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A Year and a Day in Homicide

  • D. E. C. Yale

Extract

On 14 August 1988 the death occurred of Miss Pamela Banyard of Laxenheath. She had been the victim eighteen months previously of a savage and brutal attack for which her assailant was sent to prison for ten years on conviction of attempted murder and robbery. Why was he not convicted of murder? The answer in the words of the Crown Prosecutor: “We cannot prosecute for murder as she died more than a year and a day after the attack.”

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1 Cambridge Daily News, 15 Aug. 1988, p. 1. Also 20 Aug., p. 5, the coroner (on legal advice) decided not to return a verdict. “This is an unusual course, but the subject is tragic and unusual.” The pathologist's evidence was that Miss Banyard had died of bronchial pneumonia; she had suffered irreversible brain damage from the attack, and the rest of her life was in coma under medical care.

2 R. v. Dyson [1908] 2 K.B. 454, at 456.

3 E.g. Williams, Glanville, Textbook of Criminal Law (1983), p. 378, in the chapter on causation.

4 Commentaries, IV, p. 197.

5 Pleas of the Crown (6th ed.), I, p. 119.

6 History of the Pleas of the Crown, I, pp. 427–428.

7 2 Co. Inst. 320, 3 Co. Inst. 53.

8 Les Plees del Coron (1557), f. 21v.

9 R. v. Bradshaw and Pyteous, 93 Seld. Soc. 48. The second defendant was later found to be insane, p. 58.

10 Op. cit. pp. 71–72.

11 The fear arose because it was widely believed that the French and the Italians had invented poisons which could kill some years after administration. Coke in 1615 (2 State Trials 1022) speaking in a case consequent on the Overbury poisoning thought that poisoning was a horrid and unEnglish practice: “from Edward III to 22 Henry VIII (which is a great lump of time) no mention is made of poisoning by any man.” The last mentioned date is that of 22 Hen.8, c.9, the Act for boiling the Bishop of Rochester's cook, a measure which Professor J. H. Baker has rightly called “quite the nastiest of Henry VIII's penal innovations.” The slow-poison scare lasted a long time, but by the eighteenth century Daines Barrington (Observations on the Statutes, 2nd ed. p. 407) was able to write that the notion “is now exploded by modem physicians, who have accordingly struck out all the antidotes to prevent the effects of it from the new Pharmacopoeia.” The doubts of Henrician judges were cleared up in 1547 by 1 Edw.6, c.12, s.12 which provided that wilful killing by poison should be deemed wilful murder “of malyce prepensed.” So the rule survived.

The other great scare of the age was of course witchcraft, and there are numerous indictments in the assize records for bewitching to death. Examination of the published Calendars of Assize Records for Kent and Essex in the reigns of Elizabeth and James I show that though the great majority of indictments allege bewitching and consequent death within periods of days or months only, there are not a few where the victim was said to have languished well over a year. And some of these accused persons were convicted of murder and hanged. The accused had no legal counsel but they were convicted before commissioners, persons learned in the law who might have been expected to know the rule of homicide.

12 The Eyre of Northamptonshire 1329–30 vol. I, 97 Seld. Soc. at p. 183.

13 This sounds as if the prisoner was indicted at the king's suit, but we cannot assume that. More probably it means simply that the accusation was written in the coroner's roll which was the regular source of appeals of death evoked into the king's court from the county court, and thus a private prosecution. By this time most county court appeals were remitted on the coroner's record to the royal court. Indeed by the fourteenth century it was not permissible to determine appeals except in the royal court. Thus a KB record of 1337 (76 Seld. Soc. 97) states that appellum in minori curia quam coram nobis vel alibi coram justiciariis nostris terminari non potest. The fact that in the Eyre report the case comes under the title of Placita Corone should not mislead. Felonious homicide was certainly a plea of the Crown, but the appeal of death was properly a private prosecution and thus classifiable among communia placita.

14 la mort ne feust aiugge felonie ne mesauenture mes naturel mort pur ceo quele morusl un an apres etc.

15 Many presentments show that medieval juries were perfectly capable of connecting injury and death even with the interval of many months. Some juries admittedly could say that a death was due both to injury and to natural causes, but that only shows they faced the problems which still occur to-day. (See the verdict in the De Luca case, infra p. 210.) In our case it should be noticed that the jury say quite clearly that the beating resulted in the death, par quei ele prist la mort.

16 No such principle of fresh pursuit applied to accusations at the king's suit, for at common law time does not run against the Crown.

17 J. M. Kaye (Placita Corone, p. xxviii) remarks that “the authenticity of the relevant chapter of the statute is not above suspicion.” Britton does not appear to have known the clause. But Christopher Whittick (“The Role of the Criminal Appeal in the Fifteenth Century,” in Law and Social Change in British History at p. 58) points out that “not only did the 1312 ordinances reaffirm the statute, the reform survived the upheavals of 1322 and was included in the statute of York, although it is to Gloucester that the change was attributed by the fifteenth-century readers” [at the inns of court].

18 For the old common law procedure for initiating appeals in the county court, see Bracton, Thome's ed. II, 352–354.

19 Nothing remarkable about this when one recalls what happened to another provision of the Statute of Gloucester laying down the forty shillings demarcation between the county court and the royal court, c.8 required trespass actions of under 40s. to be brought in the county court, not the royal court; this was later understood to place a 40s. ceiling on county court actions.

20 If the appeal was out of time, that did not prevent subsequent proceedings at the king's suit. E.g. in 1321 the king's bench considered an appeal for a homicide in 1312 on which the appellee pleaded that an appeal should be prosecuted recenter infra annum et diem prout moris est infra regnum etc. The appellor withdrew the appeal and the accused was put before a jury and acquitted. Packwood v. Braundeston, the Eyre of London, 14 Edw.II (85 Seld. Soc.), pp. 99–100. If an appeal was withdrawn, a contemporaneous indictment could be proceeded with instantly (61 Seld. Soc. p. 264, 82 Seld. Soc. pp. 174–175).

21 Collected Papers II, at p. 70. He made an allusion but his references to Coke's report of Heydon's case and to the Institutes show that he was stopped by the clear position in Coke's writings that time ran from death. Holdsworth, H.E.L. Ill, p. 315, also remarks that “perhaps this period was connected with the fact that it was the length of time within which the relatives of the murdered man were able to bring their appeal.”

22 4 Co. Rep. 41a, at 42a, 42b. Then said by Wray C.J. to be “the common experience of the King's Bench”.

23 Les Plees del Coron, f.63r. It is to be noted that the statute places a literal emphasis on the act (le fait), that is the stroke as contrasted with the ensuing death. Hale (History of the Pleas of the Crown, I, p. 426) also remarks that “the title of the lord by escheat to avoid mesne incumbrances relates to the stroke given, and not only to the death.”

24 Sayles, Select Cases in the Court of King's Bench, vol. III (58 Seld. Soc.), p. 109.

25 It was necessary to object specially. A plea of not guilty waived the objection and it could not be raised later: YB. (1304) 32 Edw. I (R.S.), 194.

26 The calculation is a week out. The fact that more than a year elapsed between death and appeal is immaterial since it is the pleading, not the decision, which is of significance.

27 The rule of actionability applied only to appeals of death. Port's Notebook, 102 Seld. Soc. 82, per Frowyk, “Note that all appeals except the appeal of death may be sued after the year and day.”

28 This practice lasted throughout the middle ages and was not changed till 1487 (3 Hen. 7, c.l), which allowed priority to the king's suit for murder at any time within the year after the murder. The statute also provided that an acquittal on indictment should be no bar to a subsequent appeal. For the relation between appeal and indictment in the later middle ages see Christopher Whittick, “The Role of the Criminal Appeal in the Fifteenth Century” (Law and Social Change in British History, p. 55, at p. 65 et seq.) By the mid-fifteenth century the common course on circuit was to arraign on indictment within the year and day only if conviction was certain, and where doubt existed the time limit was allowed to expire before arraignment. Whittick remarks that “in reality the statute changed little. It did not attempt to give precedence to the King's suit but merely excused it from having to wait upon that of the party.” But the inter-action of indictment and appeal in the fourteenth century remains an obscure subject.

29 Hale, History of the Pleas of the Crown, II, p. 249. Otherwise for acquittal after battle on appeal, but battle was practically obsolete by the fourteenth century. Hale also states that if the wrong party (e.g. a younger son, not the elder and heir) brought an appeal of murder and there was an acquittal, that was no bar (autrefois acquit) to a subsequent indictment at the king's suit “because not brought by the right party.” But in the fourteenth century if the appeal was quashed because of wrong party, then the king had no suit by virtue of the appeal thus voided; the appellee remained liable to appeal by the right party: Select Cases in the Court of King's Bench, vol. IV (74 Seld. Soc.) at pp. 22–24.

30 Thus the Infanticide Act 1624 (21 Jac. I, c.2) laid down a practically irrebuttable presumption that concealment of an illegitimate baby who died was murder in the mother. The married mother was more reasonably treated. If prosecuted for murder, the case at least had to be proved against her. For the legal and social history of infanticide see Murdering Mothers: Infanticide in England and New England, 1558–1803, by Hoffer, Peter C. and Hull, N. E. H. (New York Univ. Press, 1981).

31 Cmnd. 7844, paras. 39, 40, at pp. 17–18. The new Draft Criminal Code, cl.53(b): Law Comm.177, vol. I, p. 66, accordingly proposes enactment of the rule.

32 Gordon, G. H., The Criminal Law of Scotland (1978, 2nd ed.), p. 730; Smith, T. B., A Short Commentary on the Law of Scotland, (1962), p. 182, saying that the question of cause and effect “is decided by a jury on broad common-sense lines.” Also in broad commonsense terms is the discussion of prescription of murder in Scotland by Dr. Johnson who discoursed on the matter in Aberdeen (Sunday, 22 Aug. 1773, Boswell's Journal of a Tour to the Hebrides with Samuel Johnson LL.D.). In his trenchant way Johnson had some pointed remarks, e.g. as to the argument of the uncertainty for criminals, he thought that simply ”cant.”

33 Per Musmanno, J. in Commonwealth v. Ladd (1960) 166 Atl.2d 501, at 519, in which case he was dissenting from a decision that the rule was not part of the criminal law of Pennsylvania.

34 History of English Law, II, 470. In the context of Roman law the nature of unlawful killing has been studied by Andrews, N. H., ‘Occidere and the Lex Aquilia’ [1987] C.L.J. 315. In c.I of the lex the year prior to death was to compute compensation, not to control causation.

35 Salmond, Torts (19th ed.) p. 650; Winfield, Tort (12th ed.) p. 664. This is subject to the court's discretion to override the limitation period: Limitation Act, 1980, s.33.

36 In McCluskey v. H.M. Advocate, The Times, 12 Jan. 1989, it was a question whether the accused could be convicted under s.1 of the Road Traffic Act 1972 (see infra, n.39) for causing the death of “a person” by reckless driving where a foetus in utero had been injured and the child was afterwards born alive and then died. It was held that the unborn child was “a person” and for that reason the conviction was upheld. For the purpose of our rule the Draft code, cl.53(b): Law Comm. 177, vol. I, p. 66, specifies a year after the day on which the child was born and had an independent existence.

37 Offences against the Person Act, s.18.

38 Bingham, L.J. in R. v. Inner West London Coroner, ex parte De Luca [1988] 3 All E.R. 414, at p. 416, was of the opinion that the rule had been imported into the statutory crime of infanticide because s.1(1) of the Infanticide Act 1938 empowered a jury to convict of infanticide “notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder …” So it seemed to follow, said the judge, that if the defendant could not be convicted of murder, she could not be convicted of infanticide, and so the year and a day rule had been grafted onto the offence of infanticide. This dictum no doubt strongly indicates that the rule finds place in the definition of the statutory crime, though it may be doubted whether Parliament ever applied its collective wisdom to the point. See infra, n. 45.

39 R. v. Seymour [1983] 2 All E.R. 1058, where the House of Lords held that the legal ingredients of manslaughter and the offence of causing death by reckless driving under s.1 of the Road Traffic Act 1972 are identical. I am indebted for this reference to Mr P. R. Glazebrook who has kindly made helpful comments on an early draft of this paper but who must not be taken as agreeing with my views.

40 [1988] 3 All E.R. 414.

41 History of the Pleas of the Crown, I, p. 412, says “that if a man voluntarily give himself a mortal wound, and die within a year and a day of the wound, he is felo de se …” Hale's authority for this proposition was YB. Pasch. 8 Edw. 4, f.4r, pl.8, a discussion concerning a suicide who repented between mortal wound and death and where it was a question whether the forfeiture of a chose in action should relate to time of fatal injury or of death. But there is no mention of the year and a day rule.

42 The criminality of self-murder was probably associated in the popular mind with the grotesqueritual for burying a suicide, but in legal terms is better illustrated by such an application of “transferred malice” as we read in a case stated by Staunford at f.20r (trans.): “A throws B to the ground and draws a knife to kill B and B lying on the ground draws his knife, and A is so hasty to kill B that he falls on B's knife and so is killed. In this case A is felo de se.

43 Homicide Act 1957, s.4(1), Suicide Act 1961, s.2(1). These provisions are probably not so much a threat to the survivor of a suicide pact as to the over-officious assistant in euthanasia.

44 P. 417.

45 P. 416. Law Comm. 177, vol. II, p. 249, para. 14. 4, states the rule as applicable to murder, manslaughter, suicide pact killing, complicity in suicide, and infanticide.

46 This is not a new problem. Hale in History of the Pleas of the Crown I, pp. 429–430 has some interesting remarks, though modern circumstances out-date some of the problems he considered.

47 Where the rule does not prohibit prosecution a charge (as remarked supra, pp. 207–208) is maintainable at any distance of time. The Times, 12 May 1989, p. 3, reports a charge against a parent for killing his child in 1962, over a quarter of a century ago.

48 The 14th Report, para. 40, recommended the time should run from the time of injury, not that of the act causing death.E.g. the booby-trap bomb placed in a deserted building which injures fatally over a year later. Such conduct should be charged as murder. If the rule is retained, this is clearly desirable, though most statements of the rule speak of the time of injury as the terminus a quo. See now Draft Code, cl.53(b): Law Comm. 177, vol. I, p. 66, a year from act causing death or from when fatal injury sustained.

49 Causation in the Law (2nd ed.), p. 403.

50 A long list of such abandonments might be composed, starting with the Victorians and the Indian Penal Code, but the question is to be addressed not by counting jurisdictions but by weighing argument. The argument of this paper is that the rule is, to quote Hutchinson J. in the De Luca case (p. 417), “something of an anachronism.”

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A Year and a Day in Homicide

  • D. E. C. Yale

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