4. Homicide I: Murder and the Partial Defences

Question 1

Homicide Definition

Answer 1

Unlawful killing of another human being (umbrella term for either murder or manslaughter)

Question 2

UK Law definition of ‘death’

Answer 2

Death occurs where the brain stem, controlling the basic bodily functions, has died

Question 3

Sentence for Murder

Answer 3

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’)

Question 4

Murder: AR + MR

Answer 4

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

Question 5

Direct intent vs Indirect or Oblique Intent

Answer 5

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

Question 6

What is the significance of being found guilty of manslaughter instead of murder?

Answer 6

• for MS, the judge has more discretion in sentencing and can take into account circumstances (ie. no mandatory life sentence)

Question 7

Manslaughter: AR + MR

Answer 7

Same as murder

Question 8

Three situations where murder will be reduced to voluntary manslaughter

Answer 8

a. diminished responsibility
b. loss of control
c. suicide pact

Question 9

Four elements of diminished responsibility

Answer 9

1. abnormality of mental functioning which
2. arose from a recognised medical condition and
3. 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
4. provides an explanation for the defendant’s act / omission in doing the killing

Question 10

Burden of proof for diminished responsibility

Answer 10

Once CPS has proven elements of homicide beyond reasonable doubt, legal burden of proving diminished responsibility is on the defendant (on balance of probabilities)

Question 11

Alcohol and Diminished Responsibility

Answer 11

• 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

Question 12

Diminished Responsibility “substantial impairment” what does this relate to

Answer 12

Defendant must have been unable to:
a. understand the nature of their conduct
b. form a rational judgement and or
exercuse self-control

Question 13

DEF: Loss of control

Answer 13

1. Defendant loses self-control
2. the loss of control has a qualifying trigger; and
3. a person of the defendant’s sex and age, with a normal degree of tolerance and restraint MIGHT have reacted in the same way

Question 14

Burden for Loss of Control

Answer 14

Defence has burden of raising it, (providing some evidence), burden reverts back to prosecution to disprove it beyond reasonable doubt

Question 15

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)

Answer 15

yes

Question 16

When can loss of control not apply

Answer 16

When the defendant is doing so out of their desire for revenge

Question 17

Fear Trigger

Answer 17

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)

Question 18

Anger Trigger

Answer 18

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)

Question 19

Does loss of control apply to sexual infidelity?

Answer 19

Generally NO but sexual infidelity can be a part of the background context to other possible triggers

Question 20

What physical conditions could diminished responsibility apply to?

Answer 20

Epilepsy or Diabetes

Question 21

Can a defendant argue both partial defences at the same time?

Answer 21

Yes

Question 22

Can any recognised medical condition enable a successful defence of diminished responsibility for murder?

Answer 22

No, the recognised medical condition must be connected to the defendant’s behaviour

Question 23

Does the doctrine of transferred malice apply to murder offences as well?

Answer 23

Yes

Question 24

Does sexual infidelity preclude the defendant from relying on the defence of diminished responsibility?

Answer 24

No

Question 25

Indirect intent to cause death or really serious harm: what must be present to satisfy this?

Answer 25

it must both be a virtually certain consequence of her actions and she must foresee it as a virtually certain consequence