4 - Fatal offences against the person Flashcards
Lord coke definition of murder
Murder
“the unlawful killing of a reasonable creature in being and under the King’s Peace with malice aforethought, express or implied
The killing must be unlawful
It is not unlawful if it was done in self-defence, or in the prevention of crime (and the D used reasonable force)
Killing
Murder
medical term not a legal one
brain stem death
the v must die
Queen’s Peace
Murder
means that the killing of an enemy in war is not murder, unless it is a prisoner of war that has been killed.
Reasonable creature in being
Murder
**Foetus **– The child has to have an existence independt of the th mother
Brain Dead
It is probably that someone who is brain dead would not be a reasonable person in being
Year and a day rule
Originally death must have occurred within a year and a day of the unlawful act - abloished in 1996
malcherek and steel 1981
Murder
doctors are not liable for tunring off a life support machine
“Malice aforethought express or implied
Murder
direct intent to kill or cause really serious harm
oblique intenti to kill or cause really serious harm
Vickers 1957
D broke into the cellar of an old ladies sweet shop. He knew the old lady was deaf. She came down to the cellar and saw him and he punched her a few times and then kicked her in the head. She died of her injuries. Example of implied malice aforethought as he only indented GBH which resulted in death
Foresight of consequence
Murder
The D does not have the mens rea for murder unless he foresaw that he would also cause death or serious injury – foresight of consequence
Moloney 1985
D and his step father had been drinking at a party and playing “quick draw” seeing who could load the gun the quickest. Step father then said to the D “you haven’t got the guts to pull the trigger” D then did and step father was killed. D didn’t aim just pulled the trigger. Was not guilty of murder
foresieght of consiquence
2 part test for foresight of consoquence
Murder
- Was death or serious injury a virtual certainty
- D had to realise that death or serious injury was a virtual certainty
Woolin 1998
Murder
D had been feeding 3 month old baby son. Baby choked on the food and D admitted that he “lost his cool” and threw the baby towards his pram which was 3 or 4 feet away against a wall. Baby suffered head injuries and died.
virtual certainty
Voluntary manslaughter
- Diminished responsibility – Homicide Act 1957
- Loss of control – Coroners and Justice Act 2000
that if one of these defences is successful then the offence of murder is reduced to manslaughter
Loss of control
voluntary manslaughter
Loss of Control replaced the old defence of provocation
Loss of control is under s54 Corners’ and Justice Act 2009
Requirements for loss of control
voluntary manslaughter
These 3 points have to be proved:
* D must have lost self control
* There must be a qualifying trigger
* A person of the same sex and age would have reacted in the same way as the D in the circumstances
loss of self control
voluntary manslaughter
D must have lost self-control when doing the acts which caused death
The loss of self control does not have to be sudden – s54
Ahluwalia 1992
voluntary manslaughter
D had been abused by husband for many years. He threatened her with violence the next day and went to bed. D waited until her husband was asleep, poured petrol on him and set him alight. He died several days later
She wasn’t at the time allowed defence of provocation because she hadn’t lost control immediately however under the new defence of loss of control she would have been allowed to claim loss of self control
qualifying triggers
voluntary manslaughter
s55 of the Act sets out the qualifying triggers
1) D’s fear of serious violence from V against D
Martin 2002 – burglars
Ahluwalia 1992
2) A thing done or said which:
a) Constituted circumstance of an extremely grave character and
b) Caused D to have a justifiable sense of being seriously wronged
Zebedee 2012
D lost control with his 94 year old father with Alzheimers and killed him. Tried to claim loss of control but not allowed and was convicted of murder as it didn’t fit with either of the two categories above.
Loss of Control – Excluded Matters
voluntary manslaughter
**Sexual Infidelity is not a qualifying trigger **(despite it being allowed under the old defence of provocation)
It however can be taken into account in the circumstance surrounding fear of violence or things said or done
Clinton 2012
Suffered from depression and was on medication. Killed his wife the day after she told him she was having an affair. She also taunted him showing him websites on how to commit suicide.
Allowed to claim loss of control as the sexual infidelity was only part of the circumstance
Loss of Control – Excluded Matters -Desire for Revenge
voluntary manslaughter
Defence is not allowed if the D acted in a considered desire for revenge
If D had time to consider revenge then acted he cannot claim loss of control
standard of self control
voluntary manslaughter
Defence is not allowed if the D acted in a considered desire for revenge
If D had time to consider revenge then acted he cannot claim loss of control
Circumstances
voluntary manslaughter
Circumstances can be taken into consideration in deciding whether a normal person might have reacted in the same way
Hill 2008
voluntary manslaughter
D was sexually assaulted as a child. V tried to sexually assault D. D lost control and killed him. Manslaughter rather than murder because of the circumstances.
Involuntary manslaughter
An unlawful killing where the D does not have the intention to kill or cause GBH
It is a common law offence - Maximum up to Life Imprisonment
Unlawful act maslaughter
involuntary manslaughter
Liability is built up from the fact that the D has done a dangerous unlawful act which has caused death (must be a criminal offence, not civil)
Proving liability in unlawful act manslaughter
- D must do an unlawful act
- Act must be dangerous according to an objective test
- Act must cause death
- D must have the mens rea for the unlawful act
Lamb 1967
Involuntary manslaughter
Friends messing around with a gun. Knew it had two bullet but didn’t think it would shoot as the bullet wasn’t in the opposite chamber. However Lamb fired and it killed his friend
Not unlawful as no assault as the friend did not fear
Unlawful act manslaughter
Unlawful Act - Omissions
Unlawful act mansalughter
Must be an act an omission cannot create liability
Unlawful Act – Dangerous Act
Act has to be dangerous on an objective test – set out in Church 1966
“sober and reasonable people would recognise the risk of some harm coming to the other person”
The act need not be aimed at the victim
Mitchell 1983
Unlawful act maslaughter
– post office queue.
D threatened one man and punched him. V then fell into an old lady and killed her.
Convicted of unlawful act manslaughter – act was unlawful (punching) it was dangerous (likely to cause some harm) and it resulted in the women’s death.
Some Harm
Unlawful act malsuaghter
**Sober and reasonable person has only to foresee some harm
**
Goodfellow 1986
Set fire to his council property so that they would have to rehome him. Fire got out of control and killed his wife, son and another women
Convicted:
Act (arson) was committed intentionally (mens rea)
It was unlawful
Reasonable people would recognise the act on the property may cause some harm to another person
The act caused death
Unlawful act manslaughter
causing the death
unlawful act
The unlawful Act must be the cause of death.
Causation applies ie. If there is an intervening act which breaks he chain then D cannot be liable
Cato
D and V each prepared to inject heroin and water
They injected each other. One of them died. D was convicted of unlawful act
Problem occurs where someone else prepares the injection and then the V injects themselv
Mens Rea of Unlawful Act Manslaughter
You have to prove the mens rea for the unlawful act
D doesn’t have to realise is unlawful or dangerous
joint involvement
unlawful act
Held that there could be circumstances where both the V and D were involved ie. Injecting however I wasn’t clear what circumstance they would be
Gross Negligence Manslaughter
Where the D owes the V a duty of care but breaches that duty in a very negligent way, causing death
Adamako 1994 – 4 part Test
Gross negligence maslaughter
- There must be a duty of care to the Victim
- There must be a breach of that duty which should be grossly negligent and therefore a crime
- The breach must cause or significantly contribute to the death of the victim
- The breach must be gross
duty of care
gross neg manslaughter
Normal laws of civil law applies in criminal eg. Donoghue v Stevenson and Caparo v Dickman
Gross breach of duty
gross neg
has to be gross as per bateman 1925
objective test
reasonable man (of a similar skill)
Risk of Death
gross neg
risk must be serious and obvious risk of death, not merely serious injury
