Chapter 5 - Murder and the Partial Defences

Question 1

How is the term homicide used in English law, and what offences does it encompass?

Answer 1

Although not an actual offence, homicide is a generic term for unlawful killings in English law, encompassing murder, manslaughter (voluntary, unlawful act, and gross negligence), corporate manslaughter, and causing death by dangerous or careless driving.

Question 2

How are homicide offences classified in England and Wales?

Answer 2

The most serious offence is murder, followed by voluntary manslaughter, unlawful act manslaughter, and gross negligence manslaughter.

Question 3

What common element must be established in all homicide cases?

Answer 3

The actus reus of homicide requires that the defendant caused the death of a human being.

Question 4

Under what condition will a victim be considered a human being for the purposes of homicide?

Answer 4

The victim must be a human being, and so the question is whether a foetus is a human being. If it is, then abortion is also murder, so clearly it is not homocide to kill a child in the womb.

Question 5

What is the case authority regarding a foetus in the context of homicide?

Answer 5

In R v Poulton (1832), the court held that for the child to be given the protection of the law of homicide, the child must be wholly expelled from the mother’s body, be alive, have independent circulation, and have drawn breath after birth.

Question 6

What was the key issue in Re A (Children) (Conjoined Twins) [2000] regarding homicide?

Answer 6

The court had to decide whether the weaker twin, Mary, was a human being. The argument, that Mary was not a separate person because of her dependence on Jodie, was rejected, and both twins were considered alive and separate individuals for legal purposes.

Question 7

How did the Court of Appeal rule regarding Mary’s status as a human being in Re A (Children) (Conjoined Twins)?

Answer 7

The court ruled that Mary, though dependent on Jodie, had been born and had an existence independent of her mother, and was thus a human being for legal purposes.

Question 8

Can a person be liable for homicide if they harm an unborn child, and the child later dies after being born?

Answer 8

Yes, as long as the child is born alive and has an existence independent of the mother. The relevant factor for homicide liability is the** time of death, not the time of injury**

Question 9

In the case where Tuah poisons a pregnant Nazra intending to kill the unborn child, and the child dies two days after birth, what is Tuah liable for?

Answer 9

Tuah is liable for homicide of the baby because the child was born alive and died as a result of the poisoning, even though the injury occurred in the womb.

Question 10

What were the facts and decision in Attorney-General’s Reference (No 3 of 1994) regarding an injury to a foetus?

Answer 10

• The defendant stabbed his pregnant girlfriend, injuring the foetus. The child was born prematurely and died 120 days later.
• The House of Lords held that murder could not be committed in such circumstances, but the defendant could be liable for unlawful act manslaughter.
• Reasoning was that any mens rea the defendant had in relation to the mother couldn’t be transferred to unborn foetus.

Question 11

Why might the moment of death be a debated point in homicide cases?

Answer 11

Due to medical advances, there could be differing opinions on whether a person dies when they stop breathing, are brain-dead, or if they are being kept alive by a life support machine.

Question 12

What were the facts and ruling in R v Malcherek and Steel [1981] regarding liability after life support withdrawal?

Answer 12

The defendant assaulted the victim, causing brain damage. After the victim was declared brain-dead, doctors switched off life support.
* Defendant tried to argue it was the doctors who had caused the death by turning off the machine
* The Court of Appeal ruled that the defendant was still liable for the death because their actions were a substantial cause of the victim’s death.

Question 13

According to R v Malcherek and Steel [1981], what is the generally accepted legal definition of death?

Answer 13

The legal definition of death is the irreversible death of the brain stem, which controls basic bodily functions like breathing.
* Even if mechanical means are keeping the lungs and blood circulation going, the body is considered dead once brain stem activity has ceased.

Question 14

Can a defendant argue that doctors caused the death by switching off a life support machine?

Answer 14

No, the perpetrator of the injuries remains liable for the death, even if the final act of switching off the life support is done by medical staff. The defendant’s act must be an operating and substantial cause of death.

Question 15

What constitutes ‘unlawful’ homicide?

Answer 15

Unlawful homicide occurs when the victim’s death is caused without legal justification.
* For example, if a police officer shoots a terrorist to prevent a crime, the killing is lawful and would not be considered homicide.

Question 16

What must be established regarding causation in all homicide offences?

Answer 16

The prosecution must prove that the defendant was both the factual and legal cause of the victim’s death. This is determined by the jury using the standard rules of causation.

Question 17

Is murder a common law or statutory offence? and how did Edward Coke define murder?

Answer 17

• It is a common law offence
• Coke defined it as “The unlawful killing of a reasonable creature in being under the Queen’s peace, with malice afterthought”.

Question 18

What is the sentence for murder?

Answer 18

• Mandatory life sentence.
• However, Judge decides a minimum term that a defendant must serve and then if deemed no longer a threat to society, they’ll be released.

Question 19

What constitutes the actus reus of murder?

Answer 19

• The actus reus of murder requires the defendant to cause the death of a human being, under the Queen’s peace.
• Killing an enemy combatant in war would be a defense to a charge of murder as it’s not under the Queen/King’s peace.

Question 20

What is the mens rea of murder, and why is the term “malice aforethought” misleading?

Answer 20

• The mens rea for murder is an intention to kill or intention to cause grievous bodily harm (R v Moloney [1985]). Recklesness will not suffice as the mens rea, and it is an entirely subjective test as to whether the defendant intended to kill/cause GBH.
• The term “malice aforethought” is misleading because mercy killings are thought to be benevolent afterthought, but would still be guilty of murder (R v Inglis [2011]). Also, in non-fatal offences against the person, “malice” is defined as “intentional or reckless”.

Question 21

What are the two types of intention in murder cases?

Answer 21

1. Direct intention - where the defendant desires the outcome, or is there aim, purpose or goal. (R v Moloney [1985]).
2. Indirect intention - where the defendant’s primary aim or desire was NOT murder, but they foresaw the consequence as virtually certain, even if it was not their primary aim (R v Woollin [1999]).

Question 22

In the case where Zoe and Yvonne plant an incendiary device in Frank’s house, how does the court establish their intention regarding Frank’s death?

Answer 22

• Zoe had direct intention to kill Frank because she desired that result.
• Yvonne, however, only intended to cause criminal damage but could be found to have indirect intention if she foresaw Frank’s death or serious injury as a virtually certain consequence of her actions.

Question 23

Anton deliberately breaks Sunita’s arm, but due to a rare disorder, Sunita dies. Why is Anton liable for murder?

Answer 23

Anton is liable for murder because an intention to cause grievous bodily harm (GBH) is sufficient mens rea for murder, even if he did not intend to kill. Intention to cause serious harm is enough for a murder charge.

Question 24

Summarise the AR, MR of murder

Answer 24

• AR: unlawful killing of a human being (not a foetus) under the Queen’s (or King’s) peace.
• MR: intention to kill or cause grievous bodily harm (GBH). It is a subjective test focused on whether the defendant had the relevant intention.

Question 25

What is manslaughter, and why might a defendant be convicted of it rather than murder?

Answer 25

Manslaughter is a form of homicide where the defendant has killed someone, but their culpability is less than that for murder.
* Defendants may be convicted of manslaughter rather than murder when there are mitigating circumstances (e.g., diminished responsibility, loss of control, or a suicide pact) that reduce their moral blameworthiness.

Question 26

What are the three types of situations where a person with the necessary mens rea for murder might be convicted of voluntary manslaughter?

Answer 26

1. Diminished responsibility
2. Loss of control
3. Suicide pact

Question 27

What is the legal principle established in R v Ahluwalia (1993), where the defendant killed her abusive husband?

Answer 27

R v Ahluwalia (1993) is significant as it demonstrates the partial defence of loss of control due to long-term abuse. Ahluwalia’s murder conviction was reduced to manslaughter because she was reacting to years of domestic violence.

Question 28

What legal issue was raised in R v Martin (Anthony) [2002], where the defendant shot a fleeing burglar?

Answer 28

In R v Martin (Anthony) [2002], the court held that Martin was morally culpable for the killing because the burglar was fleeing at the time of the shooting.
* His claim of self-defence was rejected, and he was convicted of manslaughter instead of murder.

Question 29

Why are the defences to murder in voluntary manslaughter called “partial defences”?

Answer 29

Because, even if successful, the defendant is still guilty of a criminal offence, voluntary manslaughter.
* These defences also apply only to murder.

Question 30

What is the impact of being convicted of voluntary manslaughter instead of murder on sentencing?

Answer 30

There is no mandatory life sentence, and the judge has discretion to consider the circumstances. A less severe penalty than life imprisonment may be imposed.

Question 31

How were the partial defences of diminished responsibility and provocation changed by the Coroners and Justice Act 2009?

Answer 31

• Before October 2010, diminished responsibility and provocation were covered by ss 2 and 3 of the Homicide Act 1957.
• The Coroners and Justice Act 2009 updated these, abolishing provocation and replacing it with loss of control, and updating diminished responsibility under s 52(1) CJA 2009.

Question 32

What is the rationale behind the partial defence of diminished responsibility in murder cases?

Answer 32

Although the defendant has the actus reus and mens rea of murder, they may have a recognised medical condition that offers a partial excuse, but does not qualify for the full legal defence of insanity.

Question 33

Who bears the burden of proof in cases involving the defence of diminished responsibility?

Answer 33

Once prosecution has proved AR & MR beyond reasonable doubt, the defendant bears the burden of proving diminished responsibility, but only on the balance of probabilities (more than 50%), rather than the prosecution’s usual burden of proof beyond a reasonable doubt.

Question 34

What statute defines the partial defence of diminished responsibility?

Answer 34

Section 52(1) of the Coroners and Justice Act 2009, incorporated into s 2(1) of the Homicide Act 1957.

Question 35

What are the four elements that must be established for a successful defence of diminished responsibility?

Answer 35

A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from
1. an 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 conduct, and/or form a rational judgement, and/or exercise self-control; and
4. provides an explanation for the defendant’s acts or omissions in the killing

Question 36

What does the term “abnormality of mental functioning” mean?

Answer 36

There is no further definition in the Act as to what this actually means, although it tends to be interpreted widely. It falls to the jury to decide, having heard expert medical evidence.

Question 37

What phrase did the term “abnormality of mental functioning” replace?

Answer 37

It replaced “abnormality of mind” which was contained in s 2 of the Homicide Act of 1957.

Question 38

What is a “recognized medical condition” for diminished responsibility?

Answer 38

The abnormality of mental functioning must arise from a ‘recognised medical condition’. This phrase replaced the wording under s 2 of the Homicide Act of 1957 which stated that the abnormality of mind had to arise from ‘a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury’.

Question 39

What classification systems can medical experts use to give evidence of recognized medical conditions?

Answer 39

Accepted classification systems encompassing recognized medical conditions (whether physical, psychiatric, or psychological) such as the World Health Organization’s international classification of diseases (ICD10).

Question 40

Can conditions not included in the accepted classificatory lists still be deemed recognized medical conditions for diminished responsibility?

Answer 40

Yes, conditions not included in the lists can still be deemed recognized medical conditions. A recognized specialist can give evidence about these conditions.

Question 41

What are examples of recognized medical conditions?

Answer 41

Schizophrenia, phobic anxiety disorders, bipolar affective disorder, depression, battered person syndrome, diabetes, and epilepsy.

Question 42

Can alcohol dependence syndrome be considered a recognized medical condition for diminished responsibility?

Answer 42

Yes, alcohol dependence syndrome is a recognized medical condition according to the World Health Organization’s international classification of diseases (ICD10). This classification includes chronic alcoholism, dipsomania, and drug addiction.

Question 43

What happened in the case of R v Blackman?

Answer 43

The defendant, Blackman, was a member of the Royal Marines who shot and killed a wounded rebel. He was originally convicted of murder, but the conviction was overturned on appeal because psychiatric evaluations suggested that he was suffering from an adjustment disorder at the time.

Question 44

Can a defendant rely on diminished responsibility if they were intoxicated at the time of the offense?

Answer 44

It depends on the circumstances. This was considered by the House of Lords in the case of R v Dietschmann.

Question 45

What happened in the case of R v Dietschmann?

Answer 45

The defendant, Dietschmann, drank heavily and was prescribed antidepressants and sleeping pills. He got in a fight with the victim while drinking with friends, and the victim was killed. The defendant raised the defense of diminished responsibility.

Question 46

What was the outcome of the R v Dietschmann case?

Answer 46

The House of Lords said that s 2 of the Homicide Act 1957 did not require the abnormality of mind to be the sole cause of the defendant’s acts. The question is whether the defendant was suffering from an abnormality of mind at the time of the killing which substantially impaired their mental responsibility.

Question 47

What was confirmed in the case of R v Wood?

Answer 47

The Court of Appeal confirmed that the defense of diminished responsibility was not precluded by the mere fact that the defendant consumed alcohol voluntarily before committing the fatal act.

Question 48

What must the jury focus on when deciding whether a defendant’s mental responsibility for the killing was substantially impaired as a result of their alcoholism?

Answer 48

The jury should focus exclusively on the effect of the alcohol consumed as a direct result of the defendant’s illness and ignore the effect of any alcohol consumed voluntarily.

Question 49

What did the Court of Appeal determine in the case of R v Dowds?

Answer 49

The Court of Appeal confirmed that voluntary acute intoxication which is uncomplicated by any alcoholism or dependence is not capable of being relied upon to found diminished responsibility.

Question 50

If a defendant commits murder while intoxicated but does not suffer from alcoholism or a dependency-related condition, can they rely on diminished responsibility?

Answer 50

No

Question 51

What must the jury focus on if a defendant has alcohol dependence syndrome but is also intoxicated at the time of the murder?

Answer 51

The jury must focus exclusively on the effect of the alcohol consumed as a result of their illness and disregard the effect of any alcohol consumed voluntarily.

Question 52

What must be “substantially impaired” in the context of diminished responsibility?

Answer 52

The defendant’s ability to do one or more of the things set out in s 2(1A) of the Homicide Act 1957 must be substantially impaired. The case of R v Lloyd, which is based on the ‘old’ law, found that the impairment must be ‘more than trivial or minimal’.

Question 53

What did the Supreme Court conclude in R v Golds about the meaning of “substantial” impairment?

Answer 53

The Supreme Court concluded that “substantial” meant ‘important or weighty’. There must be a weighty impairment of the defendant’s abilities before the offense of murder may be reduced to the lesser offense of manslaughter.

Question 54

Under the current definition of diminished responsibility, what must be substantially impaired?

Answer 54

The defendant’s ability to understand the nature of their conduct, and/or to form a rational judgment, and/or to exercise self-control must be substantially impaired.

Question 55

What is an example of a defendant not understanding the nature of their conduct?

Answer 55

Stefan stabs Perry in the heart believing that he will come back to life like victims do in the violent computer games that he plays.

Question 56

What is an example of a defendant being unable to form a rational judgment?

Answer 56

Stefan is obsessed with the false belief that the security services want to question him about terrorist charges. Stefan shoots the postman, believing he is an MI5 agent.

Question 57

What is an example of a defendant lacking the ability to exercise self-control?

Answer 57

Stefan hits his neighbor in the face with a hammer after his neighbor plays music too loudly.

Question 58

Why is a causal link required between the defendant’s abnormality of mind and their act in killing?

Answer 58

A causal link is required so that the partial defense cannot succeed in cases when the defendant’s mental condition made no difference to their behavior.

Question 59

For the defense of diminished responsibility to succeed, what must the defendant show?

Answer 59

The defendant must show that the homicide would not have occurred if the mental abnormality, which amounts to a recognized medical condition, had not been present.

Question 60

Can a defendant rely on diminished responsibility if they have a paranoid personality disorder but kill the victim in a fit of rage unassociated with their personality disorder?

Answer 60

No, they cannot rely on diminished responsibility despite their abnormality of mental functioning arising from a recognized medical condition.

Question 61

When determining the question of whether an abnormality of mental functioning provides an explanation for the killing, what will be considered?

Answer 61

It will involve considering the extent to which the defendant is answerable for their behavior in light of their state of mind and ability to control their physical actions.

Question 62

Is diminished responsibility a complete defense to murder?

Answer 62

Diminished responsibility is not a complete defense; it is a partial defense to murder. If successfully proved by the defendant on the balance of probabilities, it reduces murder to voluntary manslaughter.

Question 63

What is the defense of insanity?

Answer 63

Insanity is a defense that a defendant may raise in relation to any crime. It requires the defendant to prove that they were suffering from a ‘disease of the mind’ causing a ‘defect in reason’ so that either they did not know the ‘nature and quality’ of their act, or they did not know their act was legally and morally wrong.

Question 64

Is insanity a complete defense?

Answer 64

Unlike diminished responsibility, insanity is a complete defense, resulting in a special verdict of ‘not guilty by reason of insanity’.

Question 65

What is an example of a defendant successfully pleading the defense of insanity?

Answer 65

Michael Abram, who attacked former Beatle member George Harrison in his own home in 1999, successfully pleaded insanity as a defense to an attempted murder charge.

Question 66

What is the rationale behind the defense of loss of control?

Answer 66

It is an acceptance by the law that everyone has a breaking point. Circumstances may arise that push people so far they lose their self-control. These defendants are considered less morally culpable than deliberate murderers and, if they fulfill the required conditions, will be liable for voluntary manslaughter.

Question 67

What are some situations that could lead to a defendant losing control?

Answer 67

Reactions to racial taunts, ridiculing physical disabilities, insults to a family member, or finding a partner having sex with someone else.

Question 68

What is an example of a situation where loss of control would not be considered a defense?

Answer 68

A man taking offense to his girlfriend smiling at another passenger on the train and then losing his temper so badly that he beats her to death. The law has introduced an objective element into the defense.

Question 69

What were the two tests that comprised the defense of provocation under s 3 of the Homicide Act 1957?

Answer 69

1. Was the defendant provoked by things said or done (or both) to suddenly and temporarily lose their self-control? (Subjective test)
2. Would the provocation have made a reasonable person lose their self-control and do as the defendant did? (Objective test).

Question 70

Why did the government decide to abolish the defense of provocation?

Answer 70

The government argued that the defense of provocation was too generous in cases where a defendant killed in anger, and that the law relating to the objective test, in particular, was too complex and uncertain.

Question 71

What was the outcome of DPP v Camplin?

Answer 71

ollowing this case, it was agreed that the reasonable person is the same sex and age as the defendant.

Question 72

What was the outcome of R v Smith?

Answer 72

The majority decision of the House of Lords was that the jury could take into account any of the characteristics of the defendant it felt was just to do so when considering how the ‘reasonable person’ would have reacted.

Question 73

What was the outcome of the Attorney-General for Jersey v Holley case?

Answer 73

The majority view was that the defendant’s characteristics could only be taken into account when determining the gravity of the provocation towards the defendant.

Question 74

What is the new defense that replaced provocation?

Answer 74

“Partial defense to murder: loss of control,” found in ss 54 and 55 of the Coroners and Justice Act 2009.

Question 75

What are the three elements of the defense of loss of control?

Answer 75

• a) the defendant must lose self-control;
• b) the loss of control must have a qualifying trigger; and
• c) a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the same circumstances, might have reacted in the same or similar way to the defendant.

Question 76

Describe the burden of proof for loss of control.

Answer 76

Section 54(5) places an evidential burden only on the defendant. If the accused can produce some evidence that raises the defense, the burden will revert back to the prosecution to disprove the loss of control beyond a reasonable doubt.

Question 77

Can a defendant rely on loss of control if they induced the victim’s comments by stealing from them?

Answer 77

Yes. For example, Baxter is caught stealing a laptop computer by Gethan. Gethan calls Baxter a “thief,” and Baxter loses his temper and kills Gethan. Baxter may rely on the partial defense because he has lost his self-control, and the fact that Baxter induced Gethan’s comments by stealing his laptop is irrelevant.

Question 78

Can a defendant rely on loss of control if they planned the killing?

Answer 78

No. Felipe’s wife, Moira, constantly criticizes him. Felipe decides he can no longer tolerate her behavior but does not want to pay her a divorce settlement. He decides that the next time Moira insults him, he will kill her. Two days later, Felipe strangles Moira to death. Even though a reasonable person may have cracked under the continuous verbal onslaught, Felipe cannot rely on the partial defense because he planned Moira’s death.

Question 79

What is required to determine if a defendant has lost control?

Answer 79

The jury must be satisfied that the defendant lost self-control. Because this issue is subjectively assessed, they must be satisfied that the defendant actually lost self-control. It is not enough that the reasonable person would have done so.

Question 80

What did the court approve as the meaning of loss of control in R v Jewell?

Answer 80

The court approved the meaning of loss of control as a loss of the ability to act ‘in accordance with considered judgment, or a loss of normal powers of reasoning’.

Question 81

Is there a requirement for the defendant to “snap” when determining if they have lost control?

Answer 81

There is no requirement for the defendant to suddenly ‘snap’ so that they are acting, for example, in a fit of rage.

Question 82

Why was Ahluwalia in the case of R v Ahluwalia initially unsuccessful in reducing her criminal liability to manslaughter?

Answer 82

Ahluwalia was initially unsuccessful because, under the test that applied at the time, the loss of control had to be sudden.

Question 83

Why was there a change to the law regarding the requirement of the loss of control to be sudden?

Answer 83

There was a change in the law because of increased understanding of how domestic violence victims react to their abusers.

Question 84

Does a reaction that is a response to a culmination of events that occur over time qualify as a loss of control?

Answer 84

Yes, it may qualify as a loss of control. However, the greater the level of deliberation, the less likely it is that the killing followed a true loss of self-control.

Question 85

Will loss of control apply when the defendant acts out of a considered desire for revenge?

Answer 85

No