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HOMICIDE Q. Bob, a builder has an extremely violent temper. He was driving to a building site
one day and was late. He turned into a road that was being dug up by the electricity
board. He stopped at the set of traffic lights. They remained at red for more than three
minutes.
Full of rage, he picked up a hammer lying in the back of his van and threw it at
Sabatini, a workman who was working near the lights, shouting, “fix those lights”.
Sabatini ducked and the hammer missed him. It hit a passer by, Wendy, on the head
causing her serious injury.
Wendy, who was 26 weeks pregnant immediately went into premature labour and
gave birth. The baby was too weak to survive and died within hours. Wendy was
taken to a hospital and put on a life support machine. After a few days, the doctor
decided, as she was brain stem dead and there was no hope of recovery, to switch off
the machine. Medical evidence shows the shock of the blow to the head and caused
Wendy to go into labour prematurely.
Discuss Bob’s criminal liability:
How to answer this question:
The principle issues are:
1. Murder
2. Manslaughter
3. Transferred Malice
Answer Structure:
1. MURDER OF WENDY
2. ACTUS REA
3. CAUSATION, DECISION TO SWITCH OFF LIFE SUPPORT
4. MENS REA
5. INTENTION TO KILL OR CAUSE GBH – (WOLLIN1) DIRECTION
6. TRANSFERRED MALICE
7. MANSLAUGHTER BY AN UNLAWFUL ACT
8. MURDER OF BABY
9. “DOUBLE TRANSFER OF MALICE”
10. MANSLAUGHTER OF BABY
1 Wollin [1998] 3 WLR 382 MURDER OF WENDY:
The actus reus of murder requires proof that the defendants (D’s) actions were a
factual and legal cause of the victim’s (V’s) death. That is clearly the case here. In
Malcherek:Steel (1981) it was held that where medical treatment given by competent
and careful medical practitioners, including putting a victim of an attack on a life
support machine, the bone fide decision by the medical practitioners to disconnect the
machine does not relieve the assailant from responsibility for the death, if, at the time
of death, the original injury was a continuing or operating cause of death.
The mens rea for murder requires proof the D intended to kill or cause grievous
bodily harm. (Moloney 1985)2
This is a question of fact for the jury and, except in rare cases where further
elaboration may be necessary, the judge should leave it to the jury’s good sense to
decide whether the accused acted with necessary intent (Moloney). The “rare cases”
include those where the defendant’s direct intent or purpose was not to kill or cause
GBH, but he performed an act, which was manifestly dangerous, and as a result
someone died. (Nedrick (1986). In that situation the jury should be directed that they
are entitled to find the necessary intention if they are sure that death or serious bodily
harm was a virtual certainty and that the defendant appreciated that such was the case.
(Wollin (1998))3
The fact that Bob threw the hammer at Sabatini and not at Wendy does not affect his
liability. The “doctrine” of transferred malice applies where D misses his intended
victim and causes injury to another. In such cases D is liable for the injuries suffered
by the actual victim to the same extent, as he would have been had he hit his intended
victim. (Latimer (1886)).4
Although Bob may have lost his self-control he is unable to raise the partial defence
of loss of control provided by s54 of the Coroners and Justice Act 2009. Bob did
not fear serious violence within s55 (3) and there was nothing “done or said”
amounting to a qualifying trigger within section s55 (4) of the Act. Where s55 (4) is
relied upon there must be some evidence that the killing was a result of an
uncontrolled reaction to specific words or conduct amounting to a qualifying trigger;
a loss of self-control caused by sheer bad temper or circumstances like a slow down
of traffic would not be enough to raise the defence.
2 Moloney [1985] AC 905 3 The facts do not disclose Bob’s intent so the answer should explain the requirements of both murder and manslaughter 4 R v Latimer (1886) 17 QBD 359 The defendant got into a fight in a pub with
another man. He took off his belt and hit the man with the belt. The belt ricocheted off
and hit a woman in the face.
Held: The defendant was liable for the injuries inflicted on the woman despite the fact
that he did not intend to harm her. The mens rea he had to cause harm to the man was
transferred to the woman.
MANSLAUGHTER:
If Bob lacked the mens rea for murder then his liability for manslaughter should be
considered. Manslaughter is committed, constructively where D commits an unlawful
and dangerous act, which causes the death of another (Goodfellow (1986)5; Newbury
(1977))6;
The offence of assault contrary to common law will suffice as an unlawful act for the
purposes of manslaughter (Lamb (1967))7 This offence is committed if D,
intentionally or recklessly, causes V to apprehend unlawful and immediate personal
violence (Venna (1976)8 and it is clear from the facts that Bob committed an assault
when he threw the hammer at Sabatini.9
The question whether the unlawful act was dangerous is one for the jury who should
have been directed to consider whether all sober and reasonably people would
inevitably have recognised that it subjected another to the risk of some harm, albeit
not serious harm (Church (1996))10 It is submitted that a reasonable jury, properly
directed would conclude that the act of throwing a hammer at a person carried a risk
of harm and thus that the requirement of “dangerousness” is satisfied.
MURDER OF THE BABY:
In Attorney General’s reference (No.3 of 1994)(1997) the House of Lords considered
whether, provided an intention to kill or cause GBH is established, murder is
committed where unlawful injury is deliberately inflicted on a pregnant woman, the
child is subsequently born alive, enjoys an existence independent of the mother, but
thereafter dies and the injuries inflicted while in utero were a legal cause of the death.
Two arguments were presented. The first was that the foetus could be regarded as part
of the mother so that an intention to cause grievous bodily harm to the mother is
equivalent to the same intent directed to the foetus. The second relied upon the
doctrine of transferred malice - that the malice towards the mother could be
transferred to the newly born baby.
The House pointed out that it was established in English law that the killing of a
foetus is not murder. It is only when a child has an existence independent of its
mother that it is regarded as a human being protected by the law against unlawful
homicide.
5 Goodfellow (1986) 83 Cr App R 23 6 Newbury [1977] 2 All ER 365 7 Lamb [1967] 3 WLR 888 8 Venna [1976] QB 421 9 In any problem always identify the specific offence, which constitutes the unlawful act for the purposes of constructive manslaughter. This is an important stage in the analysis of liability. 10 Church [1996] 1 QB 59 It rejected the first of the Crowns arguments on the ground that the mother and foetus
are two distinct organisms living symbiotically, not a single organism with two
aspects.
The second argument was rejected on the ground that it required a double “transfer”
of intent: first from the mother to the foetus and then from the foetus to the child.
Lord Mustill felt that there was no justification for extending the principle of
transferred malice to a case where the defendant acted without intent to injure either
the foetus or the child, which it will become.
MANSLAUGHTER OF THE BABY:
Curiously the House held that D could be convicted of the manslaughter of the baby
on the basis that all that is needed for constructive manslaughter, once causation is
established, is an act creating a risk of harm to anyone; it is unnecessary to prove that
D knew that his act was likely to injure the person who died as a result of it and
equally it is unnecessary to prove that D was aware the woman was pregnant.
Speaking in general terms, the House held that manslaughter can be established
against someone who does any wrongful act leading to death, in circumstances where
it was foreseeable that it might injure anyone at all.
Thus, it is sufficient that, at the time of throwing the hammer, Bob committed an act
amounting to an assault against another person, that the death of the child was caused
by that act and that all sober and reasonable people would recognize the risk that
some harm (to anyone) would result.
Turning to the issue of causation, the House held that the fact that the death of the
child is caused solely as a consequence of injury to the mother rather than a
consequence of direct injury to the foetus does not negative liability for manslaughter.
The unlawful and dangerous act of Bob’ “changed the maternal environment of the
foetus” with the result that after the child was born he died when he would otherwise
have lived. The requirements of causation and death were satisfied, and the
ingredients of “unlawful act” manslaughter are present.