death. Factual causation can be acknowledged by asking ‘was the defendant’s act a cause in fact of specified consequence’. [2] This can be answered by asking ‘But for what the defendant did would the consequence have occurred?’ If the answer is no, causation in fact is recognized. The ‘But for’ test makes it easier to determine factual causation between Alf’s act of setting Pete’s house on fire and Vera’s death. The question in court should be Would Vera die if Alf had not set the house on fire? In R v White [1910] [3] prosecution failed to establish factual causation. In this case, if Alf had not set the house on fire, Vera would not have died. Meaning factual causation can be recognized.

Legal causation has to be established to be able to take legal action. It uses concepts of blameworthiness, liability and expectation to select the most suitable. R v. Pagett (1983) [4] talks of legal causation, as the defendant did not fire the weapon that killed his girlfriend. However he was held liable as the most culpable in the actions leading to her death. Alf’s actions need not be the individual cause of Vera’s death as another’s act may have contributed; it must a substantial and operating cause of death. Jo saw the fire moments after it started and chose not to call for help and Olly could not help as he forgot the ladders.

The defendant will not lawfully have caused the particular outcome if there was a novus actus interveniens sufficient to break the legal chain of causation. This can be an act of the victim, third party or an unpredictable natural event. The outcome of the intervening must be so overwhelming that the defendant’s attack is reduced in importance. In Alf’s case, Jo and Olly do not break the chain of causation as their actions are not overwhelming causes for Alf not to be liable. R v Cheshire (1991) [5] shows that not all events following the defendant’s act will break the chain of causation.

The mens rea for murder is the mental element the intention to kill or cause dangerously bodily harm. Alf’s case outlines that it was not his intention to cause harm, nevertheless was aware of a risk of harm. The mens rea necessary is intention. It is the highest level of mens rea and separates in two areas direct and oblique. Direct intention is when the defendant desires an outcome and their goal is to accomplish it. Oblique intention is when the defendant has a purpose in mind but in achieving that also causes other outcomes that were not desired. Nedrick [1986] [6] is like Alf’s case. The Nedrick test has objective and subjective perspectives. The objective part would ask if Alf foresaw the death of Vera as a virtual certainty and was he aware that his act could cause harm. The subjective part would ask if Alf foresaw Vera’s death as a virtual certainty. Even though Alf was aware of the possibility of causing harm, he would not have significant intention if he did not foresee death as a virtual certainty, as he intended a different outcome to what took place. Therefore Alf’s intention was oblique as he did not want to kill or cause anyone any harm his intention was to frighten Pete into leaving Sandra alone. Hancock and Shankland (1986) [7] the House of Lords indicated that the likelihood of the consequence taking place was something to take into consideration in determining whether there was enough facts from which intention might be inferred. The two miners were convicted of manslaughter and not murder as their intention was to frighten and not kill. Alf’s intentions were to frighten Pete not to kill him. However, in contrast with Hancock and Shankland, Alf was aware of the likelihood of harm but the two miners were not.

Recklessness takes an inexcusable risk, having two levels subjective and objective. Subjective recklessness is where the defendant realises there is a risk but chooses to take it nonetheless R v G [2004] [8] . Objective recklessness is where a sensible person realises there is a risk R v Caldwell [1982] [9] . However, a person is still guilty even when mentally unable to realise the risk. Alf shows subjective recklessness by not chekingif the house was empty, and is aware of the possibility of someone getting injured, but still pours the paraffin through the letter box and starts the fire. In Hyam v. D.P.P (1975) [10] , the issue before the House of Lords was whether or not the mens rea necessary for murder, was established when the defendant was aware of the high probability that her act would result in death or serious bodily harm. In both the Nedrick (1986 [11] ) and the Hyam v. D.P.P (1975 [12] ) cases the defendants were behaving recklessly Alf committed an act which was against the law, dangerous and was aware of the risks of harm.

The two types of manslaughter are, voluntary and involuntary. In this case, Alf’s actions were voluntary. Two specific defences which apply to Alf’s case are provocation and diminished responsibility. Provocation was a common law defence prior to the Homicide Act 1957 defined by Delvin J in R v Duffy [1949] [13] ‘Provocation is some act, or series of acts, done… to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self- control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.’ [14] Section 3 of the Homicide Act 1957 lengthened on this providing that ‘ Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self- control, the question whether provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.’ [15] This requires the prosecution to prove all elements of murder. There are three elements of provocation; firstly there must be some provocative conduct, secondly there must be a cause to make defendant lose self-control and thirdly if the loss of self control occurs, a reasonable person would also have lost self-control and act in the same way.

In Alf’s case the facts do not point to any evidence that he was provoked. Alf was profoundly depressed and acted in anger after hearing Sandra was dating Pete. However setting fire to Pete’s house was not an act performed in the heat of the moment, which would have overcome a reasonable man. Therefore provocation is highly improbable to win if used as a defence. Diminished responsibility is a defence simply statutory. Section 2 (1) of the Homicide Act 1957 states ‘Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.’ [16] If Alf uses this defence he will not be successful, as he was not suffering from abnormality of mind. The burden is on the defendant to prove their defence on the balance of probabilities R v Dunbar [1957] [17] . In R v Bryne [1960] [18] , Lord Parker CJ described an abnormality of mind as ‘a state of mind that the reasonable person would find abnormal’

Alf can argue he was suffering from depression, as the news of Sandra’s relationship with Pete caused mental distress and use insanity as a defence. This defence can apply to Alf; however he would have the burden of proving his mental state and that his depression affected his reasoning. According to the M’Naghten rules it must be proved that, when the offence was committed, the defendant was under defect of reason, evolving from mental illness, so not knowing the nature and quality of the act committed, or, if he did, not knowing that what he was doing was wrong. If this is the case then Alf will not be held responsible due to insanity. I think it most likely that Alf will be charged with reckless manslaughter, as his intention was not to kill or harm, but to frighten Pete. When setting Pete’s house on fire he does so in a state of depression and on realising that Vera is inside he immediately changes his mind and runs into the burning house and tries to save her. If Olly had brought the ladders the tragic death of Vera could have been avoided.

There are three different offences of committing involuntary manslaughter, constructive, gross negligence and reckless manslaughter. The case states that Jo is a neighbour and a family friend who notices the fire moments afterwards but does nothing about it. The law does not impose a duty on a public bystander to help or save a person in danger. In order to establish negligence for manslaughter a higher degree of care or relationship is required, even though Jo omitted to call for help she did not owe the victim a duty of care. In R v Stone and Dobinson [1977] [19] , they allowed an ill sister to live in their house; she died after they failed to call for medicinal help. They both had a duty of care as they were her primary carer, both charged with manslaughter by gross negligence. The duty can be breached if at any time a risk of injury to health is foreseen R v Stone and Dobinson [1977] [20] . If Jo had created a danger which could cause harm to anyone then she would have a duty however this is not the case the fire therfore has not duty to act. Such duty arises from special relationships such as, parent child Gibbins & Proctor (1918) [21] , a contractual duty Pittwood (1902) [22] , an official position Dytham (1979) [23] . Jo’s decision not to act can be considered to be morally wrong but this does not make it a criminal liability. Jo could be convicted of involuntary reckless manslaughter.

The case states fireman Olly and his crew turn up to the scene but cannot help as they have forgotten to bring any ladders. The House of Lords in R v Adomako [1994] [24] decided that to establish the gross negligence form of manslaughter the prosecution must prove a duty of care a breach of the duty of care and gross negligence. Olly has a duty as a fire man is to save lives and prevent harm to others he breached duty by being negligent in failing to be adequately prepared and failed to carry out his duty by being unable to get to the victim. In the case of Pittwood (1902) [25] a railway crossing keeper omitted to close the gates resulting in a person crossing getting hit and killed by a train. The keeper had a contractual which was breached as he was negligent. Bateman (1925) [26] states that negligence is gross when it is ‘beyond a matter of mere compensation between subjects and showed such disregard for the life as safety of others as to amount to a crime against the State and conduct deserving of punishment’ [27] Olly was negligent as he did not bring the ladders that could have saved Vera’s life. Olly could be charged of manslaughter by gross negligence for failing to provide duty of care and breaching his contractual duty.

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