2. Murder & Special Defences Flashcards
MURDER
Def: The unlawful killing of a Rperson in being under the Queen’s peace with malice aforethought (Sir Ed. Coke).
Minimum Sentence: Mandatory life sentence (M(AofDP) Act 1965).
Murder: ACTUS REUS
AR: The unlawful killing of a person in being under the Queen’s peace (Coke).
- UNLAWFUL - Killing another will only be lawful if it involves any of the following:
- Killing enemy soldiers in battle,
- The advancement of justice (Death Pen.)
- Self-defence, that was necessary & reasonable. - KILLING - The Def must cause the victim’s death in law and fact. Apply the typical rules of L & F CAUSATION.
- RPERSON IN BEING: born alive (R v Poulton), capable of independent life (AG’s Ref (No 3 of 1994)).
- UNDER THE QUEEN’S PEACE: a person will be considered UTQP if (R v Adebolajo):
- they are a British Citizen, OR
- they are killed in England or Wales.
Murder: MENS REA
MR: Intention to kill or cause GBH (R v Vickers).
- INTENTION
- Has it’s ordinary meaning hailing from (R v Moloney), direct aim, purpose or want. - KILL
- Kill has it’s ordinary meaning, to end a person’s life. - GBH
- Serious harm (R v Saunders) or really serious harm (DPP v Smith).
Murder DEFENCES
General Defences are INTOXICATION and SELF-DEFENCE, no other Gen Def apply.
- Intoxication, will provide complete defence if prevents D from forming MR
- Self-Defence, complete defence if use of force is necessary and R.
There are two possible PARTIAL DEFENCES.
- LOSS OF CONTROL
- DIMINISHED RESPONSIBILITY.
LOSS OF CONTROL
s.54-56 Coroners and Justice Act 2009
Is a PARTIAL DEFENCE, if succeeds, conviction reduced to voluntary manslaughter - s.54(7).
Not available for attempted murder (R v Campbell).
The BofP is on the PROSECUTION to disprove any one of the following requirements (R v Clinton):
- D killed as a result of losing control.
- The loss of control had a QUALIFYING TRIGGER.
- Another person with D’s characteristics would have acted in the same or similar way.
LofC: D Killed due to LofC.
S. 54(1)(a) CJA 2009.
The LofC need not be complete, but D must be UNABLE TO RESTRAIN themselves (R v Richens).
- must be more than a mere loss of temper (R v Fenton).
- Need not be sudden (s54(2)), but the longer delay, the less likely it is that the Def will apply, especially if there is any planning (R v Ahluwalia).
- If acted with a “considered desire for revenge”, Def will not apply (R v Ibrams and Gregory).
- LofC must be at the time of the killing.
LofC: Qualifying Triggers
s.54(1)(b) CJA 2009.
There are 2 QTs, and D must have lost control as a result of them.
FEAR OF SERIOUS VIOLENCE from the victim upon D or another identified person (s55(3).
- This is a SUBJECTIVE TEST (R v Martin).
- Has a high threshold.
THINGS SAID OR DONE that (s.55(4)):
- Constitute circumstances of an EXTREMELY GRAVE CHARACTER (s.55(4)(a)),
- – “It must be more than the normal trials and disappointments of life (HERRING)” AND
- Cause D to have a justifiable sense of being SERIOUSLY WRONGED (s.55(4)(b)).
- – “Must accord with contemporary society’s norms and values” (BAKER and ZHAO).
- The test here is OBJECTIVE (R v Clinton, Parker and Evans).
- Has a high threshold (Law Commission EG (a parent’s child being raped) circumstances in other cases here will likely suffice.
- Marital abuse scenarios are common examples of this (R v Ahluwalia) (R v Thornton) (R v Humphreys).
- Things must be said or done, circumstances alone won’t suffice (R v Acott).
D may lose control as a result of a combination of both triggers (s55(5)).
Loss of Control: Qualifying Triggers - Limitations
- D will not be able to rely on LofC where they incited the QT as an excuse to use violence themselves (s55(6)(a and b)).
D must have intended to provoke a reaction that satisfies a QT for the killing. If there is not intent to provoke the reaction, then D’s actions aren’t sufficient to warrant this limitation (Dawes, Hatton and Bower). - Sexual infidelity alone will NEVER constitute circumstances of an EGCh (s55(6)(c) + R v Clinton, Parker and Evans). It may however constitute a QT when combined with taunts, threats or other relevant issues.
- – The taunts must be about things other than the sexual infidelity.
Loss of Control: Another with D’s Characteristics
A person of D’s age and sex, with a NORMAL DEGREE OF TOLERANCE and SELF-RESTRAINT and in D’s circumstances must have reacted in the same/similar way as D did. (s.54(1)(c)).
- Any characteristic that DOESN’T IMPACT D’s capacity for tolerance or self-restraint can be taken into account when forming the ‘Hypothetical Person’ (s.54(3)).
- – PTSD and a personality disorder would be excluded (R v Rejmanski; Gassman).
- Characteristics that affect the gravity of the provocation, such as race, physical infirmities or shameful past incidents can be included.
- Sexual infidelity may be taken into account HERE. The D’s reaction must be proportionate and judged objectively.
Loss of Control: Intoxication
Intoxication is not taken into account for the creation of the ‘Hypothetical Person’.
An intoxicated person is not barred from relying on the LofC defence, but if they lost control as a result of their intoxication, then the defence will FAIL (R v Asmelash) or pre-CJA 2009 (R v Morhall).
- this is because it counts as a factor that affects self-restraint.
Alcoholism, as a recognised medical condition, CAN be taken into account as one of the D’s characteristics.
NB: taunts about one’s intoxication can be relevant consideration for the 2nd QT.
DIMINISHED RESPONSIBILITY
s.2 Homicide Act 1957
It is a PARTIAL DEFENCE. If succeeds, conviction reduced to voluntary manslaughter (s.2(3)).
The BofP is on D to prove that the defence operates on the BALANCE OF PROBABILITIES (s2(2)).
There are 4 requirements for the defence to operate (R v Golds). The D must:
- suffer from an abnormality of mental functioning.
- The AofMF must arise from a recognised medical condition.
- The AofMF must substantially impair D’s ability to either
i) understand the nature of their conduct
ii) form a rational judgment
iii) to exercise self-control. - The AofMF must provide an explanation for D’s acts/omissions in doing or being a party to the killing.
Diminished Responsibility: Suffer from AofMF
s.2(1) HA 1957.
AofMF: “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal” (R v Byrne).
Must suffer at the time of the killing.
Diminished Responsibility: AofMF as a recognised medical condition
s.2(1)(a) HA 1957.
Examples:
- Battered woman syndrome (R v Ahluwalia).
- Alcoholism (R v Stewart)
- PTSD (R v Thornton)
- Post-natal depression and pre-menstrual syndrome (R v Reynolds).
Moodiness, bad temper or jealousy will NOT suffice (R v Fenton).
Diminished Responsibility: AofMF must substantially impair…
s.2(1)(b) HA 1957.
The AofMF must SUBSTANTIALlY IMPAIR D’s ability to (s.2(1A)):
i) understand the nature of their conduct
ii) form a rational judgment
iii) to exercise self-control.
“Substantial” means “significantly or appreciably impairs the D’s ability beyond something that is merely more than trivial or minimal” (R v Golds).
Diminished Responsibility: AofMF must provide an explanation
s.2(1)(c) HA 1957.
Must explain D’s acts/omissions in killing.
“Provides an explanation” means causing or being a significant contributory factor in causing (s.1B), there is no requirement that it be the only cause.
NB - Medical evidence is very important in determining whether the defence of DResp applies. Following (R v Brennan), the treatment of medical evidence will depend on whether that evidence is disputed between the parties:
- if UNDISPUTED: the jury should only reject it if they have evidence that contradicts it.
- if DISPUTED: the jury must decide which side’s medical evidence is better and need only take that evidence into account when reaching their verdict.
