4 - Murder & Partial Defences

Question 1

What is the meaning of ‘homicide’?

Answer 1

Homicide is the unlawful killing of another human being and is an umbrella term used to encompass situations where the defendant is criminally liable for either murder or manslaughter.

Question 2

What is the actus reus of homicide?

Answer 2

The common element in all homicide cases is that the accused unlawfully causes the death of the victim.

In most cases, the prosecution will have no difficulty establishing this, e.g. when the defendant shoots or stabs the victim who dies immediately from their injuries.

Unlawful: The death must be unlawfully caused. For example, a police officer shooting a terrorist about to detonate a bomb would be lawful to prevent a crime and defend others.
Victim: The victim must be a human being. Once a baby is born and has an existence independent of the mother, it is protected by the law of homicide.
The time of injury is irrelevant; it is the time of death that matters.
Death is legally defined as when the brain stem, controlling basic functions like breathing, has died.
Causes death: The prosecution must prove that the defendant was both the factual and legal cause of the victim’s death using the usual rules of causation.

Question 3

What is the definition of murder?

Answer 3

Murder is a common law offence and one of the most serious crimes.

Mandatory life sentences are imposed, though the minimum term varies depending on the case. Dangerous offenders may receive a whole life sentence, and even after release, they are subject to life licence.

The definition: “The unlawful killing of a reasonable creature in being under the Queen’s [or King’s] peace with malice aforethought.”

Question 4

What is the actus reus for murder?

Answer 4

The actus reus of murder is the unlawful killing of a human being.

The killing must occur during peacetime, meaning killing an enemy combatant during wartime provides a defence to a murder charge.

Question 5

What is the mens rea for murder?

Answer 5

The mens rea for murder is ‘malice aforethought’, but malice is not required.

Intention to kill or cause grievous bodily harm suffices. Grievous bodily harm means “really serious harm.”

Case: In R v Moloney [1985] 1 AC 905, the defendant accidentally killed his stepfather in a drunken game involving a shotgun. The court clarified that intent is a subjective test left to the jury’s good sense.
- Direct intent means that the defendant’s aim or purpose was to cause death or grievous bodily harm.
- Indirect (oblique) intent applies where death or serious harm is a virtually certain consequence of the defendant’s actions, and they appreciate this.
- Both are sufficient for murder.

Question 6

Provide a summary of murder.

Answer 6

Actus reus: The unlawful killing of a human being under the King or Queen’s peace.

Mens rea: The intention to kill or cause grievous bodily harm (malice aforethought).

It is an entirely subjective test, depending on the defendant’s intentions.
Murder is a crime of specific intent, meaning it cannot be committed recklessly.
Both direct and indirect intent will satisfy the mens rea for murder.

Question 7

What is manslaughter?

Answer 7

Manslaughter involves lesser culpability compared to murder.

Case: R v Ahluwalia (1993) 96 Cr App R 133 - The defendant killed her abusive husband after enduring 10 years of violent abuse. Her murder conviction was reduced to manslaughter due to her circumstances.
Case: R v Martin (Anthony) [2002] EWCA Crim 2245 - Martin shot and killed a fleeing burglar. His conviction was also reduced to manslaughter as the circumstances were taken into account.

The key difference between murder and manslaughter is that manslaughter allows the judge discretion in sentencing, with no mandatory life sentence.

Question 8

What is voluntary manslaughter?

Answer 8

Voluntary manslaughter applies when the defendant has the actus reus and mens rea for murder, but the offence is reduced due to certain partial defences.

These partial defences include:
- Diminished responsibility
- Loss of control
- Suicide pact

These are not true defences, as the defendant remains liable for manslaughter.

They apply only to murder and not to other offences.

Question 9

What is the actus reus and mens rea for voluntary manslaughter?

Answer 9

The actus reus and mens rea for voluntary manslaughter are the same as for murder:
- Actus reus: Unlawfully causing the death of a human being.
- Mens rea: Intention to kill or cause grievous bodily harm.

The court will only consider the partial defences of diminished responsibility, loss of control, or suicide pact once the elements of murder are proven.

Question 10

What are the elements of the defence of diminished responsibility as outlined in s 2 of the Homicide Act 1957 (as amended by s 52 of the CJA 2009)?

Answer 10

Diminished responsibility is a statutory defence set out in s 2 of the Homicide Act 1957, as amended by s 52 of the CJA 2009.

There are four elements to the defence that need to be proved:
1. Abnormality of mental functioning.
2. The abnormality arose from a recognised medical condition.
3. The abnormality substantially impaired the defendant’s ability to:
- Understand the nature of their conduct;
- Form a rational judgment;
- Exercise self-control.
4. The abnormality provides an explanation for the defendant’s act or omission in killing.

If these elements are successfully pleaded, the defendant cannot be convicted of murder. It reduces murder to voluntary manslaughter.

Question 11

Who is the burden of proof on in relation to the defence of diminished responsibility?

Answer 11

The prosecution must prove the actus reus and mens rea of homicide beyond a reasonable doubt.

Once established, the legal burden shifts to the defendant to prove all the elements of diminished responsibility.

This is unusual in criminal law as generally the prosecution is required to disprove any defence raised.

The standard of proof for the defendant is on the balance of probabilities, meaning the defendant must show it is more likely than not that they were suffering from diminished responsibility at the time of the killing.

Question 12

What does ‘abnormality of mental functioning’ mean in the context of diminished responsibility?

Answer 12

• The first question for the jury is whether the defendant was suffering from an abnormality of mental functioning at the time of the killing.
• There is no statutory definition, but it tends to be interpreted widely based on expert medical evidence.
• The term was introduced to ensure consistency with the medical profession, as it is commonly used in that context.
• Given that medical experts provide evidence to determine the defendant’s reliance on diminished responsibility, this approach is logical.

Question 13

What is a ‘recognised medical condition’ under the defence of diminished responsibility?

Answer 13

The abnormality of mental functioning must arise from a recognised medical condition.

This means it must be supported by medical evidence and generally found in accepted classification systems like the World Health Organisation’s International Classification of Diseases.

However, this is not a closed list, and what constitutes a recognised medical condition evolves as medical understanding progresses.

Examples include:
- Psychiatric conditions: depression, schizophrenia, post-traumatic stress disorder, battered person’s disorder, phobic anxiety.
- Physical conditions: alcohol dependency syndrome, diabetes, epilepsy.

Question 14

How does intoxication interact with the defence of diminished responsibility?

Answer 14

Offences committed while under the influence of alcohol or drugs raise complex questions about diminished responsibility.

Voluntary intoxication (i.e., consumption without a recognised medical condition) generally precludes reliance on diminished responsibility for public policy reasons.

However, where a recognised medical condition such as schizophrenia or alcohol dependency syndrome plays a part, the defence may still be available.

You take account of the defendant’s intoxication when considering the mens rea for the offence. The question you will ask is even though intoxicated, did D form the mens rea of intention to kill or intention to cause grievous bodily harm?

Examples:
- If a defendant suffers from a recognised condition like schizophrenia, their psychotic state at the time of the offence (even triggered by voluntary intoxication) can support the defence.
- Where a defendant has alcohol dependency syndrome, the jury should focus on the effect of alcohol consumed as a result of the illness, disregarding the effect of any alcohol consumed voluntarily.

Question 15

What is meant by ‘substantial impairment of the defendant’s ability’ in diminished responsibility?

Answer 15

Once the defendant proves a recognised medical condition, they must show it substantially impaired their ability to:
1. Understand the nature of their conduct;
2. Form a rational judgment;
3. Exercise self-control.

Any one or combination of these factors may establish the required impairment.

Example:
Shuhab stabs his friend believing he will come back to life, failing to understand the fatal consequences. His ability to understand the nature of his conduct is substantially impaired.
Daphne hits her boyfriend in a jealous rage. Her ability to exercise self-control is impaired, though she understands the nature of her conduct and can form rational judgments.

Question 16

What does ‘substantial’ mean in the context of diminished responsibility?

Answer 16

For diminished responsibility, the impairment must be substantial, meaning it is important or weighty, not trivial.

In R v Golds [2016] UKSC 61, the court ruled that the impairment must be significant enough to warrant a reduction from murder to manslaughter.

The term ‘substantial’ is typically left for the jury to interpret based on the facts of the case, without needing specific directions from the judge. i.e., a question of fact for the jury.

Question 17

How must the defendant’s medical condition explain their actions in order to succeed with the defence of diminished responsibility?

Answer 17

The defendant’s medical condition must provide an explanation for their actions, establishing a causal link between the condition and the killing.
Without this link, the defence fails, even if the defendant has a recognised condition.

Example: Daphne suffers from a paranoid personality disorder, but kills her boyfriend in a rage unrelated to this condition. She cannot rely on diminished responsibility as her mental abnormality did not cause the killing.

Question 18

What are a judge’s sentencing powers in relation to diminished responsibility?

Answer 18

Diminished responsibility is a partial defence, meaning if it is successful, the defendant is not acquitted but convicted of a lesser offence, known as voluntary manslaughter, Homicide Act (HA) 1957, s2(3).

This means that the judge will have discretion in sentencing and the defendant will avoid the mandatory life sentence handed down to those convicted of murder (Murder (Abolition of Death Penalty) Act 1965.

Question 19

What is the partial defence of loss of control in relation to murder?

Answer 19

• Loss of control is a partial defence that, if successful, reduces murder to voluntary manslaughter.
• This defence only applies to murder and no other crime.

It is defined by statute, specifically sections 54 and 55 of the Criminal Justice Act 2009 (CJA 2009).
- The rationale behind the defence is that the law accepts that everyone has a breaking point, and certain circumstances may push people to lose control.
- This defence recognises that such defendants are less morally culpable than deliberate murderers.
- However, not every situation will allow an accused to rely on this partial defence.

Question 20

What are the three components required to establish loss of control under s 54 of the CJA 2009?

Answer 20

The three components are:
(a) The defendant must lose self-control.
(b) The loss of control must have a qualifying trigger.
(c) A person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint, in the defendant’s circumstances, might have reacted in the same or similar way as the defendant.

Only if the defendant overcomes all three hurdles will their conviction for murder be reduced to manslaughter.

Question 21

How does the burden of proof operate in loss of control cases?

Answer 21

• Unlike diminished responsibility, the conventional burden of proof in criminal cases applies to loss of control.
• The defendant must produce some evidence that raises the defence.
• The burden then reverts to the prosecution, who must disprove loss of control beyond reasonable doubt.
• If the prosecution fails to do this, the jury must assume the defence is satisfied.

Approximately 60% of those accused of murder rely on the defence of loss of control, but to succeed, all three elements listed in s 54 of the CJA 2009 must be satisfied.

Question 22

How is the loss of self-control assessed by the jury?

Answer 22

• It must be established that the defendant lost self-control, and this is a question of fact for the jury to decide.
• The assessment is subjective, meaning the jury must be satisfied that this particular defendant lost self-control.
• It is not enough for a reasonable person to have lost self-control if the defendant did not.

Example: Felipe cannot rely on loss of control because he planned his wife’s death, even though a reasonable person might have lost control under the circumstances.

Question 23

Is there a requirement for the loss of control to be sudden?

Answer 23

There is no requirement for the loss of control to be sudden.

Example: In R v Ahluwalia, the defendant killed her husband after years of domestic abuse, but the defence of loss of control failed at first because it was required to be sudden. The law changed, now recognising that a loss of control can build up over time, particularly in cases of domestic violence.

The greater the level of deliberation, the less likely it is that the killing resulted from a true loss of self-control.

Loss of control may occur either as:
- The defendant ‘snaps’.
- The defendant’s reaction is to a culmination of events, such as incidents of abuse over time.

Question 24

Does the defence of loss of control apply in cases of a considered desire for revenge?

Answer 24

Loss of control will not apply where the defendant acted with a considered desire for revenge (s 54(4) CJA 2009).

The jury must decide whether the defendant’s actions were planned or impulsive, particularly in cases of abuse.

Defendants who take deliberate steps to kill should be distinguished from those who act on impulse or in fear.

Factors that may suggest a considered desire for revenge include:
(a) The defendant arms themselves with a weapon.
(b) There is evidence of planning.
(c) There is a significant delay between the provoking words or conduct and the killing.

Question 25

How is loss of control determined by the jury in practical cases?

Answer 25

Whether the defendant lost control is a question for the jury, which must assess the evidence.

Some situations are easier to determine than others.
Example (a): Eithne snaps and stabs her husband immediately after he assaults her – clear loss of control.
Example (b): Eithne waits two hours to kill her husband after years of abuse – loss of control may still apply as the act was a response to cumulative provocation.
Example (c): Eithne kills her husband after a final insult – loss of control applies even though the final comment alone may not be the most offensive.
Example (d): Eithne plans to kill her husband after cooling down – loss of control does not apply as she acted deliberately.

When determining if there was a genuine loss of control, the jury must consider all the facts. A delay does not automatically preclude the defence but may make it less likely to succeed.

Question 26

What is the qualifying trigger for the partial defence of loss of control in cases of murder?

Answer 26

The Criminal Justice Act (CJA) 2009 introduced ‘qualifying triggers’ to also include fear, addressing scenarios where fear rather than anger was the motivating factor.

The loss of control must result from either:
- A fear of serious violence from the victim, or
- Anger caused by things said or done amounting to circumstances of an extremely grave character, causing a justifiable sense of being seriously wronged.

Both triggers can be combined in some situations.

The law no longer allows a defence for situations like killing a baby due to persistent crying.

A defendant cannot rely on these triggers if they incited the situation to use violence.

Example: Ivan insults rival football fans, provoking Dave’s response. Ivan fatally stabs Dave but cannot rely on the partial defence as Ivan deliberately provoked the situation to use violence.

Question 27

What is the ‘fear trigger’ under section 55(3) of the CJA 2009?

Answer 27

• The ‘fear trigger’ applies where the loss of control was due to the defendant’s fear of serious violence from the victim against themselves or another identified person.
• This fear is assessed subjectively, meaning the defendant must genuinely fear serious violence, even if the fear is unreasonable.
• The fear must specifically be of serious violence from the victim, not a general fear.

Example: Eithne kills her abusive husband Aaron out of fear after he grabs her hair, which signalled the start of another assault. Eithne’s fear of serious violence allows her to rely on the fear trigger.

Question 28

What is the ‘anger trigger’ under section 55(4) of the CJA 2009?

Answer 28

The ‘anger trigger’ applies when the loss of control was due to:
- Things said or done that amounted to circumstances of an extremely grave character.
- These circumstances caused the defendant to have a justifiable sense of being seriously wronged.

This is an objective test: the judge initially decides if a jury could reasonably conclude that the sense of being seriously wronged was justifiable, filtering out unjustifiable claims.

Example: Carlos sees his daughter being raped and kills the perpetrator. His loss of control qualifies under the anger trigger because witnessing the rape is an extremely grave circumstance, and Carlos’s sense of being seriously wronged is justifiable.

Question 29

How does the CJA 2009 treat sexual infidelity as a qualifying trigger?

Answer 29

Section 55(6)(c) of the CJA 2009 excludes sexual infidelity from being used as a qualifying trigger on its own.

The issue arises when sexual infidelity is part of a broader context with other abusive comments. While sexual infidelity alone cannot be a trigger, it can be considered alongside other factors.

Case Example: In R v Clinton [2012], the court ruled that sexual infidelity is not entirely excluded if it forms an essential part of the context. However, it cannot be the sole trigger for the defence.

Example: Gawain is taunted by his wife, Jody, about her infidelity, his suicidal thoughts, and her lack of care for their children. These combined taunts, including her infidelity, create circumstances of an extremely grave character, allowing Gawain to rely on the partial defence to reduce his liability to manslaughter.

Question 30

How is a ‘person of the same age and sex’ evaluated under loss of control?

Answer 30

The third element assesses whether a person of the same age and sex as the defendant, with a normal degree of tolerance and self-restraint, might have reacted similarly i.e., a normal person.

This primarily objective test maintains societal standards of behaviour while providing a partial defence for those who lose control in specific circumstances.

Example: Nyofi, a 25-year-old woman, fatally stabs her partner Marnie after being taunted about her African heritage and her sexual orientation. Nyofi could rely on the partial defence if it’s shown that a 25-year-old woman, in her circumstances, might have reacted similarly.

Question 31

When is addiction considered in the partial defence of loss of control?

Answer 31

D’s drug or alcohol addiction can be taken into account in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction.

If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober, Asmelash.

Question 32

Summary - What are the key elements required for the partial defence of loss of control under the Criminal Justice Act 2009?

Answer 32

The defendant must actually lose control.

The loss of self-control must be attributable to a qualifying trigger:
i. The defendant feared serious violence from the victim against either the defendant or another identified person; and/or
ii. Something was said or done that constituted circumstances of an extremely grave character, causing the defendant to have a justifiable sense of being seriously wronged.

Sexual infidelity cannot be relied upon on its own as a qualifying trigger but can be considered with other factors. Its mere presence does not prevent reliance on the defence where other qualifying triggers exist.

It must be shown that a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint, might have reacted in the same or a similar way in the circumstances.

Question 33

Summary - How does the sufficiency of evidence affect the presentation of the loss of control defence to the jury?

Answer 33

Under section 54(5) of the Criminal Justice Act 2009, the defence of loss of control can only be presented to the jury if there is sufficient evidence that, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.

At the conclusion of the evidence, the trial judge will assess whether enough evidence has been raised regarding all components of the defence. If any element is missing, the partial defence will not apply, and the jury will have no involvement at this stage.

In R v Jewell, the defendant’s mere assertion of losing control was insufficient for the jury to conclude that the defence applied, leading to a conviction for murder.

Other circumstances where the judge may remove the partial defence from jury consideration include deaths due to:
(a) A baby’s persistent crying
(b) So-called ‘honour killings’
(c) A conditional threat to prevent the defendant from seeing their children unless they agreed to the victim’s divorce settlement terms.