THE CHARGES against the trio named above aftermath the Ibadan stampede must have gotten many lawyers worked up and worried on some imbalances noted on the writ.
Murder:
Subject to three exceptions (which constitute partial defences to murder, and result in a conviction for manslaughter) the crime of murder is committed, where a person:
• Of sound mind and discretion (sane)
• Unlawfully kills (not self-defence or other justified killing)
• Any reasonable creature (a human being)
• In being (born alive and breathing through its own lungs)
• In Peace time (not in wartime)
• With intent to kill or cause grievous bodily harm (in contrast to the offence of attempted murder, where only intent to kill will suffice)
Intent is an ordinary English word. It should not normally be elaborated on or paraphrased. It is different from motive and the prosecution does not have to prove motive, or that grievous bodily harm or death were the outcome wished for.
The suspect’s act must be a substantial cause of the death, not necessarily the sole or principal cause.
Self-defence is as much a defence to murder and manslaughter as to any other offence.
Assessing whether there is a realistic prospect of conviction includes an objective assessment of the evidence including the likelihood of this defence being raised and of the prosecution disproving it to the criminal standard.
Duress is not available as a defence to murder or attempted murder.
A count of murder on an indictment should refer to the date of death, not the date of the act that caused the death.
Manslaughter
Manslaughter is primarily committed in one of three ways:
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.
Conduct that was grossly negligent given the risk of death, and did kill (“gross negligence manslaughter”); and
Conduct taking the form of an unlawful act involving a danger of some harm that resulted in death (“unlawful and dangerous act manslaughter”).
The term “voluntary manslaughter” is commonly used to describe manslaughter falling within (1) while (2) and (3) are referred to as “involuntary manslaughter”.
Voluntary manslaughter and partial defences to murder
Where all of the elements to prove murder are present, including an intention to cause death or grievous bodily harm, a partial defence may be raised in three circumstances. Unlike a complete defence such as self-defence, these operate to reduce guilt for murder to guilt for manslaughter.
They are: diminished responsibility, loss of control and killing in pursuance of a suicide pact.
Diminished Responsibility:
The defendant must prove the following four elements:
the defendant was suffering from an abnormality of mental functioning
if so, whether it had arisen from a recognised medical condition
if so, whether it had substantially impaired the defendant’s ability either to understand the nature of their conduct or to form a rational judgment or to exercise self-control (or any combination)
if so, whether it provided an explanation for their conduct.
As the onus is on the defendant to establish diminished responsibility on the balance of probabilities, they are likely to need to obtain expert evidence in support.
The prosecution will then review the case. In some cases it may not be necessary to obtain evidence from a further expert, because the defence expert evidence (on paper, or when challenged in cross-examination) is unlikely to substantiate the defence. More usually, the prosecution will need to obtain evidence from a further expert.
As part of the ongoing duty of review, the prosecution will further review the case. In doing so, it should be borne in mind that the judge is not bound to accept medical evidence and that the evidence, especially when tested through cross-examination, may not meet the elements of diminished responsibility.
The judge must consider whether the defence of diminished responsibility should go before the court.
First, however, a prosecutor will review the case and make clear to the court and the defence whether it is the prosecution view that there is a realistic prospect of conviction for murder or not.
If there is no realistic prospect of conviction, especially if the evidence is unequivocal and uncontradicted and has plainly met each element for diminished responsibility, then a plea of manslaughter should be accepted.
If there remains a realistic prospect of conviction, in the course of that review the prosecution should establish whether in its view there is or is not sufficient evidence to go before the court for the partial defence, and make submissions accordingly, inviting the judge to withdraw the defence in appropriate cases.
Voluntary acute behaviour cannot found diminished responsibility: R v Dowds (Stephen Andrew) [2012] EWCA Crim 281, an English case it was decided that in cases where a defendant who suffered from a mental abnormality was also intoxicated, the correct approach is for the judge and jury to ignore the effects of intoxication and to ask whether the defendant’s other condition(s) of mental abnormality substantially impaired their responsibility for the killing – R v Dietschmann [2003] UKHL 10.
See also: R v Joyce Kay (2017) EWCA Crim 647 and R v Wood [2008] EWCA Crim 1305.
Loss of control (the first component);
A qualifying trigger (the second component); and
An objective test (the third component): A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
The trial judge should consider the three components sequentially. If sufficient evidence is adduced to raise this defence, on which in the opinion of the trial judge a jury, properly directed, could reasonably apply, then the prosecution must disprove loss of control beyond reasonable doubt. For the relevant law and jury directions for loss of control, see the Judicial College’s Crown Court Compendium, Part I, at 19-3.
For examples of where insufficient evidence of loss of control was raised, in respect of one or more of the elements required, and so the issue was not left to the jury, see R vs Gurpinar (Mustafa) [2015] EWCA Crim 178, R v Dawes, Hatter and Bowyer [2013] EWCA Crim 322, and R vs Christian [2018] EWCA Crim 1344.
Self-induced bad behaviour or intoxication is to be disregarded for the purposes of this partial defence.
However, if a sober person in the defendant’s circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the defendant, the defendant will not be deprived of the loss of control defence simply because they were intoxicated.
Different considerations would arise if a defendant had a severe problem with alcohol or drugs and was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger: the alcohol or drug problem would then form part of the circumstances for consideration: R v Asmelash (Dawit) [2013] EWCA Crim 157.
The prosecution should invite the judge to withdraw the loss of control defence from the jury where there is insufficient evidence on any one of the three elements to allow the defence to be put before the court.
Suicide Pact
A person, acting in pursuance of a suicide pact between themselves and another, who kills the other or is a party to the other being killed by a third person, is guilty of manslaughter and not murder (section 4 of the Homicide Act 1957).
The defendant must satisfy the jury on the balance of probabilities that there was a suicide pact in existence, and if so, that the defendant at the time of the killing was acting in pursuance of it and had a settled intention of dying in pursuance of it.
Involuntary Manslaughter
Where an unlawful killing is done without an intention to kill or to cause grievous bodily harm, the suspect is to be charged with manslaughter not murder. Apart from the absence of the requisite intent, all other elements of the offence are the same as for murder.
There are primarily two types of involuntary manslaughter, that caused by an unlawful or dangerous act and that caused by gross negligence.
Unlawful Act Manslaughter
The prosecution must prove an intentional act (not omission); that the intentional act is unlawful; that it is an act which all sober and reasonable people would inevitably realise must subject the victim to at least some risk of harm.
Gross negligence manslaughter
The elements of this offence are “the breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act”
A partial defence to murder is in issue; or
Intention short of an intent to cause grievous bodily harm is in issue.
At the outset of a case, or at a later stage pre-trial, it may be apparent that the defendant’s defence means that they are guilty at the least of manslaughter. An indictment may be preferred to allow the defendant to enter a plea to this offence, which may be acceptable to the prosecution, or if not, will ensure the issues for the judge are narrowed and a guilty plea is recorded in the event of acquittal for murder.
If a defendant pleads not guilty to murder but guilty to manslaughter without that appearing as a count on the indictment, that plea is a nullity if the prosecution does not accept it.
The defendant cannot be sentenced for it in the event of acquittal on the count of murder.
At trial, if a plea of manslaughter would not be acceptable, this alternative count need not appear on the indictment for the court.
The exception would be where the prosecution concludes there is a real (rather than a fanciful) prospect of the judge finding the defendant guilty of manslaughter, and if the judge was not sure of the defendant’s guilt on the charge of murder, the prosecution, after a trial for murder, would accept a guilty verdict on the charge of manslaughter i.e. not seek a re-trial for murder.
The addition of an alternative count in these circumstances is therefore simply an indication about the prosecution position should the judge not convict of murder. The case of Njoku Vs The State 2012 suffices.
The following are the consequences of adding or not adding an alternative of manslaughter when proceeding on the charge of murder:
If the judge cannot reach a verdict on the murder count, but return a guilty verdict on the manslaughter count which has been added as an alternative, the prosecution will not usually seek a re-trial on the count of murder.
If no alternative is included on the indictment, the prosecution must decide when the jury retires 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).
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, the judge may agree to accede to this, discharge the court 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, the prosecution will not be able to seek a retrial on the charge of murder even if there is no abuse of process: see Iheanyighichi Apugo vs The State.
The trio of Hamzat, Fasasi and Naomi are facing charges of murders for organising a charity event for the less privileged and many parents and adults were allegedly involved in crushing to death tens and tens of toddlers and youngsters.
Where are those directly involved in the accident and why are they not charged along with the event organisers?
Dr George Ogunjimi, Juris Republic can be contacted via: jurisrepublclegal@gmail.com/08118875482.
