fatal offences Flashcards
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.
What is a justifiable sense of being seriously wronged
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”.
Objective test
“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.
What act is deminished responsibility under
S.52 conorers and justice act 2009 which replace S.2 homoside act 1957
What branched does diminished responsibility fit under
Abnormality of mental functioning
3 points under abnormality of mental functioning
They have a recognised medical condition, substantial impairment, provides an explaination for defendants acts or omissions
Cases for abnormality of mental functioning
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.
case for recognised medical conditions
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.
case for sustained impairment
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.
cases for it providing an explanation for their actions
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
cases for alcohol and diminished responsibility
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
What is unlawful act manslaughter
It is an act not an omission
What is unlawful act manslaughter
It is an act not an omission
3 key points of unlawful act manslaughter
- 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
3 key points of unlawful act manslaughter
- 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
cases for the accused committed an unlawful act
r v lamb- no fear, no assault so no unlawful act
r v corion auguiste- bomb thrown into a bus station. convicted of unlawful act manslaughter
mens rea for UAM
need not know it was dangerous- DPP v Newbury and jones- 2 teenage boys, paving stone. killed a train guard. did not foresee it, still liable
Cases for act is dangerous that a sober and reasonable person would have foreseen soom risk of harm
r v church- man took a woman to his van. she slapped him. he thought he killed her so disposed of the body in a river. she wasn’t dead but died from drowning. liable
r v Woolley and Campbell- woman accused an old man of rape. died of heart attack from stress. liable
r v JM and SM- foresee some type of harm no matter the type. the reasonable bystander need not be aware of the victims particular characteristics
case for acts causing victims death
r v goodfellow- set house on fire. petrol bomb. killed his wife, friend and child. convicted. doesn’t need to be aimed.
r v Carey- 3 girls had a fight with another girl. girl ran home as she was scared and died from inherited hair disease. not liable. brake in chain of causation.
r v Kennedy- prepared drugs however they injected themself. broke the chain of causation so not liable- free will.
what case established gross negligent manslaughter
Adomako- doctor failed to attach patients oxygen supply. patient died
what case changed Adomako rulings
r v Broughton- six stage test:
1. must owe a DOC
2. breach of DOC
3. obviously risk of death
4. foreseeable
5. causation
6. justifying a criminal sanction
cases for owing a DOC
r v wacker- smuggling 60 illegal immigrants. 58 died. convicted
r v Evans- gave his recovering sister heroin. could see she was having an overdose but didn’t get any help. liable
r v kuddus- no DOC if allergy is unknown.
cases for breaching DOC
r v warner- caretaker failed to replace gap in barrier. child fell to their death. liable
cases for deserving a criminal conviction
r v Bateman- ‘such disregard for the life’
A-G reference- if conduct was bad enough you don’t need to know what D was thinking
cases for foreseeability of GNM
r v misra and Srivastava- failure to prescribe antibiotics, patient died. liable
r v rose- risk of death needs to be obvious cant be found under further investigation
what is insanity
mental state doesn’t leave them responsible for the crime
what case established insanity
m’naghten case
3 things needed to be proven insane
.defect of reason
.disease of the mind
.didn’t know nature or quality of the act
case for defect of reason
r v Clarke- shoplifted from store. blamed it on depression. still held liable as they could still use reasoning it wasn’t impossible for them.
cases for disease of the mind
r v kemp- arteriosclerosis (blackouts). GBH on wife. not liable
r v Sullivan- epileptic. not liable
r v quick- liable as had taken insulin. cant consider external influences
r v Hennessy- not liable- diabetic but had not taken insulin
cases for nature and quality of act
r v Johnson- schizophrenia. killed victim. knew it was legally wrong not morally- liable
r v Keal- didn’t know it was illegal but know it was morally wrong.
what is automatism
involuntary act caused by external factors. partial defence
Bratty v AG of northern Ireland/ lord denning
done as a reflex action. e.g. swarm of bees, hypnotism or a blow to the head. dissociated state.
r v t
charged with robbery and ABH. had been raped 3 days prior to committing crime. had PTSD. dissociative state.
A-G reference (automatism)
trace like state from driving for so long but will still aware of his surroundings. liable
what is self induced automatism
either from drinking or taking drugs
r v bailey
hypoglycaemic state. had only had a but of sugar. seen as reckless. couldn’t use the defence
r v Hardie
taken Valium. didn’t know effects. could use defence.
r v Kingston
attracted to young boys, but could control tendencies. spiked and slept with a 15 year old boy. as he had these thoughts when sober it was not due to intoxication
voluntary intoxication
specific intent- partial
basic intent- no defence
cases for voluntary intoxication
DPP v Majewski- attacked police officer. couldn’t remember the incident. basic intent so no defence
r v Lipman- taken LSD killed his girlfriend. rules as manslaughter. no defence as basic intent
cases for involuntary intoxication
r v McGhee- took a tranquiliser under prescription. drank heavily. ‘no choice but to drink’. courts didn’t allow this. no defence.
r v Hardie- took girlfriends Valium. was involuntary as he was told it wouldn’t hurt him.
r v Allen- made his own wine. not knowing percentage is not enough for IVM
case for Dutch courage
attorney general for northern Ireland v Gallagher- no defence
mistake and intoxication
for specific intent crimes- there is a defence
r v O’Grady- as it was manslaughter (BI) it was no defence
what act establishes self defence
s.3 criminal law act 1967
points to establish self defence
- possibility of retreat
- imminent threat
- force against 3rd party
- mistake
- reasonable force
- homeowners
case for possibility of retreat
R v McInnes- not necessary but can help a case
cases for imminent threat
Malnik v DPP- he moved to the dangerous situation. no imminent threat
A-G R- petrol bombs. used bombs to protect property. self defence
case for mistake
r v Williams (Gladstone)- view from defendant perspective
mistake and intoxication
no mistake allowed for intoxication (R v O’Connor)
case for force against 3rd party
r v Hichens- can use force against 3rd party just not in the case
cases for reasonable force
cross v Kirkby- can use up to 25% more force than necessary
r v Hussain and Hussain- cant use excessive force. hit burglar over the head with cricket back while running away
case for mistake to the degree of force
r v martin
case for householders
crime and courts act 2013- can use too much force just no grossly disproportionate
cases for consent must be real
Burrell and Harmer- 2 12 year old boys got tattoos- didn’t know nature of the act
r v Tabassum- breast examination by someone who said they were a doctor but was not. didn’t consent to quality of the act
cases for informed consent
r v Dica- man knew he had HIV persuaded people to have unprotected sex without telling them.
r v Konzani- person consents to sexual intercourse but not to STDs.
cases for limitation of consent
r v Leach- arranged to be crucified. cant consent to above ABH
cases for consent to sexual activity
r v Wilson- branded wife. same as a tattoo
r v brown- BDSM- gay people. no consent
r v Slingsby- cut woman’s vagina with ring. got scepsis. died. there was consent.
r v Emmett- BDSM sex. plastic bag over head, lit breasts on fire, strangled her. no consent
