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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(3) (20 December 2005)
URL: http://www.bailii.org/ew/other/EWLC/2005/177(3).html
Cite as: [2005] EWLC 177(3)
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PART 3
THE FAULT ELEMENT IN MURDER
QUESTIONS AND PROVISIONAL PROPOSALS
3.1 We ask:
(1) Is the conduct of those who kill whilst intending only to cause serious bodily harm sufficiently culpable to deserve to come within the definition of "first degree murder"?
(2) If the answer to (1) is "no", is the conduct of those who kill whilst intending only to cause serious bodily harm more appropriately placed within the definition of "second degree murder"?
(3) Is the fault element of "an intention to do serious bodily harm" too uncertain a basis for categorisation within the law of murder?
(4) If it is too uncertain, should the intention to do serious bodily harm be restricted in the following way: "serious harm" is confined to harm of such a nature as to endanger life, or to cause, or to be likely to cause, permanent or long-term damage to a significant aspect of physical integrity or mental functioning?
(5) If "serious harm" is restricted in this way, is killing with an intention to cause such harm sufficiently blameworthy to deserve conviction for "first degree murder", or should an intention to cause serious harm (however defined) remain part of the law of "second degree murder"?
(6) Suppose that a category of "second degree murder" is introduced. Should it encompass killing by reckless indifference: a "couldn't care less" attitude to causing death?
(7) We understand "reckless indifference" as follows:
(a) D is recklessly indifferent when he or she realises that there is an unjustified risk of death being caused by his or her conduct but goes ahead with that conduct, causing the death; however(b) D's own assessment of the justifiability of taking the risk, in the circumstances, is to be considered, along with all the other evidence, in deciding whether D was recklessly indifferent and had a "couldn't care less" attitude about causing death.
Is that a sound definition?
(8) If it is to amount to "second degree murder", should killing through reckless indifference be further restricted by being confined to reckless indifference where the death arose from the commission of a serious criminal offence?
(9) Should manslaughter, as a substantive crime, be restricted to either or both of:
(a) cases in which D was grossly negligent as to causing death (where gross negligence includes recklessness insufficiently culpable to justify a conviction for "second degree murder"); and(b) killing through a criminal act intended to cause, or involving recklessness as to causing some injury?
3.2 We provisionally propose that:
(1) intentionally killing should be "first degree murder";
[paragraphs 3.3-3.9]
(2) killing through an intention to do serious harm should be "second degree murder";
[paragraphs 3.144-3.147]
(3) killing through reckless indifference as to causing death should be "second degree murder"; and
[paragraphs 3.150-3.151]
(4) killing through gross negligence as to causing death, or through a criminal act intended to cause injury, or where there was recklessness as to causing injury should be manslaughter.
[paragraphs 3.183-3.192]
AN OVERVIEW OF THE ISSUES AND OUR PROVISIONAL PROPOSALS
"First degree murder" and the intention to kill
(1) an intention to kill; or
(2) an intention to do serious (grievous) bodily harm.[1]
3.5 Intentional killing will not be analysed in great detail here. An examination of the concept of intention is provided elsewhere.[2] One important point should be made about it, however, as a "stand-alone" fault element in "first degree murder". A criticism of our proposal to confine "first degree murder" to intent-to-kill cases is that it will often prove too difficult to prove that the defendant intended to kill. The argument is that some lesser form of fault element within "first degree murder" is necessary to ensure that cases which are very close to intent-to-kill, but where it cannot be proved definitively that there was in fact an intent to kill, remain cases in which a "first degree murder" conviction can be obtained.
3.6 We understand the concerns that give rise to this criticism but we do not accept that it weakens the case for confining "first degree murder" to cases where the defendant intended to kill. There is strong public support,[3] as well as compelling moral justification,[4] for regarding the worst homicide cases, those deserving of the mandatory penalty, as those in which there was indeed an intent to kill. The fact that, in some cases, there may be difficulties in proving that the defendant intended to kill is not, in our opinion, a sufficiently weighty factor to overcome these arguments in favour of confining "first degree murder" to an intention to kill.
3.8 Further, there are around 80-90 convictions each year for attempted murder.[5] In cases of attempted murder the prosecution must prove beyond reasonable doubt that the defendant acted upon an intention to kill. So, an offence requiring the proof of such an intention is clearly viable in practice. There are, moreover, other crimes in which a very specific intent must be proven, where no calls for reform have followed from difficulties with proof.
"Second degree murder" and the intention to do serious harm
3.10 Our main concern in this Part will be with the "serious harm" rule.[6]
3.11 We are concerned at the potential breadth and lack of clarity in the notion of "serious harm" which is unacceptable when conviction for murder entails a mandatory life sentence. If the defendant (D) shoots another person (V) and is convicted of murder, current sentencing guidelines suggest that D should serve at least 30 years in prison, as part of the life sentence.[7] If D intended to kill V, that may be appropriate. What if, in shooting V, D intended not to kill V but only to do harm that the jury at D's trial regarded as serious? The guidelines say this is to be a "mitigating factor" that may warrant reducing the custodial element of the sentence. This may be wholly insufficient to ensure that justice is done in many such cases. Had the intention been only to do some harm, D would have been guilty (at most) of manslaughter, and would probably have received a sentence closer to 5 years' imprisonment. A simple difference of degree in the seriousness of the harm intentionally done cannot justify such a huge difference not only in the nature of the crime committed but also in the period appropriately spent in custody.
3.12 There are two ways of addressing this specific concern. "Serious harm" could be defined in a sharply restricted way. The law could try to ensure that, for the purposes of conviction for "first degree murder", there is no significant moral difference between the intentional killer and the person who intentionally inflicts serious harm. Alternatively, the open-ended understanding of serious harm with which the law currently operates[8] could be retained, but someone who has killed with the intention to do serious harm could be guilty of a lesser homicide offence, such as "second degree murder".
3.13 Our provisional proposal is that an act intended to do serious harm that in fact kills, should render D liable for "second degree murder" but not for "first degree murder". [Provisional proposal 2] So, we have provisionally opted for the second, alternative solution in the preceding paragraph. However, it is still possible to clarify and restrict the legal conception of "serious" harm for the purposes of conviction for "second degree murder".[9]
"Second degree murder" and reckless indifference
3.15 In our view the key question should be answered in a way that takes some account of two principles of fault in the criminal law, which we referred to in Part 2. They are that:
The latter feature reflects the correspondence principle. 3.18 Adherence to the principles can, however, involve recommending the expansion of liability in general or of the reach of more serious offences in particular. In that regard, it may be wrong that all kinds of reckless killing fall outside the scope of murder. Doing wrong recklessly may not be so blameworthy as doing wrong intentionally; but even so, the fault element of recklessness may be understood in such a way that it satisfies both the correspondence and subjectivity principles.[10] 3.19 Accordingly, our provisional proposal is that the "serious harm" rule should be supplemented, within the law of murder, by a provision making it "second degree murder" to kill through reckless indifference to causing death.[11] [Provisional proposal 3] 3.20 England and Wales is not the only jurisdiction that confines or has confined the fault element in murder to proof of either an intention (however defined) to kill, or an intention to do grievous (serious) bodily harm.[12] It is, however, very much in a minority in so defining the fault element. The majority of jurisdictions influenced by common law thinking include some form of reckless killing within the scope of murder, whether "first degree murder" or "second degree murder". Moreover, it cannot be said that the current legal position in England and Wales is the product of a rational preference over alternatives. As we will see, reckless indifference respects both the correspondence and subjectivity principles of fault.[13] So, there is a strong case for regarding it as a fault element sufficiently grave to justify conviction for murder. 3.21 Reckless killing in any form, however reckless the conduct that caused death, is currently regarded as manslaughter. We believe that it is possible to distinguish between more and less blameworthy kinds of recklessness.[14] The more blameworthy kind – "reckless indifference" – should fall within "second degree murder", with the less blameworthy kind – "simple" recklessness or "reckless stupidity" – being regarded as a form of gross negligence, within gross negligence manslaughter. 3.22 For the purposes of "second degree murder", it would first have to be shown that D foresaw an unjustified risk of death being caused by his or her conduct but went ahead with that conduct and thus caused death. So far, this reflects the law's standard definition of recklessness.[15] However, in deciding whether such "reckless" conduct amounted to reckless indifference – a "couldn't care less" attitude[16] – the jury would be instructed to have regard to the defendant's own assessment of the justifiability of taking the risk, in the circumstances. The defendant is not recklessly indifferent unless he goes ahead with the risky conduct, knowing the true nature and level of the risk involved. This is not currently a requirement for proving "simple" recklessness. A case in point is Chief Constable of Avon and Somerset Constabulary v Shimmen.[17] 3.26 We note, in this regard, that the Government has in the recent past approved of the strategy of distinguishing between crimes of homicide on the basis of whether the fault element in question was (gross) negligence or recklessness.[18] The Government said: "We accept that an offence resulting from a failure to appreciate the consequences of an action is less culpable than acting in full knowledge of a risk."[19] This statement was made whilst discussing the Law Commission's proposed distinction between reckless killing and killing by gross negligence (manslaughter).[20] As indicated in Part 2, now that we have had the chance to review these proposals in the context of a review of murder, our provisional preference is to use the distinction to divide "second degree murder" from manslaughter. It is appropriate that a fault element in the crime of murder should turn on what the Government calls "full knowledge" of the risk. It is equally appropriate that manslaughter should turn on whether the degree of negligence shown in causing death, including the degree of someone's reckless stupidity, was such as to amount to gross negligence as to causing death. 3.27 Drawing the distinction between murder and manslaughter in this way respects the correspondence[21] and ladder principles.[22] What we are seeking to do, in refining the distinction between recklessness and gross negligence, is to ensure that "reckless indifference" covers only the most culpable kinds of recklessness – the kinds that manifest a "couldn't care less" attitude – for the purpose of defining "second degree murder". To do that, it is essential that D's own evaluation of the justifiability of taking the risk, on the facts, is made relevant to the jury's overall judgement of his or her conduct. Summary 3.28 These changes, if accepted, would yield the following structure for the law of homicide: THE "SERIOUS HARM" RULE AND LIABILITY FOR RECKLESS MURDER: A FIRST LOOK The "serious harm" rule 3.30 It is worth pointing out that the intention to do serious harm can be proven even in a case where the defendant did not set out to do serious harm through a direct attack on the victim, as such. It can still be proven when the jury is satisfied that the defendant realised that his or her conduct was virtually certain to cause serious harm. In such a case, the jury is entitled to find that the defendant has an intention to do serious harm.[23] 3.31 If a child dies from burns caused by contact with the chemicals, the question for the jury will be whether they are sure D intended to do serious harm. In that regard, if the jury are satisfied that D realised, in breaking "his" or "her" duty to remove the chemicals, that serious injury to a child (or to any other person) was virtually certain to occur, they may find that D intended to do serious harm to V.[24] 3.32 Three points of criticism may be made about this species of fault element within the law of murder. 3.33 The first is that there has been a lack of clarity in the way that "grievous" (serious) bodily harm has been understood in the case law.[25] 3.34 The second is that, as indicated in Part 1, this species of fault element may well only have been allowed to persist, alongside the intention to kill, due to the apparently misleading picture of the state of the law that the then Lord Chief Justice gave to the Royal Commission on Capital Punishment in 1953. The Lord Chief Justice told the Commission that to be guilty of murder in law, "a person who wittingly inflicts grievous bodily harm must know that he is endangering life [emphasis added]". Accordingly, the Royal Commission, believing the mental element in murder to be satisfactory, made no recommendation for change. 3.35 Shortly after the passing of the 1957 Act, however, the Lord Chief Justice himself gave the leading judgment in a case, Vickers, [26]which was at odds with what he had told the Royal Commission. In his judgment he authoritatively established that murder is committed when a defendant kills intending to inflict serious harm, even in the absence of knowledge or belief that the victim's life would be endangered by his or her actions. The case is discussed further below.[27] Had the misunderstanding between the Royal Commission and the Lord Chief Justice not occurred, a conviction for manslaughter (doubtless, accompanied by a long custodial sentence) would have been the result when there had only been an intention to do serious harm. 3.36 Thirdly, and finally, as indicated above,[28] the "serious harm" rule can (and should) be understood as the law's answer to the crucial question, "other than in cases where a killing was intentional, when is someone to be regarded as deservedly convicted of murder?" Seen in that light, the rule provides an unsatisfactory answer. 3.37 On the one hand, what must be intended – only serious harm – does not necessarily connect the defendant's state of mind with the causing of death itself. In that sense, the rule is in breach of the correspondence principle.[29] An intention to break someone's arm is an intention to do serious harm; but if death unexpectedly occurs in such a case, the killing itself cannot necessarily be described as "recklessly" brought about. The defendant D may not have realised, possibly quite reasonably, that the victim's death might come about. Murder by reckless indifference 3.40 Until the decision of the House of Lords in Moloney,[30] it was still possible to argue that the defendant who realised death was highly likely to result from his or her action, but proceeded with that action nonetheless, was guilty of murder. The argument was that such an action manifested "malice aforethought" – the fault element in murder – even if did not manifest an intention to kill or to cause serious harm.[31] As long ago as 1883, Sir James Stephen said that malice aforethought included the "[k]nowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person".[32] Lord Diplock put the matter this way, in Hyam: 3.41 In Moloney, however, the House of Lords banished the terminology of "malice aforethought" from the law of murder, insisting that the fault element was "intention" (to kill or to cause serious harm). The passage just cited from Lord Diplock's speech in Hyam was expressly disapproved.[34] In effect, the House of Lords in Moloney thus narrowed the definition of murder. The kind of high degree of recklessness that had long amounted to "malice aforethought", and hence been sufficient to convict of murder, would no longer be sufficient. 3.44 Two examples, drawn from previous case law, illustrate the force of Professor Yeo's argument: 3.48 We would not, however, recommend the straightforward adoption of Lord Diplock's statement of the mental element for murder in Hyam.[38] Well-founded though it may have been historically, it is prone to arbitrariness. As the fault element of "intention to do serious harm" currently stands it could treat the defendant excessively generously or excessively harshly. 3.49 If, for the purposes of understanding "malice aforethought", foresight of a probability included foresight of a probability of serious harm, that still left the defendant open to conviction for murder when he or she believed that there was no risk of death.[39] Such an understanding of malice aforethought would be harsh on the defendant and breach the correspondence principle.[40] However, even if confined to foresight of a probability of death,[41] this understanding could be too generous to the defendant, because the distinction between foresight of a probability and foresight of a possibility is frequently morally insignificant. 3.50 An important example illustrating this point is provided by the American case of Commonwealth v Malone.[42] In this case the defendant pointed a revolver at the victim, knowing that there was a bullet in one of the five chambers. The defendant pulled the trigger three times, and it went off, killing the victim. The court found that the 33% chance of the gun going off when the trigger was pulled for the third time was sufficient to convict the defendant of murder. Naturally, if the court had found that there was a continuing intention to pull the trigger until the gun went off, that intention would, in itself, have sufficed. The issue was whether in the absence of such a continuing intention the defendant could be convicted. 3.52 This point has been taken by the High Court of Australia, in Boughey v The Queen.[44] The Court held that, in the law of murder under the Tasmanian Criminal Code, "likely [to cause death]" does not mean "more likely than not". Instead, it means "probable", meaning only that there must be "a substantial – a real and not remote – chance" of death occurring.[45] We agree with that understanding, and it informs our understanding of reckless indifference.[46] 3.53 It has been argued that what distinguishes cases such as Commonwealth v Malone from mere recklessness is that they involve a direct intention or desire to expose another person to a risk of death (or serious injury).[47] We see the force of that view, in relation to the facts of that particular case but we are not persuaded that, more generally, it represents a better way of reshaping the mental element in murder. It may lead to the need to draw distinctions that are excessively fine in the context of a jury trial.[48] 3.55 We will argue[49] that reckless indifference – that is recklessness manifesting a "couldn't care less" attitude – can be distinguished from "simple" recklessness – that is reckless stupidity which is really just a kind of gross negligence. The latter can justify no more than a conviction for manslaughter, whilst the former can legitimately justify a conviction for "second degree murder". In other words, the defendant may be found recklessly indifferent, and may hence be guilty of "second degree murder" when he or she realises that there is an unjustified risk of death being caused by his or her conduct, but goes ahead with that conduct, causing the death. However, the defendant's own assessment of the justifiability of taking the risk, in the circumstances, is to be considered, along with all the other evidence, in deciding whether the defendant was recklessly indifferent and "couldn't care less". 3.56 As a fault element, reckless indifference respects both the correspondence and the subjectivity principles,[50] as it relates to the cause of death and is fully subjective. By way of contrast, for the purposes of the law of manslaughter, reckless stupidity respects only the correspondence principle, in that it relates to the causing of death. Reckless stupidity does not fully respect the subjectivity principle. It can, for example, be manifested by taking a risk of causing death that the defendant crassly mistakenly believes to be justified when it is not or by an action that the defendant idiotically regards as posing no more than a remote and insignificant risk of causing death. In that respect, reckless stupidity is not a fully subjective principle of liability. In the homicide context, it is, for labelling purposes, appropriately regarded as justifying nothing higher than a conviction for manslaughter.[51] The two kinds of fault element in "second degree murder" 3.57 Reckless indifference could take the place of the "serious harm" rule, as the fault element justifying a "second degree murder" conviction or it could stand alongside that rule as one of two alternative fault elements. Our provisional proposal is that the two stand alongside one another. [Proposals 2 and 3] There can be circumstances in which a "second degree murder" conviction (even if not a "first degree murder" conviction) is justified, in spite of the fact that the defendant did not realise he or she might cause death, because the defendant intended to cause such serious harm and consequently killed.[52] 3.59 We recognise, however, that some may regard the argument in favour of murder by aggravated recklessness as pushing the boundaries of murder, even "second degree murder", too wide. So, we seek to explain and modify the "serious harm" rule in such a way that some of the above criticisms are met.[53] 3 In particular, we must be sure that the rule does not involve a serious breach of the correspondence principle, thus treating defendants too harshly. We will turn to this particular task first. THE SERIOUS ("GRIEVOUS BODILY") HARM RULE Background considerations 3.61 If the defendant does an act intended to cause serious harm to the victim, and by that act causes the victim's death, the defendant is guilty of murder (the "serious harm" rule). It would be right to give some indication of this rule's width by pointing out that harm intentionally inflicted need not itself be the main cause of death (as where the defendant stabs the victim and the victim then bleeds to death). All that matters is that the harm intentionally inflicted is a substantial cause of death. It will suffice that the defendant (say) stabbed the victim intending to do serious harm, but the victim consequently fell backwards into a river and drowned, or was subsequently killed by negligent medical treatment.[54] Traditionally the "serious harm" rule was known as the "grievous bodily harm" rule. "Grievous" bodily harm was given its ordinary and natural meaning, "really serious" harm.[55] Although it has been said that "bodily" harm needs no explanation,[56] it has recently been extended to psychiatric injury.[57] That is the reason for using the phrase "serious harm" instead of grievous bodily harm. 3.62 The older phrase "grievous bodily harm" may well owe its existence to an Act of 1803 (known as "Lord Ellenborough's Act").[58] Partly replacing earlier legislation, this Act made it a capital offence to "maliciously and unlawfully stab or cut any of his Majesty's subjects … with intent to murder or rob or to maim, or with intent to do some other grievous bodily harm … [unless] such acts of cutting or stabbing were committed under such circumstances as that if death had ensued therefrom the same would not have amounted to the crime of murder [emphasis added]." The Act was an embryonic development of a law of attempted crime. It was, however, understood to mean that an intention to do a minor harm, even when the risk of death was objectively obvious, was insufficient as a mental element for murder. 3.63 It seems unlikely that the 1803 Act was meant to have, or had, any substantive impact on the scope of the law of murder.[59] Nonetheless, it did thereafter become more common to use the phrase "grievous bodily harm" when referring to the intention with which – short of an intention to kill – an accused person must act if he or she was to be convicted of murder.[60] So, towards the end of the century, after a detailed review of previous authority, Sir James Stephen concluded that the core or basic meaning of malice aforethought was "an intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not …".[61] 3.64 What did this phrase mean, from the time of its first introduction? There are a variety of opinions and no decisive view emerges from the authorities.[62] That is, in part, because several views of what the phrase should mean or entail in the law of murder were not clearly distinguished. The "wide" view of grievous bodily harm 3.65 At one end of the spectrum is the view expressed in Ashman (not itself a murder case),[63] that "it is not necessary that such harm [grievous bodily harm] … should be either permanent or dangerous, if it be such as seriously to interfere with comfort or health, it is sufficient."[64] This is quite similar to Foster J's opinion, of a century before, that: 3.66 The very broad and uncertain "Ashman" view – apparently including serious interference with "comfort" as well as health – was later said by Lord Hailsham in Cunningham[66] to have been reversed by the House of Lords in DPP v Smith.[67] Lord Hailsham criticised Ashman for having created a doctrine of "murder by pinprick".[68] We return to that possibility below. Certainly, the case is no longer an authority (if it ever really was one) for the view that an intention to seriously interfere with the "comfort or health", simpliciter, of the victim is enough to amount to an intention to inflict grievous bodily harm. 3.67 However, Ashman was not overruled, or even explicitly criticised, in DPP v Smith. In fact, it had only just in substance, if not by name, been approved by a five-judge Court of Appeal in Vickers,[69] a case regarded as entirely correct in Cunningham. 3.69 Prior to the passing of section 1 of the Homicide Act 1957,[70] D would have been guilty of murder by constructive malice, having killed in the course or furtherance of a felony (burglary). D's argument on appeal involved a much-discussed "restrictive construction of section 1."[71] 3.72 This is clearly the wide, Ashman view of the meaning of grievous bodily harm. Even now, Ashman remains cited in Archbold as authority for the view that bodily harm can be serious even though it is neither dangerous, nor such as to require medical treatment, nor involving more than soft tissue damage.[74] 3.73 In Bollom,[75] the Court of Appeal affirmed this view of the meaning of "grievous bodily" harm for the purposes of the Offences Against the Person Act 1861. Were Bollom to be applied without further elaboration in a murder case, it might well effect the reintroduction of the doctrine of "murder by pinprick". 3.75 The appellant's conviction for causing grievous bodily harm with intent to do grievous bodily harm[76] was quashed. The trial judge had not made it clear that the injuries inflicted on the victim would have to have been inflicted during a single course of conduct or attack if they concluded that the harm was only grievous by virtue of its cumulative effects. 3.76 The Court, however, endorsed the opinion (considered below) of the House of Lords in DPP v Smith[77] that grievous bodily harm should be given its "ordinary and natural" meaning, that is "really serious harm". There are, though, at least two possible ordinary and natural meanings of really serious harm. 3.78 The Court in Bollom took the latter interpretation, regarding the question of whether bodily harm was "grievous" as a contextual question. Fulford J, giving the judgment for the Court, said:[78] 3.84 These weaknesses also affect the "ordinary meaning" view of serious harm. The "ordinary meaning" view of serious harm 3.88 The trial judge (Donovan J) directed the jury that serious harm: 3.89 This is the Ashman direction and, as in Vickers, the vagueness and width of the definition was not regarded as grounds for quashing the murder conviction. Giving the only speech, Viscount Kilmuir LC approved that direction and upheld D's conviction. He did so, however, only because the trial judge had referred the jury to the need for them to find that D intended "serious hurt", or "serious harm" in other parts of his direction.[82] 3.90 In the most often cited part of his speech, Viscount Kilmuir LC said: 3.92 In that regard, the "ordinary meaning" view has been adopted in the small number of common law jurisdictions in Australia[84] but not without some inconsistency in the results thereby produced in murder cases.[85] The "ordinary meaning" view has also been rejected by a number Law Reform bodies across the world that have considered it.[86] 3.93 In a minority of jurisdictions reform bodies have recommended retention of a version of the serious harm in something like its present form. Where they have done so, however, serious harm has been given a statutory definition. That possibility is considered below.[87] The "potentially lethal harm" view of serious harm 3.96 For example, one commentator, writing shortly after the passing of the 1803 Act,[88] suggested that to justify a murder conviction there would have to have been an intention to do a kind of injury that involved "a possibility of death ensuing, namely by the cutting of an artery, or the loss of blood …"[89] East, likewise, writing in 1803 suggested that, "he who wilfully and deliberately does an act which apparently endangers another's life, and thereby occasions his death, shall … be adjudged to kill him of malice prepense."[90] 3.98 Viscount Kilmuir LC does not go on to explain why it is not only unnecessary but also inadvisable to give a direction that serious harm must be potentially lethal harm. Reasoned support for Viscount Kilmuir's stance is to be found, however, in the speech of Lord Hailsham LC in Cunningham.[92] 3.99 In Cunningham, "motivated by jealousy",[93] the defendant fractured the victim's skull in an unprovoked attack. He inflicted repeated blows with a chair, or part thereof, some of these blows being inflicted whilst the victim was lying prone. The trial judge (Lawson J) directed the jury that they could convict of murder if they found that the defendant intended to do the victim "really serious harm". The defendant was convicted of murder. 3.104 An argument designed to meet Lord Hailsham's criticisms of a more restricted approach to the fault element in murder has recently been given by Lord Steyn in Powell & Daniels; English[95]: 3.106 It may be that the "potentially lethal harm" version of the "serious harm" rule meets Lord Hailsham's criticisms, whilst avoiding the excessive ambiguity of the "wide" and "ordinary meaning" versions. This view still means, however, that someone can be convicted of murder even though he or she neither intended to kill nor even realised that the death of the victim was a possible consequence of his or her conduct. This would be a breach of the correspondence principle. An example might be where the defendant loses his or her temper with the victim and lashes out at the victim with a knife, cutting a jugular vein in the victim's throat when the victim suddenly and unexpectedly moves closer to the defendant.[97] 3.108 An example is provided by the American case of People v Causey.[98] In this case, the defendant intentionally struck the victim on the side of the head with a jar of pennies. The blow caused a blood clot to form in the victim's brain and the victim consequently died. A conviction for murder was affirmed. Reasonable people might disagree about whether the injury done was inherently life-threatening. Under section 300 of the Indian Penal Code, if the injury is found, on an objective judgement, to be by its nature life-threatening, the defendant is guilty of murder. That may seem to cast the net too wide, although much clearly depends on the manner in which the defendant intentionally struck the victim. The problems that may arise are not, in that sense, necessarily irresolvable. 3.110 Even with that safeguard in place, however, the "potentially lethal harm" view is left reliant on a finding that the defendant intended really serious harm and that reliance imports the ambiguities associated with that notion. The "Bollom" problem,[99] for example, may still arise in a case involving transferred intent. 3.112 The Law Commission has itself expressed doubts about whether the "potentially lethal harm" view of the "serious harm" rule provides a workable alternative to the present law.[100] In 1967 the Commission expressed the view that it would be difficult for a jury to determine whether there was a likelihood that life would be endangered by an injury (although this point was not central to its Report). The Commission thought the difficulty arose because answering the question depends not only on the inherent seriousness of the injury, but also on the surrounding circumstances, such as whether medical aid was readily accessible.[101] These doubts are shared by current-day Crown Prosecutors whom we have surveyed.[102] 3.113 Further, the objective element to the test involves asking a hypothetical question of doubtful value: was the injury potentially life-threatening at the time of its infliction? In many cases, as the injury caused death, the jury is likely to conclude "of course it was!" So, the test may add little or nothing, other than extra complexity, to the present law.[103] Defining serious harm 3.115 Grievous bodily harm is defined in the Queensland and Western Australian Criminal Codes, amongst others.[104] In most of those states, its definition is "bodily injury of such a nature as to endanger or be likely to endanger life, or cause, or be likely to cause, permanent injury to health".[105] The Irish Law Reform Commission has also adopted this definition.[106] The definition is clear enough to be free of the interpretative ambiguity that affects the wide and the "ordinary meaning" views of serious harm. It is hence much more likely to avoid murder by pinprick. 3.116 A drawback about the definitional approach can be that the provision of detail means the creation of bright lines, gaps and hence, perhaps, a degree of arbitrariness or anomaly.[107] Under Irish law, for example, serious harm is defined as follows: Previous recommendations: the "fully subjective" approach 3.121 In the past, the Law Commission has recommended that, as well as when there was a intention to kill, a killing should be regarded as done intentionally – and hence as murder – when "at the time when he takes the action in fact resulting in death, he is willing by that action to kill in accomplishing some purpose other than killing [emphasis added]."[109] The notion of "willingness" to kill reflects Lord Diplock's understanding of the proper limits of malice aforethought in the law of murder, considered above.[110] 3.122 The idea has a resonance in jurisdictions that have the fault element of "dolus eventualis", like Germany and South Africa. This is a state of mind in which one foresees that an event (unlawful killing here) may occur in the course of one's conduct and one "accepts" that result as just "one of those things", even if one does not necessarily positively welcome or wish for it.[111] The distinction between dolus eventualis and subjective recklessness, where an unjustified outcome is likewise seen as a possible incident of one's conduct, is the positive element of acceptance of, or being reconciled to, or willing to tolerate, the outcome. 3.123 In 1976, the Criminal Law Revision Committee disagreed with such an approach. In its working paper on offences against the person, the Committee expressed the view that being "willing" by an action to kill was "uncertain and ambiguous and … likely to be too difficult and subtle for a jury to understand."[112] That problem is acknowledged in jurisdictions that employ the concept of dolus eventualis.[113] Our suggestion that "reckless indifference" become one of the fault elements for "second degree murder" involves a further look at this problem, in an attempt, in so far as possible, to avoid the problems of ambiguity and uncertainty.[114] 3.124 In 1976, in its discussion of murder, under the heading "intent to cause serious injury", the Criminal Law Revision Committee expressed a preference for a fault element, alongside intention to kill, defined in terms of intending to cause serious harm, coupled with knowledge that the act involves a risk of death. The Committee took the robust view that the jury could be trusted to consider whether, in all the circumstances, serious injury was intentionally inflicted and whether the defendant realised the victim's life might be endangered by his or her act at the time of the infliction of the injury.[115] This can be called the "fully subjective" approach. 3.125 The argument in favour of this "fully subjective" approach is simplicity, a great virtue in murder cases. The jury would be concerned only with the defendant's subjective state of mind, with his or her intention and with his or her foresight of the possibly fatal consequences, thereby respecting the correspondence and subjectivity principles.[116] Unlike the "potentially lethal harm" view, the "fully subjective" view allows the jury to concern itself solely with the defendant's state of mind; the jury are spared having to make an objective assessment of the injury's risky character. 3.126 The Committee itself was, however, divided. Some members accepted the "potentially lethal harm" version of the grievous bodily harm rule, with its combination of a subjective element (intent to do serious harm) and an objective element (harm done that the jury judges to be life-threatening at the time).[117] Proponents of this view fear it would be too easy for the defendant to escape conviction for murder in numerous cases in which he or she had intentionally inflicted very serious injury in a fit of temper, in a panic, or under the influence of drink or drugs. It would be too easy to claim that the temper, panic or intoxication meant there was a reasonable doubt as to whether the defendant was aware of the threat to life posed by his or her actions. 3.127 The Criminal Law Revision Committee revisited the issue in 1980.[118] This time the Committee came down decisively in favour of a subjective version of the "serious harm" rule. Putting aside cases in which there was an intention to kill, the Committee took the view that it should be murder only when "the killer intended unlawfully to cause serious bodily injury and knew there was a risk of causing death."[119] The change of heart came from a growing commitment to the view that subjective principles of criminal liability should reign throughout the criminal law and that the law of murder should be reformed in the light of such principles.[120] 3.128 This view was reflected in at least some of the older case law.[121] It was also, broadly speaking, the view at which Stephen arrived when drafting his own criminal code. Stephen defined the mental element in murder as an intention "to cause … any bodily injury which is known to the offender to be likely to cause death …[emphasis added]".[122] This is very similar to the definition in the current Draft Criminal Code.[123] It also received some support in cases involving serious harm that did not result in death.[124] 3.129 The fully subjective approach has been supported by the majority of Law Reform bodies across the world, as well as by judges and scholars working in the field.[125] 3.131 If, however, it is the intention to do serious (objectively life-threatening) injury that puts a killing into a morally "different class" from purely reckless killing, it is not clear that very much is added, morally speaking, by insisting on a further subjective mental element. The further element is little more than a fifth wheel on the coach, because it is the intention to do serious injury which, it is recognised, does the principal moral work. As its proponents admit, moreover, it also adds considerably to the problems of proof confronted by the prosecution,[127] a view shared by the Crown Prosecutors we surveyed.[128] 3.133 Moreover, it would be fair to say that wholly subjectivist principles of criminal liability are not as universally popular today as they were 25 years ago, although they retain a wide and influential body of support.[129] Significantly, they have found little or no favour with recent governments, which have consistently preferred more objective principles of liability when reforming even very serious offences against the person, such as rape.[130] 3.135 As the Select Committee noted, however, the Crown Prosecution Service considered this would pose grave problems of proof.[132] We recognise that many will prefer the fully subjective approach because it has that extra subjective gloss, in the form of an awareness that the injury may kill, on top of the intention to do serious harm. One question is whether, in practice, it is likely to make a crucial difference in any significant cases. Instances that have been discussed in this context include ones where the defendant places a pillow firmly over the victim's face to stop the victim screaming, or punches or kicks the victim once, hard, in the head.[133] 3.136 As we have already said, we are not attracted by the "potentially lethal harm" view, partly because it involves a complex mixture of subjective and objective elements, and partly because the objective element in the test involves asking a hypothetical question of doubtful value: was the injury potentially life-threatening at the time of its infliction? So, the test is likely to add little or nothing, other than extra complexity, to the present law.[134] 3.137 We now also have doubts, however, about the Nathan Committee formula,[135] for the reasons already given.[136] In our view, it would be better to retain faith with the correspondence and subjectivity principles[137]by framing the fault element in a different way. The focus is firmly on the core fault element, the intention to cause serious harm, the element that puts a consequent killing in a "different class" from the purely reckless killer.[138] The views of the Irish Law Reform Commission 3.140 This justification for the "serious harm" rule was founded by the Commission on the view that whilst D may not have consciously adverted to the risk of death inherent in his or her attack, where that attack took the form of the infliction of serious harm there must inevitably have been "back of the mind awareness" of such a risk.[143] 3.141 No doubt there is such a thing as "back-of-the-mind" awareness.[144] However, the way that this notion is employed by the Irish Law Reform Commission to justify the grievous bodily harm rule is reminiscent of the much-criticised doctrine upheld by the House of Lords in DPP v Smith[145] (since overturned[146]) that D must be taken to have intended the natural consequences of his or her acts. For that reason it will almost certainly be unacceptable to most English criminal lawyers. 3.142 We share the views of the Irish Law Reform Commission[147] that an intention to cause serious harm should suffice as a fault element in "second degree murder". We invite the views of consultees, however, on whether the notion of "serious harm" should be given a restricted definition. [Questions 3 and 4] Reforming the "serious harm" rule 3.143 Subjective versions of the "serious harm" rule, of the kind endorsed by the Nathan Committee,[148] have in practice rarely, if ever, found favour with legislatures in the common law world. There is a case, then, for retaining the "ordinary meaning" view of serious harm for the purposes of conviction for "second degree murder". Upon conviction, the judge can match the sentence in part to the degree of harm the defendant intended, as well as to the fact that the victim was killed. 3.145 This proposal simply narrows the scope of the kinds of intentionally inflicted harm that count as serious for the purposes of the law of murder. It does not, though, require the jury to find that an injury falling within 1(b) is serious and in that sense it is not intended to be prescriptive.[151] A RADICAL ALTERNATIVE CATEGORISATION? 3.147 In Germany, causing death through the intentional infliction of bodily injury is treated neither as murder nor as manslaughter. Instead, it is treated as a kind of aggravated assault, in which a bodily injury intentionally done is made worse by the fact that it has unintentionally caused death.[152] A suggestion for re-categorisation in English law as radical as this is likely to meet with considerable opposition. It is arguably not an accurate categorisation of what the defendant has done. Where the defendant causes death through an intentional infliction of harm, the defendant kills V.[153] It is morally appropriate, therefore, to convict the defendant of a homicide offence.[154] MURDER BY RECKLESS INDIFFERENCE TO CAUSING DEATH 3.150 Indifference to causing death would be defined as follows: Supplementing the "serious harm" rule, within "second degree murder" 3.151 It was suggested that the "serious harm" rule is meant to be the law's answer to the question, "other than in cases where a killing was intentional, when is someone to be regarded as deservedly convicted of murder?"[155] It was suggested that, as a purported answer to that question, the rule may be in one respect too generous to, and in another respect too severe on, a person charged with murder. 3.154 A willingness to tolerate the unjustified death of another, in order to achieve one's ends, may, depending on the circumstances, equally be manifested by a realisation that such a death is possible, probable, or highly likely to occur. The degree of probability that death may occur affects only the strength of the basis for inferring that the defendant was "willing" to tolerate the death in pursuit of his or her ends. In that regard, as indicated earlier, we prefer the terminology employed by the High Court of Australia, in which has spoken of a "substantial – a real and not remote – chance".[157] 3.157 Killing through reckless indifference respects the two key principles of fault, the correspondence and the subjectivity principles.[158] The fault element must relate to the wrong done (killing), and it is subjective, meaning that is concerned with the defendant's state of mind at the time of the offence. 3.158 Reckless indifference can, in that respect, be distinguished from what was earlier called reckless stupidity. Reckless stupidity – "rashness", in C S Kenny's older account of recklessness[159] – is manifested by conduct which the defendant realises may result in a given consequence, such as death, but in circumstances where the defendant (a) stupidly thinks that the risk is highly unlikely to turn into reality, or (b) thinks that it is justified to run the risk when it is not, or (c) gives a glaringly obvious risk no thought at all.[160] 3.159 Earlier in the twentieth century, some judges worked with a conception of recklessness that was closer to aggravated recklessness than to reckless stupidity.[161] In Andrews v DPP,[162] Lord Atkin said: 3.160 By the end of the twentieth century, however, the courts had come to understand recklessness in terms of reckless stupidity. MPC v Caldwell[164] (now overruled) held that recklessness encompassed a state of mind where the defendant gives no thought whatsoever to the risk. At odds with Lord Atkin's remarks in Andrews v DPP, Shimmen[165] held that recklessness encompassed the state of mind where the defendant believes a risk is highly unlikely to turn into reality. In effect, recklessness became just one side of a "gross negligence" coin, something far from Lord Atkin's understanding of the concept. 3.161 There may be some contexts in which it will still be appropriate to regard "recklessness" as an indivisible notion, encompassing both reckless stupidity and reckless indifference. An example is the proposed reform of manslaughter by unlawful and dangerous act.[166] 3.162 Reckless stupidity, of the sort Lord Atkin thought was really a kind of gross negligence, has no place in the law of murder. This is because it is exemplified by merely hasty, rash, thoughtless or foolish risk-taking. The defendant can be found to have been simply or stupidly reckless, even if he or she would, ex hypothesi, not have gone ahead with his or her conduct had he or she realised the true nature or level of risk involved. So, this kind of recklessness involves a substantial element of objective judgement of the defendant's behaviour after the fact, thus running contrary to the spirit, if not the letter, of the subjectivity principle. [167] Alternatives to "reckless indifference" 3.163 In a number of jurisdictions, an attempt has been made to distinguish aggravated recklessness from reckless stupidity in similar ways. In many common law jurisdictions it is murder if the defendant kills with "wicked recklessness imply[ing] a disposition depraved enough to be regardless of the consequences",[168] or with "recklessness under circumstances manifesting extreme indifference to the value of human life".[169] 3.165 There is a potential problem with a fault element defined through the use of an evaluative criterion. It concerns the scope it gives to juries to use moral judgement in deciding after the fact whether the element was or was not present, in breach of the subjectivity principle. A jury may be more inclined to regard a killing as "wickedly" reckless, "extremely indifferent", or as manifesting a "couldn't care less" attitude, simply because the victim happened to be a child, because they have been told of the defendant's previous convictions for offences of violence or because they are drawing on stereotypes (for example, "it is just not 'natural' for a woman to brandish a sawn-off shotgun").[170] 3.166 As we pointed out earlier, judges in England and Wales are already familiar with the need to instruct juries that they must find a "couldn't care less" attitude or indifference, as that was the fault element in rape for some years[171] So, they will be familiar with the problems that may arise. In our view, a firm judicial direction that such factors are to be ignored or discounted ought to be sufficient to ensure that the jury remains focused on the defendant's state of mind, in relation only to the conduct in question, the conduct that the defendant may have realised might cause death. 3.167 However, one alternative to the use of an "attitudinal" form of fault element is that the law could include, within the scope of the fault element for either "first degree murder" or "second degree murder", the intention to endanger or to cause risk to life.[172] We have given careful consideration to this option, as we do not regard it as the same as our understanding of reckless indifference, manifesting a "couldn't care less" attitude. 3.169 Much may be made to depend upon further facts but it is not clear to us that in either of these examples D "intends to cause risk to life", as such. It is perhaps going too far to say that with such examples we approach what Professor Lacey has called, "the analytical collapse of the distinction between intention and subjective recklessness".[174] Even so, here, surely, are two examples where there is no moral reason to distinguish intention from foresight.[175] If foresight of the risk was present, we see a strong case for convicting of "second degree murder", regardless of whether the intention – aim – in either (1) or (2) was to create a risk to life, as such. Should killing by reckless indifference replace, or supplement, the "serious harm" rule? 3.171 If the intention to do serious harm is included within "second degree murder", there might (depending on how "serious harm" is defined) be little more than a question of degree separating manslaughter, "second degree murder", and "first degree murder". There would be an understandable temptation to accept a plea of guilty to "second degree murder" in cases where there was any significant doubt over whether the defendant intended to kill. It is a matter for speculation, but cases such as Cunningham[176] might never be considered by a jury as potential "first degree murder" cases. Many may regard this as an unwelcome development. 3.175 On the one hand, the intentional infliction of serious harm does not reflect the correspondence principle,[177] because the intention does not relate to the killing. However, it does reflect the subjectivity principle[178] What is more, it reflects that principle by using the most blameworthy species of fault: intention. On the other hand, killing by reckless indifference fully respects both the subjectivity and correspondence principles with regard to the harm for which D is held liable. It involves, though, a less blameworthy species of fault: recklessness. Should the scope of murder though reckless indifference be further restricted? 3.176 We do not believe that murder by reckless indifference should ever be regarded as sufficient to justify a conviction for "first degree murder", because that crime should always involve an intentional attack on the victim (and, in our view, an intention to kill through the attack).[179] Reckless indifference to causing death can be shown in the course of an activity quite unconnected with such an attack. An example might be where someone, in order to cut costs, knowingly installs dangerously faulty boilers in houses, which later explode, killing the occupants. It may be possible to prove a "couldn't care less" attitude to causing death, in such a case, but there is no real "attack" on the occupants. 3.179 Even so, we recognise that there may be concerns about the potential scope of "second degree murder" by reckless indifference. For that reason, we are also asking for expressions of opinion on whether such a form of "second degree murder", if introduced, should be restricted by being confined to cases in which the reckless indifference arose from the commission, or attempted commission, of a serious crime, possibly as defined in the Criminal Justice Act 2003.[180] [Question 8] FAULT IN MANSLAUGHTER Gross negligence manslaughter 3.182 We believe that it follows from our proposals for "second degree murder" by reckless indifference that the fault element for manslaughter should be gross negligence (leaving aside, for the moment, manslaughter by unlawful and dangerous act). As we have said, recklessness falling short of reckless indifference can really be regarded as a kind of gross negligence. The House of Lords indicated that this may be so when it held that it would not be wrong, when instructing a jury on the meaning of gross negligence, to give a direction in terms of recklessness.[181] The fact that (as in Shimmen) the defendant saw a risk and wrongly discounted it or stupidly thought it insignificant is simply compelling evidence of the grossness of his or her negligence. 3.183 Making the difference between "second degree murder" and manslaughter turn on the distinction between reckless indifference and gross negligence gives effect to the ladder principle,[182] according to which there should be clear and robust differences between offences of different degrees of gravity. We believe that it also makes best use of "murder" and "manslaughter" as different labels for different kinds of offending, as the labelling principle requires.[183] 3.184 However, we have two final points supporting a change to the law of involuntary manslaughter by gross negligence, arising from our previous proposals on the subject.[184] 3.185 First, we should reiterate how important is it that the grossness of negligence be made relative to someone's individual capacity to appreciate the nature and degree of risks, which may be affected by youth or disability.[185] At present, such a capacity is not relevant to the question whether negligence was, in the eyes of the law, gross.[186] 3.186 This is liable to create problems when someone is charged with both manslaughter by gross negligence and an offence of carelessness that does make capacity to appreciate risk relevant to liability. An example is causing or allowing the death of child or vulnerable adult,[187] where the question is in part whether the defendant "failed to take such steps as he could reasonably have been expected to take to protect the victim [emphasis added]". 3.188 Secondly, we previously recommended that gross negligence as to the causing of "serious injury" would suffice as a culpability element for gross negligence manslaughter.[188] We now believe that that is too broad a basis for liability for homicide as it breaches both the subjectivity and the correspondence principles.[189] 3.189 It is a relatively small change but we think it is nonetheless very important that someone should not be held liable for gross negligence manslaughter unless they were grossly negligent as to the risk of causing death. That would ensure that the crime respects the correspondence principle. It also reflects the current legal position.[190] Unlawful act manslaughter: the Government's proposals 3.192 The proposal also has to be seen in the light of the other changes that we are proposing. We believe that, where the fault elements are concerned, it would create a readily understood, just, and fair law of homicide that, from the least serious offence to the most serious offence, respects the ladder principle: [192] (1) the fault element should relate to the harm done for which someone is being held liable (killing). Following common practice, we are calling this the "correspondence" principle.
(2) the fault element should be concerned with the defendant's state of mind at the time of the offence. It should not turn in whole, or so far as possible even in part, on a later moral judgement at trial of the defendant's behaviour. We are calling this the "subjectivity" principle.
(1) that the offence only involves the most blameworthy of the fault elements: intention; and
(2) the intention must have been to bring about the harm done for which D is being found liable: killing.
(1) Top Tier:
"First degree murder": intention to kill.
(2) Intermediate Tier:
"Second degree murder": intention to cause serious harm; or reckless indifference to causing death.
(3) Lower Tier:
"Manslaughter": gross negligence as to causing death; or causing death through a criminal act intended to cause injury, or where there was recklessness as to causing injury.
EXAMPLE 1: D deliberately leaves chemicals (a by-product of his or her work), knowing that they will cause severe burns on contact with skin, on a site where, as D knows, children constantly play as soon as D has left the site. D is under a strict duty to remove the chemicals but leaves them there because D cannot be bothered with the expense of removing them.
I agree with those of your Lordships who take the uncomplicated view that in crimes of this class no distinction is to be drawn in English law between the state of mind of one who does an act because he desires it to produce a particular evil consequence, and the state of mind of one who does the act knowing full well that is likely to produce that consequence although it may not be the object he was seeking to achieve by doing the act. What is common to both these states of mind is willingness to produce the particular evil consequence: and this, in my view, is the mens rea needed to satisfy a requirement … [the accused] … must have acted with 'intent' … or … with malice aforethought.[33]
This is a more responsible response than one which dismisses recklessness out of hand on the ground that to recognise it would erode the murder/manslaughter distinction. Such a dismissal fails to account for the fact that there are different levels of recklessness and that the type of recklessness selected for murder can be adequately distinguished from the type required for manslaughter.[35]
EXAMPLE 2: In the small hours of the morning, D, knowing that a dwelling house is occupied by a rival in love, pours petrol through the letter box and sets light to it. The house burns down killing one or more of the sleeping occupants.[36]
EXAMPLE 3: D lifts a large piece of concrete on to the parapet of a bridge over a busy road. He or she waits until a car is just about pass underneath the bridge and then pushes the piece of concrete off the parapet. It crushes to death one of the occupants of the car.[37]
Taking an approach based purely on degree of risk, cases identical in every respect, save for a lesser degree of risk, would fall to be treated as manslaughter instead of murder. Terrorist A, who times a bomb to explode at 4.00 p.m. on a city street, would be guilty of murder; terrorist B, whose motives and attitudes are identical to A's, but who times the bomb to explode at 4.00 a.m., would be guilty of manslaughter. A distinction may admittedly be made between the two defendants on the basis that the second has exposed the public to a much lower degree of risk, and so is less culpable than the first. However, both defendants foresee a risk of death resulting from their actions, yet both are prepared to run this risk as a necessary price of achieving their objectives. Both are willing to kill in pursuit of their objectives, and so the two killings may be said to be morally indistinguishable from one another.[43]
If an action unlawful in itself be done deliberately and with intention of mischief or great bodily harm to particulars, or of mischief indiscriminately … and death ensue against or beside the original intention of the party it will be murder.[65]
[T]he court is now able to give this decision which will be a guidance to courts in the future …
… If he [D] intends to inflict grievous bodily harm and that person [V] dies, that has always been held in English law … sufficient to imply the malice aforethought which is a necessary constituent of murder.[72] 2
The grievous bodily harm need not be permanent, but it must be serious, and it is serious or grievous if it is such as seriously and grievously to interfere with the health or comfort of the victim …[73]
To use this case as an example, these injuries on a 6 foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, on someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment has to be made of, amongst other things, the effect of the harm on the particular individual.
…
The prosecution do not have to prove that the harm was life-threatening, dangerous or permanent: R v Ashman … Moreover there is no requirement in law that the victim should require treatment or that the harm should extend beyond soft tissue damage.[79]
EXAMPLE 4: D aims a hard jab with a pen at a young child being held by its mother, with the intention of causing a nasty bruise on the child. The jab with the pen misses the child and accidentally goes into the mother's eye when she moves suddenly, killing her (for whatever reason).
if a man stabs another with intent to do him grievous bodily harm, and in fact kills him, he is guilty of murder. If he intentionally strikes him a blow with his fist or with a small stick with no intention to inflict any great harm, and happens to kill him, he is guilty of manslaughter.[80]
does not mean … some harm which is permanent or even dangerous. It simply means some harm which is sufficient seriously to interfere with the victim's health or comfort … If the accused intended to do the officer some harm which would seriously interfere at least for a time with his health and comfort … that would be murder …[81]
I can find no warrant for giving the words "grievous bodily harm" a meaning other than that which the words convey in their ordinary and natural meaning … "grievous" means no more and no less than "really serious".[83]
it is unnecessary, and I would add inadvisable, to add anything to the expression "grievous bodily harm" in its ordinary and natural meaning.[91]
Nor am I persuaded that a reformulation of the law of murder so as to confine the mens rea to an intention to endanger life instead of an intention to do really serious bodily harm would either improve the clarity of the law or facilitate the task of juries in finding the facts. On the contrary, in cases where death has ensued as the result of the infliction of really serious injuries I can see endless opportunity for fruitless and interminable discussion of the question whether the accused intended to endanger life and thus expose the victim to a probable danger of death, or whether he simply intended to inflict really serious injury.[94]
There is an argument that, given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bodily injury cannot complain of a conviction for murder in the event of death. But this argument is outweighed by the practical consideration that immediately below murder there is the crime of manslaughter for which the court may impose a discretionary life sentence or a very long period of imprisonment. Accepting the need for a mandatory life sentence for murder, the problem is one of classification. The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers.[96]
[C]ulpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid [emphasis added].
EXAMPLE 5: D loses his temper with a crying baby and aims a hard blow at the baby's head with an open hand. The blow misses the baby but strikes the baby's mother (V) as she is holding the baby. V consequently loses her balance, falls, hits her head, and dies of the head wound.
[I]njury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ.[108]
Harm is not to be regarded as serious unless it is harm of such a nature as to endanger life, or to cause, or to be likely to cause, permanent or long-term damage to a significant aspect of physical integrity or mental functioning.
The intention to cause serious bodily injury puts this killing into a different class from that of a person who is merely reckless, even gravely reckless … the circumstances are so grave that the jury can find that he must have realised that there was a risk of causing death. For example, he has shot at a pursuer when he is escaping after a robbery, intending only to disable the pursuer but appreciating that there was a risk of wounding him mortally. The line between this and an intentional killing is so fine that both cases are justifiably classified as murder, as they are in the present law.[126]
A person … causes the death of another–
(a) intending to cause death; or
(b) intending to cause serious personal harm and being aware that he may cause death.[131]
The main arguments in favour of abolition are as follows:
1. Murder involves an unlawful killing, so following the ordinary doctrine of mens rea the mental element should envisage death. By allowing an intent to cause serious injury to suffice, the law runs the risk of turning its most serious crime into a constructive offence. In other words, the fault element does not correspond to the conduct leading to the charge, namely, the causing of death.
2. There is a significant moral difference between someone who intends to cause death, and someone who intends merely to cause serious injury, but does not intend or foresee death. The purpose of the offence of murder is to mark out and identify the most heinous killings. By treating an intentional killer on a par with a killer who neither intends nor foresees death, the law may blur this distinction. By so doing the law fails to distinguish clearly between the moral blameworthiness of the intentional killer and the lesser culpability of the unintentional killer.
3. Including an intention to cause serious injury within the mens rea of murder is unnecessary as the crime of manslaughter is adequate to deal with the intentional infliction of serious injury resulting in death. The crime of manslaughter allows the imposition of lengthy terms of imprisonment … to reflect the seriousness of a particular offence …
4. The concept of "serious injury" may be unacceptably uncertain. As the Law Reform Commission of Victoria has pointed out, this may leave open the possibility of differing verdicts from juries based on the same or broadly similar facts. The Commission highlighted a number of examples where it may be difficult for a jury to draw the line between a murder conviction and one of manslaughter …
Stifling a victim's cries by putting a pillow over the mouth to suffocate the victim to point of unconsciousness;
Shooting the victim with a gun in the arm, leg or foot;
Punching the victim with the intention of knocking him or her out;
Applying a cigarette lighter briefly a number of times to the victim's body.
There is no doubt that a crime has been committed in each case, or that it deserves to be punished as such. However, it is less clear whether a jury would find an intention to cause serious injury in all these cases, and if they do, whether it is correct to describe the crime committed as murder.
1. The rule leaves too much scope for discretion on the part of the prosecution. Glanville Williams suggests that, in practice, deaths involving this type of mens rea are generally treated as manslaughter unless the accused was engaged in a "villainous enterprise" … .
2. It appears that, in practice, juries may be reluctant to convict for murder under this head. The Law Reform Commission of Victoria … referred to submissions made to it by experienced practitioners that juries were generally reluctant to convict under the rule.
The main arguments in favour of retaining an intent to cause serious injury as part of the mens rea of murder are:
1. Anyone who intentionally inflicts serious injury, and thereby puts another's life at risk, deserves to be convicted of murder if death results. The human body is fragile and no one can ever predict whether death will result from serious injury, since it may depend on a range of individual and medical factors beyond the perpetrator's control. A person who is willing to inflict serious injury on another human being therefore possesses a degree of moral culpability comparable to an intentional killer. By choosing to inflict serious injury on a person the defendant crosses a moral threshold, and sufficient disregard for life has been shown to justify a conviction of murder if death results. This public policy argument has been articulated by the Indian Supreme Court …[139]
2. Abolition of the rule might facilitate defendants who wish to escape a murder conviction by allowing them to claim that they only intended to cause serious injury when, in fact, they did intend to kill … In practical terms it would become more difficult for a prosecution to establish a conviction for murder as the accused could simply make the claim that he or she only intended to cause serious injury.
3. In response to the argument that there is a lack of correspondence between the lesser degree of fault in a particular intent and the more dire fatal result, it may be contended that the doctrine of "common knowledge" applies. A defendant who intentionally inflicts serious injury must be taken to know that he is putting life at risk in view of the inherent vulnerability of the human body. That death may occur is a basic element of the body of knowledge that goes hand in hand with ordinary human experience and one cannot meaningfully claim not to know or believe that one's actions could have such a result. Accordingly, a defendant who knowingly inflicts personal violence must bear the consequences of it, even if he failed to acknowledge those consequences at the point of assault … .
As the English decision of Parker[140] illustrates, insisting on conscious or front of the mind awareness may cause difficulties in practice … Insisting on conscious awareness of a risk of death excludes certain types of misconduct. Thus, a defendant who claims that he was in such a rage that he "acted without thinking", or a defendant who is so indifferent as to whether his victim lives or dies that he does not consider the risk of death, or a defendant who claims he was preoccupied by another aspect of what he was doing, would escape liability if conscious appreciation is a necessary ingredient of the mental element of murder.[141]
A defendant who deliberately inflicts serious injury must be taken to know that he is risking life in view of the inherent vulnerability of the human body and mind. Such a defendant therefore possesses sufficient moral culpability to justify a murder conviction.[142]
(1) D is guilty of murder if he kills:
(a) intending to kill;[149] or
(b) intending to do serious harm.
(2) For the purposes of 1(b), harm is not to be regarded as serious unless it is harm of such a nature as to endanger life, or to cause, or to be likely to cause, permanent or long-term damage to a significant aspect of physical integrity or mental functioning.[150]
D is indifferent, manifesting a "couldn't care less" attitude to death, when he or she realises that there is an unjustified risk of death being caused by his or her conduct, but goes ahead with that conduct, causing the death. D's own assessment of the justifiability of taking the risk, in the circumstances, is to be considered, along with all the other evidence, in deciding whether D was recklessly indifferent and "couldn't care less" about causing death.
[The defendant's] willingness to produce the particular evil consequence: and this, in my view, is the mens rea needed to satisfy a requirement … [the accused] … must have acted with 'intent' … or … with malice aforethought.[156]
[F]or the purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before … felony is established. Probably of all the epithets that can be applied "reckless" most nearly covers the case … but … "reckless" suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction [for manslaughter by negligence].[163]
(1) The terrorist who plants a bomb in a city street, intending to damage property in an explosion.
(2) The person who wantonly shoots into a moving car or busy shop.[173]
[a] person by his or her conduct causes the death of another; intending to cause injury or being reckless as to whether some injury was caused; where the conduct causing, or intended to cause, the injury constituted an offence.[191]
(1) Top Tier:
"First degree murder": intention to kill.
(2) Intermediate Tier:
"Second degree murder": intention to cause serious harm; or reckless indifference to causing death.
(3) Lower Tier:
"Manslaughter": gross negligence as to causing death; or causing death through a criminal act intended to cause injury, or where there was recklessness as to causing injury.
Note 1 We will refer to “serious harm”, as that is the more modern way of expressing the law, but it may be contextually necessary to refer to “grievous bodily harm” instead. In Part 4 we discuss the meaning of “intention” in the fault element. In Part 2 we discussed how these fault elements, or various alternatives to them, might be fitted within a revised law of murder and homicide. [Back] Note 6 See para 3.3(2). [Back] Note 7 Criminal Justice Act 2003, s 269, sched 21. [Back] Note 8 See paras 3.60-3.146, [Back] Note 9 Such restrictions are discussed in paras 3.29-3.59. [Back] Note 11 A proposal something like this was first recommended in the Seventh Report of Her Majesty’s Law Commissioners (1843), 448, XIX, 25. [Back] Note 12 See eg Criminal Justice Act 1964 (ROI), s 4. The Law Reform Commission of Ireland has recommended significant changes to the 1964 Act: Irish Law Reform Commission, Consultation Paper on Homicide: The Mental element in Murder (LRC-CP 17-2001). [Back] Note 14 This claim draws on, but is not identical too, distinctions set out by Professor Norrie: see A Norrie, “Subjectivism, Objectivism, and the Limits of Criminal Recklessness” (1992) 12 OJLS 45. [Back] Note 15 See G & R [2003] UKHL 50, [2004] 1 AC 1034. [Back] Note 16 The language of “couldn’t care less” was well-established under the law of reckless rape, as an understanding of recklessness: see DPP v Morgan [1976] AC 182, 215 per Lord Hailsham; Satnam and Kewal Singh (1984) 78 Cr App R 149; Taylor (1984) 80 Cr App R 327, even though foresight of the risk was not always required as a basis for proving indifference: Pigg [1982] 2 All ER 591. [Back] Note 17 (1987) 84 Cr App R 7. [Back] Note 18 Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000). [Back] Note 19 Ibid, at para 2.5. [Back] Note 20 Involuntary Manslaughter (1996) Law Com No 237. [Back] Note 23 Woollin [1999] 1 AC 82. [Back] Note 24 Moloney [1985] AC 905. [Back] Note 25 See paras 3.60-3.146. [Back] Note 26 Vickers [1957] 2 QB 664. [Back] Note 27 See paras 3.68-3.72. [Back] Note 31 Hyam [1975] AC 55 (HL). [Back] Note 32 Sir J F Stephen, History of the Criminal Law of England: Vol iii (1883) 80. [Back] Note 33 Hyam [1975] AC 55, 86. [Back] Note 34 Moloney [1985] 1 AC 905, 925-926 per Lord Bridge. [Back] Note 35 S Yeo, Fault in Homicide (1997) 39. [Back] Note 36 See Hyam [1975] AC 55. [Back] Note 37 See Hancock and Shankland [1986] AC 455. [Back] Note 38 [1975] AC 55. See para 3.40. [Back] Note 39 This interpretation was, in fact, rejected by Lord Diplock in Hyam [1975] AC 55, 86-95. [Back] Note 41 Lord Diplock’s favoured understanding of malice aforethought: Hyam [1975] AC 55, 86-95. [Back] Note 42 [1946] (Pennsylvania) 354 Pa 180, 47 A 2nd 445, discussed by the Irish Law Reform Commission, Consultation Paper on Homicide: The Mental Element in Murder (LRC-CP 17-2001), 55. [Back] Note 43 Irish Law Reform Commission, Consultation Paper on Homicide: The Mental element in Murder (LRC-CP 17-2001) 55-56 (emphasis in original, footnote omitted). The Commission is relying on the argument of Michaels, “Defining Unintended Murder” (1985) 85(4) Col LR 786. [Back] Note 44 Boughey v The Queen (1986) 161 CLR 10. [Back] Note 47 See eg A Pedain, “Intention and the Terrorist Example” [2003] Crim LR 579 [Back] Note 48 See paras 3.60-3.146. [Back] Note 49 See paras 3.149-3.181. [Back] Note 52 See the view of the Irish Law Reform Commission, discussed at paras 3.138-3.142. [Back] Note 53 See paras 3.143-3.146. [Back] Note 54 This principle has been expressed and applied in different ways in different circumstances but it was, in one way or another, at issue in Church [1966] 1 QB 59; Le Brun [1992] QB 61; Cheshire [1991] 1 WLR 844. [Back] Note 55 Smith [1961] AC 290 (HL), 334 per Viscount Kilmuir LC. [Back] Note 57 Ireland; Burstow [1998] AC 147. [Back] Note 58 This was the view of Lord Diplock in Hyam [1975] AC 55, 87. [Back] Note 59 See the speech of Lord Hailsham in Cunningham [1982] AC 566, 577-578. [Back] Note 60 See eg Bubb (1850) 4 Cox CC 457; Porter (1873) 12 Cox CC 444; Doherty (1887) 16 Cox CC 306 per Stephen J. [Back] Note 61 Sir J F Stephen, History of the Criminal Law of England: Vol iii (1883) 80 (art 228). [Back] Note 62 See the speech of Lord Hailsham in Cunningham [1982] AC 566, 575-578. [Back] Note 63 (1858) 1 F & F 88. [Back] Note 64 Ibid, at 88-89. [Back] Note 65 Sir M Foster, Crown Law (1762) 261. [Back] Note 68 [1982] AC 566, 577. [Back] Note 69 [1957] 2 QB 664. Lord Goddard CJ, Hilbery, Byrne, Slade and Devlin JJ. [Back] Note 70 Homicide Act 1957, s 1:,
(1) Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence. [Back] Note 71 Devlin J, “Criminal Responsibility and Punishment: Functions of Judge and Jury” [1954] Crim LR 661. That construction is not of crucial relevance here. [Back] Note 72 [1957] 2 QB 664, 669-670. [Back] Note 74 Archbold: Criminal Pleading, Evidence and Practice (2005) para 19.206. [Back] Note 75 [2003] EWCA Crim 2846, [2004] 2 Cr App R 6. [Back] Note 76 See the Offences Against the Person Act 1861, s 18. [Back] Note 77 [1961] AC 290, 334 per Viscount Kilmuir LC. [Back] Note 78 [2003] EWCA Crim 2846. [Back] Note 79 [2003] EWCA Crim 2846, [52] – [53]. [Back] Note 80 Sir J F Stephen, History of the Criminal Law of England: Vol iii (1883) 56. See also Sir J F Stephen, Digest of the Criminal Law, art 264, 211-213. It is perhaps worth noting that towards the end of its life, the felony-murder rule had been narrowed by judicial development to the point where it had begun to resemble the “ordinary meaning” view. Charges of felony-murder tended to be confined to deaths caused in the course or furtherance of felonies that in themselves posed risks of great bodily harm (or death), such as arson: see Horsley (1862) 3 F & F 287, or rape: DPP v Beard [1920] AC 479; Stone (1930) 53 TLR 1046. This restrictive development was strongly advocated by Stephen: see the discussion in K J M Smith, Lawyers, Legislators and Theorists (1998) 182-188; Homicide Bill 1879, cl 25. See further, R A Duff, “Implied and Constructive Malice in Murder” (1979) 95 LQR 418. [Back] Note 81 [1961] AC 290, 334-334. [Back] Note 82 [1961] AC 290, 335. Reliance was placed, in that regard, on the Victorian Supreme Court decision in Miller [1951] VLR 346, in which an Ashman–style direction was disapproved in favour of one that emphasised that grievous bodily harm was a phrase to be given its “ordinary and natural meaning” (per Martin J, at 357). [Back] Note 83 [1961] AC 290, 334. [Back] Note 84 Rhodes (1984) 14 A Crim R 124; Hunter and Dabbler (1989) 44 A Crim R 93. [Back] Note 85 Weeding (1959) VR 298. [Back] Note 86 Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Fatal Offences Against the Person (1998) Discussion Paper 51. [Back] Note 87 See paras 3.143-3.146. [Back] Note 89 See the commentary accompanying Akenhead (1816) Holt 469, 471. [Back] Note 90 East, Pleas of the Crown: Vol i (1803) 225. In the prefatory remarks on homicide in their Fourth Report in 1839 (168) xix, the Criminal Law Commissioners suggested that “neither is their any difference between the direct intention to kill and the intention to do some great bodily harm short of death … as no one can wilfully do great bodily harm without putting life in jeopardy”. This appears to endorse this “potentially lethal harm” view. [Back] Note 91 [1961] AC 290, 335. [Back] Note 92 [1982] AC 566 (HL). [Back] Note 93 [1982] AC 566, 573 per Lord Hailsham. [Back] Note 94 [1982] AC 566, 579. [Back] Note 97 See further Lord Goff, “The Mental Element in the Crime of Murder” (1988) 104 LQR 30. [Back] Note 98 [1978] 66 Ill App 3d 12 (Illinois), 383 NE 2nd 234. [Back] Note 99 See paras 3.73-3.84. [Back] Note 100 Law Commission for England and Wales, Imputed Criminal Intent: DPP v Smith (1967). [Back] Note 101 Ibid, at para 18(b). [Back] Note 102 See Appendix B. [Back] Note 103 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976) 33. [Back] Note 104 Crime Act 1900 (NSW), s 18(1)(a); Western Australian Criminal Code s 279(1) and (3); Queensland Criminal Code s 302(1) and (3); Tasmanian Criminal Code s 156(2)(a) and s 157(1)(b) and (d). See the discussion in Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Fatal Offences Against the Person (1998) Discussion Paper, chap 5, 49. See also the Criminal Justice Act 1964 (ROI), s 4. [Back] Note 105 See Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys-General, Model Criminal Code: Fatal Offences Against the Person (1998) Discussion Paper 51. [Back] Note 106 Irish Law Reform Commission, Homicide: The Mental element in Murder (LRC-CP 172001) Consultation Paper, para 5.41. [Back] Note 107 J Gardner, “Legal Positivism: Five and a Half Myths” (2001) 46 The American J of Law and Jurisprudence 199, 212. [Back] Note 108 Offences Against the Person Act 1997, s 1(1). [Back] Note 109 Law Commission for England and Wales, Imputed Criminal Intent: DPP v Smith (1967), para 22(c). [Back] Note 110 See para 3.40. [Back] Note 111 See V Krey, German Criminal Law: Vol ii (2003) para 348; A Pedain, “Intention and the Terrorist Example” [2003] Crim LR 579. [Back] Note 112 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976) para 32. [Back] Note 113 V Krey, German Criminal Law: Vol ii (2003), 349-364. [Back] Note 114 See paras 3.149-3.181. [Back] Note 115 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976) paras 33-34. [Back] Note 116 See para 3.15. [Back] Note 117 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976) para 33. [Back] Note 118 Criminal Law Revision Committee, Offences Against the Person (1980) Report 14, Cmnd 7844. [Back] Note 119 Ibid, para 28. [Back] Note 120 Ibid, para 21. [Back] Note 121 Macklin and Murphy (1838) 2 Lewin 225; Walters (1841) Car & M 164. This view appears to have had the support of Cockburn CJ, in Desmond (The Times, 28 April 1868) when he said that the mental element in murder was “knowledge or belief that a life was likely to be sacrificed.” See also Vamplew (1862) 3 F & F 520. [Back] Note 122 Sir J F Stephen, History of the Criminal Law of England (1883), cited by Lord Diplock in Hyam [1975] AC 55, 91. [Back] Note 124 Howlett (1836) 7 C & P 275. [Back] Note 125 See eg: Law Reform Commission of Canada, Recodifying Criminal Law ( 1987) Report 31 57-58; Law Reform Commission of Victoria, Homicide (1990-1991) Report 40 paras 122131; New Zealand Crimes Consultative Committee, Crimes Bill 1989: Report of the Crimes Consultative Committee (1991); House of Lords Select Committee on Murder and Life Imprisonment, Report of the Select Committee on Murder and Life Imprisonment (1989) HL Paper 78-1, para 195; A Criminal Code for England and Wales (1989) Law Com No 177, vol 1, para 54(b). [Back] Note 126 Criminal Law Revision Committee, Offences Against the Person (1980) Report 14 Cmnd 7844, para 28. [Back] Note 127 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976),
35. [Back] Note 128 See Appendix B. [Back] Note 129 For contrasting approaches, see A P Simester and G R Sullivan, Criminal Law: Theory and Doctrine (2nd ed 2003), where an approach less favourable to thorough-going subjectivism is taken, and A J Ashworth, Principles of Criminal Law (4th ed 2003), where a more subjectivist-friendly approach is taken. Contrasting approaches can be found in the cases as well. G [2003] UKHL 50, [2004] 1 AC 1034 takes a subjectivist approach to liability, whereas Savage [1992] 1 AC 699 takes a more objectivist approach. [Back] Note 130 See Sexual Offences Act 2003, s 1 (definition of rape). See also the Protection from Harassment Act 1997. [Back] Note 131 Draft Criminal Code, cl 54(1), cited in House of Lords Select Committee on Murder and Life Imprisonment, Report of the Select Committee on Murder and Life Imprisonment: Vol 1 (1989) HL 78 para 71. [Back] Note 132 Ibid, para 59. [Back] Note 133 Law Reform Commission of Ireland, Homicide: The Mental Element in Murder (LRC-CP 17 –2001) Consultation Paper, para 3.46. [Back] Note 134 Criminal Law Revision Committee, Working Paper on Offences Against the Person (1976) 33. [Back] Note 135 See para 3.134. [Back] Note 136 See paras 3.131-3.132. [Back] Note 137 See para 3.15. [Back] Note 138 Criminal Law Revision Committee, Offences Against the Person (1980) Report 14Cmnd 7844, para 28. [Back] Note 139 Virsa Singh AIR [1958] SC 465. [Back] Note 140 [1977] 1 WLR 600. [Back] Note 141 Irish Law Reform Commission, Homicide: The Mental element in Murder (LRC-CP 172001) Consultation Paper, paras 4.083-4.084. [Back] Note 142 Ibid, para 4.097. [Back] Note 143 Ibid, para 4.100. [Back] Note 144 For a general discussion, see R A Duff, Intention, Agency and Criminal Liability (1990). [Back] Note 145 [1961] AC 290. [Back] Note 146 See Criminal Justice Act 1967, s 8. [Back] Note 147 See paras 3.138-3.142. [Back] Note 149 The meaning of “intention” is discussed in Part 4. [Back] Note 150 This is an attempt to improve on the meaning of serious harm discussed in paras 3.138-3.142. [Back] Note 151 Morally defensible though it may be, however, it could hardly be said that such a definition of the mental element in murder has the added virtue of simplicity. [Back] Note 153 See J Gardner, “On the General Part of the Criminal Law”, in R A Duff (ed), Philosophy and the Criminal Law (1998), chap 5. [Back] Note 155 See para 3.14. [Back] Note 156 Hyam [1975] AC 55, 86 [emphasis added]. [Back] Note 157 Boughey v The Queen [1986] 161 CLR 10. [Back] Note 158 See para 3.15. [Back] Note 159 C S Kenny, Outlines of Criminal Law (2nd ed 1907) 132-135, discussed in K J M Smith, Lawyers, Legislators and Theorists (1998) 156-157. [Back] Note 160 MPC v Caldwell [1982] AC 341. (c) is effectively a kind of gross negligence. [Back] Note 161 See, the definition of “rashness” given by John Austin in the 1870s, discussed by K J M Smith, Lawyers, Legislators and Theorists (1998) 126. [Back] Note 162 Andrews v DPP [1937] AC 576. [Back] Note 163 [1937] AC 576 (HL), 583 [emphasis added]. For reasons given below, we prefer the definition of aggravated recklessness given above, to one centred on an evaluative or emotive term such as “indifference”. [Back] Note 164 MPC v Caldwell [1982] AC 341. [Back] Note 165 CCASP v Shimmen (1987) 84 Cr App R 7. [Back] Note 166 See paras 3.190-3.192. [Back] Note 167 See para 3.15. [Back] Note 168 See the Scottish case of Cawthorne v HM Lord Advocate [1968] JC 32, 35. [Back] Note 169 Model Penal Code, 202.2(b). This has been adopted by a range of US states including New York. [Back] Note 170 See A J Ashworth, Principles of Criminal Law (2nd ed 1995) 262-263; F McAuley and P McCutcheon, Criminal Liability (2000) 307. [Back] Note 172 For scholarly support for such a view, see A Pedain, “Intention and the Terrorist Example” [2003] Crim LR 579. [Back] Note 173 Irish Law Reform Commission, Homicide: The Mental element in Murder (LRC-CP 172001) Consultation Paper, para 4.032. See also the American work, Perkins and Boyce, Criminal Law (3rd ed 1982) 60. [Back] Note 174 N Lacey, “A Clear Concept of Intention: Elusive or Illusory?” (1993) 56 MLR 621, 632. [Back] Note 175 See A P Simester, “Why Distinguish Intention from Foresight?’” in A P Simester and A T H Smith, Harm and Culpability (1996) 71. [Back] Note 176 [1982] AC 566. [Back] Note 177 See para 3.15. [Back] Note 178 See para 3.15. [Back] Note 179 Putting on one side the special case where death is known to be virtually certain to accompany a directly intended goal: see Part 4. [Back] Note 180 Criminal Justice Act 2003, s 224. For an analogous proposal, see W Wilson, “Murder and the Structure of Homicide”, in A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) 45. [Back] Note 181 Adomako [1995] AC 171. [Back] Note 184 Involuntary Manslaughter (1996) Law Com No 237. [Back] Note 185 Involuntary Manslaughter (1996) Law Com No 237, Draft Bill, cl 2(1)(b). For further discussion, see A P Simester, “Can Negligence be Culpable?”, in J Horder (ed) Oxford Essays in Jurisprudence (4th Series 2000) 85. [Back] Note 186 See the authorities on the old ‘gross negligence’ version of recklessness: Elliot v C (A Minor) [1983] 2 All ER 1005 (DC); Stephen Malcolm (1984) 79 Cr App R 334. See also C [2001] Crim LR 845. [Back] Note 187 Contrary to the Domestic Violence, Crime and Victims Act 2004, s 5. [Back] Note 188 Involuntary Manslaughter (1996) Law Com No 237, Draft Bill, cl 2(1)(a). [Back] Note 189 See para 3.15. [Back] Note 190 Adomako [1995] AC 171. [Back] Note 191 Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000) para 2.11. Note this is not a purported definition under statute. [Back]
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