Fatal offences against the person

Question 1

What is Murder, and what can it be moved down to?

Answer 1

Intending to and causing death or GBH.

Can be reduced to Voluntary manslaughter.

Question 2

What is voluntary manslaughter

Answer 2

Murder proved but partial defence eg DR or Loss of Control reduces it.

Question 3

What is involuntary manslaughter?

Answer 3

Where murder cannot be proved, Constructive manslaughter, Gross Negligent Manslaughter and Subjective Reckless manslaughter instead (Also unlawful act manslaughter)

Question 4

What is the definition of murder in Common Law

Answer 4

Murder is unlawful killing of reasonable creature in being under King’s peace with malice aforethought as defined by 17th C Sir Edward Coke

Jurisdiction - Murder committed by a British citizen in any Country may be tried in Britain

Question 5

What is the Actus Reus of murder?

Answer 5

a) Unlawful Killing (Justified can be self defence or death penalty)
b) Death can be caused (By act or omission, Gibbins & Proctor 1918)
c) Reasonable creature (Victim must be human)
d) In being (alive) (When does life end - Brain stem dead. When does life begin? Child must have independent existence from mother.)
e) Under the king’s peace (No offence to kill enemy in wartime)

Prosecutions should be brought within 3 years unless Attorney-General agrees

Question 6

When is causation an issue?
What is the chain of causation?

Answer 6

Result crimes such as murder
Link has to be proved between D’s act or omission

Cause in fact (White, Pagett)

Cause in law (Dalloway, Blaue, Robert, etc)

Question 7

What is the mens rea for murder?

Answer 7

With malice aforethought (murder requires a specific intent) which can be:

Express malice (intent to kill)
Implied malice (Intent to cause GBH but V dies)
eg Vickers 1957

Question 8

What is the case where a sweet shop lady was killed by intruder, charged with murder anyways due to GBH intent

Answer 8

Vickers 1957

Question 9

What Reform was put forward for murder?

Answer 9

Law Commission Report 2006 - Murder, Manslaughter and Infanticide
1) Murder to be divided:
First degree - D intended to kill or intended GBH but aware that conduct serious risk of death (Mandatory life)
Second degree - D intended to GBH but not aware of risk of death (max life at discretion of judge)
2) DR and loss of control to reduce first to second degree murder
3) Duress to be allowed to murder

Question 10

What did Loss of Control replace?

Answer 10

Provocation

Question 11

What must you prove first? Where does it apply? Is the burden of proof reversed?

Answer 11

Murder
D intended Death or GBH But has an excuse
Burden of proof is not reversed

Question 12

What act declared LOC?

Answer 12

S54 + S55 of Corners and Justice Act 2009

Question 13

What are the requirements needed for LOC?

Answer 13

1) D must have lost self-control
2) There must be a qualifying trigger
3) Reasonableness of D’s response

Question 14

Describe D having lost self control

Answer 14

Need not be sudden and temporary any more but the longer the gap the more likely not to be allowed. eg Jewell 2014 (new law)

New rule is kinder to killer who has cooling off period. Courts can now take this into account rather than one breaking incident.

Question 15

What was thec ase where D had loss of sleep, tired and depressed, and used a shotgun to kill V and fled the scene and LOC was not allowed?

Answer 15

Jewell 2014

Question 16

Describe the need to be a qualifying trigger

Answer 16

Fear of serious violence trigger
Subjective test - D must show genuine fear for V, does not need to be reasonable, must be due to fear of death or serious violence from V against D or another identifiable person. VIctory for Ahluwalia as evidence of V’s bad character is of value (Ahluwalia battered wife syndrome)
Old law on provocation did not allow a defence where D lost control through fear of violence, unlike the old provocation law, but they cannot use the trigger if self induced eg Martin (Anthony) 2002 or Dawes 2013

Things said or done/anger trigger - D’s LOC was attributable to things said, done or both which:
a) Constituted circumstances of extremely grave character AND
b) Caused D to have justifiable sense of being seriously wronged

Many cases where D able to use def would now not come within defence of loss of Control eg Doughty 1986 or Zebedee 2012

Question 17

What are the cases where:
1) Lived in isolated farm, two people broke into it, shot the two people killing one and injuring the other, self defence rejected, Provocation not allowed, DR allowed after appeal. LOC may now apply though.

2) D found wife & V on sofa. Fought. killed both w/ knife. Neither threatened him, so no LOC.

3) D killed baby due to it crying. Crying was provocation. Murder quashed and provocation allowed - would not be justifiable under new law.

4) 94 yo father soiled self. D lost control and killed. LOC not allowed, not extremely grave or justifiable.

Answer 17

1) Martin 2002

2) Dawes 2013

3) Doughty 1986

4) Zebedee 2012

Question 18

What are excluded matters in the need of a qualifying trigger?

Answer 18

EXcluded matters s55(6):
1) Revenge cannot be a trigger, old law unchanged - Ibrams & Gregory 1981.

2) Sexual infidelity alone is excluded unless combined with another factor (Clinton). Used to be allowed, no longer is

It is difficult to separate from other triggers, eg D kills husband due to raping her sister, act of infidelity may be excluded but the qualifying trigger could be the rape.
Clinton 2012
Self induced provocation is no trigger Dawes 2013

Question 19

What is the cases where…

1) D+D terrorised by ex. DD planned to attack ex but killed him. 5 day gap between original provoking made it revenge, so no LOC.

2) Infidelity part of def, not on its own. Wife cheated on him but also taunted him. Mocked him and threatened to take kids if she just had affair, D couldn’t of used LOC.

Answer 19

1) Ibrams & Gregory 1981

2) Clinton 2012

Question 20

Describe Reasonableness of D’s response

Answer 20

Person of D’s age and sex with normal degree of tolerance & self-restraint and in circumstances of D might have reacted in same way as D. eg might normal woman with ordinary level of self-control, 23 years old, beaten regularly, would have killed D aswell?
a) Normal standard of self-control expected
b) In the relevant circumstances of D

Question 21

Describe normal standard of self-control expected

Answer 21

Explains power of self control expected of them, age and sex otherwise objective, repugnant characters eg glue sniffing excluded, perso with less than normal tolerance needs a medical reason and plead DR eg Camplin

Question 22

Describe int he relevant circumstances of D

Answer 22

Responding to gravity of P, might a normal person react in the samew ay? Excludes short temper and characteristics affecting self control eg jealousy or depression or alcoholism. Includes history of abuse, eg battered wife syndrome. Gregson 2006 + Rejmanski 2017

Question 23

What was the case where it questioned whether an unemployed depressed epileptic taunted would have done the same

What was the case where a Jury could consider army experience causing PTSD

Answer 23

1) Gregson 2006

2) Rejmanski 2017

Question 24

Must a Judge have sufficient evidence for LOC and do they bring it up in court?

Answer 24

Yes. Christian 2018

Question 25

What was the case where D killed two flatmates over argument about hot water. Judge ruled that LOC could not go to jury as although there was evidence he decided no jury could find a reasonable person might have behaved that way.

Answer 25

Christian 2018

Question 26

Where does Diminished responsibility come from?

Answer 26

s2 Homicide Act 1957 amended by s.52 Coroners and Justice Act

Question 27

What are three key facts about DR?

Where does it apply?

Answer 27

Prove murder first
Partial Def
Specific Def

D intended death or GBH but… has psychiatric problems

It is a reverse burden.

Question 28

What are the key differences between old DR and new DR?

Answer 28

Abnormality of mind became Abnormality of mental functioning

Internal cause became Arising from a recognised mental condition

Substantial impairment became Which substantially impaired D’s ability to do one of three things

Question 29

What are the requirements for DR?

Answer 29

1) Abnormality of mental functioning
2) The cause of abnormality must be a recognised medical condition
3) The condition must substantially impair D’s responsibility - meaning of substantial is a Q for the jury to decide

Question 30

Describe abnormality of mental functioning

Answer 30

D must show objectively that a RP would find state of mind abnormal.
‘A state of mind so different from that of ordinary people that the reasonable person would term it abnormal ‘ - Byrne 1960

Brennan v R 2014 murder squashed manslaughter allowed

Question 31

What is the case where D sexual psychopath and unable to resist, convicted for murder after strangling and doing things with womans body, conviction quashed and replaced with manslaughter by CA.

Answer 31

Byrne 1960

Question 32

Describe the cause of the abnormality needing to be a recognised medical condition

Answer 32

Recognised medical conditions can bef ound in lists such as WHO (world health organisation) including physical, psychiatric and psychological conditions. Conditiond oes not have to be perm but must exist at time of killing. Medical evidence is neede.

Includes:
Depression
Irresistible Impulse (Byrne)
Battered wife syndrome (ahluwalia 1993)
Alcoholism
Alcohol Dependency Syndrome
Adjustment disorder
Post-natal depression
Paranoia
Autism

Question 33

Describe the condition needing to substantially impair D’s responsibility (Meaning of substantial is Q for Jury to decide)

Answer 33

Golds 2016 Jury needs not direction, only common sense, must be more than trivial though.

Lloyd 1967 Significant not trivial or total

Question 34

What case was:

1)D killed partner, claimed DR. Judge did not explain meaning of substantial. D found guilty of murder. Appeal dismissed so DR not allowed.

2) Held that substantial does not mean total, not trivial or minimal. D killed his wife, had reactive depression, not substantial impairment.

Answer 34

1) Golds 2016

2) Lloyd 1967

Question 35

What must be substantially impaired?

Answer 35

D must be substantially unable to:
A) Understand nature of conduct
B) Form a rational Judgment (eg Irrational judgment placing son in river to drown in Price 1971)
C) Exercise self control

Burden of proof on defendant but only balance of probabilities R v Wilcocks 2016

Question 36

How does Intoxication work with DR?

Answer 36

1) Transient, Temporary intoxication cannot lead to DR (Dowds 2012)

2) D is intoxicated and also suffers from unrelated abnormality of mental functioning (Dietschmann 2003)

3) D’s abnormality is caused by addiction eg ADS

Question 37

What is the case where D stabbed gf 63 times. Both binge drinkers. No diminished responsibility as not alcoholic.

Answer 37

Dowds 2012

Question 38

Describe when D is intoxicated and also suffers from unrelated abnormality of mental functioning

Answer 38

Where D has a RMC and was voluntarily intoxicated Jury can take both into account so long as the intoxication is related to RMC

Question 39

What is the Dietschmann 2003 three part test?

Answer 39

1) If D had abnormality of mental functioning arising from recognised medical condition
2) Whether the abnormality substantially impaired D’s ability to understand the nature of his conduct/form a rational judgement and/or exercise self control
3) And whether the abnormality caused, or was a significant factor in causing D to kill V.

Question 40

What is the case where D was upset at V for disrespecting late aunt. Killed V. D suffering from adjustment disorder but had whiskey and cider. Convicted then appealed, DR allowed.

Answer 40

Dietschmann 2003

Question 41

Describe the case where D was a paranoid schizophrenic and Drunk/drugged no medical evidence that underlying illness, schizophrenia, serious enough that independent from drunk or drugs it impaired responsibility substantially, so murder upheld.

Answer 41

R v Joyce and Kay 2017

Question 42

Describe D’s abnormality caused by addiction eg ADS

Answer 42

1) D has brain damage as result of alcohol misuse eg R v Wood 2008

2) Where D is intoxicated involuntarily because of spiked drinks or alcoholism which leaves d with no control over drinking. Contrast the view in R v Tandy with R v Wood and R v Stewart

Question 43

What is the case where CA showed more sympathy for D whilst suffering from ADS

Answer 43

Wood 2008

Question 44

What is the three stage test for juries from Stewart 2009

Answer 44

1) Was there abnormality of mental functioning?
2) Was the abnormality caused by alcohol dependency syndrome?
3) Was mental responsibility substantially impaired?

Question 45

What is the definition of Gross Negligence Manslaughter?

Answer 45

Definition - Where person owes duty of care and breaches this by being grossly negligent creating a risk of death, may be guilty of manslaughter if someone dies as a result eg Adomako 1994 three ingredients

Question 46

What is the actus Reus of Gross Negligence manslaughter?

Answer 46

1) A duty of care must be owed by accused to the victim
2) The duty must be breached
3) Causing death

Question 47

Describe how a Duty of care must be owed by accused to the victim

Answer 47

Based broadly on civil war, eg Donoghue v Stevenson 1932 there is a duty to not harm anyone who may be affected by your negligence.
Caparo 1990: Civil tests of harm foreseeable, proximity, fair, just and reasonable to impose duty.

Many will be duty situations fixed by law such as
Statutory duties - Litchfield 1997
Doctor: patient Adomako 1994
Landlord: tenant Singh 1999

A contractual duty is not needed for duty of care to exist. Khan & Khan 1998 - Drug supplier not guilty of leaving user alone to die but CA said duty situations could be extended to type of area.

Where D created dangerous situation: Evans 2009 - sister created state of affairs by supplying drug which she knew threatened life and breached duty by failing to get help.

Question 48

What is the case where master of ship sailed knowing engines might fail. Three crew died when engine failed to ensure gas heater was safe.

Answer 48

Singh 1999.

Question 49

What is the Confusion between civil law Negligence and Duty of care?

Answer 49

Lord McKay 1994 said ordinary rules of negligence apply to GNM. BUT duty is not exactly same in civil law.

eg Wacker 2002 & Willoughby 2004

Question 50

What is the case where D agreed to take 60 illegal immigrants to England, closed vent, most died, Conviction of manslaughter upheld in CA, made it clear immigrants could not sue due to being associates in crime.

What is the case where D owned an old disused pub, went into debt and unable to sell pub. Engaged person to help set fire to pub to claim insurance, explosion occurred and killed other person, D convicted for GNM.

Answer 50

1) Wacker 2002

2) Willoughby 2004

Question 51

Describe how a Duty may be breached

Answer 51

Did D’s conduct fall below that of a reasonable person in the same situation?

Breach can be by act or omission. Contrast with Lowe in Constructive manslaughter.
Rules on duty and omissions apply if conduct is omission. eg Stone & Dobinson 1977

Duty is breached if D did not act as RP/reasonable doctor eg Edwards 2001

Act need not be unlawful it may be lawful act negligently performed eg an operation

Question 52

Describe how causation applies to Causing death

Answer 52

Broughton 2020
This case demonstrates high test for causation which is required for gross negligence manslaughter.

Question 53

What ist hec ase where D supplied drugs to gf, didnt do anything ab it, held Jury couldnt be certain that he wouldve stopped her death. NG of GNM.

Answer 53

Broughton 2020.

Question 54

What is the Mens rea of GNM?

Answer 54

1) D must be grossly negligent eg Adomako 1994, Holloway and Prentice et al (appealed together), Lord McKay: Essence of the matter, which is supremely a Jury question, is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission.

Circular unhelpful test, alternatives: R v Cornish 2016 (Jury must consider breach to be so flagrant and atrocious it would consequently amount to a crime)
or Old Bateman 1925 test:
Going beyond a mere matter of compensation OR showing such disregard for life and safety of others as to amount to death dealing punishment.

2) Risk of death
When breaching Duty of Care, Ds conduct must pose reasonably foreseeable serious and obvious risk to death.

Question 55

What is the checklist of CMS/UAM

Answer 55

1) An Unlawful Criminal act (voluntary)
Act NOT omission Lowe 1973
Unlawful - crime not a civil wrong
Underpinning crime - Assault proved - Larkin 1943
Assault not proved - Lamb 1967
Concept of indirect effect - Mitchell 1983

2) Dangerous Act - Act must be objectively dangerous
Would reasonable person have seen the risk of some physical harm resulting?
Larkin 1943
Concept of Indirect effect - crime need not be aimed at victim who dies eg Mitchell 1983
Physical harm - Fright and shock causing death may be enough, Dawson 1985

3) Factual and legal causation - the unlawful act must have caused the death, Kennedy 2007

Mens rea-
1) Whatever is needed for the underpinning crime (Assault, crim dmg, etc) Lamb 1967
D need not see harm so no mens rea needed for D here

Question 56

What is the case where:

1) Mr Lowe - low intelligence - did not call doctor for sick child. Child died from dehydration and gross emaciation. Convicted of manslaughter by negligence and wilfuly neglecting a child.

2) Appellant waved razor to frighten Mistress’ lover. Claimed his mistress, drunk, blundered against it and it cut her throat. Conviction upheld, dangerous act so still guilty.

3) Two boys had a gun. Didn’t know it was loaded, and waved it around. D shot V and killed him. Conviction quashed, no intent for assault.

4) A tried to jump queue at Post Office. Elderly man challenged him. A hit old man and pushed him, Old man fell into old lady, who broke her leg and later died. A was convicted and appealed, but it was held that it did not need to be directed at the V.

5) D & V living together. D gave V heroin, who then died due to choking on own vomit whilst under the influence. D convicted and appealed, it was held that as V was a fully informed and consenting adult, this was an intervening act and D therefore had his conviction overturned.

Answer 56

1) Lowe 1973
2) Larkin 1943
3) Lamb 1967
4) Mitchell 1983
5) Kennedy 2007