fatal offences Flashcards
Definition of murder
Lord Coke:
The unlawful killing of a reasonable creature in being under the King or Queen’s peace in any country of the realm with malice aforethought (express or implied)
AR elements of murder
- Unlawful killing, the defendant has
caused death to the victim. - The victim is a reasonable creature
in being (human). - The act was committed under the
King/Queens peace.
MR element of murder
- Malice aforethought, express, or implied
Unlawful Killing
R v Gibbins and Proctor
-It is important to note that the definition of murder does not require an ‘act causing the
death’, rather it requires a ‘killing’, this means a defendant may commit the offence of
murder by omission. An offence can only be committed by omission where defendant is
under a duty to act.
Human Being (Reasonable creature in being)
Attorney General’s Reference (No 3 of 1994)
-capable of having an ‘independent existence outside of the womb’
A03
This raises issues of morality as many people would view the foetus inside the womb
to be a human being after a certain point in the pregnancy, therefore if it dies it should be
murder. The debate regarding when a life starts, and ends needs to be resolved to make
the law effective.
R v Malcherek and Steel
Both Vs’ life-support machines were switched off by doctors. The D’s argued that the doctors’ actions were a ‘novus actus intervenien’ which broke the chain of causation.
HELD: Both convictions were upheld. At the time of switching off the machine, the V’s were already dead as their brain stems had died. The doctors could not therefore be the cause of death.
Under the King (or Queen’s) peace
-killing enemy soldiers during the time of war will not
constitute the actus reus of murder or manslaughter.
Factual Causation
‘but for D’s actions, V would not have…’
R v Pagett - does apply
R v White- doesn’t apply
Legal Causation
‘more than a minimal cause but the operating and substantiating factor of…’
R v Pagett- substantial cause and more than a minimal cause of pregnant girlfriend’s death.
Novus Actus Interveniens
-act of third party
- victim’s own actions
- act of God
Express Malice Aforethought (direct intent)
- Intention to kill.
- This is the highest level of mens rea (most serious).
- The D directly intends a criminal act where they want to carry out the actus reus of a criminal offence.
- The defendant must have the aim and desire to produce a certain result.
- The defendant must foresee the consequences of his actions and do everything possible to bring these about.
Test for direct intent
The test for direct intention is a subjective test. This means that it is what the defendant thought in those circumstances, not the reasonable man
-R v Mohan – direct intention was defined as the ‘decision to bring about the criminal consequence’.
Implied Malice Aforethought (indirect intention)
- Intention to do grievous bodily harm.
- This is also sometimes referred to as ‘oblique intention’.
- The criminal law recognises that sometimes a defendant does not necessarily want an outcome to occur, but the chances of that outcome (the actus reus) occurring are so high, and the defendant realised this and continued with their actions anyway.
- This shows it was within the realm of the defendant’s intention.
R v Woollin
-‘the defendant has the relevant
intent if he realised by his actions that there was a ‘substantial risk’ that he would suffer serious harm.’
-Held: Guilty of manslaughter, not murder.
Essentially, the Woollin case establishes a 2-part test:
- Was the outcome (the actus reus/criminal consequence) a virtually certain consequence
of the defendant’s actions?
-the jury should consider as a
matter of fact:was the actus reus a virtually certain consequence of the defendant’s actions? - Did the defendant realise this?
-that the defendant themselves actually foresaw the criminal consequence as a ‘virtual certainty’.
Voluntary Manslaughter
Homicide Act 1957 & the Coroners and Justice Act 2009
-Step down from murder
- Two partial defences:
-loss of control
- diminished responsibility
Loss of Control
Coroners and Justice Act 2009 s.54 and s.55.
Three-part test:
1. Does a killing by D result from D’s loss of self-
control? (s.54(1)(a))
2.Does D’s loss of self-control satisfy a qualifying
trigger? (s.54(1)(b))
3.The normal person test
Would a person of D’s age and sex, with a normal degree of tolerance and self-restraint, and in the circumstances of D, react in the same or a similar way? (s.54(1)(c))
s.54 (2)
The loss of control does not have to be sudden; there can be a ‘cooling off period’ - up to the jury to decide
s.54 (4)
If a person acts out of revenge, then the defence will fail. There can be no evidence of a plan or pre-meditation.
Jewell (2014)
’ a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning”.
s.54 (1) (b))
Must be one of two qualifying triggers:
-Trigger 1=Fear of serious violence (s.55 (3))
* The fear of violence need not be reasonable as long it was honestly thought by D.
* D can fear serious violence to another person (Ward).
R v Lodge
- Trigger 2=Things said or done (s.55 (4))
- The things said or done must be of extreme graveness and give the D a justifiable
sense of being seriously wronged. - This is to be judged objectively.
R v Zebedee
R v Hatter
Both triggers together (s.55 (5))
This is when both triggers may be present at the same point.
s.55 (6)(c)
The thing said or done constituted sexual infidelity is
to be disregarded Dawes (2013).
Clinton- sexual infidelity can be taken into considered if combined with other triggers
s.55 (6)(a) & s.55(6)(b)
Trigger One and Trigger Two are not met if they have
been incited by D him/herself to provide an excuse for violence.
The Normal Person Test (s.54 (1) (c)
Would a person of D’s age and sex, with a normal degree of tolerance and self-restraint, and in the circumstances of D, react in the same or a similar way?
- Although this is an objective test, the D’s age and gender are taken into account.
- Asmelash states that intoxication will not be taken into account.
- Characteristics are not taken into account, but the normal person is to be judged in
the same circumstances as D as what might be a ‘normal’ reaction.
(R v Christian)
R v Asmelash-CA refused to allow D’s voluntary intoxication to be considered. They
Diminished Responsibility
s.2 Homicide Act 1957 as amended by s.52 Coroners and Justice Act 2009
-judge’s discretion sentencing
Abnormality of Mental Functioning s.52(1)
- The accused must suffer from an abnormality of mental functioning which is established through medical evidence.
- The jury that must decide if D was suffering an AMF at the time of killing.
- As there is no clear definition in the Act, the courts use the old definition from the case of Byrne.
Byrne (1960)
Lord Parker:’a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal’
(s.52(1)(a)) - Arises from a recognised medical condition
Recognised by psychiatrists according to an internationally defined list:
Includes - adjustment disorder ( Dietschmann)
- alcohol dependency syndrome (Wood)
- battered spouse syndrome (Ahluwalia)
- depression (Martin 2001)
(s.52(1)(b) - Substantial impairment of ability
To do one or more of the following:
- understand their conduct (s.52(1A)(a))
-form rational judgement (s.52(1A)(b))
-ability to exercise self-control (s.52(1A)(c))
R v Golds
the judge must direct that the impairment must be more than merely trivial to be substantial, but it is not the case that any impairment more than trivial will suffice.
s.52(1)(c) - Provides an explanation for the D’s conduct
Coroners and Justice Act 2009
- D’s abnormality of mental functioning must ‘cause; or be a ‘significant contributory factor’ in causing the D to kill (s.52(1B))
Diminished Responsibility and Intoxication
Di Duca- intoxication itself cannot support a defence for Diminished Responsibility as it is not a recognised medical condition.
The D will only have a defence iff his AMF substantially impaired his mental responsibility even though he was intoxicated.
Involuntary Manslaughter
An unlawful killing where the D does not have the intention (either direct or oblique) to kill or cause GBH
-Unlawful Act Manslaughter
-Gross Negligence Manslaughter
Unlawful Act Manslaughter
- he has committed an UNLAWFUL act.
- the act was DANGEROUS (objective).
3.it have CAUSED THE DEATH of the V.
4.they had the MR for the unlawful act.
- The Unlawful Act
- must be a crime and is normally an assault against the person
- cannot be an omission (Lowe)
- other examples of an unlawful act: (Lamb)
- Dangerous Unlawful Act
- must be one that a sober and reasonable man would regard as being dangerous and carries a risk of some harm occurring.
- objective test established in the case of ( CHURCH)
The test is therefore:
“Would the reasonable man force the risk of some physical harm to another as a consequence of the unlawful act?”
R v Dawson
R v Larkin
Mitchell
- The Unlawful act must cause the death
Normal causation rules apply + Novus Actus Interveniens
R v Cato- D injected into V
R v Kennedy- V injected into himself
Mens Rea
- The MR for the unlawful act in question
- D does not need to realise that the act was unlawful or dangerous as long as they intended the original unlawful act
(Newbury and Jones)
Gross Negligence Manslaughter
The accused has killed the V but lacks the malice aforethought required for the murder or the mens era for the unlawful act manslaughter. The D is grossly negligent in breach of a duty of caee towards the victim, resulting in the victim’s death.
5 elements required in order to establish liability:
- A DUTY OF CARE is owed to the V
- there is a BREACH of duty
- which CAUSES death
- MENS REA- gross negligence that is so serious it requires a criminal conviction (Adomako)
- RISK OF DEATH
R v Adomako
Gross negligence manslaughter is proved by firstly establishing a breach of duty of
care and this is to be established via the ordinary law of negligence. It then must be proved
the breach of duty caused the death. Once all of this is proved a jury must then consider if
there is evidence of GN and therefore a crime.
The tests were restated on the case of R v Broughton
R v Broughton
causation could not be proved
- Duty of care
-D owes a duty of care towards the V
-Caparo v Dickman
-Robinson v Chief Constable of West Yorkshire
- Pre-existing duty:
R v Adomako: medical professional owes a duty of care to their patients.
R v Instan: a duty of care can be imposed where one party assumes responsibility for another.
R v Gibbins and Proctor: a duty because of a relationship: generally, only a parent-child
relationship will suffice.
R v Evans: a duty to act because the defendant has created a dangerous situation: this arises
where the defendant sets in a motion a dangerous series of events, where they fail to prevent
harm or damage occurring as a result of their actions, this failure to act can form the actus
reus of a criminal offence.
R v Willoughby: a duty can arise because of a combination of factors
- Breach of Duty
- must be a breach of duty according to the standards of the ordinary reasonable man with the same level of skill and expertise.
- Which causes death
the breach of duty must also cause the death
-normal causation rules apply
- Gross Negligence
- D must have been ‘grossly negligent’
- Adomako - ‘so bad/serious that it amounted to a criminal offence’
-The fact that a defendant has been negligent is not enough to convict them of gross
negligence manslaughter. The negligence must be ‘gross’.
- Risk of Death
Stone and Dobinson
Adomako- specifically mentioned there must be an ‘obvious risk of death’
R v Rose - the meaning of obvious
