05 Killing: I The Structure of Homicide Flashcards
How is ‘a person’ and ‘killed’ defined?
- Life begins at birth so the killing of a foetus is not murder
- The defendant cannot be guilty of murder if the victim was already dead
- The defendant must have caused the death of the victim
- The year and a day law was abolished in 1996
When was the mens rea for murder instated and how did it change?
- It was instated in Cunningham
- The old mens rea was ‘malice aforethought’ which was abolished as it was misleading in cases where the killing was compassionate
- If the purpose was not to kill or cause GBH it is rare that murder will be found - Woollin
Which case found that grievous bodily harm means ‘serious harm’?
-DPP v Smith
What are the 2 types of manslaughter and why are they different?
- Voluntary Manslaughter: Killings which would have been classed as murder if not for a special extenuating circumstance such as loss of control or diminished responsibility
- Involuntary Manslaughter: Killings where the defendant does not intend to kill or cause GBH but there is sufficient fault to justify criminal liability
What is Constructive Manslaughter?
- Unlawful Act Manslaughter
- Killing in the course of committing a crime makes the defendant worthy of committing manslaughter
What are the 3 elements of constructive manslaughter and where are they from?
- Lord Hope in AG’s Ref 3/94:
1. The defendant must have done an unlawful act
2. The unlawful act must have been dangerous
3. The unlawful and dangerous act must have caused the death of the victim
What are the Requirements if the Unlawful Act?
- The act must be criminal
- The defendant must have committed the actus reus and mens rea and have no defence
- Strict liability offences cannot form the basis of unlawful act manslaughter - Lamb [1967]
What are the Requirements of the Dangerous Act?
- The act must constitute risk of a physical injury (not emotional)
- Bristow [2013] was controversial as it was the reaction of the victim which was deemed dangerous, not the act of the defendant
- The test for whether the act is deemed dangerous is an objective one - Church [1966]
What are the 4 elements of Gross Negligence Manslaughter?
- The defendant owed the victim a duty of care
- The defendant breached that duty of care
- The breach of the duty caused the death of the victim
- The breach was so gross as to justify a criminal conviction
What is the leading case on gross negligence manslaughter?
-Adomako [1995]
What are the Requirements for a duty?
- Wacker [2003] affirmed that the duty is to be given the same meaning as for the tort of negligence
- The duty is owed to those who may be foreseeably harmed by another’s actions
- It is for the judge to decide when a duty of care is owed
What are the Requirements for Breach of Duty?
- Whether the defendant’s conduct fell below the standard expected of the reasonable person
- It does not matter that the victim consented to the activity
Which test is used to determine whether the defendant caused the death?
-‘But for’ causation
What does Horder say about the meaning of Intention?
-Horder (1995) argues that the Woollin test gives juries more elbow room to be used at the border between murder and manslaughter
Is intention the appropriate mens rea?
- Tadros (2006) believes that intention is both over and under-inclusive
- Intention is as much as applicable to the compassionate killer as it does to the terrorist, is this fair?
- The attitude of the defendant as ‘wicked recklessness’ might be more appropriate than intention
