Crim: w4-5 - HOMICIDE Flashcards
What are the two central homicide offences?
- Murder
2. Culpable homicide
What is the shared actus reus of all homicide offences?
Causing another’s death
What is the two kinds of mens rea for murder?
- Intention to kill
2. wicked recklessness
What case complicated the simple ‘intention to kill’ mens rea with the suggestion that ‘wicked intention was required?
Drury v HM Adv
- suggested murder requires ‘wicked’ intention to kill.
- Full bench: binding decision
- Did not explain what was meant by wicked in this context
How has ‘wicked intention’(Drury) been understood since? (case)
Lieser v HM Adv
- acting in self-defence means no wickedness
- Drury has not changed the law - intention to kill is sufficient mens rea but you may have a defence if not wicked.
What are the 2 essential elements of wicked recklessness?
- Intention to cause injury
2. wicked disregard of or indifference to possible fatal consequences. (oblique intention)
What is oblique intention?
Harm foreseeable but not the purpose of act
What happened in HM Adv v Purcell?
HM Adv v Purcell
- driver recklessly killed child crossing road
- initially accused of murder
HC held: could not be murder, because accused did not intend to harm child
- no ‘wicked recklessness’
How did Petto v HM Adv further develop Purcell?
Petto v HM Adv
- murdered flatmate and set fire to groundfloor flat - killing neighbour above.
- Following Purcell, accused attempted to argue not guilty.
Held: although the purpose was not to kill neighbour, accused would have known death/injury would be caused by actions. He still intended to start fore (oblique intention)
pre purcell>
???
How does Voluntary Culpable Homicide relate to Murder?
Culpable homicide is a partial defence to murder.
It covers a range of conduct where the accused lacks the culpability for murder.
What are the two partial defences to murder under Voluntary Culpable Homicide?
- Diminished Responsibility
2. Provocation
Are provocation and diminished responsibility unique to murder?
Yes, although they may be mitigating factors in other cases.
What do the two partial defences to murder result in?
conviction for a lesser offence (culpable homicide), not full acquittal.
Where can you find the defence of diminished responsibility?
Criminal Procedure (Scotland) Act 1995 s. 51B(1)
“ if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.”
What 2 requirements are there for diminished responsibility?
- Abnormality of mind
- Substantial Impairment
The abnormality of mind must have substantially impaired the accused’s ability to ‘determine or control’ their conduct.
Which case overhauled the requirement for diminished responsibility and what did it say?
Galbraith v HM Adv
* Diminished responsibility requires an ‘abnormality of the mind’ that must be recognised by a relevant profession - need not be a mental illness.
Which case stated that a depressive episode may count as diminished responsibility?
Gordon v HM Advocate
Who makes the judgement as to whether the criteria for diminished responsibility is fulfilled?
The jury
2 key differences in the English legislation on diminished responsibility?
- Eng: Includes impairments of other incapacities.
(scots only applies to impairments to capacity to determine or control conduct) - Eng: Applies where the abnormality causes the conduct.
What does the partial defence of provocation mean?
That the accused is less culpable where self-control is diminished by emotional response to a triggering act.
What case laid down the requirements for provocation?
Drury v HM Adv
Provocation requires that the accused is provoked to los self control by either:
- an assault
- sexual infidelity
In which case did 2 men continue to harm another long after he was a threat? (provocation by assault)
Singleton v HM Adv
* 2 men had a fight with another and continued to harm him long after he was a threat.
Held: murder conviction upheld - no defence.
If the accused is provoked to lose self-control - the retaliation must be:
proportionate to the provoking act
What happened in Thomson v HM Adv?
Thomson v HM Adv
- Business-partner snapped and stabbed victim after victim restrained him in argument.
- No defence: reaction of stabbing was disproportionate to the restraint.
What happened in Gillon v HM Adv?
Gillon v HM Adv
- Accused hit victim with a spade, after victim had hit im first.
- Self-defence plea failed: disproportionate response since victim was no longer a threat.
What is the only exception to the rule that provocation requires assault?
Sexual Infidelity.
Which case said that an admission of adultery counted as well as an act of adultery?
HM Adv v Hill
* Husband killed wife and lover
Provocation Defence upheld: even though he did not ‘see’ the act.
Does the proportionately test apply to sexual infidelity?
No - Drury makes this clear.
Which case showed that the sexual infidelity defence applied to any relationship where infidelity is expected?
Mckay v HM Adv
* not just marriage
Also: McKean
* gay couples too
What is the test for sexual infidelity (provocation defence)?
Whether the ordinary person would have acted in the same way.
Does provocation need to be immediate?
Yes - requires that the accused’s loss of control followed immediately from the provocation.
*Thomson
Why is the immediacy requirement in provocation an issue?
Sexist - privileges those who react in the heat of the moment (men) as oppose to female victims of domestic abuse who eventually snap.
In what 4 key ways have england reformed provocation?
Coroners and Justice act 2009, s 54-44
- Added ‘qualifying triggers’ of
- fear of serious violence
- justifiable sense of being seriously wronged - Excludes sexual infidelity
- scrapped immediacy requirement
- Test: person of normal tolerance.
What is involuntary culpable homicide?
Unlawful killings where the accused lacks the mens rea for murder.
What are the 2 types of Involuntary Culpable Homicide?
- Unlawful act - death caused by another criminal act.
2. Lawful act - death caused recklessly
What unlawful act (causing death) can be culpable homicide without needing to prove any further mens rea?
Assault
When assault is combined with the thin skull rule, culpable homicide has very broad scope - as was seen in ____?
Bird
* thin skull rule - no defence she was sensitive.
What happened in Burns v HM Adv?
Burns v HM Adv
- one-punch kill caused hemorrhage.
- could not appeal but was given non-custodial sentence.
Would fire-rasing be a relevant unlawful act for involuntary culpable homicide? (case)
Yes
Mathieson v HM Adv
- set fire to paint cans - fumes killed elderly residents.
- judge directed jury: if they deemed offence of fire-raising caused the deaths there was the unlawful act for culpable homicide.
Is it clear if theft could be an unlawful act for culpable homicide?
Unclear.
Lourie v HM Adv
* Accused’s conviction of culpable homicide when he committed theft was quashed because of causation - left open whether theft could be culpable homicide.
Which case showed that supply of drugs could not be an unlawful act culpable homicide?
MacAngus
* drugs supply not relevant unlawful act for CH.
Someone may still be liable for culpable homicide even if the act was lawful
What is the required mens rea?
Usually - beyond negligence.
Transco
‘gross negligence’ (means recklessness)
Where can driving homicide offences be found?
Common law (Purcell)
+
Statute: Road Traffic Act 1988
s1: causing death by dangerous driving.
How is dangerous driving defined in the Road Traffic Act 1988?
2A: ‘far below what would be expected of a competent and careful driver’.
What is the issue with 3ZB: driving whilst unlicensed, disqualified or uninsured?
someone could be held liable for killing another when it was not actually their fault.
R v Hughes?
R v Hughes
- collision between unlicensed driver (D) and another driver (V) high on heroin (died)
- at scene police held V liable but then tried to hold D liable because he was not insured.
held: must be a minimum amount of fault: parliament could not have intended innocent party liable.
Which Scottish case confirmed R v Hughes?
Stewart v HM Adv
Why was it previously difficult to hold corporations criminally responsible for killings due to negligence?
Because the law had to find and individual in the company to blame.
What statute covers corporate homicide?
Corporate Homicide Act 2007, s1
What are the 4 requirements for corporate homicide according to the 2007 act?
- Organisation must have owed Duty of care to victim.
- Must have been a gross breach of that duty of care.
- Breach must have caused victims death.
- Breach must have resulted from the way the organisation’s activities were managed.
