3) Homicide Flashcards
1
Q
For murder, the prosecution must be able to prove beyond reasonable doubt
A
- Actus reus
- Mens reau
o No valid defence
2
Q
If a defendant is found guilty of murder, they are given…
A
A mandatory life sentene.
3
Q
What is the actus reus for murder
A
Defendant unlawfully killed another human being under the Queen’s peace.
4
Q
What is the mens rea for murder
A
Committed the actus reus with malice afterthought = intention to kill or intention to cause GBH
5
Q
What are the special defences for murder
A
- Loss of control
- Diminished responsibility
6
Q
What is a defendant liable for if one of the special defences applies?
A
- Still criminally liable, as these are partial defences.
Liable for voluntary manslaughter instead of
7
Q
If the defence of loss of control is raised, who must prove beyond reasonable doubt that this defence does not apply?
A
The prosecution…. beyond reasonable doubt.
8
Q
If the defence of diminished responsibility is raised, who must prove that the defence does apply?
A
The defence… on a balance of probabilities
9
Q
Murder is ….
A
A common law offence…..defined as “unlawful homicide with malice aforethought”
10
Q
Unlawful homicide
A
= Actus reus of murder
11
Q
Sentencing for murder
A
- Carries a mandatory life sentence
Murder (Abolition of Death Penalty) Act 1965 - No sentencing discretion, other than minimum term
12
Q
Actus reus elements of murder
A
Unlawful; Killing; Human being; Kings peace
13
Q
Mens rea elements of murder
A
- Malice aforethought
- Intention to kill or cause GBH
14
Q
When will killing be lawful?
A
- Enemy soldiors in battle
- Advancement of justice - death penalty
- Self defence
15
Q
Self defence
A
Lawful where the force used was reasonable and necessary to prevent crime or protect self, others or property
16
Q
What type of crime is murder
A
A result crime - must show causation of death.
17
Q
What are the causation tests for murder
A
Factual cause - “but for” acts/omissions would not have died R v White
Leal cause - defendant’s act must be the “substantial” cause of the prohibited harm = More than minimal R v Hughes
18
Q
R v Hughes
A
The defendant’s act must be the substantial cause of the prohibited harm.
Substantial does not mean the only or principal cause = more than minimal
Legal causation
19
Q
R v White
A
But for the acts or omissions of the defendant, the relevant consequence would not have occurred in the way that it did.
Factual causation
20
Q
A reasonable human being
A
= must be living
The moment the brain dies, unanimous belief that the body cannot survive without the brain.
21
Q
When is a person “in being”?
A
When born alive and capable of independent life.
22
Q
R v Reeves
Birth
A
Not necessary for the umbilcal cord to have been cut between mother and child to be alive.
23
Q
R v Poulton
A
Child must be fully expelled from the mother’s body.
Depends on evidence of medical men.
Unlawful killing - actus reus
24
Q
AG-Ref
A
Pregnant woman stabbed in abdomen. Unborn child died.
Not a live person - not murder
25
Under the king's peace
If a **British subject**, can be tried for murder wherever the murder is committed.
If not a British subject - essentially about **jurisdiction**.
26
R v Adebolajo
Lee rigby murder, claimed not under the Queen's Peace.
Offender can be tried for murder wherever committed if British subject.
If not a British subject - murder committed within England and Wales = jurisdiction.
27
Mens Rea: Malice aforethought
* Intention to kill
* Intention to cause grievous bodily harm (implied malice) - no need for malice or premeditation.
28
Inglis
Mercy killing is no defence under English Law
29
Saunders
GBH means serious harm.
30
Can a defendant have malice aforethought if they kill on the spur of the moment?
Yes
31
R v Vickers
Broke into shop. Struck lady. Appealed.
Confirmed that the mens rea of murder as intention to kill or to cause GBH
32
General meaning of intention
Should be left to the common sense of the jury
33
R v Moloney
Direct intent is where the consequence is what the defendant, subjectively aims to happen.
34
Where aim is something other than death or GBH... can only find oblique intent if.
* Death / serious injury was a "virtual certainty" (OBJECTIVE)
* Defendant appreciated that [SUBJECTIVE] (R v Woollin)
35
How frequent is Woolin?
Very rare
36
R v Matthews & Alleyne
Oblique intent is not intention, but evidence of it.
37
What is the relationship between motive and intent?
Motive is not the same as intention. But it is evidence of it.
## Footnote
DPP v Chandler; R v Hill
38
R v Hill
Motive = Evidence of intention
39
What offences can special defences be a defence for?
Murder only
40
Impact of diminished responsibility
Partial defence - convicted of lesser offence of voluntary manslaughter **Homicide Act 1957 s2(3)**
Judge will have discretion in sentencing.
41
Who bears the responsibility to prove diminished responsibility
Burden falls to defence to prove **on the balance of probabilities**
**s2(2) HA 1957**
42
Can Diminshed Responsibility be used as a defence for attempted murder?
Diminished responsibility is **not available** as a defence to a charge of attempted murder
## Footnote
***R v Campbell***
43
When would diminished responsibility come into play
* Abnormality of mental functioning
* Arising from recognised **medical condition**.
* Impaired ability... to understand nature of conduct, form rational judgment, exercise self-control
* Provides an explanation for conduct = **Causation**
44
Diminished Responsibility: 1) Abnormality of mental functioning.
* Not abnormality of the mind. (CJA 2009)
* R v Byrne = "state of mind **so different from that of ordinary human beings** that the **reasonable man** would term it abnormal"
## Footnote
= ***Objective Test***
45
Abnormal state of mind
R v Byrne
state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal"
46
Diminished Responsibility: 2) Arising from a recognized medical condition
* May be undiagnosed at the time of killing.
* Must be medical condition
* Alcohol Dependency Syndrome = medical condition
47
R v Dowds
## Footnote
Intoxication
Stabbed someone drunk. Argued he had "Acute Voluntary Intoxication" a medical condition.
Not a medical condition that could give rise to the defence.
**The law does not generally allow voluntary intoxication to afford any defence to criminal liability**
No revision of longstanding rule
48
Diminished Responsibility: 3) Substantial impairment to ability to do one of the things stated in HA 1957 s2(1A)
**Meaning of substantial**
R v Golds
Substantial - have the ordinary meaning
**Something greater than trivial.**
49
R v Golds
* Substantial has ordinary meaning, no need to direct the jury on the meaning.
* If the court felt it was necessary to guide - means something greater than "more than merely trivial"
50
Diminished Responsibility: 3) Substantial impairment to ability to do....
**Understand the nature of conduct**
Boy aged 10 left to play violent video games
Didnt understand that couldnt be revived as happens in video games when kill someon
**Law Commission Report No304**
51
Diminished Responsibility: 3) Substantial impairment to ability to do....
**Form rational judgment**
* PTSD from abusive husband, believed burning body to rid of sin.
* Mentally subnormal boy believes must follow orders
* Depressed man who had been caring terminally ill spouse for death from killing her at her request
**Law Commission Report No304**
52
Diminished Responsibility: 3) Substantial impairment to ability to do....
**Exercise self control**
* Devil takes control of him and implants a desire to kill. Desire must be actd upon
53
Why is the definition of the things listed in HA 1957, s2(1A) so wide
To **give** the **jury a wide discretion**, much will depend on the extent the jury is **morally culpable.**
54
Diminished Responsibility: 4) Provides an explanation for acts or omissions
* **Causal link** must be established between abnormality of **mental functioning - recognisd medical condition - killing.**
55
Dietschmann
Defense of diminished responsibility can operate, even if alcohol may have played a part.
56
R v Brennan
## Footnote
Evidence
* Convicted for murder despite psuch test that evidenc satisfied.
* Overturned conviction, judge should withdraw murder charge from jury when
- medical evidence is uncontested
- no other evidence which is capable of rebutting medical evidence.
**Legitimate and helpful for expert psychiatrists to give evidence** on **all four matters**
57
CJA 2009 removed the defence of provocation, and replaced it with...
Loss of control
58
What are the three key requirements of loss of control defence
D will not be convicted of murder if....
* Must have **lost self-control**
* Due to fear / anger **qualifying trigger**
* A normal person with a **normal degree of tolerance and self-restraint** might have acted in a similar way to D, in the same circumstances/
59
Where does the burden of proof rest for defence of loss of control?
Burden of proof rests with **the prosecution** once issue is raised.
**CJA 2009 s 54(5)**
60
R v Clinton, Parker and Evans
## Footnote
Prosecution - Loss of control
Prosecution need only prove one of the three components for loss of control defence is absent for the defence to fail.
Defendant's act or omission in killing must have resulted from loss of self-control
61
R v Jewell
## Footnote
Judge
Power of the judge to remove issue of loss of control = sig change from provocation law.
62
CJA 2009, s54(6)
## Footnote
Judge's power
Power of the judge **to decide whether defence of Loss of Control** can be put before jury.
63
s54(7) if loss of control defence is successful
Conviction is **reduced from murder to voluntary manslaughter**, the defendant will avoid the mandatory life sentence.
64
Difficulties with loss of control defence
* Yet to be defined and tested by courts
* Rely on statutory interpretation and analysis skills
65
CJA 2009, s 54(1)
Three requirements for loss of control
1) Killing resulted from loss of self control
2) Loss of self control had a qualifying trigger
3) A person of D's **sex** and **age**, with a **normal degree of tolerance** and **self restraint**, in the circumstances of D, might have reacted in a similar way
66
Is the old case law of provocation still relevant?
No, very limited, and any usejustified
R v Clinton, Parker and Evans
67
On what basis is loss of self control assessed?
* Literal meaning
68
What extent of loss of control is needed?
No need for complete loss of control, such that they do not know what they are doing, but **must be unable to restrain themselves**. Mere loss of temper would not be enough.
## Footnote
R v Richens
69
Does loss of control need to be sudden?
No, the loss of control need not be sudden.
**CJA 2009, s 54(2)**
70
Can loss of control be used if the defendant was acting out of "considered desire for revenge"?
* Defence will be lost (CJA 2009)
* As directed n **Clinton**
71
R v Ahuwalia
## Footnote
Delay
* Old law
* **Longer the delay** between provocation and killing the **less likely that the defendant had lost control**.
72
Qualifying Trigger
* Must be identified as the loss of control (as defined in **CJA 2009, s55**)
* **Fear Trigger** - must fear *serious violence* (CJA s55 (3))
* **Anger Trigger** - *extremely grave* (s4a) - not enough to feel a sense of grievance - must be *seriously wronged* (s4b), Raised the bar from previous provocation.
73
Loss of control must have had...
## Footnote
Section 55(2) CJA 2009
* Loss of self-control must have had **a qualifying trigger.**
74
For fear to be a qualifying trigger, must have....
## Footnote
Section 55(3) CJA 2009
Qualifying trigger if loss of self control was attributable to D's **fear of serious violence** from V against D or another identified person.
75
Anger
## Footnote
CJA 2009 Section 55(4)
Qualifying trigger if loss of self control was attributable to a thing said or done which
* constituted circumstances of an **extremley grave characte**r **(s4a)**
* caused D to have a justifiable **sense of being seriously wronged** **(s4b)**
76
CJA 2009 Section 55(5)
Applies if D's loss of self control was attributable to a combination of the matters mentioned.
77
Limit to Qualifying trigger
*Provocation*
CJA 2009 Section 55(6)
In determining whether a loss of self-control had a qualifying trigger:
* D's fear of serious violence is to be disregarded to the extent that it was **caused by a thing which D incited to be done or said for the purpose of providing and excuse to use violence**.
* Sense of being seriously wronged by thing done or said is not justifiable if D **incited the thing to be done or said for the purpose of providing the excuse of violence**
78
Can loss of control be found to have qualifying trigger if D incidted the fear or anger, for the purposes of providing an excuse to use violence?
* No
* Section 55(6) CJA 2009
79
Fear of serious violence?
* No specific direction on the way that the D should fear serious violence
* Suggest broader application
80
Difference between **loss of control** and **self-defence**
* Separate defences, despite factual overlaps
* Serious violence = loss of control
* Violence = self defence
Fear as a trigger of loss of control =
* Level of force unreasonable, preventing the defence of self-defence from operating (**R v Martin**)
81
Difference between Fear of violence and serious violence
Dawes, Hatter and Bowyer
* Two separate and distinct defences,
* Self defence only requires fear of violence
* Loss of control requires fear **serious** violence
82
Fear Trigger
*Provocation*
Section 55(6)(a) CJA 2009
D cannot rely on the fear trigger if D incited it as an excuse to use violence
83
R v Martin
*House Burglaries*
* Burglaries in an isolated farmhouse in Norfolk
* Booby traps / security measures - shot two suspected burgapars
* Killed one - pleaded self defence
* Unsuccessful due to excessive force used.....
**Defence may now be available under loss of control using a fear of serious violence as a qualifying trigger**
84
Second qualifying trigger
Anger
85
Anger Trigger
Nebulous concept, three parts to it:
* Things said and done
* That constitute circumstances of an extremely grave nature
* That caused D to have a justifiable sense of being seriously wronged.
= Require objective evaluation confirmed in **Clinton** and **Dawes**
**None of these elements are defined in CJA 2009**
86
Limitations to anger trigger
Defendant cannot rely on the anger trigger if:
* D incited it as an excuse to use violence **s55(6)(b)**
* The thing said/done constitued sexual infidelity **s55(6)(c)**
87
Anger Trigger - Things said or done (or both)
* Requirement under the old law, and confirms that there must be something actually said or done
**Circumstances on their own will not be enough**
**R v Acott**
88
R v Acott
## Footnote
Traffic jam
Lord Steyn
If a person was driving in slow moving traffic caused by snow and lost self-control, could not rely on this defence
89
Anger Trigger - circumstances of an **extremely grave** nature
* Extremely grave nature is not defined in the **CJA 2009**
* Must be determined **objectively**
* Circumstances not established easily (**R v Clinton**)
90
Jonathan Herring on the Anger Trigger
* Extremely grave in nature
* Must have been unusal - not part of the normal trials and disappointments in life.
* Not events that ordinary people would regard as trivial
91
Anger Trigger caused D to have a justifiable sense of being seriously wronged
* Phrase is not defined
* Objective question of whether have a justifiable sense of being seriouslywronged. (Confirmed in **Clinton**)
| Clinton; Baker and Zhao
92
Baker and Zhao
* Word justifiable means that the defendant's sense of being seriously wrong must
* **accord with comtemporary society norms and values**
* Must show that a **normal person in contemporary Britain** would have felt seriously wronged in the same situation.
93
Anger Trigger caused D to have a justifiable sense of being seriously wronged
**Baker and Zhao**
* Judged by nromative standards of a normal person communially situated in Britain
* Honour killing of daughter = **not an objective trigger for loss of control**
Subjectively viewed the circumstances as being extremely grave.
* But situated in Britain, adult daughter having consensual relations is extremely grave
* Paedophile molesting your own child = ojectively provocation
94
Paedophile molestation example
| Baker and Zhao
* Normal parent communally situated in contemporary Britain would have a justifiable sense of being wrogned by such conduct.
* No need to catch in the act = enough to be **said** to him
* Second hand word is enough
95
Normal Person Test
A normal person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances D might have reacted in the same or in a similar way to D
**CJA 2009, s54(1)(c)**
96
"The circumstance of D" - meaning
Section 54(3)
* Reference to all of the D's circumstances
* **other than those** whose only relevance to D's conduct is that they bear on D's **capacity for tolerance or self-restraint.**
97
What does a jury assess when a normal person have acted similarly?
1) The gravity of the qualifying trigger to a person in the defendant's circumstances;
2) Whether a result of that trigger a normal person might have done what the defendant did or something similar
98
DPP v Camplin
## Footnote
If true
* Gravity of qualifying trigger
* Magnitude of the qualifying trigger - may be more offensive to person that it is true.
99
The Normal Person
* Test for determining the proportionality of D's reaction remains **a wholly objective one**
* Normal person will have ordinary powers of tolerance and self-restraint
* Jury will not be allowed to take into account any characteristics / circumsances that would affect normal tolerance / ability to exercise restrint.
100
Characteristics or circumstances likely to be excluded in assessing the normal person's capacity for tolerance and self-restraint:
* Bad temper
* Intoxication
* Extreme sensitivity
* PTSD (R v Rejmankski)
* Personality disorder (R v Rejmankski)
101
Three categories of circumstances and characteristics
Category 1: Circumstances and characteristics will be taken into account under **(54(1)(c))**
Category 2: Circumstances and characteristics which will be excluded by **(54(3)**
Category 3: Circumstances or characteristics which will be considered in assessing the magnitude of the qualifying trigger - ignored in assessing tolerance and self-restrain the normal man would **(R v Rejmanski)**
102
Clinton - circumstances and characteristics
* Evidence of sexual infidelity can be taken into consideration by a jury when assesing **only** the cpaacity for self restraint.....
* To be ignored when considering the qualifying trigger
103
R v Rejmanski
* Mental disorder has relevance to defendant's conduct, **other than a bearing on his general capacity for tolerance and self restraint** - then it is not excluded
* Jury will be entitled to take into account as one of defendant's circumstances
* Must not be relied upon to **undermine the principles that determine normal standrds** rather than abnormal standards of an individual defendant.
104
When might a mental disorder be relevant / considered in "loss of control"?
* When doesn't impact general capacity for tolerance or self-restraint
* But is relevant to circumstances
| R v Rejmanski
105
R v Wilcocks
## Footnote
Taunts
* Victim taunted the defendant about his failed suicide attempts
* Can be included in circumstances and characteristics assessed
* Does not impact tolerance or self-restraint.
106
What are the three aspects to loss of control?
* Lost control - not complete, but unable to exercise self-restraint
* D acted as result of qualifying trigger (fear or anger)
* A normal perspon might have done the same or a similar thing.
107
What is assessed when looking for an anger trigger?
* Things said and/or done
* That constitute circumstances of an extremely grave nature
* Causes D a justifiable sense of being seriously wronged
108
What do a jury assess when deciding if a normal person might have done the same or similar thing....
* The gravity of the qualifying trigger to a person in the defendant's circumstances
* Whether as a result of that trigger a normal person might have reacted in a similar or same way.
109
What type of defence is loss of control
Partial defence
This reflects the position in** s 54(7) Criminal Justice Act 2009.** If the defence of loss of control is successful, the defendant will not be acquitted but convicted of voluntary manslaughter rather than murder.
110
Which one of the following is a qualifying trigger for loss of control
* Fear of **serious** violene.
* This reflects the position in s 54 and s 55 Criminal Justice Act 2009.
111
For the third element of the loss of control defence, who is the defendant’s conduct compared to?
* A normal person in the circumstances of the defendant
* Reflects the position in **s54(1)(c) CJA 2009**
112
Limitations of the use of "loss of control" defence
* In act of **"considered desire for revenge"**
* Excuse to use **violence**
* Thing said / done constituted **sexual infidelity**
* If the defendant is charged with **attempted murder**
113
Limitations on loss of control defence:
**Considered desire for revenge**
* Cannot use LoC defence if an act of revence
* Covers cases where there is **clear evidence of planning**
* The word "considered" is important = time to think about the qualifying trigger.
* Revenge = not a loss of control.
| **CJA 2009, s54(4)** **Clinton**
114
Can loss of control be applied to revenge?
* Willnot have lost control if planned
**Clinton**
**S54(4)**
115
Limitations on loss of control defence:
**Excuse to use violence**
* Fear of violence to be disregarded if incited for the purpose of providing and excuse to use violence.
* Sense of being wronged by a thing done or said is not justifiable to be disregarded if incited for the purpose of providing and excuse to use violence.
* **D must have intent from the outset to provoke the reaction that then led to the killing**
* Only applies in rare cass.
| CJA 2009, s55(6); Clinton
116
Limitations on loss of control defence:
**Sexual Infidelity**
* Defence cannot be relied upn if if the thing said/done constituted sexual infidelity
* Must have been the **sole qualifying trigger**
| CJA 2009, s55(6)(C); **Clinton**
117
**R v Clinton, Parker and Evans**
Sexual Infidelity
* Sexual Infidelity is intergral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of 55(3) and 55(4), the **prohibition in section 55(6)(c) does not operate to exclude it.**
* Likely that other factors could make up a qualifying trigger - then possible to include sexual infidelity as part of the **whole story**
118
Limitations on loss of control defence:
**Loss of control and attempted murder**
Loss of control "is not a defence to a charge of attempted murder **or any other charge other than murder**
| R v Campbell
119
What charge can D rely on "loss of control" for?
Only if charged for murder
120
What amounts to the limitation of loss of control defence>
* Considered desire for revenge
* Excuse to use violence
* Sexual infidelity
* Attempted murder
This reflects the position in section** 54(4) Coroners and Justice Act 2009**
121
When will sexual infidelity prevent a defendant from being able to rely on the anger trigger?
When the thing said / done constituted sexual infidelity
**Section 55(6)(c) CJA 2009 and Clinton**
122
123
