The Law Commission

PART 3

THE FAULT ELEMENT

INTRODUCTION

How different fault elements fit the new structure

3.1      The element of fault or culpability in committing wrongs, including homicide, is a key factor in shaping how people assess a wrong's seriousness. Accordingly, it has always been a crucial factor in distinguishing between homicide offences.

3.2      In our recommended three-tier structure of homicide offences, there are different culpability or fault elements. For the most part, the structure uses existing culpability or fault elements as defined in the common law, such as 'intention' or 'gross negligence'. There is one new fault element: 'awareness of a serious risk'.

3.3      However, we do not believe that the new fault element will lead to a series of cases being taken to the Court of Appeal or the House of Lords ("the Appeal Courts") to determine its meaning (although there are bound to be some such cases). 'Awareness of a serious risk' is a phrase expressed in perfectly ordinary language and is meant to be understood according to such usage. We expect the Appeal Courts to affirm that this is the case and say that the understanding of the phrase is a matter for the jury with common sense guidance from the trial judge. We would not expect the Appeal Courts to subject the phrase to any gloss. Nor do we expect the Appeal Courts to embark upon a refined analysis of the phrase from case-to-case with a view to constructing a precise legal meaning for it.

The different fault elements and the 'ladder' approach

3.4      In this Part, we consider the meanings of 'intention', 'awareness' of risk, and 'serious' risk.^[1] We set out what we believe should be the fault element of what hitherto has been known as 'unlawful and dangerous act' manslaughter. Finally, we recommend the adoption of our existing recommendations for the meaning of 'gross negligence' manslaughter's fault element.^[2]

3.5      Different fault elements serve to create a 'ladder' of crime seriousness, both in the existing law and in our recommendations. It is of vital importance to remember that any scheme that divides offences using varying fault elements will necessarily involve some degree of overlap: the most culpable cases in a lower tier may well appear worse than the least culpable cases in the next tier up. This phenomenon will occur in any sophisticated system for grading offences. This overlap does not weaken the case for having clear boundaries between offences. Neither does it necessarily mean that the boundaries have been drawn in the wrong place nor that the wrong terms have been used to mark those boundaries.

3.6      Under our recommendations, the fault elements create a 'ladder' of crime seriousness in one or both of at least two important ways.^[3] First, the less serious crimes typically have less grave fault elements. So, for example, manslaughter can be committed by gross negligence whereas murder cannot.

3.7      Secondly, the 'ladder' of crime seriousness is shaped by the nature or degree of harm or injury to which a fault element relates. Where death has been caused, a simple intention to do some injury is sufficient for a manslaughter conviction. However, if an awareness of a serious risk of causing death accompanied that intention, a conviction for second degree murder is justified. Further up the ladder, whilst an intention to do serious injury suffices to convict a killer of second degree murder, something more is required to justify a first degree murder conviction. First degree murder requires nothing short of an intention to kill or the morally equivalent intention to do serious injury in the awareness that this involves a serious risk of causing death.

3.8      This 'ladder' approach produces the following structure (discussed in more detail in Part 2 above):^[4]

(1) First degree murder

(a) An intention to kill; or

(b) an intention to do serious injury, aware that one's conduct involves a serious risk of causing death.

(2) Second Degree Murder

(a) An intention to do serious injury; or

(b) an intention to cause:

(i) injury;

(ii) a fear of injury; or

(iii) a risk of injury

in the awareness that one's conduct involves a serious risk of causing death.

(3) Manslaughter

(a) Manifesting gross negligence as to a risk of causing death;

(b) doing a criminal act that the defendant intends to cause injury, or that he or she is aware involves a serious risk of causing some injury.

INTENTION

3.9      One or more of the fault elements for first degree murder, second degree murder and manslaughter use the term 'intention'. The courts have often struggled with the meaning of this key term. However, the law has now reached a reasonably stable state. The question is whether a definition is needed that significantly alters the common law understanding of intention. We have concluded that there is no such need but that the existing law governing the meaning of intention should be codified.^[5]

The common law

3.10      The existing law gives a partial definition of intention. A jury is obliged to follow that definition when it applies. The law also gives guidance on when a jury has the power – or discretion – to find that a result was brought about intentionally, even when the case falls outside the partial definition. It is important, however, to note that juries are not thought to need to have 'intention' explained to them in the trial judge's directions, even though it is an essential element of the crime of murder. Lord Bridge has indicated that:

When directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent and leave it to the jury's good sense to decide whether the accused acted with the necessary intent.^[6]

3.11      A similar approach to intention has been taken, for example, by the Court of Criminal Appeal in Queensland.^[7]

3.12      At common law, someone must be taken to have intended something if they acted in order to bring it about. In that respect, 'intention' is partly defined by the common law. However, in unusual cases, typically murder cases, that definition has proven to be too narrow. It excludes from murder those cases that should be murder given D's especially high level of culpability.^[8]

3.13      Accordingly, the following rule has been developed at common law. The jury may – but not must – find that the defendant ("D") intended the result if D thought it would be a certain consequence (barring some extraordinary intervention) of his or her actions, whether he or she desired it or not. Take the following examples:

D is in the process of stealing V's car. V leaps onto the car bonnet to deter D from driving off. D accelerates to 100 miles per hour and continues at that speed. Eventually V's grip loosens and V falls off the car. The fall kills V. D claims he did not intend to kill V or to cause V serious injury but was simply determined to escape come what may.

D is jogging along a narrow path that follows a cliff edge. V is walking slowly ahead of him. D wantonly barges V over the cliff rather than slowing down and asking V to step aside so that D can pass. V is killed by the fall. D says that his intention was to keep running at the same speed at all costs, and he was not concerned with whether V lived or died.

3.14      In both these examples, the jury should be directed that they may find that D intended to kill V or to cause V serious injury, if they are sure that D realised that V was certain (barring an extraordinary intervention) to die or suffer serious injury, if D did what he or she was set upon doing.^[9] We would expect the jury to find a intention to kill or cause serious harm in both cases.

3.15      The reason that the law of murder, in particular, has developed in this way is well explained by Professor Kaveny, when she says:

His [the defendant's] gross disregard for the human lives foreseeably ended as a certain side-effect of his decision seems, in fact, aptly described … with the broad but more specific moral terms 'homicidal' or 'murderous'.^[10]

The options set out in the CP

3.16      In the CP, we offered consultees two choices: effective codification of the existing law^[11] or a fuller statutory definition of intention that sought to address a range of problems that might arise in difficult cases.^[12]

Responses to the CP

3.17      Most academic consultees, and some practitioners (such as the Law Society), favoured the fuller statutory definition. By way of contrast, the approach of the existing law was favoured by most judges in the higher courts who responded (including a former Director of Public Prosecutions); the Criminal Bar Association; the London Criminal Courts Solicitors' Association; the Police Federation; Justice; and Liberty. The latter group of consultees did not favour a statutory definition of intention that sought to tackle all foreseeable difficult cases because they thought it would complicate the law and confuse juries.

Our conclusions

3.18      We have been persuaded that when dealing with a term of ordinary language, like intention, the latter approach is the right one.^[13]

3.19      Someone should be taken to 'intend' a result if they act in order to bring it about. That is the basic definition of intention. It does not demand too much of the prosecution because, as Lord Bingham has put it:

There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time.^[14]

3.20      Very occasionally, there will be cases where the judge believes that justice may not be done unless an expanded understanding of intention is given (two examples were given in paragraph 3.13 above). In such cases, the judge should direct the jury that they may find intention to kill if D thought that his or her action would certainly (barring an extraordinary intervention) kill, even if the death was undesired.

3.21      We acknowledge that this approach gives the jury an element of discretion in deciding whether, in cases such as those within the examples in paragraph 3.13 above, a verdict of (first degree) murder can and should be returned. The result in such cases will not be wholly determined by legal rules governing the meaning of intention. We believe that it is sometimes necessary and desirable that juries should have that element of discretion if the alternative is a more complex set of legal rules that they must apply. It is the price of avoiding complexity. Complexity must be kept to a minimum if the new structure of homicide offences is to be acceptable to Parliament, the public and the legal profession.

3.22      Some academics have suggested that it would be simpler to abandon the pretence, as they see it, that it is true 'intention' that is found by the jury when it exercises this discretion. They claim it would be simpler and more honest to say that someone can be found guilty of first degree murder either if they intend to kill (or to cause serious injury aware of a serious risk of causing death) or if they know or believe that death or serious injury (aware of a serious risk of death) will occur.^[15] On this view, intention, knowledge and belief, are alternate forms of fault element. This is the approach, for example, of French law^[16] and the American Model Penal Code.

3.23      Naturally, we recognise that there are differences between intention, knowledge and belief. The law would certainly be little worse off for taking an alternative approach in which these mental states are carefully separated. However, we do not believe that this approach would be a substantial improvement, at least in the context of homicide. There is, for example, no evidence that the existing law gives rise to any confusion in the jury room. If the law confused juries we would expect juries to be consistently sending notes to judges asking for further explanation. We have not received reports that this has occurred. ^[17]

3.24      In some areas of the law it may be necessary to distinguish between intention and knowledge or belief that something will happen. This may be necessary where criminal liability depends upon which of these alternate fault elements is established.^[18] It is not clear that the distinction between these fault elements does or should serve this purpose in homicide cases.

3.25      For example, the distinction between intentionally and knowingly killing would matter if the defences of necessity or duress of circumstances were available to those who knowingly killed (that is, where death was foreseen as certain to occur) but not in cases where someone acted in order to kill. If duress and necessity became defences to first degree murder,^[19] we do not believe that this approach would attract the courts. There can be cases of intentional killing that these defences should cover. Conversely, there can be cases where death was foreseen as certain to occur in which the defence should be denied. In many instances, D's exact state of mind would simply affect the jury's assessment of whether the reasonable person might have done as D did. So, distinguishing formally between these states of mind would increase, rather than reduce, the complexities involved in deciding whether these defences should apply in first degree murder cases.

3.26      Giving the jury the power to find intention when they find that D foresaw the result as virtually certain widens the fault element in the law of homicide. However, it does this whilst avoiding the much greater uncertainty involved in the use of evaluative terms such as 'recklessness' or 'extreme indifference'. That the law expands the fault element through letting the jury decide when intention should be found, rather than through requiring the jury to apply yet further legal rules governing inference-drawing, can thus be regarded as a strength and not a weakness.

3.27      We recommend that the existing law governing the meaning of intention is codified as follows:

(1) A person should be taken to intend a result if he or she acts in order to bring it about.

(2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action.

'AWARENESS' OF RISK

3.28      In Part 2, we recommended that a person should be guilty of first degree murder if he or she killed intending to do serious injury and was aware that his or her conduct involved a serious risk of death. We also recommended that a person should be guilty of second degree murder if he or she intended to cause some injury or a risk or a fear of serious injury and was aware that his or her conduct involved a serious risk of death.

3.29      We do not believe that the use of the terms 'aware' and 'awareness' will give rise to practical difficulties. However, to avoid doubt, we stress that awareness involves conscious advertence to the risk. In particular, someone should not be said to have been aware of a risk at the time of the alleged offence, unless it was brought to mind at the relevant time. Merely having knowledge of the risk stored in one's memory ought not to suffice. Take the following example:

D is told that V is a haemophiliac, whose life is endangered by any serious flesh wound. Some months later, D has a violent argument with V, picks up a knife and stabs V once in the leg. V bleeds to death in spite of being taken promptly to hospital.

3.30      In this example, it may well be that the prosecution can show (a) that D intended to do serious injury (the stab to the leg) and (b) that D was aware that V consequently faced a serious risk of bleeding to death because of his haemophilia. If so, under our recommendations, D would be guilty of first degree murder.

3.31      However, it should not be enough for the prosecution to simply show that D had been told of V's condition in the past. The prosecution should have to show that D was aware of V's condition and the resulting risk of death at the time of the stabbing. It is a matter for the jury whether, on the particular facts, D consciously adverted to, or thought of, the risk when stabbing V. In that regard, however, as Lord Bingham has observed:

… it is not to be supposed that the tribunal of fact will accept a defendant's assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done.^[20]

3.32      A final point. Both first and second degree murder should be regarded as crimes of 'specific intent'. This means that if D did not kill with the requisite fault element, he or she must be acquitted of murder although he or she may still be guilty of manslaughter. In particular, D should be entitled to rely on any evidence tending to show that he or she did not have the intent or awareness in question, including evidence of intoxication.^[21]

3.33      This is the normal rule for murder cases and there is no reason to change it simply because murder has been divided into degrees. The rule does not give rise to difficulties in practice. It will, of course, remain no defence to claim that intoxication – whether voluntary or involuntary – made one disposed to commit murder (or any other crime) or more disposed to commit it than one would otherwise have been.^[22]

3.34      Further, manslaughter should remain a crime of 'basic intent'. This means that D should not be able to rely on evidence of voluntary intoxication to suggest that he or she was unaware of a serious risk of injuring another person through his or her criminal act. It also entails that D should be unable to rely on evidence of voluntary intoxication to show that he or she was not grossly negligent in failing to appreciate and avoid a risk.

3.35      We recommend that 'awareness' of risk should be understood to involve consciously adverting to a risk.

'SERIOUS' RISK

3.36      By 'serious' risk, we mean a risk that ought to be taken seriously. We do not mean a risk that by definition is 'likely to', or 'probably will' result in harm done. Probability may come into the question of whether a risk is 'serious' but it is not determinative of the question. It is merely one factor determining whether the risk ought to be taken seriously. The Australian High Court has succinctly and clearly expressed what we mean by serious risk in Boughey,^[23] with the following formulation: "a substantial or real chance, as distinct from a mere possibility".^[24]

3.37      Unlike some common law jurisdictions,^[25] English law is averse to the use of degrees of probability to shape or confine fault elements. In a civil law context, Lord Reid has said:

Chance probability or likelihood is always a matter of degree. It is rarely capable of precise assessment. Many different expressions are in common use. It can be said that the occurrence of a future event is very likely, rather likely, more probable than not, not unlikely, quite likely, not improbable, more than a mere possibility, etc. It is neither practicable nor reasonable to draw a line at extreme probability.^[26]

3.38      Drawing on this observation, Lord Hailsham has said that degrees of probability should play no part in the definition of fault elements in homicide. If degrees of probability played such a role, in Lord Hailsham's view lawyers would be 'driven to draw the line in a criminal case of high importance at precisely the point at which it was said to be neither practicable nor reasonable to do so'.^[27] We agree.

3.39      A risk may be serious even though it is not a high risk. The notion of 'serious risk' is one that a jury can safely be left to apply to the facts of a case with a minimum amount of legal embellishment.^[28] Therefore, there is no need for case law to develop a legal meaning for this phrase.

3.40      We recommend that a risk is to be regarded as 'serious' if it is more than insignificant or remote.

THE FAULT ELEMENTS OF MANSLAUGHTER

Introduction

3.41      In our terms of reference, we were not asked to give detailed attention to the fault elements for what under the current law is involuntary manslaughter. These matters have already been fully considered both by the Law Commission and by the Home Office.^[29] Accordingly, we have not returned to the questions of what 'gross negligence' means or to the detail of what is currently known as 'unlawful and dangerous act' manslaughter.

3.42      Unlawful and dangerous act manslaughter has attracted criticism. A person is guilty of unlawful and dangerous act manslaughter if he or she causes the death of another person by a criminal act that was objectively dangerous. An act is objectively dangerous if a reasonable person would have realised that there was a risk of some harm resulting from it.

3.43      It can be seen, therefore, that a person can be convicted of a very serious offence even though he or she was not aware that their criminal act posed a risk of any harm occurring. It suffices if a reasonable person would have been aware.

3.44      In the CP we invited views as to whether manslaughter should encompass the commission of a criminal act causing death if the perpetrator of the act was aware that there was a risk of injury arising from the act. The great majority of consultees who addressed the issue thought that it should. A very small number of academics thought that manslaughter should not extend to such cases.

3.45      In Part 2 we recommended that manslaughter should consist of:

(1) killing another person through gross negligence ("gross negligence manslaughter"); or

(2) killing another person:

(a) through a criminal act intended to cause injury, or

(b) through a criminal act in the awareness that it involved a serious risk of causing some injury ("criminal act manslaughter").

Criminal act manslaughter

3.46      The organisation Justice suggested to us that, in the absence of an intention to injure, manslaughter should require an awareness of a risk of serious injury. We can see considerable force behind this suggestion as a way of limiting the scope of the offence.

3.47      However, we are not recommending that manslaughter, in the absence of an intention to injure, should require the awareness of a risk of serious injury. This is because we believe that such a limitation would introduce excessive complexity into the law. The jury would have to be told that whilst a criminal act that causes death and which was intended by D to do some injury is manslaughter, if the criminal act was one that D was only aware might cause some injury, D could only be convicted of manslaughter if he or she was aware that it might cause serious injury.^[30]

3.48      Such a definition would encourage forensic disputes about whether an assault (say, a punch) causing death was actually intended to cause injury or was only a criminal act that D thought might cause some injury (but not serious injury). If the former, D would be guilty of manslaughter, but if the latter, D would only be guilty of an assault. We do not believe liability for manslaughter should turn on such fine distinctions. D's lack of awareness that serious harm or death might occur can be taken into account in sentencing. So we, along with almost all of our consultees, support the wider formulation endorsed by the Home Office in 2000.^[31]

3.49      However, while we are not attracted to liability for criminal act manslaughter being dependent on awareness of a risk of serious injury, we do believe that liability should be dependent on the risk of injury being a serious risk.

Gross negligence manslaughter

3.50      There was also overwhelming support for a crime of manslaughter by gross negligence. Only four individual consultees thought that this crime should be abolished. One of those in fact agreed that grossly negligent killing should continue to be a homicide offence, but thought it should be labelled 'unlawful homicide' rather than manslaughter.

3.51      In the context of the current review of homicide it was necessary to reconsider at least some of the elements of gross negligence manslaughter. We took as our template the Home Office's own proposals in 2000 for reform.^[32] Our recommendation for gross negligence manslaughter reflects the essence of those proposals. However, there are two significant changes.

The first change - structure^[33]

3.52      Under our recommendations, some forms of 'reckless' killing would constitute second degree murder and not merely manslaughter. A 'reckless' killing involves an unjustified killing where the killer was aware that there was a risk of killing but nonetheless went on to engage in the risky conduct. Under our recommendations, explained in Part 2,^[34] if D is reckless, in the sense that he or she realises that there is a serious risk that his or her conduct may kill, he or she can be guilty of second degree murder but only if, additionally, he or she intended by his her conduct to cause some injury or a fear or risk of injury.

3.53      Under our recommendations, not all cases of 'reckless' killing will fall into second degree murder. These will be killings where there is an awareness of a risk that conduct may cause death but the extra element is missing: there is no intention to cause injury or a fear or risk of injury. Almost all of our consultees were in favour of treating 'reckless' killing (without any further aggravating factor) as manslaughter. We believe that such cases should be treated as falling within gross negligence manslaughter. In other words, there should cease to be a separate category of 'reckless manslaughter'. The Crown Prosecution Service and Professor Taylor expressly said that they would favour this course.

3.54      We believe that there would be little point in continuing with a category of 'reckless manslaughter' when the worst cases of recklessness (those in which there was also an intention to cause injury or a fear or risk of injury) are accounted for within second degree murder. Under our recommendations, 'reckless manslaughter' would become a very narrow category, in many cases all but indistinguishable from gross negligence manslaughter. The Crown Prosecution Service thought that the law would become too complicated if reckless manslaughter were retained as a separate category. We agree.

3.55      In many cases treated as ones of gross negligence manslaughter, D would be hard-pressed to deny that he or she was in broad terms perfectly well aware of the risk of his or her conduct killing someone. In other words, in many cases it would be hard for D (if pushed) to deny that he or she was reckless as well as grossly negligent, unless he or she had, in his or her own mind, positively ruled out the possibility that death might be caused. An example is Lidar,^[35] where D drove off knowing that the victim was hanging from the car window with his body half in the car. In such a case, D would be hard-pressed to deny being both grossly negligence and reckless.

3.56      Recent case law has reinforced our belief that reckless manslaughter can be subsumed within gross negligence manslaughter. For example, the Court of Appeal has said that D's state of mind can be "relevant to the jury's consideration when assessing the grossness and criminality of his conduct".^[36] This cuts both ways. On the one hand, the fact that D was aware of a risk but pressed on regardless strengthens the case for saying that his or her conduct was grossly negligent (in the sense of showing a blatant disregard for the safety of others). On the other hand, the fact that D genuinely (albeit stupidly) thought that there was little or no risk weakens, without wholly undermining, the case for saying that his or her conduct showed such disregard or was grossly negligent.^[37]

3.57      The term 'reckless' has an unhappy history in the context of homicide. Although the House of Lords brought some welcome clarity to the definition of that term in another context,^[38] we now believe that the law of homicide is better off without it.

The second change - fault

3.58      The second change relates to gross negligence manslaughter's fault element. We recommend that the prosecution be required to show that there was gross negligence as to the risk of causing death (not merely as to causing serious injury). That change in effect means our recommendations restate, rather than extend, the common law.^[39] We do not believe that this recommendation will prove controversial in any significant way. This change was supported by the vast majority of consultees.

3.59      Gross negligence manslaughter can be committed even when D was unaware that his or her conduct might cause death, or even injury. This is because negligence, however gross, does not necessarily involve any actual realisation that one is posing a risk of harm: it is a question of how glaringly obvious the risk would have been to a reasonable person. If liability for an offence as serious as manslaughter is to be justified in the absence of an awareness that one is posing a risk, D's negligence must relate to the risk of bringing about the very harm he or she has caused: the risk of causing death. Otherwise, the crime of manslaughter becomes unduly wide and a misleading label for what the offender has done.

3.60      We recommend the adoption of the definition of causing death by gross negligence given in our earlier report on manslaughter:

(1) a person by his or her conduct causes the death of another;

(2) a risk that his or her conduct will cause death…would be obvious to a reasonable person in his or her position;

(3) he or she is capable of appreciating that risk at the material time; and

(4) … his or her conduct falls far below what can reasonably be expected of him or her in the circumstances … .^[40]

Note 1    The question whether a meaning should be given in law to ‘serious injury’ was considered in Part 2, paras 2.86 to 2.92.    [Back]

Note 2    Involuntary Manslaughter (1996) Law Com No 237, draft Bill, cl 2.    [Back]

Note 3    For further discussion of the points made here, see the CP, paras 2.97 to 2.109.    [Back]

Note 4    Excluding the fault element for participation in another’s crime, considered in Part 4.    [Back]

Note 5    Given that we are not engaged in a drafting exercise, we will not distinguish in what follows between the phrases ‘foresight of virtual certainty’, ‘foresight of certainty (barring some extraordinary intervention)’ and ‘foresight that X will/would happen’.    [Back]

Note 6    Moloney [1985] AC 905, 926.    [Back]

Note 7    Wilmot (No 2) [1985] 2 Qd R 413.    [Back]

Note 8    Such cases would without question have been regarded as ones involving ‘malice aforethought’ before the use of that term was judicially disapproved of and fell out of use.    [Back]

Note 9    In our view, a person will think that a consequence is virtually certain to occur so long as he or she thinks that it will be virtually certain if they do as they mean to do. Eg, if someone plants a home made bomb on a plane intending to detonate it when the plane is in mid-air, given that they mean to detonate it, they can be taken to foresee the deaths of the passengers as virtually certain to occur even if they realise that the home made bomb is unreliable and might fail to detonate as planned. See CP paras 4.17 to 4.19 and 4.29 to 4.31.    [Back]

Note 10    M. Cathleen Kaveny, “Inferring Intention from Foresight” (2004) 120 Law Quarterly Review 81, 86. Of course, some instances of recklessly indifferent killing may seem rightly called ‘homicidal’ or ‘murderous’ whether or not they involve actual foresight that someone will be killed. That, however, is a question relevant to the categorisation of offences, addressed in Part 2, rather than to the definition of intention.    [Back]

Note 11    We would not support simply leaving the common law governing the meaning of intention uncodified.    [Back]

Note 12    For the fuller definition, see the CP, para 4.3.    [Back]

Note 13    Accordingly, we will not address in detail the objections levelled at the more complex definition, such as its incorporation of what looked like a concealed defence of necessity. For an analysis, see Alan Norrie, “Between Orthodox Subjectivism and Moral Contextualism” [2006] Criminal Law Review 486.    [Back]

Note 14    G [2003] UKHL 50, [2004] 1 AC 1034 at [39].    [Back]

Note 15    Eg, Victor Tadros, “The Homicide Ladder” (2006) 69 Modern Law Review 601, 605.     [Back]

Note 16    J Pradel, Droit P(nal G(n(ral, (14th ed 2002) ( 502.    [Back]

Note 17    We believe that this casts serious doubt on claims that the current law’s approach, to use Professor Tadros’s phrase, “can only confuse juries”: Victor Tadros, “The Homicide Ladder” (2006) 69 Modern Law Review 601, 604.    [Back]

Note 18    Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com No 300. Gillick v West Norfolk and Wisbech Area Health Authority [1984] QB 581.    [Back]

Note 19    See Part 6 below.    [Back]

Note 20    G [2003] UKHL 50, [2004] 1 AC 1034 at [39].    [Back]

Note 21    DPP v Beard [1920] AC 479.    [Back]

Note 22    Kingston [1995] 2 AC 355.    [Back]

Note 23    Boughey (1986) 161 CLR 10.    [Back]

Note 24    Above, at 15.    [Back]

Note 25    See, eg, the Singapore Penal Code (Cap 224, 1985 Rev Ed), s. 300(b).    [Back]

Note 26    Southern Portland Cement Ltd v Cooper [1974] AC 623, 640, cited with approval by Lord Hailsham in Hyam [1975] AC 55, 76 to 77.    [Back]

Note 27    Hyam [1975] AC 55, 77.    [Back]

Note 28    For that reason we have said that, in criminal act manslaughter cases, D must either intend to cause injury or be aware of a ‘serious risk’ of causing injury, simply in order to maintain consistency with the use of the phrase ‘serious risk’ in both first degree murder and second degree murder. We do not mean, by the inclusion of the word ‘serious’ to narrow the fault element in criminal act manslaughter further than will be achieved by substituting the word ‘criminal’ for the word currently in use, ‘unlawful’.    [Back]

Note 29    Involuntary Manslaughter (1996) Law Com No 237; Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000).     [Back]

Note 30    If D intends to cause serious injury, under our proposals he or she is guilty of second degree murder if death results.    [Back]

Note 31    Home Office, Reforming the Law on Involuntary Manslaughter: The Government’s Proposals (2000).    [Back]

Note 32    Above.    [Back]

Note 33    See Part 2.    [Back]

Note 34    See Part 2, paras 2.108 to 2.111.    [Back]

Note 35    November 11, 1999, CA, No 9900339 Y4. The case was decided on a now out-of-date understanding of recklessness as including an ‘objective’ strand involving a failure to appreciate an obvious risk.    [Back]

Note 36    A-G’s Reference (No 2 of 1999) [2000] Criminal Law Review 475.    [Back]

Note 37    Andrews v DPP [1937] AC 576.    [Back]

Note 38    G [2003] UKHL 50; [2004] 1 AC 1034.    [Back]

Note 39    Adomako [1995] 1 AC 171; Gurphal Singh [1999] Criminal Law Review 582.    [Back]

Note 40    Involuntary Manslaughter (1996) Law Com No 237, para 5.34 (some passages omitted).    [Back]