BPP GDL Study Notes Chapter 5 - Murder II: Loss of Control/Diminished Responsibility

Question 1

What is the actus reus for murder?

Answer 1

• unlawful killing
• reasonable person in being
• under King’s peace

Question 2

What is the mens rea for murder?

Answer 2

• intention to kill

- or cause GBH (R v Vickers)

Question 3

When will the necessary direct intent for murder be found?

Answer 3

• when D’s purpose or objective in acting was death or GBH of victim

Question 4

What may happen if D’s purpose in acting is something other than the death or GBH of the victim? What might happen in court?

Answer 4

• Woollin direction on oblique intent might be given to the jury

Question 5

How does sentencing work with murder?

Answer 5

• mandatory life sentence
• Murder (Abolition of Death Penalty) Act 1965
• judge has no discretion other than recommending a minimum term

Question 6

What two defences arise only in the relation to murder?

Answer 6

• loss of control

- diminished responsibility

Question 7

Where is the authority for loss of control?

Answer 7

• s54(1) Coroners and Justice Act (CJA) 2009

Question 8

How does the test for loss of control work?

Answer 8

D cannot be convicted if:

• Ds acts resulted from a loss of self-control AND
• the loss of self control had a qualifying trigger AND
• a reasonable person of D’s age and sex might have acted the same way in the same circumstances

Question 9

Where does the burden of proof lie for LSC? What kind of a defence is it?

Answer 9

• burden of proof on prosecution to show it did not happen

- only a partial defence

Question 10

What defines loss of self control?

Answer 10

• R v Richens
• doesn’t have to be total loss; D can know what they are doing but cannot restrain themself
• needs more than just losing temper
• need not be sudden

Question 11

Where is the “qualifying trigger” defined?

Answer 11

• s55 CJA 2009

Question 12

What are the possible qualifying triggers?

Answer 12

• loss of self control through fear of serious violence from V against D or another
  OR
• loss of self control due to things said or done in circumstances of an extremely grave nature that caused D to feel a justifiable sense of being seriously wronged.
  OR
• both

Question 13

why might the ‘fear of serious harm’ qualifier have been introduced? Give an example case.

Answer 13

• where D is defending himself but uses unreasonable force to do so
• eg Tony Martin in R v Martin (Anthony)

Question 14

What does “things said or done” mean in the context of s55 CJA 2009

Answer 14

actual events need to have happened. Circumstances are not enough - R v Acott

Question 15

What does”caused D to feel a justifiable sense of being seriously wronged” mean in the context of s55 CJA 2009?

Answer 15

• ‘justifiable’ element is objectively judged
• trigger doesn’t have to be immediate but longer the delay before the act the greater chance D will have had time to consider their actions. R v Ahluwalia

Question 16

When can the defence of LSC not be used?

Answer 16

1) in acts of considered revenge
2) if D created the qualifying trigger as an excuse to use violence himself
3) if the thing “said or done” constituted sexual infidelity

Question 17

What case demonstrates that LSC cannot be used if it stems from an act of considered revenge? What happened?

Answer 17

• R v Ibrams and Gregory

- seven days between last act of bullying and the act in question.

Question 18

Where is the law and case demonstrates that D cannot create the qualifying trigger in order to use violence himself?

Answer 18

• s55 (6) CJA 2009
• R v Johnson: Jury should have decided whether LSC could be applied even though D started the fight that led to the death

Question 19

What three tests changed the law as to the “reasonable man” test for LSC?

Answer 19

• DPP v Camplin
• R v Smith (Morgan James)
• Attorney General for Jersey v Holley

Question 20

What is the current position as to the “reasonable man” test for LSC? From where?

Answer 20

• 54(1)(c) CJA2009
• “all the defendant’s circumstances”
• wholly objective test

Question 21

How will loss of control affect a charge of attempted murder?

Answer 21

From R v Campbell it is unlikely to be a defence to attempted murder

Question 22

What three criteria need to be satisfied for diminished responsibilty to work in relation to murder?

Answer 22

abnormality of mental function which:

• arose from a recognised medical condition and
• which stopped D thinking normally and
• explains D’s actions or omissions

Question 23

How does D’s mental function need to have been affected to consitute diminished responsibility?

Answer 23

ability to:

• understand nature of his actions
• form a rational judgement
• exercise self control

Question 24

What is the effect if a defence of diminished responsibility is successfully argued?

Answer 24

murder charge reduced to manslaughter

Question 25

Where does the definition of an ‘abnormality of mental functioning’come from?

Answer 25

R v Byrne

- a ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’.

Question 26

How wide a definition is “arising from a recognised medical condition”? What kind of things have been accepted?

Answer 26

• very wide
• post-natal depression - R v Reynolds
• alcoholism - R v Tandy

Question 27

How strong a causal link needs to be formed between the abnormality of D’s mental functioning and the killing?

Answer 27

• the abnormality of the mental function need not be the only cause, but a link must be established.
• R v Dietschmann

Question 28

How do courts view Ds with mental abnormality who claim diminished responsibility for actions committed while they were intoxicated?

Answer 28

• R v Dietschmann
• jury must decide if despite drink
  1) he was suffering from a mental abnormality and
  2) this substantially impaired his mental responsiblity for his fatal acts