Question:
‘Bearing in mind the existence of the mandatory life sentence for murder, the offence of murder should be defined as narrowly as possible. By contrast the breadth of involuntary manslaughter is not such a concern.’
Discuss.
Answer:
This essay is divided in two sections to respectively discuss murder and manslaughter. Firstly, the definition of murder is laid out by the Homicide Act 1967 in two parts. The actus rea of unlawful killing of another person, and the defendants’ mens rea, which is the intention to kill or cause grievously bodily harm (GBH). If we were going to narrow the definition of murder, I would narrow it from intention to cause GBH and death to an intention to cause death or cause GBH with the awareness of the risk of death. Secondly, there are three types of involuntary manslaughter: reckless manslaughter, negligence manslaughter and unlawful act manslaughter. Each involuntary manslaughter conviction has different definitions, I would argue that sticking to the status quo is not a concern, but the court may take complexities of each cases into account before coming to decisions.
Should murder be defined more narrowly?
Firstly, the current definition for murder is arguably too broad, as it is not nuanced enough to be applied to distinguish defendants who have the intention to kill or to cause GBH, but indifferent to whether they will cause death or did not want to cause death. An example would be R v Nedrick, the defendant poured paraffin oil to frighten his neighbour which ended up killing a child. [1] Initially, the defendant was held liable for murder, but his appeal was allowed given the judge misdirected the jury. It was held that the jury should not infer intention but should unless they believed there was a virtual certainty of the defendant’s actions in causing death or serious GBH and that the defendant knew this. Another example is demonstrated in R v Maloney, in which the defendant who killed his stepfather accidentally in a race. The defendant’s appeal was allowed and it was held that foresight of the natural consequences of an act is no more than evidence of the existence of intent. More importantly, it was held that the jury may infer intent but was not bound to infer intent. In both cases, much is left to the jury to be decided, meaning currently, there is great flexibility in the law for various detailed factors to be taken into account. Due to the broad definition, a misdirection given by a judge may significantly affect the decision, which brings great uncertainty. Further, the broad definition also suggests that the decision of whether or not to infer intent is subjected to the jury, which is not fair as different jury may come to a different decision even if the characteristics of cases are the same. It may therefore be concluded that narrowing the definition is necessary.
Another reason that supports narrowing the definition of murder is because the death as a result of the defendant’s action is often based on a matter of chance. The mens rea element of murder contains the intention to cause serious GBH, but the harm that one suffers from GBH may vary from person to person. This creates a problem of constructive liability where the defendant would be convicted of a crime more serious than what he has committed. In R v Woollin, the defendant lost his temper and threw the baby on to a hard surface. [2] The baby was killed as a result of fractured skull but the court overturned the initial conviction of murder and substituted it for manslaughter, as the trial judge has enlarged the element of murder’s mens rea. This example not only reinforces the previous argument concerning the danger of leaving the definition of mens rea on the hands of jury or trial judge, the defendant actually had no intention to kill the baby but to project his bad temper. Although babies are extremely vulnerable, had the baby been taken to the hospital as soon as possible, the baby might have survived, and the father would not have been convicted been murder in the first place. Although his appeal was allowed and it was held that rather than referring to a substantial risk, ‘virtual certainty’ should be used, which resulted in the decision of manslaughter, this supports that the definition of murder should be narrowed.
The counter argument against narrowing the definition of murder would be it prevents the functions of criminal law: deterrence, protection of the general public and rehabilitation to be achieved. While murder is a serious crime, criminal law takes the approach of convicting ‘beyond reasonable doubts’. This explains why a more specific definition should be adopted to not convict the innocents. This is supported by Lord Steyn’s argument in Powell & English (1997), 'the present [murder] definition of the mental element classify [those] as murderers who are not in truth murderers’. [3] Further, this is also strengthened by the Law Commission Proposal in 2006, which divides murder into first and second degree. [4]This approach supports the argument in favour of narrowing the murder definition as it separates the punishments for those who intend to kill or are aware of the risk of causing death from those who kill with intent to cause some injury or fear or risk of injury, in the awareness that there is a serious risk of causing death.
Should the breadth of manslaughter’s definition be adjusted?
1. Unlawful and dangerous act manslaughter
The definition is that one has carried out a dangerous act, which is a criminal offence and have caused the death of a human being.
Defendant in R v Mitchell jumped the queue and was confronted by an old man, whom he pushed and knocked over another old lady.[5] The old lady later died and the defendant’s appeal against the conviction of manslaughter was quashed, as it was held that the unlawful act does not need to be directed at the victim. I would argue that breadth of this definition is suitable, as the law should still punish those who commit dangerous acts for deterrence purposes, regardless of who it is directed at.
2. Gross Negligence Manslaughter
Gross negligence manslaughter is defined in R v Adomako, where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. [6]The definition appears to make perfect sense on the surface, and works well on the Adomako case, as the defendant’s action was regarded by the court as ‘so bad in all circumstances’. The test applied in R v Rose was even stricter, where it must be shown that there is an obvious and serious risk. [7]However, the definition may not be fair to some defendants in particular in circumstances where defendants do not have complete control over their action.
The documentary ‘Doctors on Trial’ explores a child who died shortly after the hospital’s negligence for not diagnosing properly and providing the child suitable treatment on time, the medical staff were convicted of gross negligence manslaughter. The problem with this definition is that it does not take into account the failure of the hospital system, which has severe staff shortage and projects the liability on to the doctors and nurses. This is particularly significant as the documentary explores how this is a concern shared by many amongst the medical profession.
3. Reckless Manslaughter
There is a requirement of foresight of serious risk of death or serious injury, and one nevertheless chose to disregard or was indifferent to it, failing to see the obvious risk is insufficient’, which is held in R v Lidar.[8]
I would argue the scope of the definition as the focus on ‘foresight of serious risk of death or serious injury’ is specific enough to hold defendant liable. Further, by specifying that ‘one decides to disregard it’ and the insufficiency of failing to see the obvious risk would encourage people to be more careful in their acts and take greater responsibility, which is in line with the deterrence objective of criminal law.
Conclusion
I would conclude that the definition of murder can be defined more narrowly and we may take into account the proposal of the Law Commission to take on different punishments for first and second degree murder. The definition for most involuntary manslaughter offences are sufficient, however, it would be more appropriate if the court could acknowledge the circumstances defendants, particularly those in medical profession are faced with.
Feedback:
Grade: 64
Feedback:
This answer engages thoughtfully with the issues raised by the question. You show a good ability to structure your legal argument and to support it by referring to many of the relevant cases.
You will see from my detailed comments in the text that there are some gaps and points where the argument drifts away from the main issues. This is mainly where you seem to be unclear about distinguishing the GBH murder rule and the rules for oblique intention. I have also suggested in my notes how you could extend your analysis to include the underlying principles of criminal law, which would also help to would improve your grade.
References: [1] R v Nedrick (1986) 1 WLR 1025 [2] R v Woollin [1999] AC 82 [3] R v Powell and English [1997] 3 WLR 959 [4] Law Commission, Murder, Manslaughter and Infanticide (2006) [5] R v Mitchell [1983] QB 741 [6]R v Adomako [1994] 3 WLR 288 [7] R v Rose [2017] EWCA Crim 1168 [8] R v Lidar CA 11 November 1999
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