C4: Homicide Flashcards
What is the definition of murder?
The unlawful killing of a reasonable person who is in being under the King’s peace and with malice aforethought.
What is different about the sentence for murder?
It is the only offence that carries a mandatory life sentence.
What are the elements of murder?
The elements of murder are now therefore as follows. The defendant must:
- unlawfully;
- kill;
- a living human being;
- within the King’s peace; and
- with malice aforethought.
Which elements of murder are the AR and MR?
- unlawfully; - AR
- kill; - AR
- a living human being; - AR
- within the King’s peace; and - AR
- with malice aforethought. - MR
What are the two things that must be determined for MR of murder to be proven?
The defendant:
(i) must know that the relevant circumstances existed at the time; and
(ii) the killing must be carried out with malice aforethought, that is with an intention to kill or cause GBH.
What relevance does premeditation of murder have on the murder offence?
It is not relevant to the word ‘aforethought’. Just because someone was not premeditated does not mean that it will not be murder. If it is premeditated, the defendant is more culpable of the offence and therefore may have a longer minimal period before parole is considered.
In a murder offence, what does AR of unlawfulness really mean?
It means the defendant does not have a valid defence. It will need to be considered last, after establishing the AR and MR of the offence.
What are the three elements that make up an AR for murder? Give the other elements in the definition of murder as examples.
The conduct element (whether D’s conduct led to the victim’s death, e.g. a positive act or omission)
The circumstance element(s) (whether the victim was a living human being and it was in the King’s peace)
The result element (whether there is a causal link between the conduct and the death)
What is the conduct element for murder?
Whether D’s conduct led to the victim’s death, e.g. a positive act or omission.
What are the circumstance elements for murder?
Whether the victim was a living human being and it was within the King’s peace.
What is the result element for murder?
Whether there is a causal link between the conduct and the death.
If a defendant tries to kill an already dead person, will they be liable for murder? Why?
No, because they are not killing a living human being. All elements of the offence must coincide in time in order for the defendant to be held criminally liable for what happened
According to A-G’s Reference (No. 3 of 1994) [1997], is a foetus classified as a living human being? When will it be classified as a living human being?
No, it is not. Also, it is not murder to kill a child who is ‘being’ born. An existence independent from its mother is required, although the placenta and umbilical cord need not have been expelled from the mother or severed from the child in order for it to be deemed a human being.
Is killing a ‘brain-dead’ person considered murder?
No, because they are not classed as a living human being. See Airedale NHS Trust v Bland [1993], the House of Lords had to determine whether the applicants, that is the doctors who were looking after Bland, could lawfully stop feeding him and therefore allow him to die. The House of Lords acknowledged that if the victim had reached the point of ‘brain death’, then in the eyes of the criminal law he would not be a ‘living human being’. A victim who had not reached that stage though, would be regarded as a ‘living human being’ who can be murdered.
Is it murder to kill someone during action in pursuance of war or an official conflict?
No, because that is not within the King’s peace.
What is the leading case about whether murder is applicable to defendants who believe they are killing outside of the King’s peace?
Adebolajo and Adebowale [2014]. The defendants had both been convicted for the murder, on a London street, of Lee Rigby, a British soldier who had served in Afghanistan. The defendants had waited outside a barracks in London for a suitable victim. When they saw the victim walking down the road and recognised that he was a soldier, they ran him over from behind in a car and then stabbed and hacked him to death with weapons that they had brought with them. Both defendants had converted to Islam, and had become radicalised. Both of them thought that the killing would further their extremist cause. The plan included getting themselves killed by armed officers who would attend the scene so that they would gain martyr status as a result.
On appeal, both defendants sought to argue that the killing was not ‘within the Queen’s peace’, because they honestly believed that they were at war with the Queen, in a people’s struggle against forceful occupation in Afghanistan and Iraq. In dismissing their appeal, it was held that the term ‘within the Queen’s peace’ referred to the status of the victim, not the status of the killer. The victim in this case was not in a state of war with the defendants.
What is the rule around the victim and ‘within the King’s peace’?
The term ‘within the King’s peace’ referred to the status of the victim, not the status of the killer.
What is the exception for soldiers’ fighting abroad to ‘within the King’s peace’?
The importance of this circumstance element lies in the fact that under s9 Offences Against the Person Act 1861, murder and manslaughter committed outside the UK by a British citizen can be tried as if it had been committed here. If it was not for this circumstance element, British soldiers fighting abroad could be charged with murder or manslaughter.
What kind of crime is murder? What does that mean?
It is a ‘result’ crime, which means issues of causation may arise.
What does ‘malice aforethought’ mean?
It is the MR for murder. This simply means that the defendant must intend either death or serious bodily harm, that is GBH, (Cunningham [1982]).
What does malice aforethought NOT mean?
Aforethought does not mean murder requires premeditation on the part of the defendant. Spur of the moment killings can still have the MR of murder.
Malice does not mean the defendant has to hate the victim, many murders are domestic and defendants kill loved ones.
What are the two types of intention that can be used for murder?
Direct intention or oblique intention. In the case of murder, direct intention is whether it was the defendant’s purpose/aim/desire to kill or cause GBH to the victim. If not, it will be whether the defendant obliquely intended to do so.
According to Woollin [1998], when can oblique intention be inferred?
Woollin [1998] stated that an oblique intention can be inferred if:
- the proscribed result was a virtual certainty (this is an objective limb);
- the defendant foresaw the proscribed result as a virtually certain consequence of their conduct (this is a subjective limb); and
- the jury choose to find an intention.
What are the four chances the prosecution has to prove that the defendant had the required MR for murder?
In effect, the prosecution has four chances to prove that the defendant had the required MR:
- there was a direct intention to kill;
- the defendant obliquely intended to kill;
- there was a direct intention to cause GBH; or
- the defendant obliquely intended to cause GBH.
Is duress a defence to murder?
No, it is not.
Is ‘mercy killing’ or euthanasia of a sick person a defence to murder?
No, it is not. See Inglish [2010] where a mother killed her recently-disabled son as a mercy killing. There was no change to the charge, only a change to the minimum term.
What is the difference between ’mercy killing’ or euthanasia and assisted suicide?
Mercy killing/euthanasia should be distinguished from assisted suicide, which occurs where a person does an act capable of assisting or encouraging the suicide or attempted suicide of another person. Assisted suicide is an offence under s2(1) Suicide Act 1961.
What was the courts’ decision in Conway v Secretary of State for Justice [2018] where a man argued that the offence of assisted suicide clashed with his Art 8 ECHR rights (right to private and family life)?
It was held that the right of an individual to decide how and when to end their life was an aspect of the right to respect for private life protected by Art 8 ECHR. s2(1) Suicide Act 1961 clearly and deliberately interfered with those rights. The court declined to adopt the appellant’s scheme, which would be better determined by Parliament.
What is voluntary manslaughter?
Voluntary manslaughter applies where a defendant is charged with murder, but successfully pleads one of the partial defences to murder thereby reducing murder to manslaughter.
What does the ‘voluntary’ of ‘voluntary manslaughter’ mean?
It refers to the fact that the defendant had full MR for murder. It doesn’t have anything to do with the murder being done voluntarily, as if the defendant did not complete the conduct element of the AR voluntarily, then there will be no liability for what happened.
What are the two types of manslaughter and when might they arise?
Voluntary manslaughter: where the defendant has completed the AR and MR of murder and they might be able to successfully rely on one of the three partial defences to murder. If successful, the defendant will be liable for voluntary manslaughter.
Involuntary manslaughter: where the defendant has completed the AR of murder, but lacked the required MR. For instance, the defendant might have completed the AR of murder whilst being reckless as to the possibility of causing GBH to the victim. In this case, the defendant might be liable for involuntary manslaughter.
When can the partial defences to murder be raised?
Only where the defendant is charged with murder. These defences are not available for any other charges, including involuntary manslaughter.
Why are partial defences a way of arguing against the fact that the defendant did not commit the AR or possess the MR for murder?
Because to be tried for murder, the defendant will have the AR and MR for murder. Instead, the defendant is simply arguing that, whilst they are actually guilty of murder, there was something about the killing that makes it partially excusable and therefore less blameworthy. Because the killing is only partially excusable, the defendant only gets the benefit of a partial defence, and is convicted of manslaughter instead.
Where is the loss of self-control defence contained?
ss54 and 55 CorJA 2009 (Coroners and Justice Act)
What are the three points for the definition of the loss of self-control for the partial defence of voluntary manslaughter found in s54(1) CorJA 2009?
‘Where a person (D) kills or is a party to the killing of another (V), D is not to be convicted of murder if:
- D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control;
- the loss of self-control had a qualifying trigger; and
- a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D’.
In order for someone who has completed the AR and MR of murder to be able to successfully raise loss of self-control, which conditions must be met?
- one of the two qualifying triggers applies;
- this caused the defendant to lose self-control;
- this led to an act or omission resulting in the defendant killing or being party to a killing;
- a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and, in the circumstances of the defendant, might have reacted in the same or in a similar way to the defendant; and
- the defendant must not have acted in a considered desire for revenge.
What will happen if the loss of self-control defence is successful?
A successful defence means that the defendant is not convicted of murder, but instead manslaughter (s54(7).
Where is the burden of proof once the evidential burden has been met for loss of self-control?
The burden of proof is on the prosecution to disprove the defence once the evidential burden has been met (s54(5)).
What does s54(6) CorJA 2009 state about trial judges and the loss of self-control defence?
Under s54(6), trial judges are required to undertake a rigorous evaluation of whether the defence of loss of self-control should be left to the jury, and provided that is done, an appeal court will not interfere with their decision.
When dealing with the loss of self-control defence, what should trial judges do?
- They should have the power to leave the defence to the jury, even where the defence case does not raise the defence, as long as the judge feels that the test in s54(6) is satisfied; and
- the judge must decide whether there is ‘sufficient evidence’. As a result, the judge needs to assess the evidence closely and be satisfied that there is sufficient evidence in respect of each of the elements of the defence. If there is insufficient evidence in respect of at least one element of the defence, the judge should not leave the defence to the jury. The judge will have to consider the weight and quality of the evidence in order to reach a conclusion about whether the defence should be put to the jury.
Should a judge explain ss54 and 55 CorJA 2009 to the jury in simple terms?
No, the court said that the language used in ss54 and 55 CorJA 2009 is simple and easy for juries to understand.
What are the two qualifying triggers for the loss of self-control defence in ss55(3) and 55(4) CorJA 2009?
s55(3): where the defendant’s loss of self-control is caused by the defendant’s fear of serious violence from the victim against the defendant or another identified person.
s55(4): where the defendant’s loss of self-control was caused by things done or said which:
(a) constituted circumstances of an extremely grave character; and
(b) caused the defendant to have a justifiable sense of being seriously wronged.
Can the trigger in s55(3) CorJA 2009 (fear of serious violence) be a fear that the victim will use serious violence in the future generally?
No, it cannot. This was originally meant for women who fear violence at the hands of an abusive partner who subsequently kills or where a person overreacts to a fear of serious violence and kills.
Is the ‘fear of serious violence’ trigger in s55(3) CorJA 2009 a subjective or objective test?
It is a subjective test, on whether the defendant fears serious violence - it just has to be genuine, but does not have to be reasonable.
Can a defendant use s55(3) (fear of serious violence) trigger as a defence if the defendant has deliberately incited the fear of violence by something they themselves have said or done in order for them to have the excuse to use violence?
???
If the defendant did instigate the attack, but did not deliberately incite the fear of violence by something they themselves said or did in order for them to have the excuse to use violence, could the loss of self-control trigger still apply?
Yes, it could.
What is the trigger under s55(4) CorJA 2009?
This trigger requires that the things done or said were of an extremely grave character and that the defendant’s feeling of being seriously wronged is justifiable.
Is the ‘grave character/justifiable’ trigger in s55(4) CorJA 2009 a subjective or objective test?
It is an objective test, meaning a reasonable person would have to think that the circumstances are extremely grave and that the defendant had a justifiable sense of being seriously wronged.
Is sexual infidelity a possible basis for a qualifying trigger under s55(4) CorJA 2009?
No, it is not, with one exception. Sexual infidelity in itself does not qualify under s55(4), but if it is mixed up with other facts that were relevant to whether the defendant’s loss of self-control had a qualifying trigger, it is unrealistic and potentially unjust to exclude the sexual infidelity when it was integral to the facts as a whole.
