Criminal law — Murder to Involuntary manslaughter

Question 1

What is the actus reus for murder?

Answer 1

The unlawful killing of a reasonable being under the kings peace.

Question 2

What does ‘unlawful killing’ mean?

Answer 2

Killing can be lawful -e.g. wars or self defense, prevention of a crime (provided only reasonable force was used).
Omissions - Can be the actus reus provided D has a duty to act.

Question 3

What does ‘of a reasonable being mean’

Answer 3

Whether the victim is a foetus or someone of life support machine.
- Foetus not considered ‘in being’ until completely born.
> However, if the foetus is deliberately harmed in the womb and dies as a result of the injuries after birth, the attacker will more likely be liable for manslaughter rather than murder. AG’s reference (No.3 of 1994) 1997.
- Doctors can turn of life support machine if ‘brain dead’

Question 4

What does ‘under the kings peace’ mean?

Answer 4

Killing an enemy in war is not murder as they aren’t under the king’s peace. However, killing a prisoner of war would be.

Question 5

Cato (1976)

Answer 5

Two heroin users spent the night injecting eachother with heroin and water. One died. The other was charged with manslaughter.
- Held: The heroin need not be the only cause but was more than a minimal cause

Question 6

What is the mens rea for murder?

Answer 6

Malice aforethought, express or implied. Can be surmised as intention to kill or cause GBH.

Question 7

Vickers (1957)

Answer 7

D broke into a cellar of an old lady’s shop. When she found him there he attacked her savagely punching and kicking her in the head. She died of her injuries.
- Held: Intention to cause GBH was enough for murder

Question 8

Maloney (1985)

Answer 8

D had been drinking with stepfather (who he liked). They challenged eachother to see who could unload his gun and be ready to fire first. D won, fired the gun and killed V. D maintained that he had no intention to kill him “it was just a lark”
- Held: HoL guilty of manslaughter not murder. Nothing less than intention to kill or cause serious harm would do for murder.

Question 9

What type of defense is LOC and diminished responsibility?

Answer 9

A partial defence.

Question 10

Loss of control s54(1)

Answer 10

Where a person kills or is party to the killing of another person,
1a) D’s acts or omissions resulted from D’s loss of control
2) It does not matter if the LOC was sudden

Question 11

Loss of control s54(3)

Answer 11

Ss1(a) does not apply if in doing or being party to the killing, D acted in a considered desire for revenge.

Question 12

R v Jewell

Answer 12

D shot V at point blank range with a shotgun. He said he lost his self control but had been found in his car with a weapon, ammunition and a survival kit.
- Held: Insufficient evidence to suggest he lost control

Question 13

Loss of control s53(3)

Answer 13

D’s loss of self control had a qualifying trigger if it was attributable to:
- D’s fear of serious violence from V against D or another identified person.

Question 14

Loss of control s55(4)

Answer 14

Things done or said that:

a) constituted circumstances of an extremely grave character, and
b) Caused D to have a justifiable sense of being seriously wronged.

Question 15

Loss of control s55(6)
(Exceptions)

Answer 15

a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D included to be done or said for the purpose of providing an excuse to use violence.

b) Sense of being wronged by a thing done or said is not justifiable if D incited the thing to be done or said for providing an excuse to use violence .

c) Thing done or said constituted sexual infidelity is to be disregarded.

Question 16

R v Dawes

Answer 16

The defendant, Mark Dawes went to his estranged wife’s house and found her asleep on the sofa with V. D awoke him V and started punching him in the face and hitting him with a bottle.

According to D, V took the bottle off him and attacked him. D then grabbed a knife from the kitchen and fatally stabbed him in the neck.

At trial he raised the defence of self-defence which was not accepted by the jury. The judge held that the defence of loss of control could not be put to the jury under s.55(6)(a) as he had incited the violence.

Question 17

What is the objective test?

Answer 17

S.54(1)(c) 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 the same or similarly.

Circumstances doesn’t apply or include things that relate to D’s general capacity for tolerance or self restraint.

Question 18

Does loss of control need to be sudden?

Answer 18

No.

s.54(2) No need for the loss of control to be sudden but the longer the delay, the less likely is the judge to leave the defence to the jury, or the jury to believe that the killing resulted from a loss of self control.

Question 19

Ibrams and Gregory (1981) CA

Answer 19

An attack planned over several days was not a sudden loss of control.

Question 20

Mohammed (2005) CA.

Answer 20

Bad temper should be disregarded (as should any other factors which lower the tolerance of D beyond that of a reasonable man.)

Question 21

Baillie

Answer 21

D discovered that his sons had been supplied with drugs and threatened with violence by a drug dealer. He took his sawn-off shotgun and cut-throat razor, and drove round to the estate where the dealer lived. On the way he was delayed by a minor road accident.

After an argument at the house of the dealer, he fired his gun and killed the man. The judge told the jury to ignore the possible provocation caused by the original threats: too much time had lapsed. The Court of Appeal overturned his subsequent conviction for murder and ordered a re-trial: the jury should have been allowed to consider whether the defendant was still suffering from a loss of self-control.

It is arguable that his action in killing his victim did not display a “considered” desire for revenge, and so he might still attract the defence.

Question 22

AG for Jersey v Holley (2005) PC.

Answer 22

s.55(6)(c) Sexual infidelity exclusion

Holley and his girlfriend were alcoholics. She told him she’d had sex with another man. He picked up an axe, intending to leave the flag and chop wood. His girlfriend then said “you haven’t got the the guts.”

He therefore hit her 7/8 times with the axe, killing her. Under s.55(6)(c), her infidelity would be disregarded as a qualifying trigger. However, her taunting his lack of courage would be relevant.

Question 23

Clinton 2012

Answer 23

The appellant and his wife both suffered from depression for which they were on prescribed medication. He was experiencing financial difficulties and stress at work. He and his wife agreed to a trial separation for four weeks as she needed time out.

She left him with the children and moved into her parent’s home. The appellant did not cope well with this and became obsessional and had been looking at suicide websites. Two weeks later she revealed to him that she was having an affair. He asked for her to come to the matrimonial home in order to tell the children together that their marriage was over. She agreed to meet.

However he had arranged for the children to be elsewhere at the time she was due to come and he was heavily intoxicated. At the meeting he killed her by repeatedly beating her on the head with a wooden baton and strangled her with a belt. He then took photos of her naked body in various poses and texted them to her lover.

POL: Sexual infidelity may be part of the circumstances but not the qualifying trigger.

Question 24

Full name of diminished responsibility

Answer 24

Reformed diminished responsibility s2(1) Homocide act 1967 as amended by the Coroners and Justice act 2009 (s.52)

Question 25

s.52(1) A person who kills or is party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which:

Answer 25

a) Arose from a recognized medical condition
b) Substantially impaired D’s ability to do one or more of the things mentioned in ss1(a), and
c) Provides an explanation for D’s acts and omissions in doing or being party to the killing

Question 26

‘Substantially impaired D’s ability to do one or more of the things mentioned in ss1(a)’

What are these things?

Answer 26

a) To understand the nature of D’s conduct;
b) To form a rational judgment;
c) To exercise self control

Question 27

When does an abnormality of mental function provide an explanation for D’s conduct?

Answer 27

(1B) If it causes, or is a significant contributing factor in causing, D to carry out that conduct.

Question 28

Byrne

Answer 28

“Abnormality of mind means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”

Question 29

What can recognized medical conditions include?

Answer 29

• Mental deficiency (Speake 1957)
• Pre- menstrual tension (Smith 1982)
• Chronic depression (Gittens 1984)
• Battered woman syndrome (Ahluwalia 1993)

As well as bipolar disorder, paranoid depression, schizophrenia, OCD, PTSD

Question 30

R v Egan (1992) CA

Answer 30

Substantial impairment may mean “more than some trivial degree of impairment but less than total impairment.”

Question 31

Diestchmann (2003)

Answer 31

“…has D satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has failed to satisfy you of that?”

When D kills whilst drunk and tries to say they have DR

Question 32

R v Wood (2008) CA

Answer 32

Wood. A chronic alcoholic, killed a homosexual man with a meat cleaver and hammer whilst drunk. The CA allowed his appeal against conviction for murder by reason of diminished responsibility.

Question 33

Bateman

Answer 33

“Does the conduct of the accused show such disregard for the life and safety of others as to amount to a crime against the state and conducting of punishment?”

Question 34

Andrews

Answer 34

A simple lack of care would be a civil case

Question 35

Adomako

Answer 35

Anesthetist (D) failed to notice that an oxygen pipe had became disconnected. Patient died. It was submitted that a computer anesthetist would have noticed this in seconds. D’s performance was described as “abysmal”

• Held: Gross negligence manslaughter

Question 36

Adomako test

Answer 36

1)Owed a duty of care to the victim

2) Was in breach of duty

3) The breach of duty caused death

4) The defendant’s conduct was so bad in all the circumstances as to amount in the jury’s opinion to a crime.

Question 37

Finlay (2001)

Answer 37

Scout leader who took children up to Snowdon. Was acquitted of manslaughter because his actions, whilst not perfect, did not show such disregard to life as to amount gross negligence.

Question 38

Edwards (2001)

Answer 38

Allowed their 7 year old daughter and friend to play on a railway line, saying they would warn them if a train came. The children were killed by a train the parents hadn’t seen.

• Held: Guilty of manslaughter

Question 39

Risk of death

Answer 39

“Disregard for the life and safety of others”

Question 40

To prove unlawful act manslaughter what must be committed?

Answer 40

An act that was:
- Unlawful
- Dangerous
- One which causes death
- An unlawful act which D had the mens rea

Must be an act not an omission

Question 41

Lamb

Answer 41

D and V were playing with a revolver that had 2 bullets in it. Both men mistakenly thought that the bullet had to be in the chamber opposite the barrel. D pulled the trigger and killed his friend.

• Held: Act not unlawful as pointing a gun is not illegal; the victim was not in fear (assault.) Therefore no criminal offence and appeal against manslaughter conviction was allowed l

Question 42

Church

Answer 42

The unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other person to at least the risk of some harm.

> “Some harm” not necessarily serious harm
Harm need not be aimed at the victim (Mitchell - transferred malice)
Harm foreseen must be physical harm. It is not enough to scare someone

Question 43

Dawson

Answer 43

Attempted robbery of a petrol station by masked men. Victim (shop attendant) died of a heart attack.
- Held: Act not dangerous enough to warrant a conviction of manslaughter

Question 44

Goodfellow

Answer 44

It is enough that a dangerous act is aimed at property, if an individual dies as a result

Question 45

Substantial cause of death

Answer 45

See criminal causation inc. thin skull rule

Question 46

What is the mens rea for UAM?

Answer 46

The men’s rea is that of the unlawful act that was committed.

There need not be any intention to cause harm, see DPP v Newbury and R v Le brun.