fatal offences Flashcards
(81 cards)
definition of murder
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
Break down of definition
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
Cases for actus reas of murder
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.
What is mens rea for murder
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.
What is Direct intent with case
It is what the defendant desires/ aim or purpose
R v Mohan- gives key description of direct intent for murder
What is indirect intent and cases
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
Is euthanasia murder?
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.
Types of causation
Legal and factual causation
Factual causation and cases
r v white- but for test
Legal causation and cases
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
What are the 2 types of manslaughter
Voluntary manslaughter(where it is reduced from murder to manslaughter) and involuntary manslaughter(committed without malice aforethought)
What act is voluntary manslaughter under
Coroners and justice act 2009 formally the homicide act 1957
Why is manslaughter a more preferred sentence to murder
As it isnt an automatic life sentence. It is given after someone uses a partial defence
What act is loss of control under
S.54 coroners and justice act 2009 previously s.3 homicide act 1957
What is loss of control
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
What isnt classed as loss of control
Under s.55 sexual infidelity, inciting someone to act violent so you can act back or revenge are not qualifying triggers for murder
Who decides if defence should be put to jury
The judge
Cases involving jury’s decisions
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
Cases that define loss of self control through the subjective test
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
What are the 2 types of qualifying triggers
Anger or fear
What is the fear trigger and cases
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
What does the fear trigger cover
Anticipatory force- D expects violence in the future e.g. domestic violence
Reactive force- D reacts to force which is imminent.
What things have to be proved with the anger trigger
- Action is of grave character
- Justifiable sense of being wronged
What is acting of grave character and cases
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.
