FATAL OFFENCES

Question 1

Where does murder come from and what is the classification of offence?

Answer 1

Murder is contrary to common law and was defined in the 17th century by Lord Coke. It is an indicta table offence with a mandatory life sentence.

Question 2

What is the AR of murder?

Answer 2

Unlawful killing
Of a reasonable person in being 
Under the Queen's peace
Within any country if the realm
Causing death in fact and law

Question 3

What is the law regarding unlawful killing?

Answer 3

●The killing must be unlawful(not in self defence)
If relevant:
●In some cases the death may be the result not of positive act but an omission like Gibbins and Proctor, Pittwood.

Question 4

What is the law regarding “Of a reasonable person in being”?

Answer 4

● A foetus in the womb, having no existence and independent of it’s mother is not defined in law as “in being”. It is only considered such when it has been fully expelled from it’s mother.

-If the baby is born alive after the stabbing and then dies, then it is involuntary manslaughter- UDAM as said in CP v CICA and AG’s Ref No.3 if 1994.
● A person who is “ brain dead” is not considered to be a “reasonable person in being” as in MALCHEREK AND STEEL.

Question 5

What is the law regarding Under the Queen’s peace?

Answer 5

The killing of an enemy of war is not murder as such person is not under the Queen’s peace.

Question 6

What is the law regarding Within any country of the realm?

Answer 6

The killing needs to be in a country where our monarch is still the reigning sovereign.

Question 7

What does causing death in fact and law mean?

Answer 7

You need to discuss causation. Discuss causation.

Question 8

What is the mens rea (MR) of murder?

Answer 8

Malice aforethought, express or implied.
Express malice aforethought is intention (direct or oblique) to kill
Implied malice aforethought is intention (direct or oblique) to commit GBH (serious harm)

Question 9

What does Lord Mustill say about transferred malice an foetuses?

Answer 9

He refused to used transferred malice in Ag’s Ref 3 1994 as he said that transferred malice to the foetus.

Question 10

A03 evaluation point for muder?

Answer 10

●Despite being the most serious offence in criminal law, murder comes from common law and not parliament (can expand on this ). It is however mentioned in the Homicide Act 1957. So, there is no legal statutory definition of the death and reasonable person in being which could potentially cause uncertainty.
The matter was considered by the Criminal Law Review Committee in 1980 and the decision was taken that statute should not intervene, although other countries have take the step of legally defining these terms.
●Cases such as Malcherek and Steel do provide that one that is left brain dead is not a reasonable person in being but parliamentary intervention is needed., No major problems have yet arisen, but as medical science advances and we become more adept at prolonging life, the law may well be required to advance with it.

Question 11

Another evaluation point for murder.

Answer 11

●The Mr is arguably too easy to satisfy as it requires an intention to kill or commit GBH, so it is possible to be guilty where there is no specific intention to kill. Therefore, it could be argued that parts of it do not conform to the correspondence principle which means that the MR and the AR must correspond.
●In its report, The Law Commission pointed out that Parliament, when passing the Homicide Act 1957, never intended a killing to amount in law to murder, unless the D realised his conduct might cause death. A house of Lords Select Committee suggested that the current MR should be replaced by intention to cause serious personal harm, being aware that death could result from that harm, meaning D would have some knowledge that death could occur.
●Judicial support for this was given in Woolin. With the law as it stands, the charge faced by the D may depend on luck or skill of the doctor treating the V. If the doctor saves the V, the charge will be S.18 GBH but if he dies, it would be murder, carrying mandatory life. The degree of fault is identical in each case but the penalty may be quite different, which is morally wrong. However, if the MR for murder is amended it may become more difficult to prove.

Question 12

Third evaluation for Murder.

Answer 12

The law regarding the meaning of intention, has developed gradually through case law and the concept of oblique intention in particular is difficult for juries. A number of cases have considered the meaning of oblique intention. In Hyam, the court said that the consequences needed to be probable and the D needed to foresee that. Moloney suggested that oblique intent was where there was natural consequence which the D foresaw.
● Moloney was criticised in Hancock and Shankland and then in Nederick, the court outlined how juries cannot infer oblique intention for murder unless they feel death or serious harm was a virtual certainty and the D appreciates it. This test was agreed in Woollin.
●Now this is difficult enough for lay people, but in addition, the jury is told that foresight of a virtual certainty is not automatically intention, but it is merely evidence of intention, as confirmed in Matthews and Alleyne. This is complex and will undoubtedly lead to inconsistent application and even injustice. If the MR for murder was limited to direct intention this could remove the problem faced by juries, but conviction for murder could then become too difficult.

Question 13

Discuss the 4th evaluation of murder.

Answer 13

●The mandatory life sentence is generally regarded as essential by the public. However, which a life sentence is appropriate for a pre-trial and motiveless killing, there are other homicides which do not require such arbitrary sentences. In Price, the D who killed his severely handicapped son was convicted of manslaughter on the grounds of diminished responsibility and given a non custodial sentence, though the abnormality of mental functioning seemed rather tenuous and this was a manipulation of the law.
● The mandatory life sentence should be abolished by Parliament and this would mean that the courts could then just deal with each case on its merits and not have to manipulate the law, enabling justice to be achieved for all. Even though the Criminal Justice Act 2003 gives three minimum sentence starting points which allows the courts some differentiation in sentencing, the mandatory life sentence an the categories laid out in government guidelines mean that a child mercy killer like Price could receive the same sentence as a contract killer which is surely wrong.

Question 14

Discuss the reform points of murder.

Answer 14

●Law commission in the Report: Murder, Manslaughter and Infanticide. Its recommendations included a proposal for first and second degree murder and manslaughter, so a three tier structure.
● First degree murder would include killing with intention to kill or with intention to cause serious injury but with a foresight of a serious risk of death.
●Second degree would include killing with intent to cause injury but with the foresight of a risk of death, manslaughter. This would be a positive step in differentiating types of killing but despite support from the DPP, it is yet to be enacted.
●The Government’s response in its 2008 Consultation document brought about limited statutory reform dealing with the excessive force in self defence in the new loss of control defence, but it rejected the Law Commission’s tier structure proposals completely.

Question 15

What offence are you first charged with before Diminished responsibility?

Answer 15

Voluntary manslaughter

Question 16

What is voluntary manslaughter?

Answer 16

Voluntary manslaughter is where both the AR and MR pf murder is met but one of two possible special partial defences can be successfully pleaded.

Question 17

What are the two defences for murder?

Answer 17

Diminished responsibility and loss of control

Question 18

Where does diminished responsibility come from and ?

Answer 18

It comes from s.52 of the CJA 2009

Question 19

What is the first element of diminished responsibility and what does it provide and related cases?

Answer 19

●S.52(1) provides that the D must be suffering from an abnormality of mental functioning.
Byrne provides that the mental functioning will be regarded as abnormal where it is such that a reasonable person would consider it as abnormal.

Question 20

What is the second element of diminished responsibility and what does it provide and related cases?

Answer 20

●The abnormality of mental functioning must arise from a recognised medical condition:
●Temporary condition -Reynolds
●Battered spouse syndrome -Ahluwalia
●Pre-menstrual tension- Smith
●Depression- Gittens, Seers and Deitschmann
●Other disorders such as bipolar and depression
●Alcohol dependency syndrome- Wood and Stewart. Wood makes it clear that where there is an addiction, the alcohol consumed or the drugs taken must be due to the addiction.
●Medical evidence will be needed to support this but the D does not have to have been diagnosed at the time of his killing.

Question 21

What is the third element of diminished responsibility and what does it provide and related cases?

Answer 21

●The abnormality of mental functioning must substantially impair the D’s ability to understand the nature of his conduct, form rational judgement, and exercise self control.
●The cases of Golds and Simcox provide that for it to be substantial it must be something that really made a great difference.

Question 22

What is the fourth element of diminished responsibility and what does it provide and related cases?

Answer 22

●The abnormality of mental functioning must provide an explanation for the killing.
●Deitschmann provides that there can be other factors as well as long as the abnormality of mental functioning is a substantial contributor

Question 23

A03 evaluation point for diminished responsibility?

Answer 23

●A major improvement is that under the old Act abnormality of mind was problematic but now there is a new medicallty recognised term ‘abnormality of mental functioning’ which must arise from a recognised medical condition.
●Athough it has improved and kit is now in line with medical definitions, it has not been free from criticisms. Critics argue that by restricting it to abnormality of mental functioning, it may have reduced the scope of the defence. Under the old law, people who killed terminally ill loved ones sometimes afforded to use this defence as it could be proved that they had an abnormality of mind and avoided the mandatory life sentence. But now, it has to be a recognised medical condition and so abnormality of mental functioning has made the defence narrow.
●One recognised medical condition that the government did not include is developmental immaturity. Children who suffer from abuse or neglect may suffer from this.The government did not include this as they were of the thought that all child killers would use this defence. The government may wish to be seen as though by child killers but by doing this, they are preventing genuine cases from using this defence. A child as young as 10 may be convicted of murder even though they are developmentally immature.

Question 24

Second A03 evaluation point for diminished responsibility?

Answer 24

●Another issue causing concern is that this defence is far from clear and is undoubtedly causing problems for the jury. The jury must hear evidence from experts but then decide for themselves whether it substantially impairs the D’s abilities and if it provides an explanation for the killing. The medical evidence can be complex and they will hear conflicting evidence from medical professionals for prosecution and defence an this can be difficult. What may be better is providing the jury with a list of RCM and shifting the burden of proof from defence to prosecution.

Question 25

Third A03 evaluation point for diminished responsibility?

Answer 25

Issues such as alcoholism and intoxication seem to remain unchanged by the new law and so the decisions in cases like Deitschmann and Wood will still stand. Since this defence is only available for murder, the family of the V may not be as sympathetic intoxicated alcoholic like Wood who repeatedly struck the V with a meat cleaver.

Question 26

Fourth A03 evaluation point for diminished ?responsibility?

Answer 26

●Like the defence of insanity there are also problems with proving diminished responsibility. The burden of proof lies on the D to prove diminished responsibility. For most defences, the D just has to raise the defence and then it will be the job of the prosecution to disprove it. The burden of proof may breach Article 6 of the ECHR which states that the D is innocent until proven guilty and so he should not have to prov anything. Clearly the law should not be breaching the convention. The Butler Committee has recommended that the burden of proof should be on the prosecution to ensure justice.

Question 27

Discuss the reform points for diminished responsibility.

Answer 27

● It has improved since the homicide Act 1957 but parliament has missed an opportunities to improve all the elements of this defence.
●The Law Commission suggested that the Government should have included developmental immaturity in the defence for those under 18. The government believed that they should not put this as a RCM as it is a learning disability. However, developmental immaturity is nit a learning disability.
●If the mandatory sentence for murder was abolished, this defence would no longer be necessary and all th

Question 28

where does loss of control come from?

Answer 28

Loss of control is contrary to s. 54 of the Coroners and Justice Act 2009

Question 29

Omission evaluation point for UDAM?

Answer 29

The specific nature of the crime of UDAM means that a positive act rather than an omission will be liable. This means that some cases can slip through if they are for example an omission like in Lowe where there was no liability under constructive manslaughter as it could not be proved that the neglect was wilful unlawful act. It is also clear that it has to be an unlawful act and so acts that are not criminal like in Franklin can also slip through

Question 30

Dangerous test evaluation point for Udam.

Answer 30

The dangerous test from Church is an objective test. The use of the objective test in serious crimes is usually avoided as the court feel that it is important to only convict people who see a risk for themselves so it seems unfair that the D himself doesn’t need to see a risk. What makes the test further unfair is that it only requires the foreseeability of only some harm and so it would not be too hard to establish. It is also likely that the jury will regard the Ds behaviour as dangerous in a case where someone has died. The risk of death requirement for GNM however is based on an objective test that there is a risk of death. This makes the dangerous test for constructive manslaughter harder to establish than gross negligence manslaughter. This seems unfair as they are both involuntary manslaughter.

Question 31

MR easy to satisfy evaluation point for UDAM.

Answer 31

The MR is very easy to satisfy as there is no need for the D to foresee death. In Mitchell, the V’s death was unexpected yet Mitchell was liable for involuntary manslaughter. The Law Commission in its report 1996 did not think it was appropriate for a person to be convicted of constructive manslaughter when they only had the MR required for battery or assault. It seems harsh that a person may only have the MR for battery and so not even death is expected by them, they may not even see a risk of injury yet they could be found guilty of involuntary manslaughter. The Home Office however disagreed as they think that whoever commits an illegal act must be liable for their actions even if they did not foresee death.

Question 32

Reform points for UDAM.

Answer 32

●The Law Commission suggested that UDAM should be abolished and it should be replaced by 5 homicide offences. It proposed new offences such as reckless killing and killing with intention to injure and being reckless as to injury. This would seem a more appropriate label than manslaughter where on e only has the MR for a less serious offence and sentencing would reflect this. It has been suggested that killing with an intention to injure or being reckless as to injury would have a maximum sentence of 7 years. The Government’s Home Office Report 2000 agreed with this proposal . However, the Government decided not to go ahead with this proposal.
●In 2006, another Law Commission Report did not recommend the abolition but suggested a three tie structure for homicide.