4. Homicide I: Murder and the Partial Defences Flashcards
Homicide Definition
Unlawful killing of another human being (umbrella term for either murder or manslaughter)
UK Law definition of ‘death’
Death occurs where the brain stem, controlling the basic bodily functions, has died
Sentence for Murder
Mandatory sentence of life imprisonment, and judge sets a ‘tariff’ (minimum term in prison)
- Once tariff has expired, they remain in prison until they are no longer a danger to the public (and will be ‘on license’)
Murder: AR + MR
AR: Cause the death of a human being unlawfully (‘under the queen’s peace’, not in war time)
MR: Malice Aforethought, known now as an an intention to kill or intention to cause GBH
Direct intent vs Indirect or Oblique Intent
Direct:
- death or GBH was the defendant’s aim or purpose
Indirect: death / serious harm is not the primary aim but is a VIRTUALLY CERTAIN CONSEQUENCE of their actions and the defendant appreciates this
What is the significance of being found guilty of manslaughter instead of murder?
- for MS, the judge has more discretion in sentencing and can take into account circumstances (ie. no mandatory life sentence)
Manslaughter: AR + MR
Same as murder
Three situations where murder will be reduced to voluntary manslaughter
a. diminished responsibility
b. loss of control
c. suicide pact
Four elements of diminished responsibility
- abnormality of mental functioning which
- arose from a recognised medical condition and
- substantially impaired the defendant’s ability to understand the nature of their actions and / or form a rational judgement and / or exercise self-control; and
- provides an explanation for the defendant’s act / omission in doing the killing
Burden of proof for diminished responsibility
Once CPS has proven elements of homicide beyond reasonable doubt, legal burden of proving diminished responsibility is on the defendant (on balance of probabilities)
Alcohol and Diminished Responsibility
- Drinking will not prevent the defendant using this defence
- Court will discount any alcohol consumed voluntarily (and if they still had diminished responsibility, defence will apply)
- in the case of alcoholism, court will take the same approach
Diminished Responsibility “substantial impairment” what does this relate to
Defendant must have been unable to:
a. understand the nature of their conduct
b. form a rational judgement and or
exercuse self-control
DEF: Loss of control
- Defendant loses self-control
- the loss of control has a qualifying trigger; and
- a person of the defendant’s sex and age, with a normal degree of tolerance and restraint MIGHT have reacted in the same way
Burden for Loss of Control
Defence has burden of raising it, (providing some evidence), burden reverts back to prosecution to disprove it beyond reasonable doubt
Can loss of control apply wrt a defendant’s reaction building up over a long period of time (eg. as a result of persistent abuse)
yes
When can loss of control not apply
When the defendant is doing so out of their desire for revenge
Fear Trigger
Loss of control is caused by ‘the defendant’s fear of serious violence from the victim against them or another identified person’
- Subjective assessment (need not be reasonable)
Anger Trigger
Loss of control is caused by ‘things said or done that amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wrong’
- Objective question first determine by judge (if judge agrees, will discuss with the jury)
Does loss of control apply to sexual infidelity?
Generally NO but sexual infidelity can be a part of the background context to other possible triggers
What physical conditions could diminished responsibility apply to?
Epilepsy or Diabetes
Can a defendant argue both partial defences at the same time?
Yes
Can any recognised medical condition enable a successful defence of diminished responsibility for murder?
No, the recognised medical condition must be connected to the defendant’s behaviour
Does the doctrine of transferred malice apply to murder offences as well?
Yes
Does sexual infidelity preclude the defendant from relying on the defence of diminished responsibility?
No
Indirect intent to cause death or really serious harm: what must be present to satisfy this?
it must both be a virtually certain consequence of her actions and she must foresee it as a virtually certain consequence
