CPS – Homicide: Murder and Manslaughter.
Posted by: Greg Lance-Watkins
tel: 01594 – 528 337
of: Greg_L-W@BTconnect.com
.
The Crown Prosecution Service.
The CPS incorporates RCPO.
Definition of Homicide
Murder and manslaughter are two of the offences that constitute homicide.
Manslaughter can be committed in one of three ways:
1) killing with the intent for murder but where a partial defence applies, namely loss of control, diminished responsibility or killing pursuant to a suicide pact.
2) conduct that was grossly negligent given the risk of death, and did kill, is manslaughter (“gross negligence manslaughter”); and
3) conduct taking the form of an unlawful act involving a danger of some harm, that resulted in death, is manslaughter (“unlawful and dangerous act manslaughter”).
The term “involuntary manslaughter” is commonly used to describe a manslaughter falling within (2) and (3) while (1) is referred to as “voluntary manslaughter”.
There are of course other specific homicide offences, for example, infanticide, and causing death by dangerous or careless driving. For dangerous driving see CPS Guidance on prosecuting cases of Bad Driving elsewhere in the Legal Guidance. Guidance on Corporate Manslaughter is available elsewhere in the Legal Guidance.
Murder
Subject to three exceptions (see Voluntary Manslaughter below) the crime of murder is committed, where a person:
of sound mind and discretion (i.e. sane);
unlawfully kills (i.e. not self-defence or other justified killing);
any reasonable creature (human being);
in being (born alive and breathing through its own lungs – Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;
under the Queen’s Peace;
with intent to kill or cause grievous bodily harm (GBH).
A ‘year and a day’
Where the act or omission occurred after 7 June 1996, death no longer needs to follow within a year and a day. Note however that the Attorney General’s consent must be obtained before initiating proceedings, if:
the injury alleged to have caused the death was sustained more than three years before the death occurred; or
the accused has previously been convicted of an offence committed in circumstances alleged to be connected to the death. Please refer to Consents to Prosecute, elsewhere in the Legal Guidance.
In circumstances such as those where a defendant is convicted of an offence e.g. assault relating to the victim, but where the victim’s injuries eventually proves fatal and the defendant is then charged with murder (potentially several years later), prosecutors should consider s.74(3) of the Police and Criminal Evidence Act 1984. This section allows for the earlier conviction e.g. for assault to constitute admissible evidence to prove that the defendant was guilty of assaulting the victim but also potentially guilty of murder.
Whilst the earlier conviction is admissible, it is still open for the defendant on the balance of probabilities to show he did not commit the offence for which he was previously convicted. Also, whilst section 78 PACE can be used to exclude the earlier conviction, this should not be based on some ‘nebulous’ concept of unfairness; rather it needs to specifically relate to the particular circumstances of the case in question. For further information see the case of R v Clift, R v Harrison [2012] EWCA Crim 2750.
Referral
As these offences are highly sensitive, and to ensure consistency of approach, all cases in which a homicide prosecution is being considered where either death occurs more than 3 years after the original injury was sustained or after a person has previously been convicted of an offence committed in circumstances connected with the death require the approval of the Director of Public Prosecutions’ Principal Legal Advisor prior to the obtaining of the Attorney General’s consent.
Approval should be sought through Chief Crown Prosecutors/Heads of HQ Casework Divisions. A transcript of the sentence hearing of the original conviction should be included with any papers sent to the PLA as it will often contain comment relevant to the issue of double jeopardy.
A British subject can be indicted for murder or manslaughter in England and Wales even when he commits the offence outside the jurisdiction. The nationality of the victim is immaterial: section 9 Offences against the Person Act 1861.
Murder cannot be committed by a company or other corporation. (However see Corporate Manslaughter elsewhere in the Legal Guidance).
Intent
For the principal defendant, (see later for Joint Enterprise) the intent for murder is the intention to kill or cause grievous bodily harm (GBH), nothing less. Foresight is no more than evidence from which the jury may draw the inference of intent, c.f. R v Woollin [1999] 1 Cr App R 8 (HOL).
Attempted Murder
In contrast to the offence of murder, attempted murder requires the existence of an intention to kill, not merely to cause grievous bodily harm: R v Grimwood (1962) 3 All ER 285. The requisite intention to kill can be inferred by the circumstances: R v Walker and Hayles (1990) 90 Cr App R 226.
Joint Enterprise
The principle set out in R v Lane and Lane (1986) 82 Cr App R 5 and restated in R v Aston and Mason (1992) 94 Cr App R 180 is that where two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to acquit both. This equally applies to homicide offences. However, see Familial Deaths below for offences involving members of the same household.
Where association evidence is relied on, the circumstances of the association of the suspect with the principal offender, together with the other evidence in the case, must give rise to the inference that the suspect was assisting or encouraging the principal’s offence. In some circumstances it may be appropriate to consider alternative charges which may be available and which do not require the use of the joint enterprise doctrine. In the event that the particular circumstances apply and no such alternative is available prosecutors should weigh carefully the merits of proceeding with the more serious charge under the doctrine of joint enterprise.
Each case will need to be considered on its own facts and on its own merits before a deicion to prosecute is made.
For further guidance on making decisions in cases which may involve joint enterprise see the CPS Guidance on Joint Enterprise contained elsewhere in the legal guidance.
Causation
The prosecution must always show a causal link between the act/omission and the death.
The act or omission must be a substantial cause of death, but it need not be the sole or main cause of death. It must have “more than minimally negligibly or trivially contributed to the death.” – Lord Woolf MR in R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344.
It does not matter that the act/omission by the defendant merely “hastened” the victim’s death: R v Dyson (1908) 1 Cr App R 13.
However, where it is alleged that an omission was a substantial cause of death, causation is particularly difficult. It is necessary to prove to the criminal standard that but for the omission the deceased would not have died.
To break the “chain of causation” an intervening act must be such that it becomes the sole cause of the victim’s death so as to relieve the defendant of liability. (Consider R v Kennedy (2007) 3 W.L.R. 612 below in Cases where death results from the unlawful supply of drugs.)
Examples of intervening acts are:
Third party interventions: such an act will not break the chain unless it was a free, deliberate, informed, voluntary act, which was not reasonably foreseeable by a reasonable person: R v Pagett (1983) 76 Cr App R 279.
Acts of God or nature can break the chain if entirely unforeseen and unconnected with the defendant’s act.
An act of the victim will break the chain if not within the range of response which might be anticipated from a victim in his situation: R v Roberts (1972) 56 Cr App R 95 and R v Williams & Davis 1992 CLR 198. Note: Reeves v Metropolitan Police Commissioner (HOL) 2000 1 AC 560 where it was accepted that if the police were aware that the prisoner was a known suicide risk then a special duty of care existed and that Novus actus interveniens did not apply where he then went on to commit suicide.
Death resulting from any normal medical treatment employed to deal with a criminal injury must be regarded as caused by the criminal injury. It is only in the most extraordinary case that treatment designed to repair the harm done by the original attack could be regarded as the cause of the victim’s death to the exclusion of the accused’s act: R v Cheshire (1991) 3 All ER 670.
The defendant must take his victim as he finds him under the ‘egg-shell skull’ rule: R v LeBrun (1991) 4 All ER 673.
Alternative Counts
In cases where the defendant faces a charge of murder, the prosecution should decide in advance of a trial whether or not an alternative count of manslaughter should be added to the indictment. Prosecutors should take the following approach:
If the alternative is added, and the jury cannot reach a verdict in relation to the first count (murder), but return a verdict of guilty in relation to the alternative count (manslaughter), then the prosecution should not seek a retrial on the first count (murder).
If no alternative is included on the indictment, the prosecution must decide when the jury retire to consider their verdict on murder whether to seek a re-trial if the jury cannot agree, or whether it would be prepared to accept the alternative (manslaughter). Note that the prosecution may be directed to consider the alternative in any event (R v Coutts [2006] UKHL 39). The reason the prosecution should give prior consideration to this question is because even though manslaughter is not on the indictment, the jury may indicate that it has reached a verdict of guilty on the offence of manslaughter. The prosecution must then decide whether it will ask the judge to accept the verdict of manslaughter from the jury or discharge them from returning such a verdict.
If the prosecution submits that the judge should accept the verdict of manslaughter, then it will be accepting that it will not be proceeding to a retrial on the charge of murder.
If the prosecution submits that the judge should not accept the verdict of manslaughter, and therefore seeks a retrial on the charge of murder, then the judge may agree to accede to this, discharge the jury and order a retrial on the charge of murder.
If, despite representations to the contrary, the judge accepts the verdict of manslaughter because it meets the justice of the case, then the prosecution will not be able to seek a retrial on the charge of murder even if there is no abuse of process (R v JB [2013] EWCA Crim 356).
Partial Defences to Murder
Partial defences, are different to complete defences, such as self-defence, as they bear all the ingredients of murder but if successfully argued, reduce the offence to an act of” voluntary manslaughter” not murder.
There are three partial defences to murder: diminished responsibility, loss of control and killing in pursuance of a suicide pact.
In addition there is a so called ‘concealed’ partial defence, created by legislation in the act of infanticide, see below in this guidance.
Note: Duress is not a defence to a charge of murder or attempted murder.
Manslaughter
Voluntary Manslaughter
Diminished Responsibility
Section 52 of the Coroners and Justice Act 2009 (the Act) replaces the definition of diminished responsibility as contained in the 1957 Homicide Act and will apply to defendants charged with murder where the acts or omissions resulting in the death of the victim took place on or after 4 October 2010. See Schedule 22 paragraph 7 of the Act. The Act creates new subsections namely (1), (1A) and (1B) and outlines circumstances where a person is not to be convicted of murder.
Abnormality of mental functioning means a state of mind so different from that of ordinary human beings that the reasonable person would term it abnormal. It covers the ability to exercise willpower or to control physical acts in accordance with rational judgement. It is a question for a jury. They are not bound to accept medical evidence: R v Sanders [1991] Crim LR 781.
Recognised medical conditions can be found in the accepted classificatory lists, which together encompass the recognised physical, psychiatric and psychological conditions. These are, currently, the World Health Organisation’s International Classification of Diseases (ICD-10) and the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).
There is also scope for a condition which is not included in such a list to be deemed a “recognised medical condition” for the purposes of this test. This applies to emerging conditions which, while being recognised, might not yet have been included in the accepted classificatory lists. The defence could call an acknowledged specialist who has had their work validated, to give evidence to this effect.
Impairment must be substantial, there must be evidence of this and it must be raised by defence, c.f. R v Campbell [1987] 84 Cr App R 255, R v Kooken [1982] 74 Cr App R 30. The new section 2(1)(b) states that the abnormality of mental functioning must have substantially impaired the defendant’s ability to do one or more of those things as mentioned in the new section 2(1A):
a) to understand the nature of the defendant’s conduct;
b) to form a rational judgement;
c) to exercise self-control.
Subsection (1B) provides that an abnormality of mental functioning provides an explanation for the defendant’s acts or omissions in doing or being party to the killing, if it was at least a significant contributory factor in causing the defendant to act as he did. This does not require that it should have been the only cause or even the most important factor in causing the behaviour. But it must be more than a merely trivial factor. The defence should not be able to succeed where the defendant’s mental condition made no difference to their behaviour – when they would have killed regardless of their medical condition.
It is for the defence to prove that the person is, by virtue of this section, not liable to be convicted of murder. The evidential burden is on the defence on the balance of probabilities i.e. the civil standard (in contrast to Loss of Control, see below).
If diminished responsibility is not raised at trial, it is unlikely that the Court of Appeal will allow evidence that was available then to be called at appeal. It will not therefore substitute manslaughter for murder.
However, there are conflicting authorities. In R v Campbell [1987] 84 Cr App R 255, on a subsequent Home Secretary’s reference, the Court of Appeal accepted medical evidence and ordered a retrial, but in R v Tony Martin [2002] 1 Cr App R 27 and R v Neaven (2006) EWCA Crim 955, the Court of Appeal allowed medical evidence to be adduced at the appeal, even though diminished responsibility was not raised at trial.
The effect of alcohol consumed by the defendant cannot be ignored entirely. Section 2(1) does not require the abnormality of mind to be the sole cause of the killing, even if he would not have killed but for the additional impact of the alcohol, the section still provides a defence: R v Dietschmann (2003) 1 All ER 897 (disapproving R v Egan (1992) 4 All ER 470 and R v Atkinson 1985 CLR 314).
The effects of alcohol do not amount to an abnormality of mental functioning: R v Fenton (1975) 61 Cr App R 261; R v Egan (1992) 4 All ER 470; R v Atkinson 1985 CLR 314. However, for cases involving alcoholics see R v Tandy (1989) 1 WLR 350 and R v Inseal 1992 CLR 35.
As murder is a crime of specific intent, if the defendant cannot show diminished responsibility from brain damage caused by alcohol, if he was so drunk or drugged at the time of the killing as to be unable to form the intent to kill, or cause grievous bodily harm, he will be acquitted of murder. However he is still liable to be convicted of unlawful act manslaughter, see below.
There is a link between diminished responsibility and provocation (now loss of control): R v Ahluwalia (1992) 4 All ER 889.
Loss of Control
Section 56 Coroners and Justice Act 2009 (the Act) abolished the common law defence of provocation and replaced it with sections 54 and 55 Coroners and Justice Act 2009. The defence itself is self contained and its common law roots are irrelevant. These provisions apply to defendants charged with murder where the acts or omissions resulting in the death of the victim took place on or after 4 October 2010. See schedule 22 paragraph 7 of the Act.
Section 54 contains the components of the defence. Though they must be analysed sequentially and separately, if one is absent the defence will fail. The leading case is R v Clinton and Others [2012] EWCA Crim 2.
In relation to the reference to “loss of self-control” within section 54(1)(b) Coroners and Justice Act 2009 it does not matter whether or not the loss of control was sudden, but control must have been lost. The partial defence could still be put before a jury even where there has been delay between the trigger incident and the murder. However the judge will have to determine whether the time delay was sufficiently substantial to render the defence of loss of control untenable and therefore not sufficient to put before the jury.
The defence is not available to those who act in a considered desire for revenge (section 54(4)). This is so, even if the defendant loses self control as a result of one of the qualifying triggers.
Section 54(5) of the Act clarifies the issues in relation to the burden of proof. For the purposes of the section, sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. It is a matter of law and therefore an issue for the judge to decide whether there has been sufficient evidence raised to put the partial defence before a jury. The burden of disproof is on the prosecution.
Section 55 Coroners and Justice Act 2009 defines what is meant by “qualifying trigger” for the purposes of section 54. Prosecutors should note the following:
Subsection (3) (fear of serious violence from the victim) introduces a subjective test that must be applied as in cases involving self-defence. The defendant will have to show that he genuinely feared that the victim would use serious violence, whether or not that fear was reasonable.
Subsection (4) (things said or done). Whether the defendant was seriously wronged and he had a justifiable sense to act in the manner that he did is for the jury to determine having applied an objective test.
The requirements of subsections 55(4)(a) and 55(4)(b) are fact-specific and require objective evaluation.
Subsection (6) (c) It is the issue of sexual infidelity that falls to be disregarded under subsection (6) (c) however certain parts of the case may still amount to a defence under section 55(4). For example a defendant who kills her husband because he has raped her sister (an act that could be deemed to be one of sexual infidelity). The act of sexual infidelity may be disregarded however her actions may still fall to be a qualifying trigger under section 55(4).
Sexual infidelity cannot by itself qualify as a trigger for the second element of the defence (R v Clinton paragraph 20). Context is critical.
The Court of Appeal has determined that “‘things said’ includes admissions of sexual infidelity (even if untrue) as well as reports (by others) of sexual infidelity” (R v Clinton, paragraph 26).
Despite s.55(6)(c), when considering the third component in s.54(1)(c) the impact on the defendant of sexual infidelity is not excluded and account of it should be taken in some cases where appropriate.
Sexual infidelity is not subject to a blanket exclusion.
“If there is evidence on which the jury could reasonably conclude that the loss of control defence might apply, it must be left to the jury: if there is no such evidence, then it must be withdrawn” (R v Clinton, paragraph 47).
Suicide Pact
Section 4 of the Homicide Act 1957 reduces murder to manslaughter where the survivor of a joint suicide pact, took part in the killing of another person in the pact or was a party to that other person being killed by a third person.
Involuntary Manslaughter
Involuntary manslaughter is in contrast to voluntary manslaughter and occurs where a person kills, but does so without the intent to kill or cause GBH. Apart from the absence of the requisite intent, all other elements of the offence are the same as for murder.
There are two types of involuntary manslaughter, namely:
that caused by the defendant’s gross negligence; and
that caused by his unlawful or dangerous act.
Gross Negligence Manslaughter
This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. The law in respect of this has been clarified in the case of R v Adomako (1994) 3 All ER 79 where a four stage test for gross negligence manslaughter known as the Adomako Test was outlined by the House of Lords:
The test involves the following stages:
a) the existence of a duty of care to the deceased;
b) a breach of that duty of care which;
c) causes (or significantly contributes) to the death of the victim; and
d) the breach should be characterised as gross negligence, and therefore a crime.
There is no manslaughter by “Lawrence Recklessness”, overruling R v Seymour (1983) 2 AC 493.
The Duty of Care
There is no “general” duty of care owed by one citizen to another (No “good Samaritan rule”).
A duty of care will arise from an act of a person where the requirements of foreseeability, proximity, fairness, justice and reasonableness establish such a duty (Donohue v Stevenson (1932) AC 582).
Prosecutors should see Caparo Industries PLC v Dickman (1990) 2 AC 605 for the test if a duty of care existed.
The duty can exist even where the deceased and the defendant were engaged in an unlawful activity together (R v Wacker (2003) 1 Cr App R 329; R v Willoughby (2004) ECWA Crim 3365.
The duty can arise from a contract of employment (R v Pittwood (1902) 19 TLR 37).
In addition there is the case of R (Rowley) v DPP (2003) EWHC Admin 693 where the Administrative Court referred to a fifth test, that ‘criminal’ involved an element of ‘badness’ – but note that the Adomako test is objective and the Crown need not prove the defendant’s state of mind. The risk must be a serious and obvious risk of death, not merely serious injury: R v Misra and Srivastava [2005] 1 Cr App R 328.
The Breach of the Duty of Care
The ordinary law of negligence applies to these cases, in that those with an established duty of care, must act as a “reasonable person would do in their position”. If they fail to do so they will have breached that duty. This is an objective test and will be based upon the defendant’s position at the time of the breach.
Therefore, if the defendant has acted within the range of what was generally accepted as being the standard practice (even if it is at the lower end) it will be difficult to describe such behaviour as falling far below the standard of a reasonable person in his position.
An unqualified person is not to be judged at a lower standard than a qualified person. Therefore the lack of skill will not be a defence if the conduct is deemed negligent. If however, the defendant has particular skills and knowledge of a danger that the reasonable person would not have, his actions should be judged in the light of those skills or knowledge. This test is an objective test.
It does not matter that the defendant did not appreciate the risk (the foreseeable risk of death) only that the risk would have been obvious to a reasonable person in the defendant’s position. (R v DPP ex parte Jones 2000 CLR 858 and AG ref No: 2 of 1999 3 All ER 182.)
The Grossness of the Breach
It is for a jury to decide whether the defendant’s conduct was so bad, in all the circumstances, as to amount to a criminal act or omission. In R v Misra and Srivastava [2005] 1 Cr App R 328, the court agreed with the direction by the judge that the term ‘reprehensible’ would be apt to describe the nature of the conduct.
Causation
See R v HM Coroner for Inner London, ex parte Douglas-Williams [1999] 1 All ER 344 for a causation test in relation to gross negligence manslaughter
Medical Manslaughter
Medical manslaughter is legally no different from Gross Negligence manslaughter. The term refers to medically qualified individuals who are performing acts within the terms of their duty of care, when the act or omission occurs.
Where a medical individual is appointed to take charge of a person they then take on a duty of care towards them. Simply being a doctor or nurse in a hospital will not necessarily mean there is a duty of care to a specific patient (see section 7 HSWA [ADD LINK] in the legal guidance Corporate Manslaughter).
Please refer to HSE work related deaths protocol http://www.hse.gov.uk/foi/internalops/fod/oc/100-199/165_9.pdf
Unlawful Act Manslaughter
This is where the killing is the result of:
the defendant’s unlawful act (not omission);
where the unlawful act is one which all sober and reasonable people would realise would subject the victim to the risk of some physical harm resulting there from, albeit not serious harm R v Williams and Davis (1992) 2 All ER 183;
whether or not the defendant realised this.
The act need not be directed against a person (e.g. arson) – see R v Willoughby (2005) 1 WLR 1880.
The knowledge attributed to the sober and reasonable person is that which such a person would acquire as an observer of the whole course of the defendant’s conduct throughout the unlawful act: R v Watson (1989) 2 All ER 865, R v Dawson (1985) 81 Cr App R 150, R v Carey and others (2006) EWCA Crim 17.
In manslaughter arising from an unlawful and dangerous act, the accused’s state of mind is relevant only to establish that the act was committed intentionally and that it was an unlawful act.
Once these points are established the question whether the act was dangerous is to be judged not by the appellant’s appreciation but that of the sober and reasonable man and it is impossible to impute the mistaken belief of the defendant that what he was doing was not dangerous: R v Ball 1989 CLR 730.
Cases where Death Results from the Unlawful Supply of Drugs
No “unlawful act” for the purpose of unlawful act manslaughter occurs, where a person only supplies drugs or materials to another, who then in turn administers the drug to himself and dies. This is the case even where a person assists another to take the drug by performing preparatory acts, such as applying a tourniquet or preparing a syringe for injection.
The House of Lords considering the point, stated that the criminal law generally assumed the existence of free will and, subject to certain exceptions, informed adults of sound mind were treated as autonomous beings able to make their own decisions on how to act: R v Kennedy (Simon) (2007) 3 W.L.R. 612 where K supplied the drug to B, who then had a choice, knowing the facts, whether to inject himself or not.
Encouraging or Assisting Suicide
CPS Areas must refer cases of Assisting Suicide to the Special Crime Division: see Referral of Cases to CPS Headquarters (Central Casework Divisions, The Principal Legal Advisor, Private Office, Strategy and Policy Directorate, and Press Office), The Chief Crown Prosecutors or Complex Casework Units, elsewhere in the Legal Guidance.
Infanticide
Section 1 Infanticide Act 1938, as amended by section 57 of the Coroners and Justice Act 2009, provides that infanticide can apply: “Where a woman:
by any wilful act or omission;
causes death of her child being a child under the age of 12 months;
but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child;
or by reason of the effect of lactation consequent upon the birth of the child then;
notwithstanding that the circumstances were such that, but for this Act, the offence would have amounted to murder (See R v Gore [2007] EWCA Crim 2789);
she shall be guilty of an offence of infanticide; and
may for such an offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child.”
Infanticide can be an alternative verdict or charged in its own right. The child that is killed must be the child to whom the birth etc. refers, and the child must be under 12 months old. The death can be by either act or omission.
The case of R v Gore [2007] EWCA Crim 2789 has established that there is no requirement that all the ingredients of murder have to be proved before a defendant could be convicted of infanticide. The case has confirmed that the intention of parliament was to create a new offence of infanticide which covered situations much wider than offences that would otherwise be murder. Consequently, the mens rea for infanticide does not require any intention to kill or cause serious bodily harm. Therefore cases of manslaughter (see above) would fall within the elements of the offence.
In every case where the mother is alleged to have killed her own child who is less than 12 months old, early efforts should be made to obtain medical evidence establishing whether or not infanticide is appropriate and, if so, a charge of infanticide can be preferred pre-committal.
There is a close link between this offence with both voluntary manslaughter and diminished responsibility. However, unlike diminished responsibility, the burden of disproving is on prosecution. Although for an Infanticide offence, the child killed must be the one from whose birth/lactation the defendant is suffering; diminished responsibility might still be argued if another child of the family has been killed.
Note: also the offence of Child Destruction: section 1 Infant Life (Preservation) Act 1929, which prohibits the killing of any child capable of being born alive.
Familial Deaths and Serious Physical Harm
Section 5 of the Domestic Violence, Crime and Victims Act 2004 (‘DVCV Act’) creates an offence of causing or allowing the death of, or causing or allowing serious physical harm to be suffered by, a child under the age of 16 or of a vulnerable adult. This stand-alone offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household from the foreseeable risk of serious physical harm from other household members. It is an offence triable only on indictment and where death occurs, carries a maximum sentence of 14 years imprisonment or a fine, or both. Where a child or vulnerable adult suffers serious physical harm the offence is triable only on indictment and carries a maximum sentence of 10 years’ imprisonment or a fine, or both.
An offence under section 5 DVCV Act is an offence of homicide for the purposes of venue in the Youth Court.
The offence is made out where evidence exists to establish the following elements:
a child or vulnerable adult (“V”) has died or suffered serious physical harm;
the death or serious physical harm was the result of an unlawful act, course of conduct or omission of a person (“D”) who was member of the same household as V and who had frequent contact with V;
there existed at the time of death a significant risk of serious physical harm being caused to V by the unlawful act of any member of that household and either:
a) D was the person whose unlawful act caused V’s death or serious physical harm; or
b) D was, or ought to have been, aware of that risk and failed to take such steps as he or she could reasonably have been expected to take to protect V from that risk of serious physical harm; and
c) the death or serious physical harm occurred in circumstances of the kind that D foresaw or ought to have foreseen.
Note: ‘significant’ does not mean ‘more than minimal’ as it would for manslaughter but carries its ordinary meaning: R v Mujuru (2007) EWCA Crim 1249.
The prosecution does not have to prove which of the two possible alternatives, (a) or (b) above, applies. In other words, D is equally liable to conviction whether he or she was the perpetrator of the act that actually caused V’s death or serious physical harm or simply failed to protect V from a foreseeable risk of serious physical harm from another member of the household who had frequent contact with V. It will quickly be appreciated how this dual basis for criminal liability remedies one of the main perceived difficulties with the law relating to other possible charges such as murder or manslaughter.
In every case the prosecution must prove that V’s death or serious physical harm occurred in circumstances of the kind that D foresaw or ought to have foreseen. This requirement protects, from criminal liability, those whose dependants die from unlawful acts that had nothing to do with the foreseeable risk of harm within the household, e.g. where V is at risk of serious harm from an abusive parent but is subsequently killed by a friend of the family who had had until then little contact with the household.
Further, section 5(6) DVCV Act confirms that in this context ‘serious’ harm is to be equated with the level of physical harm that amounts to grievous bodily harm under the Offences against the Person Act 1861. The risk that must be foreseen relates to that level of harm and the risk itself must be significant rather than minimal or fanciful. The section also contains definitions of the terms child and vulnerable adult amongst others. The definition applied to vulnerable witnesses is wider than that applied to the same phrase in the Youth Justice and Criminal Evidence Act 1999.
However, it is clear from the wording of section 5 that the test of what could be foreseen is not purely
subjective but contains a ‘reasonableness’ dimension as well. In determining potential liability the proper test to be applied is ‘what would have been reasonable for this defendant to have foreseen?’ Therefore, a defendant may be fixed with knowledge if the nature of the risk was such that he or she should reasonably have been aware of it even if they claim not to have been.
Frequent contact
Frequent contact could include family members or carers, but is not confined to that group.
Household
Household is defined in sectino 5(4)(a) DVCV and will be given its ordinary meaning. It is not likely to include care homes or nurseries where a child is looked after with a number of others. A paid or voluntary domiciliary carer or housekeeper or an au-pair or similar may fall under the definition, if it would be reasonable in the circumstances. Under the Act, a person may be regarded as a member of the household for the purpose of this offence if they visit so often and for such periods of time that it is reasonable to regard that person as a member of the household. Membership of a household will be for the courts to determine on a case by case basis.
The offence only applies to those over 16 years of age, unless the suspect is the mother or father of the victim.
If the person who caused the death lacks or may lack criminal responsibility the other persons in the household can still be charged with ‘allowing’ the death or serious injury.
Unlawful act
Subsection (5) defines an unlawful act as one that constitutes an offence or would be were it not for the fact that the person lacks criminal responsibility.
Age of Responsibility
If D was under the age of 16 at the time of the act which caused V’s death he or she cannot be guilty of an offence under this section. Further, where it is sought to prosecute D on the basis of a failure to take reasonable steps to prevent the risk of serious harm, D is assumed not to have been capable of taking any such step before attaining the age of sixteen (s.5(3)(b)). However, neither of these exceptions applies to the mother or father of the deceased child who may be prosecuted for a section 5 offence whatever their age. This distinction is justified on the basis that parents bear a special responsibility for the safety of their children.
Application of Dangerous Offender Provisions
An offence under section 5 is a “serious specified offence” for the purposes of the Dangerous Offenders provisions set out in Chapter 5 of the Criminal Justice Act 2003 (DV Act, Schedule 10, paragraph 65).
Procedural Changes
Section 5 creates a substantive offence that can be charged alone and which is clearly designed to remedy situations where it has been impossible in the past to bring charges of murder or manslaughter because of a lack of evidence to prove which of a limited number of suspects caused V’s death. Such situations will doubtless continue to occur and the principle in R v Lane and Lane (1986) 82 Cr App R 5 (referred to above) will continue to have effect.
However, the Act also has in contemplation circumstances where the evidence, reviewed according to the normal standards of the Code for Crown Prosecutors, justifies charging one of more of the defendants with either murder or manslaughter in respect of the same death. Where this is done, it is important to ensure that the defendant is also charged with a section 5 offence. Not only does this afford the jury an opportunity of convicting of an alternative count but several significant advantages flow from the fact that a defendant is charged with both offences.
Ruling Out Dismissal of the Case before Arraignment
Following a sending by the magistrates’ court the charge of murder or manslaughter cannot be dismissed under the Indictable Only procedure unless the section 5 DVCV Act offence is also dismissed – section 6(3) DVCV Act .This means that as long as there is a case to answer on the familial homicide offence, the defence will not be able to apply to have the more serious charge dismissed before arraignment under paragraph 2 of Schedule 3 of the Crime and Disorder Act 1998 on the ground that there is not a prima facie case in relation to murder or manslaughter.
Postponing the Decision on whether there is a case to answer
A similar restriction also applies during the course of the trial itself. As long as the defendant continues to face a charge under section 5 of the DVCV Act the question of whether there is also a case to answer on the charge of murder or manslaughter cannot be determined until the close of all the evidence including the defence evidence (if any defendant elects to give evidence) .
The purpose of the provision is to afford the jury the greatest possible opportunity of hearing the oral evidence of at least one of the defendants during the trial and to weigh that testimony as evidence against the other accused. So, where a defendant is charged in respect of the same death with both familial homicide and either murder or manslaughter, and the prosecution evidence establishes a case to answer on the section 5 DVCV Act offence, the defence cannot make a submission of no case to answer on the murder/manslaughter charge until the close of the defence case.
At that stage the court will have heard the evidence of any of the defendants who decide to go into the witness box and the decision whether there is a case to go to the jury will then be taken in the light of that evidence, not simply the evidence of prosecution witnesses. The potential use of so-called ‘cut-throat’ defences here is obvious. (See R v Ikram (Abid) [2008] EWCA Crim 586).
Allowing Inferences to be Drawn from Refusal to Testify
The other procedural change concerns the drawing of inferences from an accused’s failure to give evidence at trial or refusal to answer questions put in cross-examination. If a jury would be entitled under section 35(3) of the Criminal Justice and Public Order Act 1994 to draw inferences from the failure of a person charged with a section 5 DVCV Act offence to give evidence or to answer questions in court without good cause, then those same inferences may be drawn in relation to any charge of murder or manslaughter arising from the same death which they also face. This is so, even if there would otherwise be no case to answer in relation to the murder/manslaughter offence. In other words, provided the strict requirements of section 35(3) CJPOA are met in relation to the familial homicide offence, they will be deemed to have been met in relation to the linked murder or manslaughter charge too. To that extent the strict procedural requirements set out in R v Cowan [1996] QB 373 have been dis-applied in cases of this kind.
Note that this express transference provision relates only to the adverse inference that may be drawn from a refusal to give evidence in court. Other possible inferences, such as that arising from a refusal to answer questions in a police interview, are not included within the provisions of section 6 DVCV Act.
A jury cannot, of course, convict the defendant solely on the basis of such an inference (section 38(3) CJPOA), but the drawing of an inference adverse to the defendant(s) may serve to strengthen the prosecution case to the point where a conviction becomes a realistic prospect.
Application of the Code Tests to the New Procedural Provisions
Nothing in the DVCV Act or elsewhere suspends the operation of the normal evidential stage of the Code tests in respect of cases involving the death of children or vulnerable adults in familial settings. However, prosecutors will be entitled to take these significant procedural changes into account when determining the strength of the evidence on possible charges of murder and manslaughter. While the ‘realistic prospect of conviction’ test is the only proper test to apply, the Crown Prosecutor is entitled to take into account the realities of what is likely to happen in the course of the criminal proceeding and this includes an assessment of the likely impact of section 6 of the DVCV Act.
Assuming that there is sufficient evidence in respect of the familial homicide charge, a submission of no case to answer in respect of any related murder or manslaughter charge will be deferred until the close of the defence case. Therefore the defence case, so far as it can be evaluated from the defendant’s interview or otherwise, will be a relevant consideration to take into account at the time of the decision to charge. Whilst Prosecutors may not know precisely what the defence case is going to be, it is proper to consider what it may be and then to consider how that defence is likely to affect the prosecution case.
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Potential Range of the New Offence
Potential criminal liability under section 5 of the DVCV Act does not depend upon the existence of any parental or other special relationship with V. Rather, it arises from membership of the same household as, and frequent contact with, a child or vulnerable adult who dies as a result of an unlawful act, course of conduct or omission that can only be attributable to the activities of someone who was also a member of that household and who also had frequent contact with the deceased.
Since liability arises from membership of the deceased’s household and frequent contact with the deceased, the new offence is wide enough to include anyone within that defined group who ought to have been aware of the foreseeable risk and who failed to take all reasonable steps to prevent the harm arising. Thus, it might include siblings aged 16 and over who lived with V and who had witnessed earlier incidents of violence towards V by someone living as part of the household as defined in section 5(4) of the DVCV Act. Conversely, a separated parent who did not live with or visit V before V died would not be considered a member of V’s household and could not be liable for prosecution under section 5 even if he or she was aware or ought to have been aware that V was at serious risk of physical harm from a household member and did nothing to prevent that harm.
Potentially, people who come into the home on a regular basis to care for V may be deemed to be members of the household for the purposes of this offence. They might be liable to be charged if they were aware of a risk of serious harm to V from someone within the same household but did not take reasonable steps to prevent V’s death. People who might fall into this category include relatives, regular baby sitters over 16, and those who provide domiciliary care in the household such as child minders and paid carers.
In many cases the evidence is likely exclude any possible ‘outside candidates’ and the range of suspects will be confined to those who are part of the deceased’s household. Determining whether there is sufficient evidence to charge should not present any special difficulty in such cases. However where the evidence leaves room for reasonable doubt that the fatal act etc., was done by someone who does not fall within the definition of ‘the same household’ no possibility of a section 5 charge arises since the death may have been caused by someone other than a member of V’s household.
What Amounts to Reasonable Steps
Where the prosecution case against D is that he or she failed to prevent a foreseen or foreseeable risk, the court will have to be satisfied that there were, indeed, steps that the defendant could have reasonably have taken to protect the child or vulnerable adult from harm. If there are no such steps or none that would have been reasonable for this particular defendant to take, then the section 5 offence cannot be established.
What is ‘reasonable’ will depend upon the circumstances of each particular case but in every case the defendant is entitled to be judged on the basis of what the reasonable and sober person sharing all the personal characteristics of that particular defendant could have been expected to do. This will involve taking into account everything that is known about the defendant’s circumstances, intellectual and emotional capabilities and his or her ability to make independent decisions and choices. This, in turn, may involve consideration of the likely impact of violence directed towards the defendant by the other accused on his or her ability to act reasonably in protection of the eventual victim.
What would constitute reasonable steps will vary from case to case and will depend on the suspect’s relationship to the victim. It may be that the steps a particular suspect could have taken may be more limited than another suspect. Depending on the facts of the particular case, the court may find that the suspect may have been too frightened to take some of the steps which in other circumstances might have been available to them. But it should be remembered that the offence is premised on a duty to protect a child or vulnerable adult from harm, and all members of the household who had frequent contact with the victim would have that duty.
The rationale behind the section 5 DVCV Act offence is to promote greater protection for children and vulnerable adults from harm within their own households. In deciding evidentially what are and what are not reasonable steps prosecutors will have to keep to the forefront of their mind the duty created, … the duty to intervene … and actively endeavour to bring the ill treatment to an end …, and how the state expects that duty to be discharged. R v Beard (1987) 85 Cr App R 395 (at paragraph 399 – 400).
In relation to the section 5 DVCV Act offence, too, it will ultimately be a matter for the courts to decide what amounts to ‘reasonable steps’. As cases come before the courts, a body of case law will develop which will help prosecutors to make that judgement. In the interim, examples of what could amount to reasonable steps might be thought to include:
Contacting social services, local child protection committees or similar.
Making sure that the child or vulnerable person is treated promptly and appropriately for any injuries or illnesses that they suffer.
Explaining concerns to the family GP or health visitor.
Contacting their teacher, head teacher or school nurse.
Contacting organisations such as the NSPCC or Childline.
Ringing one of the other voluntary agencies that support families, such as Home-Start.
For a young person aged over 16, contacting their grandparents, an aunt or uncle, or another responsible adult.
Exploring concerns with neighbours or others who may have contact with the person who is at risk.
Making sure that alcoholism or drug dependence in other members of the household are acknowledged and appropriately treated.
Attending anger management or parenting classes if appropriate, or ensuring other members of the household attend such classes.
Physically or verbally intervening to prevent violence. Account would have to be taken of the respective physical capabilities of the parties in determining whether this was a reasonable step.
Leaving an abusive partner and moving home with the child or vulnerable person. Again, this might not always be a reasonable expectation depending on the particular circumstances of individual defendants.
This list is not intended to be exhaustive and is for illustrative purposes only. Such judgements are never easy to make. As with any case, prosecutors will have to keep the evidence under continuing review. Early decisions to charge may have to be reconsidered in the light of later information including evidence that may be served or disclosed by the defence.
For further information on the issue of ‘reasonable steps’ in cases where the suspect alleges they are the victim of domestic violence, please see the Ministry of Justice Circular 2012/03 Domestic Violence, Crime and Victims (Amendment) Act 2012.
Shaken Baby Syndrome (SBS) and Sudden Infant Death Syndrome (SIDS)
For guidance on Shaken Baby Syndrome (SBS) and Sudden Infant Death Syndrome (SIDS), see Non Accidental Head Injury Cases (NAHI, formerly referred to as Shaken Baby Syndrome [SBS]) – Prosecution Approach.
Self-defence
Self-defence is as much a defence to murder and manslaughter as to any other offence. As with all cases of offences against the person, when considering the sufficiency of evidence under the Code, if it is plain that such a defence is likely to succeed it would not be right to commence proceedings. Refer to Self-Defence and the Prevention of Crime, elsewhere in the Legal Guidance.
Procedure
Code for Crown Prosecutors – Considerations
Murder is so serious that a prosecution is almost certainly required even in cases such as ‘mercy killing’ of a sick relative.
Charging Practice
A count of murder should refer to the date of death, not the date of the act that caused the death.
The prosecution cannot indict a defendant for manslaughter based on an acceptable plea to diminished responsibility or provocation. Such pleas may only be accepted to a count of murder.
Infanticide as an alternative to murder should be preferred where a mother has killed her child before it reached 12 months of age; and there is medical evidence that the balance of the mother’s mind was disturbed, either because she had not fully recovered from the effects of the birth of the child; or because of the effect of lactation on her.
An alternative count of aiding and abetting suicide, contrary to section 2 Suicide Act, should be considered where there is evidence of the defendant aiding and abetting someone else to commit suicide, rather than evidence of a suicide pact.
Acceptability of Pleas
Before accepting a plea to manslaughter on the grounds of diminished responsibility, there should be:
a satisfactory psychiatric report that concludes that the defendant fulfils the criteria set out in section 2(1) Homicide Act 1957;
agreement between the police, CPS and counsel; and
consultation with the family of the victim.
Be cautious where:
the report’s findings depend on certain facts provided by the defendant which cannot be proven by independent evidence;
where there are a number of specialist reports which give conflicting opinions of whether the defendant fulfils the criteria; or
the medical evidence appears to be straining to bring a defendant within the criteria.
Before accepting a plea to manslaughter on the ground of provocation, ensure that:
the investigating officer has been consulted;
the CPS and counsel are satisfied that there is insufficient evidence to continue with murder; and
the family of the victim have been consulted.
Pleas to manslaughter on the grounds of a suicide pact may be accepted where all the evidence, all the medical reports and the representations from the defence are available. Ensure also that the family of the victim have been consulted.
Internal Referral Requirements
The following cases must be notified to your CCP or designated officer as soon as practicable:
murder;
conspiracy to commit murder;
attempted murder;
concealment of birth;
infanticide; and
In addition if any of the following characteristics are present the case should be dealt with by Complex Casework Units (CCU):
“Hate related murders”;
“Mercy killings”;
High profile / multi victim / multi defendant murders;
Cases involving complicated Public Interest Immunity (PII) issues;
Sensitive, serious or complex cases of major media interest e.g. allegations involving individuals or organisations with a high public profile;
Cases requiring consideration of gross negligence manslaughter and any case involving a fatality in which the investigation is being conducted in accordance with the “Deaths at Work” protocol (but note a separate referral practice is in place for offences under the Corporate Manslaughter and Corporate Homicide Act 2007 see legal guidance on Corporate Manslaughter;
Medical manslaughter these cases must be referred to Special Crime Division.
Cases involving deaths in police or prison custody, where there is any suggestion that an agent of the state may have had some responsibility for the death, will continue to be referred to Special Crime Division e.g. where there was some culpability by officers in allowing the death to occur or causing the death.
Medical Reports for the Court
In every murder case, the court will require a report about the defendant’s medical condition. However, following the case of R v Reid (2002) 1 Cr App R 21, there is now no requirement for the Crown to obtain a medical report for the Court’s benefit. You should make yourself aware of any local arrangements made by the Crown Court in your Area.
Pathologist’s Reports and Other Medical Issues
Do not send a case of murder without receipt of a pathologist’s statement covering the cause of death. Release the pathologist’s statement to the defence as quickly as possible so that they may arrange a second post-mortem if required or so that the coroner may release the deceased’s body.
In most cases, the Crown’s pathologist will only provide an “interim report” giving the likely cause of death. A full report will follow. Prosecutors are reminded that in cases involving head injuries, delays of up to 12 weeks can occur whilst neurological analysis is undertaken. Pathologists will generally complete their final report once all other studies have been completed, e.g. histology, toxicology etc.
In cases where a request is received for the removal of an organ for transplant purposes, refer the request to the CCP or designated lawyer.
Bail
Section 114 Coroners and Justice Act 2009 amends Schedule 1 to the Bail Act 1976.
Section 114(2) provides that bail may not be granted to someone charged with murder unless the court is of the opinion that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person.
Furthermore section 114(3)(a) states that the court in deciding whether there is no such significant risk, must have regard to any relevant considerations as stated in paragraph 9 of Part 1 of Schedule 1 to the Bail Act 1976.
Section 114(3)(b) amends paragraph 9 in relation to bail decisions where the alleged offence is imprisonable and triable in the Crown Court. This section provides that, in deciding whether to grant bail in a case where the court is satisfied that there are substantial grounds for believing that the person would commit an offence while on bail, the court must have regard to the risk that such further offending would, or would be likely to, cause physical or mental injury to another person.
Section 115 of the Coroners and Justice Act 2009, provides that where a person is charged with murder, bail can only be granted by a judge of the Crown Court. The power of the magistrate’s court to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed.
Where a person charged with murder appears or is brought before a magistrate’s court, a bail decision must be made by a judge of the Crown Court as soon as is reasonably practicable, and in any event within 48 hours (excluding public holidays) beginning with the day after the person’s appearance in the magistrates’ court. If necessary the person must be committed in custody to the Crown Court to enable a bail decision to be made (see section 115(4)). It is immaterial (see section115(5)) whether that person is at the same time sent for trial or being remanded following adjournment of proceedings under section 52 of the Crime and Disorder Act 1998, which requires a defendant charged with an offence only triable in the Crown Court to be sent by the magistrate’s court to the Crown Court forthwith.
The court must give reasons for grant of bail in cases of murder, manslaughter or attempt murder: section 9A Bail Act 1976.
Under section 56 Crime and Disorder Act 1998 there is a rebuttable presumption that no person charged with murder, manslaughter or attempted murder shall be granted bail, if previously convicted for any such offence and, in the case of manslaughter, sentenced to imprisonment (or detention if a child). However, note now the decision in Ilijokov v Bulgaria 2001 7 Archbold News 1.
If a person charged with murder is granted bail, there is a mandatory bail condition which has to be imposed. Under section 3(6A) Bail Act 1976, a court that releases a defendant on bail when charged with murder must impose at least 2 bail conditions:
1) a requirement that the defendant undergoes examination by 2 medical practitioners, one of whom has been approved for the purposes of section 12 Mental Health Act 1983; and
2) a requirement that the defendant attends for examination when directed by the court.
Prosecutors who are minded to recommend that a defendant charged with murder might be bailed should be in a position to suggest a place of examination to be specified in a bail condition. Contact the Senior Medical Officer at the local prison nearest the court or telephone the Duty Principal Medical Officer at the Prison Health Policy Unit and Task Force, Wellington House, 133-135 Waterloo Road, London SE1 8YG (Telephone 020 7972 4483).
The Victim’s Family
You must keep any close relatives of the deceased informed of the case’s progression. Prosecutors should refer to the guidance Victim Focus Scheme Guidance On Enhanced CPS Service For Bereaved Families.
Other Matters
Only photographs which are necessary for the presentation of the case should be compiled by the police into an album. Take special care when instructing the investigating officer to avoid distress for the jury and for the relatives.
For material that should be submitted to the Probation Service in the preparation of Pre-Sentence Reports, refer to Provision of Pre-sentencing Report Information , elsewhere in the Legal Guidance.
Procedure – Post-trial
The police will provide the Home Office with details of the indictment in all cases where the defendant has been convicted.
The police also have responsibility for providing any relevant information to the Prison and Probation Services, not the CPS.
Any request under the National Protocol Regarding the Passage of Information in Respect of Homicide Life Sentence Prisoners should be referred to the officer in the case.
Crown Prosecution Service
The Crown Prosecution Service
Rose Court, 2 Southwark Bridge,
London, SE1 9HS
Tel: 020 3357 0000
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