Who Would Have Decided That A Charge Of Manslaughter Rather Than One Of Murder Was Suitable In This Case?

[sandyRoe]

No matter what the outcome of this trial will be, can the accused consider themselves lucky that they're facing the less serious charge?

http://www.belfasttelegraph.co.uk/news/local-national/northern-ireland/catholic-community-worker-kevin-mcdaid-died-after-being-kicked-everywhere-possible-by-loyalists-court-hears-29878744.html

[wolf63]

Sandy - I know nothing about Law but this sounds like a horrendously vicious murder/killing.

I presume that there is much more background to the incident than just 'flags' but how a gang of adults could act in such a way is beyond my comprehension. Mob mentality?!

[sandyRoe]

It's a sad example of how polarised we are as a society here in NI. Sectarianism, low politics, and a concern about 'territory' all played a part.

[shoota]

It does say that they are facing attempted murder and further assault charges as well and that this is a preliminary hearing to establish that there is a case to answer.
It may be in the fullness of time that the ringleaders are charged with a more serious offence while the hangers on stay with the lesser.

[shoota]

But to answer your question it would have been the NI equivalent of the English Crown Prosecution Service (CPS), the Public Prosecution Service (PPS)

[jake-the-peg]

It would be the CPS

These are their guidelines:

http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/

They'd need to show intent and with a large group they may have felt uneasy about the prospects

Rather looks as if they've decided to go for a charge they felt sure about winning rather than a riskier one

[jake-the-peg]

Sorry in NI it's the public prosecution service

http://www.ppsni.gov.uk/

Their guidelines

http://www.ppsni.gov.uk/Branches/PPSNI/PPSNI/Files/Documents/Code%20for%20Prosecutors/Code%20for%20Prosecutors%20Revised%202008%20FINAL.pdf

[shoota]

Shockingly, only 2 of the 12 accused were in their 20,s - the other 10 were all between 32 and 54.

[FredPuli43]

This is a committal hearing, not a trial. It's to call evidence to decide whether there is sufficient to send anyone for trial. If the attack alleged is just the one incident, the charges don't make sense at first. We don't bother with such hearings in England and Wales. As I recall, it was open to the court to send someone for trial for any offence disclosed by the evidence, whether or not the accused was charged with it for the hearing, but that must have been a rare occurrence and surely unknown if the offence suddenly disclosed was murder.

The court is being asked whether the death was caused by the assault. If was not, did the accused intend to kill him, even though their actions were not the actual cause of the death? If so, attempted murder. If it was, but they neither intended to kill nor to cause him grievous bodily harm, were there actions so grossly reckless that they caused the death? If so, manslaughter.

If they caused the death, they should be charged with murder, on the face of it. For the full offence of murder, all that is required is an intent to cause grievous bodily harm, not an intent to kill. It is hard to see how they did not intend grievous bodily harm ,but the prosecution must have decided that even that intent was not sufficiently shown by the evidence

[FredPuli43]

The fact that there are several defendants doesn't make charging difficult. You charge all those involved, even if their involvement was to give encouragement to the crime,as principals, and they are treated the same as those who did the actual kicking. This is the principle of joint enterprise.

If they did not get involved at all, you charge with lesser offences covering what they did do.

[THECORBYLOON]

FRED, looking at the CPS site, for murder, there must be the intent to kill or cause GBH. For attempted murder, only intent to kill counts. Why does GBH count only if death results?

[FredPuli43]

Corby, it's because that was the common law, judge made, before DPP v Smith [1961], which settled the matter. This principle mystified me too, but it remains the law.

In Smith, the accused was involved in a robbery. The police arrived. Smith drove away as fast as he could. In doing so, he collided with a policeman who was thrown on to the bonnet. Smith drove on and the policeman was thrown off, falling under a passing bus. He was then killed by being run over by the bus. Held, that Smith intended gbh to the policeman. The policeman died in consequence of that intent being carried out. This was murder.

DPP v Smith was decided by the judicial committee of the House of Lords and is thus definitive.

[FredPuli43]

An attempt is trying to commit the full offence. Attempting murder is not achieved by an intent to cause gbh which fails to kill; murder involves killing, so there must be an intent to kill.

[sandyRoe]

It seems the victims, their families, and justice itself, haven't been well served by whoever it was in the PPS who made this decision.

[THECORBYLOON]

FRED, you say murder is an intent to kill so attempted murder must involve an intent to kill but the definition of murder includes only an intent to cause GBH, ie death was NOT intended. I can't say it makes sense to me but never mind, it's not important

[THECORBYLOON]

That should read '...an intent only to cause GBH...'

[FredPuli43]

Corby, as I say, it makes no sense to me either, and never has. When I first read DPP v Smith I assumed that their Lordships were making new law and were particularly influenced by the death being a) of a policeman b) in the course of a robbery.

Back in 1961, the public was very much in favour of condign punishment for killing in the course of crime and killing a policeman. The Homicide Act 1957 had abolished the death penalty except for (inter alia) killing in the course of theft and killing a policeman. Smith had done both.

Their Lordships found some ancient authorities, such as C18 textbooks, so that they could say that they were not creating new law but stating the old common law. "Er.....yeees", as Paxman would say. There is also the problem in Smith's case of causation and intent. Someone who drives off quickly when another has thrown himself across the bonnet is not normally 'intending' to do really serious bodily harm; it is reckless at best or falls short of clearly intending gbh. And you could never say that Smith foresaw that or intended that the officer would die under the wheels of a passing bus.

[jomifl]

I expect it is because they were too stupid to realise that kicking the bejusus out of someone could have more serious consequences and were only applying (in their terms) minor chastisement.

[Peter Pedant]

Corby you are looking at the tail end of things called constructive crimes.

putting together a murder from a death and an unlawful intention to do something else (harm but perhaps not murder)

for manslaughter - a crime - even less intention is required - certainly not an intention to commit manslaughter. In Adomako. more judge based law, it was held that not even foreseeing the death but that you SHOULD have foreseen the death (coz it was so obvious) was sufficient

it is what criminal lawyers make their mere crust on .....


even now Judges are saying they dont like constructive crimes and that the intention should match the action - so what are academic law courses filled with now ?