Fatal Offences Against The Person

Question 1

What is the definition of murder?

Answer 1

“Murder is the unlawful killing of a reasonable person, in being and under the King’s Peace, with malice aforethought, express of implied”

Question 2

What type of offence is murder?

Answer 2

A common law offence

Question 3

What’s the AR of murder?

Answer 3

“killed” - means death could be an act or omission
“Unlawful” - the killing is only lawful if it’s legally justified such as in self defence
Causation - the D is only guilty if their act or omission caused the death
“human being”
death - medical test that currently means “brain stem death”. Doctors can switch off life support machines without being criminally liable. This happened in R v Malcherek and Steel, as the victims didn’t show any activity in their brain stem

Question 4

What’s the 2 intentions that can prove a D is guilty of murder? (MR)

Answer 4

1. Express malice aforethought - intention to kill
2. Implied malice aforethought - intention to cause GBH
   A defendant has the MR for murder if he or she has either of these intentions

Question 5

What happened in R v Vickers?

Answer 5

The D knew the old lady whose shop he broke into was deaf and D hit her many times and kicked her in the head. She died from injuries. The Court of Appeal pointed out that if a D intends to inflict GBH and the victim dies, then it’s sufficient to imply malice aforethought.

Question 6

What’s the difference between direct and oblique intent?

Answer 6

Direct intent - where the D intends the result
Oblique intent - where the D’s aim or purpose wasn’t to bring about the consequence

Question 7

What’s transferred malice?

Answer 7

The principle that the D can be guilty if they intended to commit a similar crime but against a different person.

Question 8

What sentencing powers does the judge have?

Answer 8

Judge has to impose mandatory life sentences and then the minimum term the D will serve in prison. CJA 2003 sets out starting points: a whole life term for very serious cases such as sadistic or sexual child murders, 30 years for murmuring a police or prison officer and 15 years for murders not falling within the 2 higher categories

Question 9

What’s loss of control?

Answer 9

Partial defence to murder which reduces the offence to voluntary manslaughter

Question 10

What act is loss of control set out in?

Answer 10

In s54 of the Coroners and Justice Act 2009

Question 11

What’s 3 things that must be proved under Coroners and Justice Act 2009?

Answer 11

1. The defendant must lose self control
2. The loss of control had a qualifying trigger
3. A person of the D’s sex and age with a normal degree of tolerance and self restraint and in the circumstances of the D might have reacted in the same or similar way

Question 12

What’s the burden of proof?

Answer 12

The defendant must have sufficient evidence for the possibility of the defence

Question 13

What happened in R v Jewell?

Answer 13

The D must’ve lost self control, it must be a total loss of control. In R v Jewell the D drove to the victims house and shot him twice. He was convicted for murder but appealed, claiming he had lost control. But it was clear this was planned, as this was his normal route to collect the victim before going to work, hence his conviction for murder was upheld.

Question 14

What qualifying triggers are allowed under s55?

Answer 14

Under s55:
- the defendants fear of serious violence from the victim or other identified person. (Subjective test) e.g in R v Dawes the D found his wife with another man and killed him via stabbing - the D cannot rely on fear of violence if they induced the violence
- things done or said - were of an “extremely grave character” and caused the defendant to have a justifiable sense of being seriously wronged. (Objective test for the jury to decide).

Question 15

What are excluded matters under Coroners and Justice Act 2009?

Answer 15

The Coroners and Justice Act 2009 (s55), stated that if a thing done or said amounted to sexual infidelity it is to be disregarded. E.g in R v Clinton - D’s wife taunted him of her sexual exploits, she was leaving him and didn’t want to take the kids and he lacked the courage to commit suicide. D killed his wife. Where sexual infidelity isn’t the only trigger then it isn’t totally excluded.
Under s54 the defence isn’t allowed if the D acted in a “considered desire for revenge”. In R v Ibrams and Gregory the 2 D’s planned to attack the person threatening and harassing them. 2 days later they killed him and conviction for murder was upheld.

Question 16

Under s54 does loss of control have to be sudden?

Answer 16

No loss of control doesn’t have to be sudden

Question 17

What does the jury have to consider in the defence of loss of control?

Answer 17

The jury has to consider whether the normal person would’ve reacted in the same way as the D. The defence will fail if the jury considers that the “normal person” might’ve lost control but wouldn’t have reacted in the same way as the D. In R v Van Dongen the jury said a reasonable man would’ve lost control, but wouldn’t have repeatedly kicked the victim like the D did.

Question 18

What’s diminished responsibility?

Answer 18

Partial defence to murder which reduces the offence to voluntary manslaughter

Question 19

When was diminished responsibility introduced?

Answer 19

Originally introduced in Homicide Act 1957, but Corners and Justice Act amends s2 of the Homicide Act.

Question 20

What is the 4 stage test for diminished responsibility?

Answer 20

1. Abnormality of mental functioning
2. Arisen from a recognised medical condition
3. Substantially impaired their ability to understand the nature of their conduct, form a rational judgement or exercise self control.
4. Provides an explanation for D’s act or omissions in doing or being a party to the killing

Question 21

Whats the burden of proof in diminished responsibility?

Answer 21

The burden of proving the defence is on the defendant, on the balance of probabilities. The defence accepts the D has both the AR and MR for murder , but he or she shouldn’t be considered wholly at fault, as there’s a medical reason for their behaviour

Question 22

What happened in R v Byrne? (Abnormality of mental functioning)

Answer 22

The D was a sexual psychopath who killed a young woman. Due to his condition he couldn’t control his perverted desires. The Court of Appeal quashed his conviction for murder and replaced it with manslaughter.

Question 23

What’s likely to happen after R v Byrne?

Answer 23

After this case, its likely courts will continue to use the same test - the D’s abnormality of mental functioning was so different from that of ordinary human beings that a reasonable person would term it abnormal.

Question 24

What can a recognised medical condition involve and why is it important?

Answer 24

Could involve both physical and psychological conditions, such as personality disorders, anxiety, alcohol dependency, schizophrenia, epilepsy, sleeping disorders and diabetes. It’s important, as medical evidence of abnormality of mental functioning the D suffers from must be presented at trial, it’s for the jury to decide if it’s sufficient evidence.

Question 25

What happened in R v Gold? (Substantially impaired)

Answer 25

D killed his partner and admitted it. Medical evidence showed he had an abnormality of mental functioning arising from a medical condition, but was he in a psychotic state at the time of the killing? The court directed that “substantially” means an impairment which was of some importance or was a serious degree of impairment. It needed to be something more than trivial.

Question 26

Can intoxication on its own be used as the basis for the defence of diminished responsibility?

Answer 26

No it cannot . Intoxication doesn’t fall within a recognised medical condition. This was the attitude under Homicide Act 1957 and the Coroners and Justice Act 2009. In R v Dowds, the Court of Appeal stated that if Parliament meant to change the law, it would’ve done so in the new act.

Question 27

Is D allowed to use diminished responsibility if they were intoxicated and had a pre existing abnormality of mental functioning?

Answer 27

Where the D has a pre existing mental disorder, intoxication, intoxication doesn’t stop him or her from using the defence; the abnormality of mental functioning doesn’t have to be the only cause of the D killing. In R v Dietschmann the V was being disrespectful to the D’s dead aunt. He killed the V. Psychiatrists agreed D was suffering from an adjustment disorder in depressed grief reaction to his aunts death but disagreed if this had substantially impaired his mental responsibility for the killing. D drunk a lot of alcohol before the killing.

Question 28

Can the D use diminished responsibility if the intoxication is due to an addiction?

Answer 28

Yes, alcohol dependency syndrome is a recognised medical condition where a person can’t control their drinking. This can amount to an abnormality of mental functioning and be used as the basis for diminished responsibility

Question 29

What happened in R v Wood?

Answer 29

After heavily drinking D went to V’s flat, fell asleep and awoke to V trying to do oral sex on him. D killed V. At the trial, medical experts agreed that D was suffering from alcohol dependency syndrome, but disagreed if this damaged his brain. Alcohol consumed due to an addiction is considered involuntary drinking, which the jury have to consider. D was convicted of murder and appealed to the Court of Appeal which reduced the conviction to voluntary manslaughter on the grounds of diminished responsibility.

Question 30

What’s involuntary manslaughter ?

Answer 30

Involuntary manslaughter is an unlawful killing where the defendant doesn’t have the men’s rea for murder. There’s 2 types of involuntary manslaughter
1. Unlawful act manslaughter - where the D commits an unlawful act where the V dies. D must have the required men’s rea for the unlawful act (the crime)
2. Gross negligence manslaughter- where the D owes some form of a duty to V, but the duty is broken and the V dies as a result

Question 31

What’s the AR of unlawful act manslaughter?

Answer 31

The killing must be the result of the D’s unlawful act (not omission)

Question 32

What happened in R v Lamb?

Answer 32

D fired a gun at a friend, both thought it was safe as there was no bullets. The friend died. It was held the D hadn’t committed an unlawful act, as pointing the gun at the friend wasn’t assault, as the friend didn’t fear any violence.

Question 33

What must the unlawful act be?

Answer 33

The unlawful act must be dangerous on an objective test.

Question 34

What was said in R v Church?

Answer 34

All sober and reasonable people realise the act would subject the victim to the risk of physical harm, not necessarily serious harm, whether the D realised this or not. It’s irrelevant if the D had a mistaken belief that their action wasn’t dangerous.

Question 35

What happened in R v Larkin?

Answer 35

D threatened a man with a razor, a woman fell on it and died. D’s conviction for manslaughter was upheld. The act of threatening the man with a razor was a technical assault and a dangerous act, as it was likely to injure someone. This shows that the unlawful act doesn’t need to be aimed at the victim, but objectively dangerous (likely to cause some harm)

Question 36

What type of risk of harm must there be?

Answer 36

The risk of harm must be physical, fear or apprehension isn’t enough.

Question 37

What happened in R v Dawson?

Answer 37

A petrol station attendant died of a heart attack when the petrol station was robbed by the 3 D’s. They were charged with unlawful act manslaughter.

Question 38

What happens if an intervening act breaks the chain of causation?

Answer 38

If the intervening act breaks the chain of causation, then the D cannot be liable for unlawful act manslaughter, as the unlawful act must cause death.

Question 39

What happened in R v Kennedy?

Answer 39

D supplied a drug to V who self injected and later died. HOL ruled this is an intervening act, as self injection broke the chain of causation and D wasn’t guilty of manslaughter.

Question 40

Whats the MR for unlawful act of manslaughter?

Answer 40

It must be proved that the D had the men’s rea for the unlawful act (the crime) - but it’s not necessary for the D to realise that the act is unlawful or dangerous.

Question 41

What happened in DPP v Newbury and Jones?

Answer 41

The D’s pushed a paving stone onto a moving train, killing the guard. The D only needed the MR to do the unlawful act, there’s no need for the D to foresee it may cause some harm.

Question 42

What’s gross negligence manslaughter?

Answer 42

A form of involuntary manslaughter where the D is grossly negligent in a breach of a duty of care towards the V that results in the V’s death.

Question 43

What happened in R v Adomako?

Answer 43

the D failed to notice or respond to clear signs of the patients disconnection from the oxygen pipe during the operation. The HOL upheld D’s conviction for gross negligence manslaughter and set out elements of the offence:
- an existence of a duty of care by D towards the V
- an act or omission breaches the duty of care
- this creates a serious and obvious risk of death which causes death
- the whole must amount to gross negligence, the conduct so bad in all circumstances as to be criminal conduct

Question 44

What did Lord Mackay say from the case of Adomako and where does it come from?

Answer 44

He said that ordinary principles of negligence in civil law applied to decide if a duty of care was owed. This comes from Caparo v Dickman -
1. Harm must be reasonably foreseeable due to D’s conduct
2. Parties must be in a relationship of proximity
3. It must be fair, just and reasonable to impose liability

Question 45

What are case examples of duty of care?

Answer 45

R v Edwards - parents let their kids play on a railway and they were killed by a train. Parents owed a duty of care towards their children.
R v Singh - faulty gas fire caused the death of tenants. D as the landlord owed a duty to manage and maintain the property properly.

Question 46

What did Lord Mackay say about breach of duty causing death?

Answer 46

Lord Mackay in Adomako pointed out whether there’s a breach of duty is a factual matter for the jury to decide, did the D negligently do or fail to do something. Causation is important, as it must be proved that the breach of duty caused death.

Question 47

Is a D’s negligence enough for conviction of GNM?

Answer 47

No, to be convicted of GNM, the negligence has to be “gross”. E.g in R v Bateman the D was a doctor helping a woman give birth at home. Part of the woman’s uterus fell off during birth. D didn’t send her to hospital and she later died. D’s conviction was quashed as he did the normal procedures any competent doctor would’ve done and wasn’t grossly negligent.

Question 48

Is risk of death clear in gross negligence manslaughter? If it is what case made it clear?

Answer 48

In R v Adomako it wasn’t clear if there had to be a risk of death through the D’s conduct or if the risk was only the V’s “health and welfare”. In R v Misra and Srivastava - it made the risk of death clear. The V had an operation on his knee and the 2 D’s failed to treat V for an infection that happened after the operation and V later died. The Court of Appeal held that the test in GNM involves consideration of the risk of death.

Question 49

What’s the MR for gross negligence manslaughter?

Answer 49

The D will be judged by their behaviour rather than their state or mind. There must be an obvious risk of death, judged objectively. This means it doesn’t matter if the D didn’t see the risk.

Question 50

What happened to role of jury in GNM cases and what can this lead to?

Answer 50

The role of the jury increased in GNM cases, this can lead to inconsistent decisions. In R v Finley the jury found the defendant not guilty, deciding his failure to care for V didn’t meet the criminal standard. In other cases, juries have been satisfied that the D has been criminally negligent.