3) Homicide Flashcards
For murder, the prosecution must be able to prove beyond reasonable doubt
- Actus reus
- Mens reau
o No valid defence
If a defendant is found guilty of murder, they are given…
A mandatory life sentene.
What is the actus reus for murder
Defendant unlawfully killed another human being under the Queen’s peace.
What is the mens rea for murder
Committed the actus reus with malice afterthought = intention to kill or intention to cause GBH
What are the special defences for murder
- Loss of control
- Diminished responsibility
What is a defendant liable for if one of the special defences applies?
- Still criminally liable, as these are partial defences.
Liable for voluntary manslaughter instead of
If the defence of loss of control is raised, who must prove beyond reasonable doubt that this defence does not apply?
The prosecution…. beyond reasonable doubt.
If the defence of diminished responsibility is raised, who must prove beyond reasonable doubt that the defence does apply?
The defence… on a balance of probabilities
Murder is ….
A common law offence…..defined as “unlawful homicide with malice aforethought”
Unlawful homicide
= Actus reus of murder
Sentencing for murder
- Carries a mandatory life sentence
Murder (Abolition of Death Penalty) Act 1965 - No sentencing discretion, other than minimum term
Actus reus elements of murder
Unlawful; Killing; Human being; Kings peace
Mens rea elements of murder
- Malice aforethought
- Intention to kill or cause GBH
When will killing be lawful?
- Enemy soldiors in battle
- Advancement of justice - death penalty
- Self defence
Self defence
Lawful where the force used was reasonable and necessary to prevent crime or protect self, others or property
What type of crime is murder
A result crime - must show causation of death.
What are the causation tests for murder
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
R v Hughes
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
R v White
But for the acts or omissions of the defendant, the relevant consequence would not have occurred in the way that it did.
Factual causation
A reasonable human being
= must be living
The moment the brain dies, unanimous belief that the body cannot survive without the brain.
When is a person “in being”?
When born alive and capable of independent life.
R v Reeves
Not necessary for the umbilcal cord to have been cut between mother and child to be alive.
R v Poulton
Child must be fully expelled from the mother’s body.
Depends on evidence of medical men.
AG-Ref
Pregnant woman stabbed in abdomen. Unborn child died.
Not a live person - not murder
Under the king’s peace
If a British subject, can be tried for murder wherever the murder ws committed.
Ig not a British subject - essentially about jurisdiction.
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.
Mens Rea: Malice aforethought
- Intention to kill
- Intention to cause grievous bodily harm (implied malice) - no need for malice or premeditation.
Inglis
Mercy killing is no defence under English Law
Saunders
GNH means serious harm.
Can a defendant have malice aforethought if they kill on the spur of the moment?
Yes
R v Vickers
Broke into shop. Struck lady. Appealed.
Confirmed that the mens rea of murder as intention to kill or to cause GBH
General meaning of intention
Should be left to the common sense of the jury
R v Moloney
Direct intent is where the consequence is what the defendant, subjectively aims to happen.
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)
How frequent is Woolin?
Very rare
R v Matthews & Alleyne
Oblique intent is not intention, but evidence of it.
DPP v Chandler
Motive is not the same as intention.
R v Hill
Evidence of intention
What offences can special defences be a defence for?
Murder only
Impact of diminished responsibility
Partial defence - convicted of lesser offence of voluntary manslaughter Homicide Act 1957 s2(3)
Judge will have discretion in sentencing.
Who bears the responsibility to prove diminished responsibility
Burden falls to defence to prove on the balance of probabilities
s2(2) HA 1957
R v Campbell
Diminished responsibility is not available as a defence to a charge of attempted murder
When would diminished responsibility come into play
- Abnormality of mental functioning
*Arising ffrom recognised medical condition.
*Impaired ability… to understand nature of conduct, form rational judgment, exercise self-control - Provides an explanation for conduct
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”
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”
Diminished Responsibility: 2) Arising from a recognized medical condition
- Nay be undiagnosed at the time of killing.
- Must be medical condition
- Alcohol Dependency Syndrome = medical condition
R v Dowds
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
Diminished Responsibility: 3) Substantial impairment to ability to do one of the things stated in HA 1957 s2(1A)
R v Golds
Substantial - have the ordinary meaning
Something greater than trivial.
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”
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
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
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
Why is the definition of the things listed in HA 1957, s2(1A) so wide
To five the jury a wide discretion, much will depend on the extent the jury is morally culpable.
Diminished Responsibility: 4) Provides an explanation for acts or omissions
- Causal link must be established between abnormality of mental functioning - recognisd medical conditin - killing.
Dietschmann
Defense of diminished responsibility can operate, even if alcohol may have played a part.
R v Brennan
- Convicted fro 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
CJA 2009 removed the defence of provocation, and replaced it with…
Loss of controlW
What are the three key requirements of loss of control defence
- Must have lost self-control
- Due to fear / anger qualifying trigger
- A normal person might have acted in a similar way to D
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)
R v Clinton, Parker and Evans
Prosecution need only prove one of the three components for loss of control defence is absent for the defence to fail.
R v Jewell
Power of the judge to remove issue of loss of control = sig chance from provation law.
CJA 2009, s54(6)
Power of the judge to decide whether defence can be put before juty.
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.
Difficulties with loss of control defence
- Yet to be defined and tested by courts
- Rely on statutory interpretation and analysis skills
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 restrain, in the circumstances of D, might have reacted in a similar wy
Is the old case law of provocation still relevant?
No, very limited, and any usejustified
R v Clinton, Parker and Evans
On what basis is loss of self control assessed?
- Literal meaning
R v Richens
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.
Does loss of control need to be sudden?
No, the loss of control need not be sudden.
CJA 2009, s 54(2)
Can loss of control be used if the defendant was acting out of “considered desire for revenge”?
- Defence will be lost (CJA 2009)
R v Ahuwalia
- Old law
- Longer the delay between provocation and killing the less likely that the defendant had lost control.
