fatal offences

Question 1

definition of murder

Answer 1

Where a person of sound memory and of the age of discretion unlawfully kills any reasonable creature in being, under the kings peace, with malice aforethought

Question 2

Break down of definition

Answer 2

Sound memory- the person must not be insane
Age of descretion- over the age of 10
Unlawfully kills- it must not be justifiable e.g. self defence
Living human being- foetus is not deemed living neither is someone who is dead at the time of attempt
Kings peace- killing enemy in wartime isnt murder

Question 3

Cases for actus reas of murder

Answer 3

Attorney-general’s reference(No 3, 1994) 1996- has to be born alive cant be stillborn
R v malcherek and steel- seriously wounded the victim and was artificially put on a respirator. Irreversible brain damage. The doctor turned off the respirator and malcherek was charged with murder. Tried to appeal and say it was doctors fail. Appeal denied as Ms acts caused the death.

Question 4

What is mens rea for murder

Answer 4

Malice aforethought- has the intention to kill
R v Vickers- died of injuries from being hit several times. If they intend GBH and resulted in death it could be classed as murder.

Question 5

What is Direct intent with case

Answer 5

It is what the defendant desires/ aim or purpose
R v Mohan- gives key description of direct intent for murder

Question 6

What is indirect intent and cases

Answer 6

Is not what they necessarily desire but it is foreseeable that it will certainly happen
R v Moloney- drunk game led to death of stepdad. They didnt have the intent to kill but it was a virtual certain consequence

Hendricks test- R v Nedrick- it’s a virtual certain consequence that death or GBH is a foreseeable outcome.
R v woolins confirmed this
R v Matthew and Alleyne- it is used merely as evidence which the jury can draw conclusions on

Question 7

Is euthanasia murder?

Answer 7

Technically in England it is as it causes death to a human. An act which causes death will not be treated as criminal if the action is good in itself.

Question 8

Types of causation

Answer 8

Legal and factual causation

Question 9

Factual causation and cases

Answer 9

r v white- but for test

Question 10

Legal causation and cases

Answer 10

r v smith- stabbed with bayonet- operative cause of death.
r v Cheshire- tracheostomy with killed him. medical negligence would have to be so separate to be liable.
r v Pagett- foreseeable intervening event
thin skull- R v blaue

Question 11

What are the 2 types of manslaughter

Answer 11

Voluntary manslaughter(where it is reduced from murder to manslaughter) and involuntary manslaughter(committed without malice aforethought)

Question 12

What act is voluntary manslaughter under

Answer 12

Coroners and justice act 2009 formally the homicide act 1957

Question 13

Why is manslaughter a more preferred sentence to murder

Answer 13

As it isnt an automatic life sentence. It is given after someone uses a partial defence

Question 14

What act is loss of control under

Answer 14

S.54 coroners and justice act 2009 previously s.3 homicide act 1957

Question 15

What is loss of control

Answer 15

When a person kills or is a party to the killing of another, the defendant is not convicted of murder if:
. The acts of the killing resulted only due to loss of control
. It must have a qualifying trigger
. A person of the same age, sex, and of a normal tolerance might have reacted the same
All 3 elements must be established

Question 16

What isnt classed as loss of control

Answer 16

Under s.55 sexual infidelity, inciting someone to act violent so you can act back or revenge are not qualifying triggers for murder

Question 17

Who decides if defence should be put to jury

Answer 17

The judge

Question 18

Cases involving jury’s decisions

Answer 18

R v gurpinar & kojo-Smith- defendants were 2 young men. Convicted of murder after stabbing in a fight. Appealed for loss of control. Both appeals were dismissed by judge and not sent to the jury.
R v Christian- defendant fatally stabbed 2 victims in shared living area due to temperature in communal shower being wrong. Appealed for loss of control. Not enough of a qualifying trigger as it was irrational

Question 19

Cases that define loss of self control through the subjective test

Answer 19

R v Jewell- confirmed loss of control means “a loss of normal powers of reasoning”
R v Dawes and others- dawes stabbed victim when he found him on the sofa with his estranged wife. Defence not available of the defendant acted I a considered desire for revenge.
R v Evans- defines that an act of retribution as a result of a deliberate and considered decision to get your own back

Question 20

What are the 2 types of qualifying triggers

Answer 20

Anger or fear

Question 21

What is the fear trigger and cases

Answer 21

Fears serious violence from the victim
R v ward- loss of control on behave of someone else
R v lodge- plead loss of control when victim had attacked defendant with a baseball bat and then D then killed him

Question 22

What does the fear trigger cover

Answer 22

Anticipatory force- D expects violence in the future e.g. domestic violence
Reactive force- D reacts to force which is imminent.

Question 23

What things have to be proved with the anger trigger

Answer 23

1. Action is of grave character
2. Justifiable sense of being wronged

Question 24

What is acting of grave character and cases

Answer 24

R v doughty- the provocative nature of a crying baby is not of grave character
R v zebedee- 94 year old am soiled himself so killed him. Didnt qualify as a trigger
Dawes and others- stated the break up of a relationship could constitute as grave character. Example given was seeing a parent coming home to see child being raped so you kill the attacker.

Question 25

What is a justifiable sense of being seriously wronged

Answer 25

R v bowyer- Bowyer burgled house. Finds out his girlfriend is a prostitute. Kills her. Found guilty
R v brehmer- long term affairs with the victim. Victim told his wife be cheated. Defendant strangled victim. Sexual infidelity disregarded- it was the fear of it coming out.
Objective test from r v Clinton
In clinton they stated that you couldnt feel seriously wronged if you saw a stranger get raped.
R v Clinton- d killed wife after she said she was sleeping with 5 other men. Loss of control is not available for sexual infidelity. “Where sexual infidelity is integral to and forms an essential part of the context, the prohibition does not operate to exclude it”.

Question 26

Objective test

Answer 26

“A person of Ds 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”
“In the circumstance of D”- all circumstances came taken j to consideration. Can also include external factors such as abuse.
R v meanza- Ds mental illness not relevant to objective element.
R v rejmanski- mental illness could be considered with enough evidence
R v clinton- sexual infidelity can be considered
R v asmelash- voluntary intoxication can not be considered.

Question 27

What act is deminished responsibility under

Answer 27

S.52 conorers and justice act 2009 which replace S.2 homoside act 1957

Question 28

What branched does diminished responsibility fit under

Answer 28

Abnormality of mental functioning

Question 29

3 points under abnormality of mental functioning

Answer 29

They have a recognised medical condition, substantial impairment, provides an explaination for defendants acts or omissions

Question 30

Cases for abnormality of mental functioning

Answer 30

R v byrne- strangled and mutilated a young girl. He claimed that he has sexual desires about children and found it impossible to exercise will power.

Question 31

case for recognised medical conditions

Answer 31

R v martin- he had been a victim to burglaries so when he got burgled he shot the intruders and one died. he had paranoid personality disorder and depression so he was convicted of manslaughter instead.

Question 32

case for sustained impairment

Answer 32

not able to form rational judgement- r v martin. cant understand conduct. cant exercise self control- r v Byrne. R v Brown- cant be trivial. R v gold- substantial impairment confusion. Simcox- unable to control self.

Question 33

cases for it providing an explanation for their actions

Answer 33

r v Osbourne- he killed someone in a fight after smoking cannabis. had ADHD but couldn’t use defence as angry issues and drugs cause it not ADHD

Question 34

cases for alcohol and diminished responsibility

Answer 34

R v dietschmann- killed victim in savage attack after heavily drinking after the loss of his aunt whom he has dated. if not for drinking he still wouldve had a similar reaction

Question 35

What is unlawful act manslaughter

Answer 35

It is an act not an omission

Question 36

What is unlawful act manslaughter

Answer 36

It is an act not an omission

Question 37

3 key points of unlawful act manslaughter

Answer 37

• There must be an unlawful act
• It was dangerous in the sense that a sober reasonable person would inevitably recognise that it carried some risk of harm.
• The unlawful act caused the death

Question 38

3 key points of unlawful act manslaughter

Answer 38

• There must be an unlawful act
• It was dangerous in the sense that a sober reasonable person would inevitably recognise that it carried some risk of harm.
• The unlawful act caused the death