Homicide Flashcards
2 main offences
murder and manslaughter
manslaughter - 2 types
voluntary and involuntary
what is the difference between murder and manslaughter?
murder must be sentenced to life only discretion is the minimum term, manslaughter there are a full range of sentencing options available.
what can a murder charge be changed to?
voluntary manslaughter
murder
unlawful killing of a person/human being under the King’s peace with the intention to cause death or grievous bodily harm.
king’s peace
not in war
MURDER (RESULT CRIME)
person must die before we can have a charge of murder - any conduct that causes the result will satisfy the conduct element.
unlawful killing
killing that isn’t permitted in law, without lawful defence and satisfying AR and MR elements
human being
a living human person, can’t be an animal.
under the King’s Peace
British citizen anywhere in the world, anyone on British ships and aircraft.
what are the terms for lawful killing?
war, self-defence, medical treatment, best interests, necessity.
best interest (lawful killing) - Airedale NHS Trust v Bland
V suffered punctured lungs, irreversible brain damage, since 1969 that way, no prospect to recover, held it wasn’t in his interest to carry on the ventilator, wasn’t living, causing death by withdrawing treatment wouldn’t be unlawful killing.
necessity (lawful killing) - Re A (children)
conjoined twins, N dependent on J, doctors wanted to separate by N would definitely die, parents didn’t want but ruled in favour of doctors. N’s death was inevitable, doctrine of necessity.
euthanasia and lawful killing
it is not lawful, R v DPP - unlawful as it was consider suicide, Re B - wanted her ventilator off, was competent, doctor refused, since she had capacity she could have it turned off.
when does life begin?
when a baby has wholly emerged from its mother and is breathing/surviving independent of the mother.
when does life end?
r v malcherek, r v steel - brain stem death, both D’s seriously assaulted their V’s, caused them to become brain dead, once doctors recognised they withdrew treatment.
- held not an intervening act, person will be taken to have died if bran dead.
AR of murder - result
requirement is the death of V - crime isn’t complete until death happens.
accelerating death
counts as causing it.
MR of Murder
intention to kill or cause GBH
r v Moloney
D shot and killed father, claimed they were drinking and having fun, convicted of murder, whether it’s premeditated or in the moment if the intention is there it is murder.
intention can be….
direct or indirect
R v Vickers
no need to realise actions might cause death - D was committing a burglary and assaulted the old lady who died, upheld conviction of murder as intended to cause serious harm.
r v Cunningham
no need to realise actions might cause death - struck person in the head with a chair multiple times, said he didn’t mean to do so, didn’t act intending to cause serious harm but still caused death.
general defences
complete defence - D successfully pleads one of these they will be acquitted e.g., self-defence.
partial defences
reduce murder to voluntary manslaughter, DR, loss of control, suicide pact.
doctrine of double effect
where easing pain may incidentally shorten life in medical contexts.
r v adams
D reduced pain and suffering of his patients - used painkillers on his patients that caused their death, since the reduction of suffering is good, reduces the awfulness that the patients died.
voluntary manslaughter
conduct that would have been murder but for the operation of a partial defence.
diminished responsibility (voluntary manslaughter) - Homicide Act 1957 s.2
4 part test: 1. suffering from abnormality of mental functioning, 2. stemming from a recognised medical condition, 3. resulting in substantial impairment to understanding, rational judgement, or self control, that 4. explains the killings.
r v bryne
abnormality of mental functioning - reasonable man would term it abnormal, psychopath and insane, quashed conviction, jury decision should be based on fact.
C&JA
changed from abnormality of mind to mental functioning, that the reasonable person would think
what should they produce for abnormality of mental functioning?
medical evidence to plead their case and satisfy the defence.
recognised medical condition
requires a medically recognised mental or physical illness or disorder, something known to medicine and capable of being diagnosed, limits situations of partial defence.
r v dowds
D was alcoholic, during binge stabbed partner 60 times and attempted to plead dr under intoxication, unsuccessful - medically recognised doesn’t prevent the court from overruling
substantially impaired
D ability - understand their own conduct, form rational judgements, exercise self-control.
r v ram churn
substantial impairment - D strangled cousin after discovering affair with wife, killed, pleaded dr, impairment doesn’t need to be so serious.
r v golds
substantial impairment - something that was present rather than illusionary and weight of importance, significance of D impairment.
homicide act s2(1B)
abnormality of mental functioning provides an explanation for D’s conduct if it causes or is a significant contributory factor in causing.
r v Joyce and kay
schizophrenic, killed under the influence, more drunkeness that caused the killing than schizophrenia, unless the condition causes the voluntary intoxication not mitigating factor.
suicide pact
D and V agree to die at the same time - voluntary manslaughter
loss of control - coroners and justice act 2009 s 54
3 part test - 1. loss of self-control, 2. due to a qualifying trigger, 3. someone of same age and sex would have killed in the same circumstances (objective).
qualifying trigger (2 part test)
- fear of serious violence from V against D or an identified other person, 2. things done/said by anyone that have produced extremely grave circumstances and mean that D’s justifiability feels seriously wronged.
r v jewell
loss of self-control, loss of the ability to act in accordance with considered judgement or a loss of normal powers of reasoning. killing colleague, convicted of murder, if pleading loss of control it is not denial but an explanation of why.
r v islam
nothing in the statute required the D to act in a frenzied manner - loss of control
r v Dawson
loss of control - frenzy can be done in a state of revenge or trying to impress others.
qualifying trigger - s.55
D must have a fear of serious violence, attributable to a thing or things said or done which constituted circumstances of an extremely grave character, caused D to have a justifiable sense of being seriously wronged.
fear of serious violence (qt, s.55)
assessed subjectively (must hold the fear and doesn’t matter if circumstances are real), objective is that circumstances must be of grave character and justifiable sense of being wronged.
things said or done (qtr)
partly subjective (sense of being wronged), mostly objective (justifiable, grave)
Dawes & Others (qtr)
v reacted negatively to D burgling them, D hurt them, D doesn’t have a qualifying trigger if they cause the circumstances.
sexual infidelity is to be disregarded (s 55(6)(c))
Clinton case - D killed wife after she told him about affair, tried to commit suicide several times, stopped sexual infidelity from being used, if the only defence then not allowed but if it forms several circumstances then take all into consideration.
other person would have killed?
same age and sex as D, in the same circumstances as D, with normal tolerance and self-restraint.
s 54(3) someone else would have killed
all circumstances except those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint.
r v rejmanski
killing with PTSD, rejected as only relevant when looking at the seriousness of the trigger, may be more appropriate to plead dr.
r v asmelash
killing while voluntarily intoxicated, drunkenness to be ignored, whether a reasonable person who was sober would qualify for the trigger, not a normal person with normal restraint.
involuntary manslaughter
D killing V whilst committing another crime, casual link between D act and V death, liability is on top of D base offence, factual and legal causation required, need AR and MR of the base offence
base offence
must be properly unlawful, must have a subjective MR element, must be a positive act.
Andrews v DPP
took a van over to a bus that broke down, overtook a car and ran over pedestrian, charged with dangerous driving, lawful act which causes the death must be inherently criminal.
R v Lamb
all the elements of base offence must be proven - didn’t know how the gun worked, 2nd time shooting it killed his friend, conviction of unlawful act quashed as they couldn’t prove the base offence of assault and battery
R v Slingsby
sex with V, digital penetration, wearing ring caused internal cuts, became infected and died, didn’t intend to do harm but wouldn’t have happened if took the ring off, able to plead case of consent, no base offence.
dangerous to V
whether a sober and reasonable person in the circumstances would have recognised its danger at the time, objective test, seen at the time when the D acted.
R v Church
injured woman having sex with, threw her in river, not dead died because of his actions, convicted of unlawful act, so long as reasonable person could force risk of harm.
R v Dawson
sober and reasonable person is taken to know what D knew - unlawful act, tried to rob petrol station using fake gun, V got a heart attack, all circumstances known, whether D knew of the circumstances, since D didn’t know shouldn’t have taken it into account.
causes death of V - UNLAWFUL ACT
dangerous crime must cause the death, standard causation rules apply, factual and legal causation
R v Kennedy (No 2) - causes death of v
convicted of unlawful act but conviction quashed as V voluntarily took it, satisfied factual but not legal
AG’s Reference (No 3) - no MR requirements with respect causing death
D stabbed pregnant girlfriend with intent to kill, entered premature labour and kid died a little later, lordships decided he should have been convicted with unlawful act, met all factors
Gross negligence
very serious breach of duty that results in death of the V
R v Adomako - gross negligence
anaesthetist didn’t notice detached oxygen tube, V died, care described as abysmal, should have recognised, set out test for gross negligence
gross negligence - 5 part test
- duty of care to V, 2. duty was breached, 3. breach involved serious and obvious risk of death, 4. breach actually caused V’s death, 5. breach was criminally serious (jury decides this)
r v wacker
duty of care (gnm) - migrants suffocated in D’s truck, states doing the blaming here not the individuals so can recognise duty of care
gross negligence and omissions
can commit gross negligence via omissions - duty of care broader than duty to act
r v evans - gnm
because she chose to stay this created a dangerous situation for the V and was under a duty of care
r v Broughton - gnm
D videoed V overdosing, 90% chance would have lived if treated, breach of duty was not operative cause of death, not beyond a reasonable doubt
breach of duty - assessed objectively
jury asks if D’s conduct meets the standard of a reasonable person holding that duty - intent and mindset is not relevant
breach of duty - reasonable foresight that breach posed a serious and obvious risk of death
must factually exist - r v kuddus, chef in takeaway wasn’t aware of allergy as person taking order forgot to say, V died, only had minor reactions before, needed to decide if reasonable person would have known, quashed conviction, would’ve owed a duty if knew
breach of duty - be reasonably foreseeable R v Rose
optometrist didn’t spot fluid in the brain, would’ve been spotted by reasonable person, died, convicted of gnm, quashed, wasn’t foreseeable as the test was done incorrectly
breach is criminally serious
no definition of how serious it needs to be, jury decides the question here, falls so far below standard of reasonable person
breach is criminally serious - courts should use other terms to explain what ‘gross’ means
r v sellu - surgeon negligently failed to operate on V, left to jury, held it was insufficient as the judge cannot simply say it must be gross
breach is criminally serious - circularity of the test
r v misra - conduct as truly exceptionally bad, 2 doctors failed to diagnose and the V died, appeal rejected as to certainty of the offence.
reckless manslaughter
same as murder except MR involves recklessness instead of intent.
