Criminal Law 3 - Murder and Defences

Question 1

Murder and the Partial Defences

Answer 1

-

Question 2

Actus reus of homicide

Answer 2

Unlawfully causes the death of the victim.

‘Unlawful’

‘Victim’ ‘ - human being.

As soon as a baby is born and has existence independent of the mother it is protect.
Time of death not whether injury happened in the womb.

‘Causes’ - usual causation rules.

Question 3

Sentence?

Answer 3

Mandatory life

Question 4

Definition ?

Answer 4

The unlawful killing of a reasonable creature in being under the Queen’s (or King’s) peace with malice aforethought

Question 5

Actus Reus

Answer 5

Causes the death of a human being (in times of peace).

Question 6

Mens rea

Answer 6

Intention either to kill or cause grievous bodily harm

(Specific intent).

GBH? - really serious harm

Can be :

Direct intent : D’s aim or purpose

Indirect or oblique intent - death or serious harm is not the D’s primary aim but is a virtually certain consequence of their actions and D appreciates this.

Question 7

Difference between manslaughter and murder?

Answer 7

Judge has discretion in sentencing, no mandatory life sentence.

Question 8

Voluntary Manslaughter

Answer 8

Elements of murder must first be proved.

Three situations :
a) diminished responsibility
b) loss of control
c) suicide pact

Question 9

Actus and mens rea?

Answer 9

Same as for murder.

Prosecution must first prove both elements.

Question 10

Diminished responsibility

Answer 10

Statutory defence - S2 Homicides Act 1957
Amended by s52 of the CJA 2009.

Four elements to be proved :
a) an abnormality of mental functioning
b) arose from a recognised medical condition: and
c) substantially impaired the defendant’s ability to understand the nature of their conduct and / or from a rational judgement and / or exercise self-control and
d) provides an explanation for the D’s act or omission in doing the killing..

Standard of proof switches to D on the balance of probabilities.
(more likely than not).

Question 11

a) an abnormality of mental functioning

b) Arose from a medically recognised medical condition.

Answer 11

jury will make decision after hearing expert medical evidence.

Examples - depression, schizophrenia, PTSD
Diabetes, alcohol dependancy syndrome, epilepsy

Question 12

Intoxication ?

Answer 12

An offender who voluntarily takes alcohol or drugs is not excused from responsibility.

Alcohol dependancy syndrome - jury should focus solely on effect of alcohol consumed as a result of this and not voluntarily. Expert evidence most likely required.

Question 13

Substantial impairment of the defendant’s ability

Answer 13

Must demonstrate that this impaired their ability to do one of the three things :
a) to understand the nature of their conduct
b) form a rational judgement
c) exercise self control

‘Substantial’ - question of fact for the jury.

Question 14

Provides an explanation for the D’s acts or omissions in killing

Answer 14

Must establish causal link between D’s medical condition and their behaviour.

Consider extent to which D is answerable for their behaviour in light of the state of mind and ability to control their physical actions.

Question 15

Loss of control

Answer 15

Again reduces to voluntary manslaughter

S54 CJA 2009 ;
a) D must lose self-control
b) the loss of control must have a qualifying trigger and
c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint might have reacted in the same or in a similar way as D did.

Only an evidential burden.

Burden revert back to P to disprove loss of control beyond a reasonable doubt.

Question 16

Loss of self-control

Answer 16

Question of fact subjectively assessed (as to loss of self-control).

R v Jewell (2004) - loss of the ability to act in accordance with considered judgement or a loss of normal powers of reasoning.

No need to be sudden.

Domestic violence context (building up over time) not excluded.

Could be a ‘snap’ or a cumulation of events.

Question 17

Considered desire for revenge

Answer 17

Defence will not apply where D acted in a considered desire for revenge.

Help determine :
D arms themselves with a weapon
Evidence of planning
Significant delay between the provoking words or conduct and the killing.

Question 18

Jury will assess all evidence. A delay may weaken the defence but it still may be worthwhile.

Question 19

Qualifying trigger

Answer 19

Loss of result must be result of one or both.

Fear trigger (s55 (3))- attributable to D’s fear of serious violence from the victim against the D or another identified person.

D’s fear of serious violence is subjectively assessed. Even if not reasonable jury must be convinced it is genuine.

Must be from the victim against the D or another identified person rather than a more general fear.

Anger trigger s55(4) -
loss of control was attributable to things said or done that amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged.

D’s sense of being wronged is an objective question determined initially by the judge who must decide whether a properly directed jury could reasonably conclude that it was.

Sexual infidelity -
the fact that a thing done or said constituted sexual infidelity is to be disregarded (s55 (6) (c)).

If ‘only provocation’ must be excluded. (R v Clinton 2012).
However not subject to a blanket exclusion.

Where other factors exist it may also be taken into account in assessing whether things done or said amounted to circumstances of an extremely grave character and gave the D a justifiable sense of being seriously wronged.
It can be taken into account in the third component of the defence in examine whether 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.

Question 20

Similar reaction of a person of the same age and sex.

Answer 20

Objective test.

S54 (1)(c) CJA 2009 -
a person of D’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same or a similar way to D.

‘Circumstances’ - all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint.

If D short-tempered, will not be able to rely on it.

Question 21

Sufficiency of evidence

Answer 21

Loss of control can only be presented to the jury is there is sufficient evidence that :
‘ in the opinion of the trial judge, a jury properly directed, could reasonably conclude that the defence might apply’.

Judge intervened where deaths were in response to :
baby’s persistent crying
honour killings
conditional threat to prevent D from being his children unless agreed to divorce settlement terms. vf

Question 22

Involuntary Manslaughter

Answer 22

-

Question 23

Involuntary Manslaughter

Answer 23

Has the required AR but not the MR.

Question 24

Unlawful act manslaughter

Answer 24

AR -
D must :
do an unlawful act, which ;
is dangerous : and
causes the victims death

MR -
of the unlawful act.

Question 25

Unlawful act

Answer 25

Crime with MR of intent or recklessness. Cannot be a crime of negligence.

Must be some form of positive act.

R v Lamb (1976) - playing with gun ‘playing a game’ was not an unlawful act.

Question 26

Dangerous

Answer 26

Question of fact for the jury.

R v Church (1966) - all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm … albeit not serious harm.

Objective test (reasonable person).

They are deemed to have the knowledge that the defendant had or should have had at the time.

If certain person vulnerable - would they be expected to know of that illness / vulnerability ?

Question 27

Causes death

Answer 27

Factual and legal.

Also think novus actus interveniens.

Question 28

MR

Answer 28

Same as that of the unlawful act.

Question 29

Gross negligence manslaughter

Answer 29

Court must be satisfied that :

D owed the victim a duty of care

D breached that duty

Breach caused the death of the victim

D’s conduct was grossly negligent

Question 30

Duty of care

Answer 30

Established duty situations, if not court decides.

Occupier and visitor etc…

Where existence of duty is not clear the judge must determine whether there is any evidence that is capable of establishing one. If not cannot proceed. If there is evidence question for the jury.

Question 31

Breach of duty

Answer 31

Omissions - can be done by omission or positive act.

No general duty to act unless : special relationship, voluntary assumption of responsibility, contractual or statutory duty and duty to avert danger created by D.

Prosecution must prove breach.

D will be in breach if conduct falls below that to be expected of the reasonable person.

If special knowledge, expected to me the standard of care of a reasonable person with that knowledge.
(e.g. doctors).

Question 32

Causes death

Answer 32

Usual causation rules apply.

Question 33

Gross negligence

Answer 33

Must be grossly negligent.

‘Sufficiently bad as to justify the law imposing a criminal penalty’

‘Went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime’.
R v Bateman (1925)

Question for the jury.

Question 34

Risk of death

Answer 34

There must be a risk of death arising from the gross negligence.

‘having regard to the risk of death involved, the conduct of D was so bad in all the circumstances as to amount (in the jury’s) judgement to a criminal act or omission ‘
R v Adomako (1995).