Death Offences Flashcards
Murder definition
The unlawful killing of a reasonable person in being under the Queen’s peace with malice aforethought express or implied
Murder facts
Unlawful killing
Act or omission
Queen’s peace (not war)
Year and a day (3 years)
Murder AR
- Human being is dead
- Defendant was the factual cause
- Defendant was the legal cause
Murder MR
- Intention to kill or cause grievous bodily harm
- Intention can be direct or indirect
Malice aforethought
AG Ref’s No.3 of 1994
Murder
A person is a human being when it can exist independent of it’s mother
R v Malcherek, Steel
Murder
A person does when their brain dies
The but for test
But for the conduct of the defendant would the victim have died when they did
R v White
Causation
The but for test
Heart attack before poisoning
The de minimus rule
De minimus means insignificant, minute or trifling. The defendants actions must be a more than minimal cause of the victims death
R v Pagett
Causation
The de minimus rule
Human shield
Substantive and operative cause
Whether the original injury inflicted by the defendant is still the operating and substantial cause of death. The chain of causation has not been broken
R v Smith
Causation
Operative and substantial cause
R v Jordan
Causation
Operative and substantial cause
Palpably wrong medical care
Thin skull test
The defendant had to take the victim as they find them. If the victim dies from some unusual or unexpected condition the defendant is still responsible for their death
Vickers
Murder
A person can be guilty of murder even though they didn’t mean to kill, if the defendant intends to inflict GBH and the victim dies that is sufficient for malice aforethought
R v Blaue
Causation
Jehovah’s witness
Thin skull
Unforeseeable intervening act
An act that is not foreseeable that could break the chain of causation
R v Roberts
Causation
Jumped out the car thinking she was being attacked when the defendant put his hand on her leg, he was liable for her actions because it was reasonably forseeable she would jump out of the car
Cunningham
Murder
An intention to cause GBH was sufficient for the MR for murder
R v Mohan
Murder
Direct intention, the defendants aim desire and purpose is to bring about a certain result
R v Moloney
Murder
Oblique intention, the defendant foresees the consequences but does not want the consequence to happen
Hyam v DPP
Murder
Where the outcome is where there is foresight it will always be intention
R v Hancock and Shankland
Murder
The greater the probability of a consequence, the more likely the consequence was foreseen and therefore also intended
R v Nedrick
Murder
The jury should consider how probable the consequence was and whether it was foreseen by the defendant. The jury may then infer intention if they are confident that the defendant realised the consequence was a virtual certainty
Woollin
Murder
Entitled to find intention, death or GBH is a virtual certainty if the defendants action. It is a question of evidence not law
Criticisms of murder
- Mandatory life sentence should be changed to a discretionary sentence
- Problems with oblique intent, should change so that the defendant could be liable for murder but doesn’t have to be
- Intention to cause GBH has the same conviction of murder but it shouldn’t
Reforms of murder
3 tiers to homicide:
- First degree murder, mandatory life sentence, most serious murders
- Second degree murder, discretionary life sentence, intention to cause serious harm or murder with a defence
- Manslaughter, discretionary life sentence, cause some harm or saw risk to or mr of gross negligence manslaughter
Voluntary manslaughter
Where a defendant has committed murder but is relying on a special defence contained in the Homicide Act 1957 and the Coroner’s and Justice act 2009. Burden of proof is on the defence.
Loss of control act
S.54 of the Coroner’s and Justice Act 2009, old defence used to be it the Homicide Act 1957
Is loss of control a complete defence
No it is a partial defence
If used correctly what will loss of control do
Reduce liability for murder to manslaughter
Is loss of control a general defence
No it is only available for murder
Why was the loss of control defence introduced
Introduced after concerns about the defence of provocation as there was not always a consistent interpretation and it had a gender bias. Loss of control is broadly similar to the defence of provocation
What are the three parts to s.54 Coroner’s and Justice Act 2009
Where a person kills or is party to the killing of another D is not to be convicted if:
- D’s acts and omissions resulted from D’s loss of self control
- The loss of control had a qualifying trigger
- 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 way or similar way to D
Workman
Burden of proof is on the defence
It will be left to the jury to consider with the burden of proof being placed on the prosecution to disprove it, needing sufficient evidence
S.54(2)
Loss of control
There is no requirement that the loss of self control be sudden
Dawes
Loss of control
A reaction to circumstances of extreme gravity may be delayed
S.54.(4)
Loss of control
If D acted in a considered desire for revenge they cannot rely on the defence
Ibrams and Gregory
Qualifying triggers
Set out in s.55 Coroner’s and Justice Act 2009
S.55(3) Defendants loss of self control was attributable to the defendants fear of serious violence from the victim against the defendant or another identified person
S.55(4) Defendants loss of self control was attributable to a thing or things done which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged
Ahluwahlia
Loss of control
S.55(3)
Domestic violence, fear of serious violence classed as a valid qualifying trigger
Pearson
Loss of control
S.55(3)
Fear of serious violence could be in respect of a child, relative or loved one
Dawes
Loss of control
S.55(4)
Incited the violence offered to him by V so no qualifying trigger was available
Court of appeal confirmed that sexual infidelity cannot amount to a qualifying trigger
Hatter
Loss of control
S.55(4)
The question of what constitutes of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged is decided objectively.
Break down of a relationship not normally regarded as circumstances of an extremely grave character nor entitle the aggrieved party to have a sense of being seriously wronged
Limitations of qualifying triggers established in
S.55(6) Coroner’s and Justice Act 2009
S.55(6)(a)
Loss of control limitations on qualifying triggers
The fact that a thing done or said constituted sexual infidelity is to be disregarded
S.55(6)(b)
Loss of control limitations on qualifying triggers
A person may not raise a qualifying trigger if they incited the thing done or said or the violence
Clinton
Loss of control
Sexual infidelity
Whilst sexual infidelity alone cannot amount to a qualifying trigger it does not have to be completely disregarded, it could be integral to and form part of the other factors which could be qualifying triggers
S.54(1)(c)
Loss of control
Degree of tolerance and self restraint
Requires that a person of the defendants 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 way
Attorney General for Jersey v Holley
Loss of control
S.54(1)(c)
Replaces the reasonable man test which existed under the law of provocation which attracted widespread criticism and was subject to much conflicting interpretation in the courts culminating in this landmark case
DPP v Camplin
Loss of control
S.54(1)(c)
Reference to sex and age represents the position regards to provocation established in this case
Would a history of physical or sexual abuse, depressive illness or other physical or mental characteristics be relevant in s.54(1)(c)
Yes however a person’s short temper or excitable nature would not be relevant and would not be considered by the jury
Voluntary intoxication and loss of control
S.54(1)(c)
Voluntary intoxication is not a matter to be taken into account when considering the defendants characteristics
Asmelash
Loss of control
S.54(1)(c)
The only relevance of the drunkenness was that it affected D’s self restraint and caused him to act in a way in which he would not have acted if sober
Defence of provocation to loss of control
- Easier for women to rely on the defence where they reacted slightly slower
- Can be used by victims of continued domestic violence
Reforms of loss of control
- Define sexual infidelity as currently it does not explain what actually constitutes sexua infidelity
- A person with a normal degree of tolerance and self restraint does not kill
- Gender bias
Does involuntary manslaughter have the ar or mr of murder
Where the defendant had committed an unlawful homicide they have the actus reus of murder but did not do so with malice aforethought
What are the two main types of involuntary manslaughter
- Manslaughter by an unlawful and dangerous act
- Gross negligence manslaughter
What is manslaughter by an unlawful and dangerous act also known as
Constructive manslaughter
Manslaughter by an unlawful and dangerous act
This offence occurs when the defendant commits any dangerous criminal offence and death occurs as an unintended consequence
What is the maximum sentence for unlawful and dangerous act manslaughter
Life
Ar for unlawful and dangerous act manslaughter
- The defendants act in an unlawful act not an omission
- The act must be criminal
- The act must be dangerous
- The unlawful and dangerous act must cause the death of the victim
Who’s job is it to prove the defendant caused the victims death by their criminal act
Constructive manslaughter
The prosecution must prove beyond all reasonable doubt
Can constructive manslaughter be caused by an omission?
No the death must be caused by a positive act
Can constructive manslaughter be caused by an omission?
No the death must be caused by a positive act
Lowe
Constructive manslaughter
For the purposes of the offence of constructive manslaughter death must be cause by an act and not an omission
Franklin
Constructive manslaughter
The act must be criminal
Committed a tort but this held insufficient for the offence of constructive manslaughter. The courts have historically taken a flexible approach as to what constitutes a criminal offence
Church
Constructive manslaughter
The act must be dangerous
An act can be considered dangerous if “a sober and reasonable person would realise the risk” of their act
Dawson
Constructive manslaughter
The act must be dangerous
The courts held that the “sober and reasonable person” is assumed to have the same knowledge as the actual defendant and no more
Watson
Constructive manslaughter
The act must be dangerous
The unlawful act must be sufficient to cause physical injury, emotional and mental shock are not enough
Causation within constructive manslaughter
The prosecution must prove that D is the factual and legal cause of V’s death
Johnstone
Constructive manslaughter
Causes death
If the victim intervenes in the chain of causation with a voluntary act, this will be sufficient to break the chain of causation
