EXAM NOTES - Murder

Question 1

what is the definition of murder?

Answer 1

unlawful homicide

with malice aforethought

Question 2

What is the AR for murder

Answer 2

Coke:

1) unlawful
2) killing
3) of a reasonable person in being
4) under the king’s peace

Question 3

how can a killing not be unlawful?

Answer 3

• war
• lawful execution
• self defence

Question 4

what needs to be shown to prove a killing?

Answer 4

R v White ‘but for’ test

Legal causation:
- novus actus interveniens-
- R v Smith ‘operating and substantial cause’
 More than slight/trifling contribution to his death Cato, Kimsey

Question 5

who is a reasonable person in being?

Answer 5

Live born person R v Poulton

Question 6

When will a killing not be under the King’s peace?

Answer 6

in a war/rebellion

Question 7

What is the MR for murder?

Answer 7

malice aforethought

1) intention to kill
2) intention to cause GBH
- (R v Vickers disturbed while robbing a shop)

Question 8

What is GBH?

Answer 8

R v Saunders “serious harm”

Question 9

How is intention determined?

Answer 9

R v Moloney ordinary meaning - direct aim/purpose

Smith & Hogan - direct aim or purpose

Question 10

what are the main defences to murder?

Answer 10

• self-defence
• loss of control (LOC)
• diminished responsibility (DR)

Question 11

What is the structure for a LOC answer?

Answer 11

(1) Effects of LoC
(2) Introduce CJA 2009 and problems with old law
(3) Loss of control
(4) Qualifying trigger
a. Fear of violence
b. Things said or done
(5) Normal person might have acted in the same way

Question 12

What is the governing legislation for LOC?

Answer 12

Coroners and Justice Act 2009

Question 13

What is the effect of a successful argument of LOC?

Answer 13

Reduces conviction from murder to manslaughter s54(7)

Question 14

Who has the burden of proving LOC?

Answer 14

Burden of proof on prosecution to disprove it s54(5)

Question 15

what are the requirements for LOC to work>

Answer 15

CJA 2009 s54(1)

1) actions resulted from a loss of self-control
2) qualifying trigger
3) A person with the same characteristics as D in the same circumstances might have acted the same

Question 16

What is the most important case on LOC?

Answer 16

R v Clinton, Parker and Evans

1) old common law can be used but only with awareness that it is outdated
2) prosecution just need to show one of the requirements is missing

Question 17

What constitutes a loss of control

Answer 17

R v Richens (old law) (D stabbed someone who raped his girlfriend)

1) D must be unable to restrain himself
2) but need not be a complete loss of control
3) mere loss of temper not enough

Question 18

must the LOC be immediate?

Answer 18

s54(2) and R v Ahluwalia (old law)

• LOC need not be sudden
• but jury should consider any delay

Question 19

when can LOC not be used?

Answer 19

1) R v Ibrams and Gregory (old law) not for an act of considered revenge
2) R v Clinton, Parker and Evans - not if sexual infidelity was the SOLE reason for losing control (can be considered if background reason)

Question 20

What controls the ‘qualifying trigger’? LOC

Answer 20

s55 CJA 2009

• S55(3) fear of serious violence
• S55(4) things said or done or both which
  i) constituted circumstances of an extremely grave nature and
  ii) caused D to have a justifiable sense of being seriously wronged

Question 21

explain ‘things said or done’ and give statute LOC

Answer 21

s55(4) CJA 2009

- R v Acott - circumstances on their own will not be enough

Question 22

explain ‘circumstances of an extremely grave nature LOC

Answer 22

s55(4) CJA 2009
- R v Clinton, Parker & Evans
The jury will have to decide, objectively, whether D could have thought that the thing said or done constituted circumstances of an extremely grave nature
- Explanatory Notes on the Bill + R v Clinton, Parker and Evans do not define but suggest it is a very high standard (focus on words like “serious”, “extreme” and “seriously in the case)

Question 23

what is the current law on ‘causes D a justifiable sense of having been seriously wronged’? LOC

Answer 23

s55(4) CJA 2009

• Explanatory Notes to the Bill + R v Clinton, Parker and Evans: an objective question; no consideration of D’s circumstances
• Example in Explanatory Notes - a parent coming back to find their child being raped. Very serious

Question 24

What old law could help with the concept of a ‘justifiable sense of having been seriously wronged’? LOC

Answer 24

1) R v Gregson - D’s circumstances could not be considered for affecting the qualifying trigger
2) R v Fenton qualifying trigger must be more than just a loss of temper

Question 25

what if D created the qualifying trigger? LOC

Answer 25

s55(6) D cannot create the qualifying trigger in order to use violence eg R v Johnson

Question 26

what governs whether a normal person would have acted in the same way? What is the basic test? LOC

Answer 26

s54(1)(c) CJA 2009
- would a normal person (NP) react the same way?
o NP has ordinary level of self-restraint

Question 27

what can the court consider to determine if the NP would have acted in the same way?LOC

Answer 27

• s54(1)(c)
• jury can consider any characteristics/circumstances of the D they feel is relevant
• as long as it does not ONLY go towards the capacity to exercise self-restraint

Question 28

Are ‘true’ insults more provocative?LOC

Answer 28

yes - DPP v Camplin and R v Gregson (both old law)

Question 29

how does the court determine the proportionality of D’s reaction?LOC

Answer 29

entirely objective; normal person with normal self-control with no consideration of their characteristics/circumstances

Question 30

Can the court consider sexual infidelity in determining if the reasonable person would act as D did? LOC

Answer 30

• R v Clinton, Parker & Evans sexual infidelity can be considered within s54(3)

Question 31

What is the rule for intoxication in LOC?

Answer 31

• R v Morhall - Reasonable man is always sober so jury cannot consider it as part of the characteristics/circumstances of D – likely to be part of the new law too
  o but the jury could consider taunts about D being an alcoholic or a drug addict as a ‘true’ insult

Question 32

What is the structure for a DR defence?

Answer 32

(1) Homicide Act + CJA 2009 + old law likely to still be relevant
(2) abnormality
(3) recognised medical condition
(4) substantial impairment
(5) s2(1A)
(6) explanation
(7) intoxication

Question 33

What is the governing law on DR?

Answer 33

s2(1) Homicide Act 1957 as amended by s53 CJA 2009

Question 34

how does raising a DR defence work?

Answer 34

• partial defence reducing murder to manslaughter

- D must prove on the balance of probabilities that he was acting under dim res (s2(2) HA 1957)

Question 35

How does DR work?

Answer 35

S2(1) D is not guilty of murder if suffering from an abnormality of mental functioning which:

(a) Arose from a recognised medical condition
(b) Substantially impaired his ability to do one or more things in 1A
(c) Provides an explanation for D’s acts/omissions

Question 36

What are the things in s2(1A)? DR

Answer 36

(a) Understand nature of conduct
(b) Form a rational judgement
(c) Exercise self-control

Question 37

how can an abnormality provide an explanation for D’s act?

Answer 37

S2(1B)

• the abnormality provides an explanation for the act
• if it causes
• or is a significant contributory factor in causing
• D to carry out his conduct

Question 38

How do you prove an abnormality of mental functioning?

Answer 38

• likely to follow the old law because similar wording

- R v Byrne: A ‘state of mind so different from ordinary human beings that the RM would term it abnormal’

Question 39

How do you prove a recognised medical condition? DR

Answer 39

• Very wide – more so than the old law
  1 R v Ahluwalia – acute depression
  2 R v Thornton – battered woman syndrome
  3 R v Tandy – disease or injury, therefore including alcoholism
  4 R v Fenton – must not just be a loss of temper

Question 40

How do you prove a substantial impairment? DR

Answer 40

• Likely to follow the old law – R v Simcox and R v Lloyd – more than trivial or minimal
• Won’t work if D knows what he is doing and is just angry/jealous/seeking revenge etc

Question 41

what must be asked of a drunken person who tries to rely on DR?

Answer 41

are they an alcoholic or were they just drunk?

- Intoxication with no suggestion of alcoholism will not assist a dim res claim O’Connell

Question 42

how can intoxication work in a DR defence?

Answer 42

1) D suffers from an abnormality of mental functioning but is also, independent of that, drunk
2) Where intoxication is evidence of an abnormality of mental functioning e.g. alcohol dependency syndrome (ADS) or drug addiction

Question 43

what happens if D suffers from an abnormality but is also, independent of that, drunk?

Answer 43

R v Dietschmann if D suffers from an abnormality but is also drunk,

1) the jury must consider the effects of the matters other than alcohol
2) and decide whether they might have substantially impaired D’s ability to do one of the things in s2(1A)

• Defence can still operate even if alcohol played some part in his culpability

Question 44

what should courts do if intoxication is evidence of abnormality e.g. ADS?

Answer 44

R v Stewart

1) Jury must decide whether D was suffering from an abnormality
2) Jury must then decide whether this arises from a recognised medical condition
3) Reliance on voluntary or temporary drunkenness, even if very habitual, will be insufficient R v Dowds
4) Was the ADS a significant factor in causing D to drink?

Question 45

give some case law on the ‘justifiable sense of having been seriously wronged’ qualifying trigger

Answer 45

1) Ahluwalia - domestic abuse then threats
2) Baille - drug dealer threatened his son
3) Thornton - domestic abuse victim who sharpened the knife before using it
4) Humphreys - domestic abuse then threatened