Criminal Law - Murder

Question 1

Murder Steps

Answer 1

o Title

o State D’s criminal behaviour

o Define the potential offence

o Work through the AR

o Work through the MR

o Do any defences apply?

o Conclude

Question 2

Definition of murder

Answer 2

Murder is defined under the CL as ‘the unlawful killing of a reasonable person in being under the Queen’s peace with malice aforethough’ (Coke)

Question 3

Murder - AR:

Answer 3

1) AR is the unlawful killing of a reasonable person in being under the Queen’s peace (Coke)

 Unlawful: only the killing of soldiers in battle, the death penalty and certain self-defences are considered lawful

 Under the queens peace: i.e. not during a time of war or rebellion. In such situtations, there is no law, so this is incorporated during ‘unlawful’ (R v Adebolajo)

 Reasonable person in being: a perso is someone capable of independent life (R v Poultan – an unborn child is incapable of being murdered)

 Killing: this has a clear element of causation

2) Causation
3) Novus actus intervenes

Question 4

Murder - Causation

Answer 4

Factual causation

• The but for test (R v White) – proof is required that, but for D’s actions. The death of V would not have occured

Legal Causation

• Did the defendants culpable act cause the death? (R v Dalloway)
• Where there are several causes, the defendant does not have to be th sole cause to be guilty, unless there is a novus actus interveniens (R v Benge)

Question 5

Murder - Novus actus interveniens

Answer 5

A new act from the victim, a 3rd party or an act of god, which intervenes in a chain of events started by D to affect the outcome significantly, thus breaking the chain of causation

Examples:

• R v Pagett: convicted of murder when using someone as a human shield in a firefight, because the police fired in self-defence. This was a natural and reasonable reaction, so the chain of causation was unbroken
• R v Blaue: re the ‘thin skull’ rule, D was convicted despite V dying as a result of refusing a blood transfusion, and D not knowing that V was a jehovah’s witness. For the thin skull rule see also R v Holland and R v Hayward
• R v Mackie: re a ‘fright and flight’ act of the victim, is V’s reaction foreseeable? D was convicted of manslaughter
• R v Dear: a possibly deliberate suicidal action by V was held not to break the chain of causation, as the injuries inflicted by D were still an operating and signficiant cause of V’s death
• R v Smith: the original injury was still an ‘operating and substantial’ cause of death even though subsequent medical treatment was negligent

Question 6

Murder - MR

Answer 6

• ‘With malice aforethought’: means intention to kill or cause GBH. GBH is defined as serious or really serious harm (R v Vickers; R v Saunders; DPP v Smith). There is no alternative mens rea of recklessness for murder
• Intention: intention is given its ordinary linguistic meaning by the jury (R v Moloney) of direct aim or purpose (Smith and Hogan’s Criminal Law Textbook)
  
  • NOTE: for murder only, indirect/oblique intent is possible – ask:
    
    • Was death or serious injury a virtual certainty of D’s actions?
    • And did D appreciate this to be the case? (A subjective test) If so, the jury may find that D intended to kill or cause GBH (R v Nedrick; R v Woollin; R v Matthews & Alleyn). Indirect intent only applies to murder – it cannot be used in offences where there is an alternative mens rea of recklessness

Question 7

Murder - Defences

Answer 7

The usual defences apply (see defences chapter) o Two special and partial defences that apply only to murder. They are not full defences, but are partial defences, so if successfully raised, the defendant would be liable for voluntary manslaughter instead of murder.

• Loss of control (s 54-56 CJA)
• Diminished responsibility

Question 8

Murder - Defence - Loss of Control

Answer 8

Loss of control (s 54-56 CJA)

• Burden of proof on prosecution to show that the defence does not apply. Prosecution need only prove that one element is missing for the defence to fail (R v Clinton, Parker & Evans)
• Three requirements:
  
  • 1) Did the D kill someone as a result of losing control (s 54(1)(a)
    
    • Need not be complete (compare R v Cocker, where the defendant checked before killing his wife in response to her requests that this was still her wish, with the later case of R v Richens where the defence succeeded)
    • R v Ahluwalia - loss of control need not be sudden, though the greater the delay the less likely the defence is to succeed
  • 2) Did the loss of control have a qualifying trigger (s 54(1)(b)? – Two possible triggers
    
    • Subjective ‘fear of serious violence’ aimed at defendant or another. E.g. R v Martin (Anthony) defence failed because burglar was shot as he ran away
    • Things said or done that ‘constitute circumstances of an extremely grave character’ (s 55(4)(a) which caused D to have a justificable sense of being seriously wronged
  • 3) Might a ‘reasonable person’ have acted in a similar way (s. 54(1)(c))?
    
    • DPP v Camplin; A-G Jersey v Holley; R v Morhall: “A person of D’s age and sex, in the circumstances of D, but with a normal degree of tolerance and self-restraint.”
    • R v Morhall: the defence will not apply if D was drunk or high intoxicated) at the time. The defendant in Morhall was a glue-sniffer.
    • For recent applications of this defence see R v Clinton and R v Dawes, Hatter & Bower.
    • NOTE: Under s54(5-7) on a murder charge, if the trial judge concludes that sufficient evidence is adduced to raise an issue under s54(1), the burden of proof moves to the prosecution to prove beyond reasonable doubt that the defence is not satisfied. If the tests are satisfied the defendant becomes liable for conviction for manslaughter rather than murder.

Question 9

Murder - Defence - Diminished Responsibility

Answer 9

The burden of proof is on the defence, on the balance of probabilities (see s. 2(2) Homicide Act 1957 (“HA 1957”) and R v Sutcliffe). The four requirements are set out in s. 2(1) HA 1957:

1. D was suffering from an ‘abnormality of mental functioning….
   
   • R v Byrne: Established the classic definition of abnormality of the mind. “A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”. It is not the same as insanity.
2. … which arose from a recognised medical condition…
   
   • This could be a physiological or psychological condition, e.g. schizophrenia in R v Joyce and Kay.
3. … which substantially impaired the defendant’s ability to do certain things…
   
   • These things are: (a) to understand the nature of his conduct, (b) to form a rational judgment or (c) to exercise self-control (s. 2(1A) HA 1957). See also R v Fenton; R v Simcox; R v Lloyd.
   • The jury may assess all relevant circumstances preceding and following the killing (including circumstances that took place a long time before the killing). This may involve appraising the impact of the abnormality of mental functioning both on D’s decision-making generally and also on the particular decision to kill V (R v Conroy).
   • ‘Substantially’ should be given its ordinary English meaning (Rv Golds). The impairment must be more than merely trivial, but it is not the case that any impairment beyond the trivial will suffice
4. … and which provides an explanation for D’s acts and/or omissions in killing V.
   
   • An abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct (s. 2(1B) HA 1957).
   • Planning, whilst it may be relevant in assessing D’s level of self-control, may well still be consistent with disordered thinking (R v Golds).
   • The jury decides this as a matter of fact. The role of medical experts is generally key
   • See R v Byrne contrasting R v Sutcliffe.

• Note on intoxication: being drunk is not a separate defence to murder, but it does not necessarily negate the defence of diminished responsibility if the drunkard also had an abnormality of mind caused by a recognised medical condition which had some effect on the killing. Alcoholism could indicate that being drunk was not voluntary. E.g. R v Tandy; R V Wood.
  
  • Rv Stewart: Jury to consider the seriousness of D’s dependency; the extent to which D’s ability to control his drinking was reduced; whether D was capable of abstinence (if so for how long); and whether D was choosing to drink more than usual for a particular reason.
  • D must still demonstrate that they were suffering from a recognised medical condition, e.g.ADS. Heavy binge drinking alone is insufficient (R v Dowds).
  • A recognised medical condition such as schizophrenia coupled with drink / drugs dependency syndrome can be sufficient to meet the s. 2(1) criteria, where together they substantially impaired D’s responsibility (R v Joyce and Kay). However, if the abnormality of mental functioning was caused by voluntary intoxication and not the recognised medical condition, D cannot rely on diminished responsibility.