Proportionality Police action must be fair and achieve a balance between the needs of society and the rights

of the individual . You must consider all the different options available capable of achieving the objective and select the least intrusive . Don't use a sledgehammer to crack a nut ! Legality Police actions must be supported by legislation or stated uses . You must know your basic police powers well .

1 .1 . 2. Relevant A rticles Th e full text of the Human Rights Act, 1998 is available on the Human Rights In t ranet site .

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Th e following rights are of particular interest in re lation to the subject of this manual : Article 2 - Right to life Article 5 - Right to liberty and secur ity Article 6 - Right to a fair tria l Article 8 - Right to respect for private and fam i ly life Article 10 - Freedom of express i on Article 1 4 - Prohibition on d i scrimination .

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Necessity Police action must be `necessary in a democratic society' . You must be able to justify any inf r ingement of rights .

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Accountability Police action will be open to scrutiny . You should fully record your actions and the options considered . Show what factors influenced your decision, include reasons for not taking action .

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1 . C HAPTER 1 - O V ERAR C H I N G LE G I S LAT I O N 1 .1 . Human Rights Principle s 9 . 1 . 1 . General Princ i ples The Metropolitan Police Service (MPS), as a public authority, has a duty to ensure that its policies and procedures are compatible with th e rights and fundairrentai freedoms outlined in the Human Rights Act , 1998. Any interference with these rights by a public authority must b e justified . The relevant decision making processes must b e comprehensively and retrievably documented . Always consider the principles enshrined in the mnemonic P L A N:

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Article 5 - Right to liberty and security This article provides safeguards against arbitrary arrest and detention . Most police arrests will fall to be justified under article 5(1)c - the lawful arrest or detention of a person effected for the purpose of bringing hire before the competent legal authority on reasonable suspicion of having committed an uffence, or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so . What may be regarded as `reasonable' will depend on all the circumstances and is to be judged on the facts known at the time of arrest, not afterwards . A reasonable suspicion presupposes th e Chapter 1 -- Overarching Legislation Page 7 October 2 00 9

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European Court of Human Rights jurisprudence has also established a clear duty to carry out a `thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the relatives to the investigatory procedure' in all cases of suspicious death . Advice has been sought from the Crown Prosecution Service (CPS) with regard to the rights of a homicide victim . It is felt that :the investigation should be led by a trained, experienced and competent lead officer ( SIO) . there must be supervision of the investigation . :- a thorough record must be kept of the investigation (including decisions) . y there must be an element of review .

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Second, to take reasonable measures to protect life . The case of Osman v UK (1999) sets out the positive flbiigation, in certain, well defined circumstances, on the MPS to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual . This obligation, however, must be interpreted in a way which does not place an impossible or disproportionate burden upon the MPS taking into account the difficulties involved in policing a modern society, the unpredictability of human conduct and operational choices which must be made in terms of priorities and resources . The MPS must be in a position to show that it did all it could be expected to do to avoid a `real and immediate' risk to life which it knew about or ought to have known about . Guidelines for the management of threats to human life and a flowchart outlining the MPS response is provided in Item 2, Notices 43/03 .

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Article 2- Right to life This fundamental right imposes two duties upon the MPS . First, not to deprive anyone of their life unless it results from the use of force which is no more than absolutely necessary : in defence of any person from unlawful violence ; in order to effect a lawful arrest or prevent the escape of a person lawfully detained ; in action lawfully taken for the purpose of quelling a riot or insurrection . '

Artic l e 8 - R i gh t to res pect for privat e a nd family life There should be no interference by a public authority with this right unless in accordance with law and necessary in a democratic society in pursuit of a legitimate aim ; notably, in the interests of, national security ; public safety ; the economic well-being of the country ; prevention of disorder or crime ; protection of health : or protection of the rights and freedoms of others . There is also a positive duty to protect the rights in this article for the victim and witnesses that will generally have to be weighed against the article 6 rights of the accused .

Article 10 - Freedom of expressio n

The restrictions on this right are in the same vein as set out above for article 8 . In relation to the freedom u f the press, the European Court remarked in Worm v Austria (1998) that :

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Whilst everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, the press and public may be excluded from all or part of the trial in the interests of public order or national security ; the protection of the private life of the parties ; or to the extent strictly necessary, in the opinion of the court in special circumstances, where publicity would prejudice the interests of justice . This may have implications when liaising with the family prior to a trial .

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Article 6 - Right to a fair tria l This sets out the substantive and procedural requirements of a fair trial . It applies at an early stage and provides the basis for pre-trial disclosure, access to a lawyer and 'adequate time and facilities' for preparation by the defence . The right of everyone charged with a criminal offence to be `presumed innocent until proven guilty according to law' is guaranteed . However, this does not preclude the drawing of inferences, the obligation to provide samples or reverse burden of proof where the domestic law has adopted specific rules concerning the admissibility, relevance and probity of such evidence .

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existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence in question . Provided an initial intention to bring a person before a competent legal authority existed at the time of arrest, the fact that they are not charged or brought before a court will not breach article 5 because the existence of such a purpose is to be considered independently of its achievement' Brogan & others v UK (1 989 ) .

ma tte r of crimina l tr i als els e wh e re, be it in s peci alised journal s, i n th e general pres s or amongst th e publi c a t large.

1 . 2 . Free d om of Information A ct, 2000

Section 30 of the Freedom of Information Act 2000 provides an exemption from disclosure of information held for the purposes of investigations and proceedings conducted by a public authority . Section 30(1) - Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes o# ;(a) any investigation which the public authority has a duty to conduct with a view to it being ascertainedwhether a pers on should be c harged with an offence ; or wh ether a person charged with an offenc e is guilty of it, (b) any investigation which is conducted by the authority and in the circumstances which may l ead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, o r (c) any criminal proceedings which the authority has power to conduct . Section 30(2) - Information held by a publ ic autho r ity is exempt information it-

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Any person making a written request for information to a public authority is entitled to be informed in writing whether the public authority holds information of the description specified in the request , and if so, to have that information communicated to him .

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With effect from 15t January 2005, section 1 of the Freedom of Information Act, 2000 confers a general right of access to information held by public authorities .

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Article 14 - Prohibition of discriminatio n The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, cfllour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .

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Provided that it doe s not overste p the bounds impo sed i n the interests of the proper administration of ju stice , reporting , including commen t, on cou rt proceedings contr i butes to their publicity and is thus perfectly consonant with the requirement under article 6(1) o f the Con v ention that hearings be p u blic. Not only do the media have the task uf imparting such information and i deas; the publi c has a right t o rece i ve them ." " The limits of p e rm issible comment may not extend to statements which are likely to prejudi ce , wheth e r inte ntionally or not, the chances of a person re cei v ing a fair trial ur to undermine the confidence of th e public in th e role of the cou rts in the administration of criminal just ice. "

(a) it was obtained or recorded b y the authority for the purposes of its functions relating to .criminal proceedings which the authority has power to conduct, investigations (other than investigations falling within subsection (1)(a) or (b)) which are conducted by the authority for any of the purposes specified in section 31(2) and either by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under any enactment, o r civil proceedings which are brought by or on behalf of the authority and arise uut u f such investigations, an d

(b) it relates to the obtaining of information from confidential sources .

Section 30(3) - The duty to conf i rm or den y does not ar ise i n relation to information which is (or if it were held by the publ i c authority would be) exempt information by v irtue of subsect ion ( 1 ) or (2) .

Section 31 of the Freedom of Information Act 2400 provides an exemption for information if disclosure would be likely to prejudice the enforcement of law . Section 31{1} - Information which is not exempt information by virtue of section 30 is exempt information if its disclosure under this Act would, or would be likely to, prejudice ;the prevention or detection of crime ,
the apprehension or prosecution of offenders, the administration of justice ,

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the assessment or collection of any tax or duty or of any imposition of a similar nature , the operation of the immigration controls , the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained , the exercise by any public authority u f its functions for any of the purposes specified in subsection (2) , any civil proceedings which are brought by ur on behalf of a public authority and arise out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment, o r any inquiry held under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976 to the extent that the inquiry arises out of an investigation conducted, for any of the purposes specified in subsection (2), by or on behalf of the authority by virtue of Her Majesty's prerogative or by virtue of powers conferred by or under an enactment .

Section 31(2) - The purposes referred to in subsection (1) {g) to (i) are ;the purpose of ascertaining whether any person has failed to comply with the law , the purpose of ascertaining whether any person is responsible for any conduct which is improper , Chapter I - Overarching Legislation Page 10 October 20 09 5

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investigations falling within subsection {1}(a) or (b) ,

Section 31(3) - The duty to confirm or d e nv does not arise if, or to the extent that, compliance with section 1 (1)(a) would, or would be likely to, prejudice any of the matters mentioned in subsection (1) .
Sect i on 32 of the Freedom of Information Act 2 000 provides a n e x e mpt ion from disclosure of information contained in cour t records .

Section 32(2) - Information held by a public authority is exempt information if it is held only by virtue of being contained in :any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, o r any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration . Section 32(3) -The duty to confirm o r deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information b y virtue of this section . The status of all logs used in an investigation must be carefully considered and any exemption applicable justified using the above provisions .

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Section 32(l) - Informationheld by a public a u thority is exempt information if it is held only by virtue of being contained in :any document filed with, or otherwise placed in the custody of, a court for the purposes of proceedings in a particular cause or matter , any document served span, or by, a public authority for the purposes of proceedings in a particular cause or matter, o r any document created by :i )a c ourt, or ( (ii) a member of the administrative staff of a c ou rt, for the purposes of proceedings in a particular cause or matter .

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the purpose of ascertaining whether circurnstances which would justify regulatory action in pursuance of any enactment exist or may arise , the purpose of ascertaining a person's fitness or competence in relation to the management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become, authorised to carry on , the purpose of ascertaining the cause of an accident , the purpose of protecting charities against misconduct or mismanagement (whether by trustees or other persons) in their administration , the purpose of protecting the property of charities from loss u r misapplication , the purpose of recovering the property of charities , the purpose of securing the health, safety and welfare of persons at work, and the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with the actions of persons at work .

1 .3 . Chi l dren A ct 2 004 & Local Safeguarding Chil d ren B oard Regulations 2 006

5 .13 of the Children Act 2404 required (with effect from 01 .04.06) the establishment of Local Safeguarding Children Boards . Regulation 6 of the Local Saf eg u a r d i ng Children Boards Regulations 2006 required (with effect from Q1 .04 . 08) that each Board must , in relat ion to al l deaths of ch ildren 'normally res i dent' in the area of the autho rity: s

Collect and analyse information about each death with a view t o identifying any case giving rise to the need for a serious case revie w (see section 5) ; any matters of concern affecting the safety and welfar e of children in the area of the authority and any wider public health o r safety concerns arising from a particular death or from a pattern o f deaths in that are a Put in p l ace procedures for ensuring that there is a co-ordinated response by the authority and its guard partners and other relevant persons to an 'unexpected child death '

STATUTORY GUIDANC E Working Together to Safeguard Childre n

Chapter 7 of t he above statutory guidance ( www.every childmatters. gov . uk lsafequard i nq ) provides'.

Overall principles that should inform responses to all child death s Relevant definitions e. g . 'unexpected' death

u escriptions of the roles and responsibilities of member agencies in responding to all child deaths (expected and unexpected )

1 .4. The law relating to Homicid e

Definitions Homicide

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Murder Manslaughte r

Homicide is the killing of a human being, whether lawfully or unlawfully , by another human being .

The crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace with intent to kill or cause grievous bodily harm .

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Manslaughter is any unlawful homicide not amounting to murder and may be classified as either voluntary or involuntary . 1 . 5. Murde r

1 .5. 1 . O f sound mind and d iscretio n Persons who are regarded as not being of sound mind and discretion arethe i n san e ;

children under 10 years old (there is an irrebuttable presumption that no child under 10 can be guilty of any offence : Children and Young Persons Act 7933; as amended) ; an d 'legal persons' such as corporations (the only penalty for murder is life imprisonment which obviously cannot apply in such cases) .

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Kills
Causing death
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1 .5 .2 . Unlawfully Kills Unlawfull y

This means without legal justification or excuse . Examples include selfdefence and bona fide surgical treatment (see uefences7 . The onus is on the Crown to prove that the killing was unlawful .

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Jrrsanit : The N1'Na hten Rules Th e law rel at ing to th e accuse d 's sa n ity at th e t ime h e comm itted the re levant act(s) was set out in authoritative form by the House of Lor ds in the so-called `M' Nag hten Ru les' . In 1 8 4 3, uaniel M'Naghten , a Scottish woodcutter , shot and killed Edward Drummond, private secretary to Sir Robert Peel , whom M' Naghten had intended to kill . Th e defence was insanity . Evidence was introduced showing that M'Naghten was labouring under the insane delusion ' of being hounded by enemies , among them Peel. Lord Chief Justice Tindal was so impressed by this evidence that he prac t cally directed a verdict for acqui ttal . The jury found M ' Naghten not guilty , on the ground of insanity . As usually tol d , this is where the story ends . But what happened to Dan i el M'Magh#en ? M'Nag hten was acquitted but he was sentenced to life imprisonment in an insane asy l um . H e wa s confined at the Beth l ehem Hospital unti l 1864, when he was transferred to the newly opened Broadmoor Ins t itution for the Criminally I nsane . M' Naghten died in B roadmoor in 1865, hav i ng been incarcerated for the last twenty two years o f his life . M'N aghten's controversial acquittal led to a debate in the House of Lo rds that culminated In the followin g To est a blis h a defence on the g round of insan i ty, it must clearly be proved that at the time of the committing of the ac t the party accused was favouring under such a defect of reason from disease of the min d as not to know the nature and quality of the act he was doing ; or if he did know it, that he did not know he was doing was wrong .

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By Acts or Omission s

The courts have long held that murder and manslaughter are capable of commission by omission . Gibbin s and Proctor, 1918 is an example of murder by omission . G and P deliberately withheld food from a child .
Na body

Where neither the body nor any trace of the body can be found, the fact of death is nevertheless provable byw s evidence prov i d ed by the accused ;

cogent and compelling circumstantial evidence . (R v Qnufrejczyk, 1955)

Intervening Acts

m D holds a girl in front u f him as a shield to prevent arrest . He fires at police officers who return the fire and kill the girl . It was held that D caused her death and was guilt of manslaughter . Pagett, 1983. s 'D must take his victim as he finds him' . In Bla ue, 1975, u stabbed P, a young girl and pierced her lung . She refused a blood transfusion because she was a Jehovah's Witness . She died_ It was held that the wounding was the cause of death . Medical evidence is admissible to show that the medical treatment of a wound was the cause of death and that the wound itself was not . Jordan . 1956 , If a wound was an operating and substantial cause of death, u is guilty of homicide, however badly the wound was treated . If a wound is not an operating and substantial cause of death (eg, almost healed), and P dies later following an act so extraordinary a s Page 14

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D injures P with intent to kill him . P's wound is treated negligently an d P dies of the negligently treated wound . u will nevertheless be guilt y of murder if the injury he inflicted was still an operating cause and a substantial cause' . 5rnrfh, 1959 . Similarly, D inflicted injuries on P which resulted in brain injuries . She was placed on a life support machine . After carrying out five out of the six tests for brainste m death, doctors switched off the machine . The Court of Appeal hel d that the original injury was an operating and substantial cause o f death . Nralcherek, 1981 -

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Although D does an act with intent to murder P : he will not be liable when some independent act causes the intended result . D gives poison to P but P is killed by a burglar before the poison takes effect . D will not be guilty of murder (but may be guilty of attempted murder)-

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There is considerable case-law relating to deaths that occur after D's act and one or more subsequent acts by others . The following instances illustrate some of the principles .

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Any act which is a substantial cause of death may render a (the doer of the act) responsible for that death (provided the other elements of murder are proved) . It is enough that D's act contributed significantly to the death, but if need not be the sole or principal cause . Pmts; 7542.

to be unforeseeable (eg, gross medical negligence), D will not be liable .

1 .5 .3 . Any reasonable creature A'reasonable' creature is simply the person who is the victim of the offence ie, any human being . u ifficulties have occasionally arisen when it comes to determining when precisely human life begins and when it ends in particular, determining at what stage in the process of gestation and birth a foetus or unborn baby becomes a 'person' and at what stage in the process of death a person become a corpse .
1 .5 .3 .1 . The Unborn and the Newly Born

An i llustration of the d i ffi culties is provided by Att. -Gen.'s Reference (No . 3 of 1994) [19981. D stabbed P , his girlfriend, who was 26 weeks pregnant with his child Q . P recovered but Q wa s born prematurely and died after 1 2 0 da ys . The Court of App eal held that a jury c o u ld dec ide that D 's in tention to cause serious harm to P could be `transferred ' to Q (invoking the doctrine of `transfer red malice' .) The Hou s e of Lords disagreed but we nt u n to hold that u had committed manslaughter by the unlawful and dang erou s act of stabbing P . See Manslaughter below . Advice from the CPS will need to be sought in such cases in view of the complexities and the rapid changes in medical knowledge _
9 .5. 3. 2. The Point of Death

Criteria for the diagnosis of brain stem death' is the title of an article that appeared in the Journal of the Royal College of Physicians, published in 1995 . It contains the fallowing text :
'It is suggested that 'irrevers i ble loss of the capac ity for cons c iou s ness , comb ined with irre ve rs ible los s of the c apacity to breathe' should be regarded as the defin ition of death '

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This is a medical definition . The law has not yet produced a definition uf its own .

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For murder or manslaughter, it must be proved that the child has an existence independent uf his mother . To have such an existence, the entire child must actually have been wholly expelled from his mother's body and be alive . There is however some uncertainty as to when precisely the child comes under the protection of the law of murder .

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It is not murder or manslaughter to kill a child in the womb or in the process of leaving the womb- Att.-Gen.'s Re feren c e (No . 3 of 199 4) [1998]_ It may however be an offence under s58 of the Offences against the Person Act 1861 (procuring etc a miscarriage) or under the Infant Life (Preservation) Act 1929 (child destruction where the child is capable uf being born alive) . These offences are considered under Offences related to homicide .

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1 .5 .4. Under the Queen's peac e

In Page [1954], the Court held that an Egyptian national who had been murdered in an Egyptian village b y a British soldier was wit h in the Queen's Peace . See Jurisdiction at 1 .47 .

1 . 5. 5. Wit h intent to k i ll or cause. gr i evo us bod i ly harm ` M AL I C E AFORETHOUGHT '

Murder traditionally required 'malice aforethought' . This technical term now amounts to : (i) an intention to kill any person ; o r

INT E NTI O N '

Case-law on this subject is plentiful but decisions are sometimes inconsistent and there is a degree of uncertainty . The following propositions are however generally established : s

s A result is intended when it is the accused's purpose to cause it . A court orjury may also find that a result is intended eve n though it is not the accused's purpose to cause it, when(a) the result is a virtually certain consequence of that pct ; and (b) the accused knows that it is a virtually certain consequence .
TRANSFERRED MA L ICE '

Where D shoots at P, intending to kill P but kills Q by mistake, u is guilty of murder . His `malice aforethought' is deemed to be transferred from P to Q . The harm caused must however be of the same kind as the harm intended . If a police officer shoots at P in self-defence but kills an innocent bystander, he will not be guilty of murder nor (without more) of manslaughter .
'GRI E VOUS BODILY HAR M

`Grievous' means 'rally serious' : Saunders [1985].

1 . 5. 6. Year and a day ru le

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The date of the offence is the actual date of death . The common law rule that death must follow within a year and a day was abolished by the Law Reform (Year and a Day Rule) Act 1996) . However the consent of the Attorney General is required where : (a) the injury was sustained more than three years before death ; OR

(b) the accused has been previously convicted of the offence alleged to be connected with the death (Law Reform (Year and a Day Rule) Ac t Chapter 1 - Overarching Legislation Page 16 October 2009 11

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(ii) an intention to cause grievous bodily harm to any person .(Moloney, 7985) .

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All persons appear to be `under the Queen's peace' . This includes persons under sentence of death and alien enemies (unless the killing is carried out in the actual exercise of war) .

1 . 5 .7. Jurisdictio n

in the absence of clear words to the contrary, it is not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English court : Air India v. Wiggins r1973],

The victim and the suspect must both be British citizens .

1 .6 . 9 .

Volu ntary manslaughte r

Voluntary manslaughter occurs when all the elements of murder are present, including an intent to kill or cause grievous bodily harm, but the crime is reduced to manslaughter by reason o f

(a) provocation ;

(b) diminished responsibility) ; or See D efen c es at 1 .7 .

(c) deat h bein g caused in pursuance of a suicide pac t .

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1 .6 .2. Involuntary mansl a ughte r

Involuntary manslaughter is unlawful killing without intent to kill or cause grievous bodily harm ( R . v. Taylor(1834)) . Apart from intent : the elements of the offence are the same as in murder .

There are two broad categories of involuntary manslaughter :

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1 , 6 , Manslaughte r Manslaughter is any unlawful homicide not amounting to murder and may be classified as either voluntary or involuntary .

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For detailed guidance on investigations of deaths abroad or Investigations to trace suspects who have fled abroad, see : Chapter 2 : Investigations involving foreign jurisdictions .

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Homicide and manslaughter are however exceptions to the general rule about Jurisdiction . The following statements provide a summary A British citizen who on land outside the UK commits murder or manslaughter is triable in England : s 9 Offences against the Person Act 186 1 ,and s3 British Nationality Act 1948 . Section 9 gives jurisdiction to deal with, inquire of, determine and punish the offender . It is irrelevant whether or not the victim is a British citizen . Section 7 0 Offences against the Person Ac t 1861 also gives jurisdiction to courts in similar circumstances but with the following differences : The acts can take place not onEy on land but also at sea . Section 10 applies whether the death results within the jurisdiction or abroad .

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The general rule: The whole body of the criminal law of England deals only with acts committed in England : Cox v. Army Courrcif)`1 963] . When construing legislation, Courts operate on the following presumptipn :

( ii ) manslaughter by gross negligence or recklessness .

1 .6. 2, 1, Mans laughter by an Unlawful an d Dang erous ac t

Manslaughter by an unlawful and dangerous act arises where the person who causes death was engaged in a criminal act which carried with it a risk of causing some injury or harm . The following propositions appear to be established :

(a) the killing must be the result of the accused's unlawful act (though not his unlawful omission) ;

(b) the unlawful act must be one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to, at least, the risk of some harm ; even though it may not be serious harm ; (c) it is immaterial whether or not the accused knew that the act was unlawful and dangerous, and whether or not he intended harm ; (d) "harm" means physical harm .
D breaks into a house with intent to steal, and terrifies the occupant into a heart attack : Watson [1989] .

1 . 6.2 .2 .

Manslaughter by Gross Negligence or Recklessnes s

(a) The accused must have been in breach of a duty of care under the ordinary principles of negiigenGe ;
(b) the breach of duty must have c a u sed the d eath ; an d

(c) it must in the opinion of the jury amount to gross negligence . The question for the jury is : `having regard to the risk of death involved, [was] the conduct of the defendant . . so bad in all the circumstances as to amount in [the jury's judgement] to a criminal act or omission' . R vAdomaka f19951 D, an anaesthetist failed to notice that the tube from a ventilator had become disconnected during an operation and the patient died . The House of Lords rejected the defendant's appeal against his conviction .
1 . 6. 3. Causing or al lowing the death of a c h ild or vulnerable adul t

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Manslaughter by gross negligence or recklessness arises where a person causes death through extreme carelessness .

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Three teenagers dropped a paving stone u n to a passing train . It landed on the cab and killed the guard . The House of Lords upheld their convictions for manslaughter . DPP v N ewbury [1977]

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The reasonable steps that an adult household member is expected to take will vary according to the circumstances of the case and ultimately it will be for the jury to decide if the person acted reasonably . Section 5 states : (1) A person ("D") is guilty of an offence if -

( a) a ch ild or vu l nera b le adult ( "V" ) d i es as a result of the unlawfu l act of a person who (i) was a member of the same household as V, an d (ii) had frequent contact with him , (b) D was such a person at the time of that act,

( d ) either D was the person whose act caused V's death or-

(i) D was, or ought to have been, aware of the risk mentioned in paragraph (c) ,

{iii} the act occurred in circumstances of the kind that D foresaw or ought to have foreseen .
1 . 7 . Defence s 1 .7.1 . Children und er 10 years

There is an irTebuttable presumption that no child under 10 can be guilty of any offence- Children and Young Persons Act 1933, as amended .
1 .7. 2. Insanity

See M'Naghten's Rules at 1 .5 .1 .

1 .7. 3.

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Diminished Responsibili ty

Section 2 the Homicide Act 1957 introduced the doctrine of diminished responsibility, a defence available only on a charge of murder . (1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarde d Chapter I - Overarching Legislation Page 19 October 2009 14

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(ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, an d

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(c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, an d

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Section 5 of the Domestic Violence . Crime and Victims Act 2004 closes a legal loophole that allowed those jointly accused of the murder of a child or vulnerable adult to escape justice by remaining silent or blaming each other . This measure puts a clear legal responsibility on adult household members who have frequent contact with a child or vulnerable adult to take reasonable steps to protect the child or vulnerable adult if they knew or should have known they were at significant risk of serious physical harm from members of that household .

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder .

(3) A p e rson who but for th is section w ou l d be l iab le , whether as principal or as accessory, to be convicted of murder shall be l iable instead to be conv i cted of manslaughter.

(4) The fact that one party to a killing is by virtue of this section not liable to be convicted u f murder shall not affect the question whether the killing amounted to murder in the case of any other party to it .
D strangled a woman in YWCA hostel . After her death, he committed horrifying mutilations on her body . D's defence claimed he had been subject to violent, perverted desires that he often found very difficult or impossible to resist . This defence was allowed . Byrne, [1960]

1 . 7. 4. M i stake of factor Intoxication 9 . 7.4 . 9 . Mistake of Fac t

7 .7.4, 2.

Intoxication

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1 .7. 5. Provocation Definitio n Provocation is some act, or series of acts, done by the dead man . . . which would cause in any reasonable person and actually caused in the accused, a sudden and temporary loss of self-control . rendering the accused so subject to passion as to make him for the moment not master of his mind . Duffy, 1949 .

Section 3 Homicide Act 195 7

Provocation reduces murder to manslaughter but is irrelevant on the issue of guilt in all other crimes . Section 3 of the Homicide A ct 1957 provides : Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall b e

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Evidence of intoxication by alcohol or dangerous drugs may be adduced to show that D lacked the necessary criminal intent . It is therefore similar in this respect to Mistake of Fact above . The defence is available in cases of(i) crimes requiring a `specific intent', whether the drink or drug was taken voluntarily or involuntarily, ; murder is included (Beard, 1920) but manslaughter (in all its forms) is not : Bratty v A-G Northern Ireland, 791 _ (ii} all crimes where the drink u r drug was taken in v oluntarily .

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If u makes a genuine mistake of fact, this may negative the required intent for the commission of an offence . It may be also be evidence that u was using reasonable force in self-defence or the prevention of crime (see below) .

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development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing .

left to be determined by the jury : and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man .

The jury should be directed that before they have to consider the issue of provocation the Crown must have proved beyond reasonable doubt that all the other elements of murder were present, including the necessary intent . Dual Test
Section 3 assumes the existence of a dual test :

{i} was D provoked to lose his self-control? (a subjective test) ; and (ii) was the provocation enough to make a reasonable man do as he did? (an objective question ) Particular Points

There must be `things done or said' - but these need not be illegal or even wrongful : Doughty, 1986 . [Persistent crying of baby caused u to lose selfcontrol and kill it] .

1 .7.6. Definitio n

Suicide pacts

Defence to murder It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other . . . being killed by a third person . s4(1) Homicide Act 1957. Complicity in another's suicide Complicity in another's suicide, contrary to s2 of the Suicide Act 1967, carries a penalty of 14 years (compared with life imprisonment for manslaughter) . The distinction between the two crimes can be very fine . Complicity is an alternative verdict in this type of manslaughte r

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suicide pact' means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact : s4(3) Homicide Act 1957. Suicide itself ceased to be a crime under the Suicide Act 1961 .

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The provocation need not be something said or done by the victim . Davies. 1975. The provocation need not be directed at D . Pearson, 1992 . There must be a sudden and temporary loss of self-control . Where d carefully planned and executed an attack on 1 0 October, and the last act of provocation occurred on 7 October, the judge rule there was no evidence of loss of self-control . forams . 1981 .

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1_7 .7. Necessity and Duress 7.7.7. 1 . Necessity

The special circumstances of this case involved conjoined twins . It was lawful to kill the weaker twin, B . in order to save the life of the stronger . If the operation was performed, u would be killed but A would probably We (as in fact occurred) . If the operation was not performed, both would certainly die .

Doctors Case-law suggests that there is a special defence to murder by doctors . A doctor will not be guilty of murder if he administers treatment to a patient which he knows will significantly accelerate the death of the patient PROVIDED - his purpose is to give proper treatment to relieve fain .
1 . 7. T . 2 . Duress

u uress is not ava i lable as a defence to murder: Howe, 1987.

1 .7.8 .1 .

Self-defence , u efence of others, Defence of property

The law allows such force to be used as is reasonable in the circumstances as D believed them to be, whether D's belief was reasonable or not . Gladstone and Williams, (1984) ,

Particular Issues
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Self-defence is not available where u deliberately provoked an attack with the intention of killing, purportedly in self-defence . s Self-defence is not available against a police officer who is acting lawfully and is using only such force as is reasonable in the circumstances . s u espite the case of Hussey (1924), it seems unlikely that it would be lawful to kill someone simply to prevent him from taking unlawful possession of his property .
7 . 7.8 . 2 . Use of force in prevention of crim e

person may use such force as is reasonable in the circumstances : s in the prevention of crime, o r

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'It is both good law and good sense that a man who is attacked may defend himself . It is both good law and common sense that he may do, but may only do, what is reasonably necessary . But everything will depend upon the particular facts and circumstances . . .lf there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action (Privy Council in Palmer v R [1979]}.

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1 .7.8. Self-defence , uefence of others , Defence of property and use of force in prevention of crime .

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As far as murder is concerned, the defence uf necessity may be available in the following circumstances ' It is lawful for D to kill B where, as D knows, B is doomed to imminent death but even the short continuation of B's life will kill D as well . Re A (Conjoined Twins : Surgical Separation), 2 0 0 91 .

1 .7 . 9 .

Medi ca l o r surg i cal tr eatm ent

Bona fide medical or surgical treatment is not `unlawful' and therefore death resulting does not amount to murder, even though death or serious injury is foreseen as a probable consequence . Nor does it amount to manslaughter, unless the person giving the treatment has been guilty of 'gross negligence' .

On a charge of attempted murder, the prosecution have to prove an intention to kil l - R U Whybrow (1851) .

1 .8.2. Conspiracy to Murder There is no specific offence of conspiring to murder . A person can however be guilty of conspiring to commit a criminal offence by virtue of section 7 ,

Criminal Law Act 99 771-

1 . 8. 3. Soliciting Murder It is an offence to

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s solicit , s encourage, s persuade or s endeavour to persuade, o r s to propose to any person, to murder any other person Section 4 Offences against the Person Act 1861 . (as amended by the Criminal Law .4ct X977, s.5( 9 0)) A solicitation to kill, not merely to do serious harm, must be proved : Bainbridge, 1991 .

1 .8 .4. Threats to Kil l A person who without lawful excuse makes to another a threat , intending that the other would fear it would be car ried out , to k ill that other o r a third person shall be

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I (1) If a person agrees with any other person or persons that a course of conduct shoal be pursued which, if the agreement is carried out in accordance with their intentions either . (a) will necessarily amount to or involve the commission of any offence or offence s by one or more of the parties to the agreement . or (b) would do so but for the existence of facts which render the commission of the offence or any u f the offences impossible , he is guilty of conspiracy to commit the offence or offences in question .

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1-8 . Offences related to homicide 1 .8 . 1 . Attempts to Murder If with intent to commit an offence to which this section appfies, a person does an act which is more than merely preparatory to the comm ission of the offence, he is guilty of attempting to commit the offence . Criminal Attempts Act 1981 . section I

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in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large . s3(1) Criminal Law Act 1967. Even killing may be justifiable to prevent unlawful killing or grievous bodily harm, or to arrest a man where there is imminent risk uf his causing death or grievous bodily harm if left at liberty .

See also Item 1 of Notices 4 0I04 - Threats to life policy .

1 .8.5 . Complicity in Suicide

( 1 ) A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide . . . . shall be guilty of an offence , (2) If on the trial of an indictment for murder or manslaughter it is proved that the accused aided ; abetted, counselled or procured the suicide of the person in question, the jury may find him guilty of that offence- section 2 Suicide Act 196 1
In McShane (1977), u encouraged her mother to commit suicide so that she could inherit her money . She was convicted of attempting to counsel or procure her mother's suicide .

1 .$ .6. Child Destruction ( un born ) The offenc e

Defence Na person shall be found gu i lty of child destruc tion unless it is proved that t he act wh i ch caused the death of the ch i ld was not done in good faith for the purpose only of preserving the life of the mother . Infant L ife (Preservation) Act 1929, s . 1

1 .8. 7 , Infantic i de (newborn) The offence

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W here a woman by any wilful act or om ission causes the death of her child, she would normally be guilty of murder (provided all the necessa ry elements were present) . Under certa in circum stances , however , the m other will not be guilty of m u rder but of a lesser offence, namely infanticide . The c irc umstance s are as fol lows : at the time of the act or omission , the child was under the age of 12 months and the balance of her mind was disturbe d
by reason of her not having fu l ly recovered from the effect of g iv in g birth to the child o r

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'Capable of being born alive ' Evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child capable of being born alive-

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Any person who : s with intent to destroy the life of a child capable uf being born alive, s by any wilful act causes a child to di e s before it has an existence independent of its mother, shall be guilty of an offence .

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guilty of an offence and liabie on conviction on indictment to imprisonment for a term not exceeding ten year s Section 16 Offences against the Person Act 1861, (as substituted by the Criminal Law Act 1 9 77, Schedule 12 )

by reason of the effect of lactation consequent upon the birth of the child, Sectionl Infanticide Act 1938-

1 .8-8 . The offence

Concealment of Bi rt h

It is an offence far : s any person to endeavour to conceal the birth of a child s by any secret disposition of the dead body of the child s whether the child died before, at or after its birt h Section 60 Offences against the Person Act 1861-

1 .8.9. Abortio n 1 .8.9. 1 . Use ofpoison or instruments to cause miscarriage

1. 8. 9. 2.

Supplying or procuring poison or instrument s

An offence is committed whenm anyone unlawfully supplies or procures s any poison or other noxious thing, o r s any instrument or thing whatsoeve r s knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woma n s whether she be or be not with child . Section 59 Offences against the Person Act 186 1
1 .8 .9 .3 . Medical termination of pregnancy

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A person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith : (a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman or any existing children of her family : u r
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An offence is committed when a woman being with chil d s with intent to procure her own miscarriage, s unlawfully administers to hersel f s any poison or other noxious thing, or unlawfully uses any instrument or other means whatsoever with the like intent . An offence is also committed when : s any perso n s with intent to procure the miscarriage of any woman whether she be or be not with child , s unlawfully administers to her or causes to be taken by her s any poison or other noxious thing , s or unlawfully uses any instrument or other means whatsoever with the like inten t Section 58 Offences against the Person Act 186 1

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(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman ; o r

(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped .

Section lAbortion Act 1967 (Where the pregnancy has exceeded 24 weeks, the abortion can only be justified on the grounds of risk of grave permanent injury to the woman or her death or of the birth uf a seriously handicapped child )
Seriously handicappe d

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Sources Use d Criminal Pleading Evidence and Practice ; Archbold ; 2005 Criminal Law; Smith and Hogan ; Butterworths 2002 .

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The following case history illustrates the difficulties investigators may encounter when dealing with allegations of procuring a miscarriage and determining whether there has been compliance with the Abortion Act 1967. The Reverend Joanna Jepson discovered that a 28-week-old baby had been aborted because the parents did not want a child with a cleft lip and palate . She campaigned to have police in West Mercia investigate the death . Rev . Jepson was herself born with a congenital jaw defect corrected by surgery . She said the abortion was an "unlawful killing" because a cleft palate does not produce a serious handicap and can normally be cured by surgery The Rev . Jepson won permission from the High Court to challenge in court the police's refusal to investigate . In the light of the police investigation, the CPS decided not to prosecute . The chief crown prosecutor for West Mercia said the doctors believed, in good faith, that there was a substantial risk the child would be seriously handicapped .

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(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman ; o r