Homicide Flashcards
AR and MR for murder?
The actus reus- that the defendant unlawfully killed another human being under the Queen’s peace; and
· The mens rea- that the defendant committed the actus reus with malice aforethought, meaning intention to kill or intention to cause grievous bodily harm; and
· No valid defence- such as self-defence.
A solider lawfully kills an enemy in battle. What criminal liability is the solider likely to have, if any?
None
A disgruntled ex-employee feels he is owed money from his former employer and wants to make her pay. The ex-employee goes to his former place of employment and stabs the manager with his knife, killing her.
What criminal liability is the ex-employee likely to have, if any?
Murder
A homeowner who had been previously burgled, suffers from paranoia and post traumatic stress disorder (which will be recognised medical conditions for the purposes of diminished responsibility). The homeowner, who now believes that everyone that comes onto his land is an intruder, shoots a delivery person in the back of the head as they are walking back to their van having dropped off a package. The delivery person dies.
Self-defence is only available if the homeowner uses force that is not grossly disproportionate.
What criminal liability is the homeowner likely to have, if any?
Voluntary manslaughter
On the face of it, the homeowner has the actus reus and mens rea of murder. As the homeowner suffers from paranoia and post traumatic stress disorder, this suggests he may be able to rely on the partial defence of diminished responsibility. Self-defence is unlikely to be available in this scenario as the homeowner has acted with grossly disproportionate force.
When is it lawful to kill?
Killing enemy soldiers in battle;
* Advancement of justice- an example of this is the lawful application of the death penalty. Although we no longer have the death penalty in this country there are occasions when person could be tried in this country for a killing which occurred in a country which does have the death penalty;
* Self-defence- killing will be lawful where the force used was reasonable and necessary to prevent crime or protect self, others or property.
What happens if a pregnant women is stabbed and this causes her child to be born prematurely and die?
The child was not a live person when stabbed and therefore this could not be murder.
To be criminally liable for murder you must kill a human being.
Which of the following are not considered a human being?
A child fully expelled from the mother’s body but still attached by the umbilical cord
A corpse
A person born alive and capable of independent life
A child fully expelled from the mother’s body and born alive
A corpse It is not possible to murder a corpse.
What are the types of voluntary manslaughter?
Diminished responsibility and loss of control
Who is the burden of proof on for diminished responsibility?
he burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility
What are the elements of diminished responsibility?
D must have an abnormality of mental functioning (s 2(1)), meaning ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’, R v Byrne.
* The abnormality of mental functioning must:
* Arise from a recognised medical condition (s 2(1)(a))which can be diagnosed or not at the time of the killing. D must not be acting out of hatred, jealousy or bad temper.
* Have substantially impaired (something greater than ‘more than merely trivial’, R v Golds) the defendant’s ability (s 2(1)(b)) to understand the nature of D’s conduct, form a rational judgment and/ or exercise self-control, s 2(1A).
* Provide an explanation for D’s conduct (s 2(1)(c)), even if it is not the only cause, s 2(1B) and Dietschmann.
* Diminished responsibility is not available for attempted murder, R v Campbell.
Would an undiagnosed recognised medical condition at the time of the killing be sufficient for diminished responsibility?
Yes
Which of the following best describes the sentencing powers available to a judge in respect of a defendant who is found to have killed under diminished responsibility?
Mandatory life sentence
Acquittal
Sentencing discretion
Sentencing discretion
When would medical expert evidence be useful for diminished responsibility?
For all the elements
What are the requirements for the loss of control defence?
There are three key requirements of the loss of control defence:
* D must have lost self-control;
* due to the fear and/ or anger qualifying trigger; and
* a person of the defendant’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of the defendant, might have reacted in the same or in
a similar way as the defendant did.
What constitutes loss of control?
defendants must be unable to restrain themselves. A mere loss of temper would not be enough. This need not be sudden.
The defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’,
What can be qualifying triggers for loss of control?
Fear
Anger
What is needed for the anger trigger?
- things said and/ or done;
- that constitute circumstances of an extremely grave nature; and
- that caused D to have a justifiable sense of being seriously wronged.
When can D not rely on the anger trigger?
D cannot rely on the anger trigger if:
* D incited it as an excuse to use violence, sections 55(6)(b); or
* The thing said/done constituted sexual infidelity- section 55(6)(c)
What is the normal person test for loss of control?
‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’
What are the limitations to the loss of control defence?
The defence of loss of control cannot be used:
* In an act of ‘considered desire for revenge’- section 54(4) CJA 2009.
* As an excuse to use violence- sections 55(6)(a) and (b). It is not enough that the defendant ‘started it’.
* If the thing said/done constituted sexual infidelity- section 55(6)(c). However, it is likely that in most cases where sexual infidelity has caused the defendant to lose their self-control, there will be other factors which could make up a qualifying trigger. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the ‘whole story’.
* For attempted murder,see R v Campbell and Smith, Hogan and Ormerod’s, Criminal Law.
Can intoxication be used to find diminished responsibility?
Voluntary intoxication is not, on its own, capable of being relied upon to found the defence of diminished responsibility, Dowds. If the defendant has an abnormality of mental functioning (AMF) and is voluntarily intoxicated,
Can only be used if D has alcohol dependency syndrome
How does intoxication operate within loss of control?
- Did D lose self-control?
- Did D act due to the fear or anger qualifying trigger? D’s drug or alcohol addition can be taken into account in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction.
- Normal person test- an intoxicated person is not precluded from using the defence. If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober, Asmelash.
A defendant is a drug addict who kills under a loss of control having been taunted about his addiction by the victim. The defendant was intoxicated at the time. When considering the defendant’s criminal liability at what point in your loss of control analysis will you take into account the addiction?
The anger trigger and the normal person test