Herring Ch 5 - Homicide Flashcards
Categories of homicide
- Murder
- Manslaughter
- Infanticide
- A number of specific offences concerned with causing death while driving
Murder - definition
> AR: the unlawful killing of another person in the Queen’s peace.
MR: an intention to cause death or GBH.
A person convicted of murder must be given a sentence of life imprisonment.
Murder - Actus Reus - A person
> When does life begin?
-Law says human life begins at birth.
-However, murder/manslaughter is allowed if child injured while in womb then born alive, but dies shortly after. (Senior 1832 1 Mood CC 346).
-Foetus = human when born alive completely outside mother (umbilical cord doesn’t need cutting - Poulton (1832).)
-Can be convicted of causing or procuring a miscarriage or child destruction.
When does life end?
-Law accepts medical definition of death.
-Person dies once brain ceases to function - ‘brain dead’ : Malcherek and Steel [1981] 1 WLR 690 (CA).
Murder - Actus Reus - unlawfully
Not unlawful if for self-defence.
Murder - Actus Reus - Queen’s peace
The killing of enemy aliens during war and under battle conditions isn’t a criminal homicide.
Murder - Actus Reus - killed
> Need to show D caused V’s death.
Show that D accelerated V’s death by more than a negligible amount.
Excludes doctors administering pain relief drugs which shorten patient’s life.
Murder - mens rea
> Established in Cunningham [1982] AC 566.
HoL upheld conviction of D who had killed V by hitting him on head with chair even though there was no intent to kill, there was intent to cause GBH and that was sufficient for a murder conviction.
MR of murder is a product of common law.
Most important statutory provision = s. 1 of the Homicide Act 1957:
-“Where a person kills in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required dor a killing to amount to murder when not done in the course or furtherance of another offence.”
Murder - Mens Rea - Intention
> Intention is to be given its ordinary meaning or purpose.
If D didn’t act with purpose of killing or causing GBH, but it was an extremely likely result of D’s actions then the jury should be given the Woollin direction.
Hence, ‘virtually certain’ result of D’s actions & D realised this was so.
Murder - Mens Rea - Kill or cause GBH to the victim
> Some commentators think nothing less than intention to kill should suffice.
Doctrine of transferred mens rea means if D intended to kill a certain person, but killed someone else instead, they are still convicted of murder.
Doctrine of transferred mens rea can’t apply in murder if D intended to kill an animal or damage property - would be manslaughter.
Manslaughter: An Introduction - types
- Voluntary manslaughter
2. Involuntary manslaughter
Voluntary manslaughter - definition
> These are killings which would be murder but for the existence of defined extenuating circumstances.
In some circumstances even though D had the MR and AR of murder, they don’t deserve the label ‘murderer’.
E.g. a D who pleads either loss of control, diminished responsibility or suicide pact to a charge of murder.
Involuntary manslaughter - definition
> There are killings where D doesn’t intend to kill or cause GBH but there’s sufficient fault to justify criminal liability.
Courts have found difficulty in defining how little fault is sufficient to justify a manslaughter conviction.
E.g. reckless manslaughter, gross negligence manslaughter, constructive (or unlawful act) manslaughter.
Loss of control - general
> Defence to murder ONLY & will be convicted of voluntary manslaughter instead.
D must show:
1. They had lost self-control.
2. Loss of self-control was caused by a ‘qualifying trigger’; and
3. A person of D’s age & sex with a normal degree of tolerance & self-restraint would have reacted in the same way.
Prosecution carried burden of proving that the defence of loss of control is not made out beyond all reasonable doubt.
Defence of loss of control is in s. 54 of the Coroners and Justice Act 2009.
3 limbs to the defence.
Loss of control - 3 limbs to the defence
- D must show their acts/omissions resulted from loss of self-control.
- Must result from a ‘qualifying trigger’.
- A person of D’s age & sex, with normal degree of tolerance & self-control, in D’s circumstances would have responded to trigger in same/similar way.
>All these requirements must be satisfied.
Loss of control - D lost self-control
> Need to show D lost control is a subjective question.
Did the D lose his self-control not whether reasonable person would have lost his self-control.
D knows what they are doing but has severely impaired powers to restrain themselves from acting.
In Jewell, loss of self control = “loss of ability to act in accordance with considered judgment or a loss of normal powers of reasoning.”
Unlike under the 2009 Act, the loss of self-control needn’t be “sudden and temporary” anymosre.
In Dawes, Lord Judge CJ explained:
-“Provided there was a loss of control, it does not matter whether the loss was sudden or not. A reaction to circumstances of extreme gravity may be delayed. Different individuals in different situations do no react identically, nor respond immediately.”
Can’t act out of desire for revenge.
Loss of control - the loss of control was a result of a qualifying trigger - overview
> D needs to show they were provoked by a qualifying trigger into losing self-control.
To be a qualifying trigger the thing said or done must fall within one of the 3 categories in S.55:
1. Fear of serious violence.
2. An extremely provocative act.
3. A combination of fear of violence and an extremely provocative act.
S. 55 of the Coroners & Justice Act 2009 defines a ‘qualifying trigger’.
Loss of control - the loss of control was a result of a qualifying trigger - fear of serious violence
> Fear of violence - there doesn’t to be shown that actually was violence.
Must be fear of SERIOUS violence.
Threat of violence is to D or another person
V must be the person posing the serious threat of violence.
Can’t be used (s. 55(6)(a) if D incited the fear of violence for the purpose of providing an excuse to use violence.
NB something D said/did for purpose of providing an excuse for violence, so defence still applicable if D insulting V for fun.
Must be loss of control, self-defence may otherwise be applicable so D will want to use defence of loss of self-control under fear of violence trigger when the killing isn’t reasonable in the circumstances.
Self-defence only available where degree of force used is reasonable.
Also if there was a case where D could have prevented threat by a lesser force than killing, D won’t be able to use self-defence but may be able to use loss of control.
Loss of control - the loss of control was a result of a qualifying trigger - fear of serious violence - circumstances government has identified where they believe the trigger may be relevant
> Ministry of Justice (2009: para. 27):
1. Where a victim of sustained abuse kills his or her abuser in order to thwart an attack which is anticipated but not immediately imminent; and
2. Where someone overreacts to what they perceive as an imminent threat.
Don’t believe the partial defence will be used regularly. In 2005, the government didn’t find any case where a murder conviction appeared to have resulted inappropriately as a result of the absence of such a partial defence.
Loss of control - the loss of control was a result of a qualifying trigger - being seriously wronged as a trigger
> Requirements:
- D must have been facing circumstances of ‘extremely grave character.’
- So not normal ups/downs of life, e.g. in Dawes, the CA explained ending of relationship wouldn’t normally amount to a qualifying trigger. - D must have a justifiable sense of being seriously wronged.
- Objective test.
- Under old law, in Doughty, it was assumed crying baby could constitute a provocative act. That decision wouldn’t be followed under new provisions.
- Restricts defence to narrow range of cases. - In R v Rejmanski, court held that D’s mental condition can be taken into account in deciding whether an act or insult was a serious wrong.
- Personality disorders, religion, background may be relevant. - The serious wrong must be to the D. Not straightforward though.
- Something must have been said or done. The circumstances alone can’t amount to the qualifying trigger.
- S. 55(6)(b): D can’t rely on it for something said or done if they incited it for purpose of providing an excuse.
- S. 55(6)(c) - sexual infidelity is not a thing said or done that can amount to a qualifying trigger.
- Ministry of Justice, 2009: “It is quite unacceptable for a D who has killed an unfaithful partner to seek to blame the victim for what has occurred. We want to make it absolutely clear that sexual infidelity on the part of the V can never justify reducing a murder charge to manslaughter. This should be the case even if sexual infidelity is present in combination with a range of other trivial and commonplace factors.
- Proved problematic, e.g. Clinton.
Coroners and Justice Act 2009, section 55(6)(c) - example of why it is problematic - case
> R v Clinton [2012] EWCA Crim 2:
- Clinton’s wife, Dawn, admitted she had an affair and described the various sexual encounters she has had.
- He said he was going to commit suicide and she said he didn’t have the ‘balls’ to do it.
- He killed her by beating her around the head with a baton & strangling her.
- Trial judge didn’t allow him to rely upon evidence relating to sexual infidelity and he appealed against conviction.
Coroners and Justice Act 2009, section 55(6)(c) - example of why it is problematic - Clinton - Lord Bingham - general
> Lord Bingham of Cornhill CJ:
- “In section 54(1)(c) and (3) the legislation further acknowledges the impact of sexual infidelity as a potential ingredient of the 3rd component of the defence… sexual infidelity is not subject to a blanket exclusion when the loss of control defence is under consideration. Evidence of these matters may be deployed by the D and therefore the legislation proceeds on the basis that sexual infidelity is a permissible feature of the loss of control defence.
- “…the circumstances must be extremely grave and the defendant must be subject to a justifiable sense of having been seriously wronged. These are fact specific questions requiring careful assessment, not least to ensure that the loss of control defence does not have the effect of minimising the seriousness of the infliction of fatal injury.
- “…to seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts as a whole is not only much more difficult, but is unrealistic and carries with it the potential for injustice…In our judgement, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”
Coroners and Justice Act 2009, section 55(6)(c) - example of why it is problematic - Clinton - Lord Bingham - The responsibilities of the judge
A) At the conclusion of evidence:
46. “…whether the circumstances were sufficiently grave and whether the D had a justifiable grievance because he had been seriously wronged. These are value judgments. They are left to the jury when the judge concludes the evidential burden has been satisfied.”
B) The Summing Up:
49. “…if the only potential qualifying trigger is sexual infidelity, effect must be given to the legislation. There will be no qualifying trigger, and the judge must act accordingly. The more problematic situations will arise when D relies on an admissible trigger(s) for which sexual infidelity is said to proved an appropriate context for evaluating whether the trigger relied on is a qualifying trigger for the purposes of subsection 55(3) and (4).
- “We have reflected whether the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife’s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to leave to the jury. In our judgment they were. Accordingly the appeal against conviction will be allowed.”
Lord Judge CJ on problems arising from exclusion of sexual infidelity as a trigger for loss of control
> The definition of sexual infidelity is unclear.
Judge CJ stated infidelity assumed there was a continuing relationship, but then where would this leave a stalker who killed his prey’s partner out of jealously? Surely, he wouldn’t find it difficult to show there was a justifiable sense of being seriously wronged in such a case.
Could it allow D facing a less serious wrong better able to present the defence?
Sexual infidelity is well-known cause of loss of control - it’s artificial to exclude it from evidence.
Sexual infidelity can be considered as a factor when considering the defence of diminished responsibility. If plead both then it’s confusing for jury to be able to consider it for one defence and not the other.
Often allegations of sexual infidelity are aspects of the provocative circumstances.
Court of Appeal, Clinton, para 39
“Where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls with the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”
> Sexual infidelity can be used only to provide the context for a permitted trigger and not itself become the trigger.
Sexual infidelity - Stark
“Given the heated circumstances in which most killings take place, it might not be clear what triggered the defendant’s loss of self-control: was the victim’s infidelity a context for the defendant’s loss of control, or the cause of it?”
Sexual infidelity exclusion supporters
> Reveals outdated views on ownership and possessiveness over sexual partners.
> CA response = “…nothing to do with any notional “rights” that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams.”