Criminal law - Murder & Partial Defences (Voluntary Manslaughter)

Question 1

What is murder?

Answer 1

Murder is the unlawful killing of a human being under the Kings peace with malice aforethought.

It is a common law offence
- Distinguished from other forms of Homicide as D must act with specific intent
- Mandatory life sentence
- Judge has no discretion other than to recommend minimum term before a prisoner can be released on licence

Question 2

What is the actus reus of Murder?

Answer 2

• Unlawful
• Killing
• Human Being
• Kings Peace

Question 3

What is meant by ‘unlawful’ element?

Answer 3

• Killing must be unlawful and that the defendant accelerates the death of another person. Death occurs when an individual is brain dead.

This is simply a test of causation.

Lawful killings are:
- Killing enemy soldiers in battle
- Advancement of justice e.g. lawful application of the death penalty - UK no longer has death penalty but on occasion, D can be tried in the UK for killing which occurred in country with death penalty
- Self-defence - killing will be lawful where force used was reasonable and necessary to prevent crime or protect self, others or property

Question 4

What is meant by ‘killing’

Answer 4

Murder is a result crime - prosecution must show that the defendant caused the death of the victim - factual and legal causation of death must be satisfied

Factual causation - but for the acts or omission of the defendant, the relevant consequence would not have occurred in the way it did.

Legal causation - D’s act must be the substantial cause of the prohibited harm - need not be the only or principal cause but more than minimal.

Question 5

What is a ‘human being’

Answer 5

• ‘A reasonable person in being’
• Not possible to murder a corpse - when the brain dies, the person dies
• Child must be fully expelled from the mother’s body and born alive - not necessary for umbilical cord to have been cut

Question 6

What is meant by ‘kings peace’?

Answer 6

An offender can generally be tried for murder wherever committed if he is a British subject, or if not a British subject, the murder was committed within England and Wales.

Excludes killing the enemy forces during a time of war.

Question 7

What is the ‘mens rea’ for Murder?

Answer 7

The defendant must kill with ‘malice aforethought’.

1) Intention to kill (express malice)
2) Intention to cause grevious bodily harm (implied malice)

• Defendant need not have any malice, nor does the act have been deliberate.
• Mercy killing is no defence
• Defendant can have malice aforethought even if they kill a person in the spur of the moment.

Question 8

What is malice aforethought?

Answer 8

It means that there is no requirement or pre-planning or ill will. The defendant need only intend to kill or cause grevious bodily harm (GBH)

Question 9

What is direct intention to kill?

Answer 9

D possess the intention to bring about another person’s death.

For example, Mark stands in front of Sam and shoots her in the head with a gun- Mark clearly has the intention to kill.

Question 10

What is direct intention to cause GBH?

Answer 10

D does not possess the intention to kill but does possess the intention to cause serious injury to another person.

For example, Sam punches Mark in the face numerous times and Mark dies from his injuries-Sam did not intend to kill Mark, but did intend to cause him serious harm.

Question 11

What is oblique intention to kill?

Answer 11

D does not possess the intention to kill, but death was a virtual certainty as a result of D’s conduct, and D appreciated this certainty.

For example, Mark shoots Sam in the stomach with a gun, Mark does not wish to kill Sam but does appreciate death is a virtually certain result of shooting someone in the stomach.

Question 12

What is oblique intention to cause GBH?

Answer 12

D does not possess the intention to cause GBH, but serious injury was a virtual certainty as a result of D’s conduct, and D appreciated this certainty.

For example, Sam throws a number of large rocks from her bedroom window at Mark, who is standing outside on the ground-Sam intends to throw the rocks at Mark’s head but does not wish to cause Mark serious injury-Sam appreciates, however, that serious injury is a virtually certain result of throwing large rocks at another person from a great height.

Question 13

Does mercy-killing, e.g. putting a dying relative out of their misery count as murder?

Answer 13

Yes, as long as there is intention to kill or cause GBH with malice aforethought then it is murder.

Question 14

What are the 2 partial defences to the offence of murder?

Answer 14

1) Loss of control
2) Diminished responsibility

These are special defences to murder and can only be used for murder and no other offences.

‘Partial defence’ means that if successful, D is not convicted of murder but voluntary manslaughter (judge has a discretion in sentencing and D will avoid mandatory life sentence).

Not available as a defence to attempted murder.

Question 15

What is the defence of Diminished responsibility’? S2(1A) HOMICIDE ACT 1957

Answer 15

It is a defence of partial insanity providing justification for the defendant who is suffering from an abnormality of the mind but not a total loss of control.

The Homicide Act 1957, s 2(1) (as amended by the Coroners and Justice Act (CJA) 2009, s 52) provides:

‘(1) 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 an abnormality of mental functioning which-
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are—
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.

(1B) For the purposes of subsection (1)(c), 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.’

Question 16

What is the abnormality of mental functioning?

Answer 16

Defendant’s mental functioning is abnormal, in that it departs from that of the ordinary reasonable person.

Question 17

What does ‘arising from a medical condition’ mean?

Answer 17

1) The defendant will need to provide psychiatric evidence that they are (or were) suffering from a recognised medical condition.
- Can’t be ‘hatred’, ‘jealousy’ or ‘bad temper’

Examples of ‘medical condition’:
- Alcohol dependency syndrome (ADS)
- Battered spouse syndrome
- Psychopathic personality disorder
- Depression
- Schizophrenia
- PTSD
- Phobic Anxiety
- Diabetes
- Epilepsy

Question 18

Is intoxication of alcohol a partial defence under diminished responsibility ?

Answer 18

No. You can’t be intoxicated / drunk you need to suffer from alcohol dependency syndrome (diagnosed) or a relevant medical condition.

You can be suffering from schizophrenia and choose to drink alcohol - partial defence works here.

Question 19

Who has the burden of proof for partial defences?

Answer 19

The legal burden for providing all the elements of partial defences switches to the defendant.

Standard of proof for the defendant is only on a balance of probabilities. The accused must show that it is more than likely than not that they were suffering from diminished responsibility at the time of the killing.

Question 20

What is ‘substantial impairment’ of D’s ability?

Answer 20

• The abnormality arising from the disorder must have substantially impaired the Defendant’s ability to do one or more of the things detailed in s2(1A).
• Don’t need to prove all the elements in s2(1)(A)

R v Golds- ‘substantial’ should be given its ordinary meaning-no need to direct jury on the meaning- if further guidance was necessary, judge should explain substantial means something greater than ‘more than merely trivial.’

Question 21

What is 1A(a) ‘To understand the nature of D’s conduct’

Answer 21

*Real understanding of what D has done.

*For example, a person who kills without understanding the finality of the act (the person is dead), would satisfy this limb.

Question 22

What is 1A (b)- To form a rational judgment?

Answer 22

Is there ability to think rationally hindered?

Examples:
- A woman suffering from PTSD, following violent abuse suffered at her husband’s hands, comes to believe that only burning her husband to death will rid the world of his sins.
- A mentally sub-normal boy believes he must follow his older brother’s instructions, even when they involve taking part in a killing. He says, ‘I wouldn’t dream of disobeying my brother and he would never tell me to do something if it was really wrong.’
- A depressed man who has been caring for many years for a terminally ill spouse kills her, at her request. He found it progressively more difficult to stop her repeated requests dominating his thoughts.

Question 23

What is 1A (c)- To exercise self-control?

Answer 23

*Abnormality may limit an individual’s ability to use self-restraint.
*A serious brain injury or psychiatric condition could lead to an inability to control one’s temper.
*Alternative to loss of control defence.

Question 24

What does ‘provides an explanation for D’s acts or omissions’ mean?

Answer 24

Abnormality:
- Must provide an explanation for D’s acts and omissions in doing or being a party to the killing.

• Provide an explanation for D’s conduct if it causes or is a significant contributory factor in causing D to carry out that conduct.
• A causal link between the abnormality of mental functioning arising from a recognised medical condition and the killing must be established.
• Need not be the only cause-defence can still operate even if jury consider alcohol may have played a part.

Question 25

Can voluntary intoxication, arising from alcoholism, amount to a recognised medical condition? (Quick q)

Answer 25

Intoxication (by drink or drugs) cannot amount to a recognised medical condition.

However, ADS or brain damage arising from the same, can amount to a recognised medical condition and the jury can take into account of the condition and any resultant intoxication.

Question 26

Where D triggers a pre-existing condition such as schizophrenia because they have taken drink or drugs, can they rely on diminished responsibility? (Quick q)

Answer 26

Yes, if they still satisfy the elements of the defence.

The jury can consider the psychiatric condition and, if the intoxication was a result of alcohol dependence, this can be taken into consideration.

Question 27

Where there is uncontroversial and uncontested medical evidence that D satisfied the defence, can a jury still reject the evidence and convict D of murder? (Quick q)

Answer 27

The judge should withdraw murder from the jury if:
*There is uncontested medical evidence.
*No other evidence capable of rebutting medical evidence.

Question 28

What is abnormality of mental functioning? (Quick q)

Answer 28

Abnormality of mental functioning is understood as being a state of mind so different from that of the ordinary human beings that the reasonable man would term it abnormal.

Question 29

What is the meaning of ‘a recognised medical condition’? (Quick q)

Answer 29

Medical evidence must be capable of discharging the burden on the accused to show, on the balance of probabilities that each ingredient of the defence is made out.

Question 30

What is meant by ‘substantial impairment’? (Quick q)

Answer 30

The abnormality must impair D’s ability to

1) Understand the nature of his own conduct
2) Form a rational judgement
3) Exercise self-control

Question 31

What is the requirement of the abnormality of mental functioning provides an ‘explanation’ for the killing?

Answer 31

There must be some causal link between D’s abnormality of mental functioning and the killing.

Question 32

What are the requirements for the partial defence of loss of control?

Answer 32

1) D must have had lost self-control
2) Due to the fear and/or anger qualifying trigger
3) 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 similar way to D.

Question 33

What does the defence of loss of control do to the offence of murder?

Answer 33

It reduces murder to voluntary manslaughter.

Only applies to murder - no other crime, thus it should not be pleaded if the defendant is charged with an assault.

The rationale behind the defence is an acceptance by the law that everyone has a
breaking point and circumstances may arise that push people so far they lose control.
Providing this defence acknowledges that such defendants are less morally culpable than
deliberate murderers. However, not every situation will allow an accused to rely on this partial
defence.

Question 34

Who has the burden of proof?

Answer 34

Unlike diminished responsibility, conventional burden of proof applies.

Burden of proof rests with prosecution once issue is raised-only needs to prove one of the components is absent for the defence to fail.

Matter for judge to decide whether defence can be put before jury.

If successful, conviction reduced from murder to voluntary manslaughter and D will avoid mandatory life sentence

Question 35

What does s54(1) say about loss of control?

Answer 35

The Coroners and Justice Act 2009, s 54(1) provides:

‘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.’

Question 36

What is meant by the defendant’s acts or omission in killing must have resulted from a loss of self-control?

Answer 36

Look at literal meaning- whether D actually lost self-control is a question for the jury, taking account of all the evidence.

*A loss of control is understood to amount to more than irritation or even serious anger, it requires D has lost their ability to think clearly.

*R v Richens- need not be a complete loss of control so D do not know what they are doing, but they must be unable to restrain themselves.

*Mere loss of temper is not enough.

*Need not be sudden-consider length of delay between provocation and killing- the longer the delay, the less likely D has lost self-control.

*Defence will be lost if D was acting out of a ‘considered desire for revenge.’

Question 37

What are qualifying triggers?

Answer 37

1) Fear trigger
2) Anger Trigger

Question 38

Can revenge or ‘planning someones death’ lead to loss of control?

Answer 38

No. Where the defendant acts ‘in a considered desire for revenge’ or has planned their death - this does not benefit from the defence of loss of control.

As to what qualifies as a ‘considered’ desire for revenge, there is no guidance in the statute but factors that may satisfy the test could include where:

(a) the defendant arms themselves with a weapon;
(b) there is evidence of planning; or
(c) there is a significant delay between the provoking words or conduct and the killing.

Question 39

What is the fear trigger?

Answer 39

‘This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.’

*D was in fear of serious violence being used against themselves or another identified person, by the victim.

*Covers situations where a jury might conclude D was justified in using defensive force, but the level of force used was unreasonable, preventing the use of self-defence.

Question 40

What test is used to measure whether the defendant had the ‘fear trigger’?

Answer 40

*D cannot rely on the fear trigger if D incited it as an excuse to use violence.

Subjective test, focused on:
- Whether D actually feared the use of violence.
- Whether what they feared was serious violence.

Question 41

What is the ‘anger trigger’?

Answer 41

*This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both), which:

• Constituted circumstances of an extremely grave character, and
• Caused D to have a justifiable sense of being seriously wronged.

Three parts:
o Things said and/or done.
o That constitute circumstances of an extremely grave nature.
o That caused D to have a justifiable sense of being seriously wronged.

Question 42

What are things said and/or done?

Answer 42

The defendant cannot rely on the anger trigger if:

• The defendant incited it as an excuse to use violence, or
• The thing said/done constituted sexual infidelity
• Something must be said or done - circumstances on their own are not enough.

Question 43

What are the circumstances of an extremely grave nature?

Answer 43

-Not defined in statute - must be determined objectively.

Circumstances must have been unusual, and not part of the normal trials and disappointments of life - not events that ordinary people would regard as trivial.

Does not include where gravity of circumstance flows from a personal bias, e.g. a daughter telling homophobic parents that she is gay.

Question 44

What does ‘caused D to have a justifiable sense of being seriously wronged’ mean?

Answer 44

According to normative standards of a normal person in Britain.

Justifiable sense- objective
- A reasonable person would feel similarly wronged in the circumstances of the defendant.
- For example, an intruder into a home may feel seriously wronged if the homeowner threatened him and told him to leave, but this would not be justifiable.

Of being seriously wronged- subjective
- D must personally feel seriously wronged.
- Even if D claims to be seriously wronged, but this is not objectively justifiable in the circumstances, trigger is not satisfied.

Question 45

What is the normal person test’ applied to loss of control?

Answer 45

S54(1)(a) and requires that:
- 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.

Must include all the defendant’s circumstances, except those whose only relevance is that they bear on the defendant’s general capacity for tolerance or self-restraint.

Jury will assess:
1) The gravity of the qualifying trigger to a person in the defendant’s circumstances.

DPP v Camplin- ‘to taunt a person because of his race, physical infirmities or some shameful incident in his past may be considered more offensive to the persona addressed, however equable his temperament, if the facts on which the taunt is founded are true, than if they were not.’

2) Whether as a result of that trigger, a normal person might have done what D did or similar

Question 46

What are the characteristics or circumstances likely to be excluded in assessing the normal person’s capacity for tolerance and self-restraint?

Answer 46

Test for the normal person
*Wholly objective-normal person would have ordinary powers of tolerance and self-restraint.
*Jury cannot take into account any characteristics or circumstances that would affect normal tolerance and the ability to exercise restraint.

Characteristics or circumstances likely to be excluded in assessing the normal person’s capacity for tolerance and self-restraint:
o Bad temper
o Intoxication
o Extreme sensitivity
o PTSD
o Personality disorder

*Three categories of circumstances:
Cat 1- circumstances and characteristics will be taken into account.
Cat 2- circumstances and characteristics excluded.
Cat 3- circumstances and characteristics considered in assessing magnitude of qualifying trigger, but ignored in assessing how much tolerance and self-restraint normal person might have.

Question 47

What is the position regarding sexual infidelity, can this be a qualifying trigger?

Answer 47

General rule: Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there are other qualifying triggers.

Where other factors suggest a qualifying trigger, sexual infidelity may also be taken into account in assessing whether things done or said amounted to circumstances of an extremely grave character and gave the defendant a justifiable sense of being seriously wronged.

Sexual infidelity can be taken into account in the third component of the defence in examining whether 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.

Question 48

Why is an excuse to use violence not loss of control?

Answer 48

The defendant cannot create qualifying trigger to use violence.

• The defendant must have had the intent from the outset to provoke the reaction that lead to the killing.
• D’s fear of serious violence is disregarded if it was caused by a thing D incited to be done or said for the purpose of providing an excuse to use violence.
• A sense of being justifiably wronged is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence.

Question 49

Can the defence of loss of control or diminished responsbility be used for attempted murder?

Answer 49

No.

Question 50

When will a killing result from a loss of control?

Answer 50

It must be proven that D actually lost his self-control and that the killing was not caused by some other reasons, e.g. a considered desire for revenge. The loss of control need not be sudden.

Question 51

What are the ‘qualifying triggers’?

Answer 51

The loss of self-control must be attributed to either a fear of serious violence from the victim to D or another person, a thing said or done that constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged, or a combination of both.

There are certain exclusions to the operation of these triggers.

Question 52

What does it mean to say that another person ‘might have reacted in the same or a similar’?

Answer 52

A person of the same of sex and age as D, 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. This is an objective test and is a question of fact for the jury.