2. Homicide Offences Flashcards
Actus reus for murder
- Unlawful act
- causing death
- of a human being
- Under the King’s Peace
Mens Rea for murder
intent to kill or cause GBH
- specific intent offence - cannot be committed recklessly.
- oblique intention can satisfy MR
When can the physical act causing murder be an omission?
When the defendant owes a duty to care to the victim
Is a fetus a human being for the purposes of murder?
No
When does death occur?
When the victim is medically brain dead
When does voluntary manslaughter arise?
When actus reus and mens rea of murder are made out, but there are partial defences available to the defendant to reduce their liability
What partial defences will reduce murder to voluntary manslaughter?
- Diminished responsibility
- Loss of control
What are the four requirements for diminished responsibility?
- abnormality of mental functioning;
- Arising from a recognised medical condition
-
Substantially impairs their ability to understand their conduct, form rational judgment, or exercise self-control
* ‘substantial’ - defined as ‘more than trivial.’
AND
- Provides an explanation for the killing (ie. link between condition and act of killing)
Who must prove diminished responsibility and to what standard?
Defendant, on balance of probabilities
What are the three requirements for loss of control?
- Killing resulted from D’s loss of self-control
- Caused by a qualifying trigger,
AND - Reasonable person test: hypothetical person of the defendant’s age and sex with a normal degree of tolerance and self-restraint might have reacted in the same way
Mens rea requirement for gross negligence manslaughter
NONE!
What are the two things which amount to a qualifying trigger?
- Fear of serious violence from victim against defendant or another identified person
- Something said or done constituting a circumstance of an extremely grave character which gave defendant a justifiable sense of being wronged
Who must prove loss of control and to what standard?
Prosecution - beyond reasonable doubt
- However, defence must first convince judge there is sufficient evidence to invite jury to consider defence.
What is specifically excluded as a qualifying trigger?
Discovering sexual infidelity - as its self-standing trigger.
When does involuntary manslaughter occur and what are the two types?
When the mens rea of murder is not made out
- Unlawful act manslaughter
- Gross negligence manslaughter
When does unlawful act manslaughter arise?
- Defendant commits a base offence (w/ requisite MR)
- objectively dangerous
- causes death
For unlawful act manslaughter, must the risk of death or serious harm be foreseeable?
No - simply risk of some harm suffices for act to be objectively dangerous
Beyond proving full MR for the base offence, are any additional requirements necessary for D to satisfy unlawful act manslaughter MR?
No
Can unlawful act manslaughter be committed by omission?
No, it requires an unlawful act
- crimes of negligence do not quality
When does gross negligence manslaughter arise?
(a) Duty of care owed by D
(b) negligently breached;
(c) causing V’s death
(d) in manner that was objectively foreseeable
AND
(e) circumstances of breach were truly exceptionally bad and so reprehensible as to justify criminal culpability.
For gross negligence manslaughter, what is standard is required for an act to be considered ‘objectively forseeable’?
Whether the ‘serious and obvious risk’ of death is reasonably foreseeable, based on what defendant knew at that time.
- risk must be ‘clear and ambiguous,’ not one arising from further investigation.
Can gross negligence manslaughter be committed by omission, and why?
Yes, because it is based on a duty, and where there is a duty to act, failure to do so will be a breach
In establishing whether duty was breached, to what standards are the defendant’s actions compared?
Standards of a reasonable person with the same duty of care and applicable expertise
Can D rely on intoxication amount as defence for murder?
Not if voluntary intoxication.
- D could rely on diminished responsibility if he suffers from Alcohol Dependency Syndrome (medical condition)
In considering the reasonable person test for loss of control, will the court take into account D’s bad-temper and extreme sensitivity?
NO - purely objective test, not calibrated to any personal traits other than age/sex of defendant.
- if any specific sensitivity arises from medical condition, diminished responsibility is the appropriate defence.
Can loss of control and diminished responsibility be relied on as a defences for attempted murder?
no - only available for offence of murder.
Do parties to a criminal enterprise owe each other a duty of care, and thus be guilty of gross negligence manslaughter?
YES - tort defence of illegality does not apply to criminal context.
In considering whether D breached their duty of care, are the same tort principles applied?
Yes - both in relation to breach and causation.
When will an ‘act’ be deemed unlawful, and thus attract liability under unlawful act manslaughter?
Act becomes unlawful when it is done dangerously or without proper care.
- standard of ‘dangerousness’ is higher than required by base offence
ie. Andrews v DPP - considered that standard of dangerous driving requires that D be ‘so negligent’ and demonstrate such disregard for life that it is properly a crime.
- Same test as GNM
What is the standard of foresight required when assessing whether the defendant’s conduct was ‘objectively dangerous’?
‘Some harm’
- test is purely objective.
- D’s subjective beliefs are irrelevant to this part of the offence, but might be considered when considering the MR of the unlawful act.
