Homicide Flashcards
What is the AR of homicide?
D unlawfully causes the death of a victim (human being)
From when is a baby protected by the law of homicide?
As soon as it has an existent independent of the mother
What is the definition of murder?
- Unlawful - lawful killing inc killing enemies in war, death penalty, self-defence
- Killing - factual and legal cause of death
- of a Human Being - must be after child fully expelled from body and before brain dies (cannot kill corpse)
- Under the King’s Peace - means can be tried for murder wherever committed if British subject, or if not, if committed in E+W
ie: killing in war = not murder
What is the MR for murder?
Malice afterthought … but no malice is necessarily required (eg: mercy killings)
Modern definition: Intention to kill or cause GBH (ie: ‘really serious harm’
What type of intent is required?
Specific intent – ie oblique [virtual certainty which D appreciated] or direct intention
Cannot be committed recklessly!
What is the maximum penalty for murder?
Life sentence
When will murder become voluntary manslaughter?
Where D commits AR and MR of murder but can rely on either loss of control, diminished responsibility or a suicide pact as a special defence to murder
These two partial defences can only be used for murder
What is the difference between voluntary and involuntary manslaughter?
Involuntary manslaughter = AR or murder satisfied but MR not (ie: did not intend to kill or cause GBH)
Voluntary manslaughter = AR and MR of murder satisfied but D has a partial defence
Summary of all homicides
What are the burden of proofs for loss of control and diminished responsibility?
** Loss of control **=
prosecution to prove **beyond reasonable doubt **that partial defence does not apply
* Diminished responsibility =
defence must prove on balance of probabilities that partial defence applies
DR is one of few instances in criminal law where burden of proof is with defence
Defence must prove Diminished responsibility on a balance of probabilities
Prosecution (i.e. the law) must prove that loss of control does not apply beyond reasonable doubt
Will DR or LOC act as complete defences?
No - only partial so D is not acquitted but also not given a mandatory life sentence; judge has discretion in sentencing
Given lesser charge for voluntary manslaughter
In what order should defences be considered?
- Complete defence (would lead to acquittal)
- Partial defence (would not)
Is diminished responsibility available for a charge of attempted murder?
No
Who has the burden of proof and what is it for diminished responsibility?
Burden on defence to prove on balance of probabilities that D was acting under diminished responsibility
What are the 4 requirements of diminished responsibility?
- (D is suffering from) Abnormality of mental functioning
- (which arose from a) recognised medical condition
- (which had a) Substantial (more than trivial) impairment of D’s ability to (a) understand the nature of their conduct / (b) form rational judgement / (c) exercise self-control; and
- Provides an explanation for D’s acts/omissions
What is the burden and standard of proof for DR and which party holds it?
Legal burden to prove all elements on the balance of probabilities by D
When will a D be considered to suffer from an ‘abnormality of mental functioning’?
If they had a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal
Must the abnormality of mental functioning be caused by the medical condition or do the two merely have to exist?
Must be caused by medical condition and not something else (hatred, temper etc.)
Must D be diagnosed with the medical condition at time of killing?
No - can be undiagnosed
What are recognised medical conditions?
- Depression
- Schizophrenia
- PTSD
- Battered person disorder
- Phobic anxiety
- Diabetes
- Epilepsy
Does the medical condition requirement allow intoxication to be run as a defence?
Alcohol Dependency Syndrom (ADS) is a recognised medical condition, but voluntary intoxication remains unchanged
What ‘things’ are included in ‘substantial impairment of D’s ability to do one or more things’?
I.e. What is the thing which D’s ability to do is impaired?
- Understand nature of D’s conduct - does not understand a human life cannot be revived like a video game
- Form a rational judgement - a depressed man kills terminally ill spouse at her request as he found it progressively more difficult to stop her repeated requests dominating thoughts
- Exercise self-control - a man says the devil takes control of him implanting a desire to kill which must be acted on
What does the requirement of ‘provides an explanation for D’s acts/omissions’ mean in practice?
There must be a causal link between abnormality of mental functioning arising from recognised medical condition and killing must be established
Need not be only caused
Can diminished responsibility still run if alcohol has played a part?
Yes
How important is medical evidence in overturning a conviction on diminished responsibility?
Very - if uncontested, medical evidence should mean murder charge should be withdrawn
Where lies the burden of proof for loss of control and to what extent must it be proven?
- With the prosecution
- Must prove that only one one component is absent for defence to fail!
What are the three requirements for a loss of control defence?
- D must have lost self-control
- Due to the fear and/or anger qualifying trigger
- A normal person might have acted in a similar way to D
When is there less likely to be a ‘loss of control’ in terms of desire or timing?
1st requirement of LOC
- Where D acted out of a considered desire for revenge
- Where there is a longer delay between provocation and killing (but need not be sudden)
When will there be a fear trigger?
2nd requirement of LOC (hereon)
Where the D has a serious fear of violence
Cannot rely on fear trigger if incited by D
How is the fear trigger and self defence different if both require a fear of violence?
- Self-defence requires only a fear of violent, whereas LOC requires serious fear
- May cover situation where self-defence denied because level of force was unreasonable; self-defence does not operate but loss of control does
When will there be an anger trigger?
3 parts
- 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
Objectively evaluated
What things said and/or done can the D not rely on for the anger trigger?
1st part of anger trigger
- Circumstances (e.g. slow traffic) - must be a thing said/done
- Things incited by D as an excuse to use violence
- Things said/done that constitute sexual infidelity
What will constitute ‘circumstances of an extremely grave nature’?
2nd part of anger trigger
Circumstances facing D must have been unusual and not part of the normal trials and disappointments of life
E.g. being sworn at or queue jumped would not constitute
Objective
What would constitute a ‘justifiable sense of being seriously wronged’?
Judged by contemporary British society’s norms and values
Honour killing daughter’s love affiar would not count, pedo teacher may
Objective
What is the normal person test? i.e. a normal person might have acted in a similar way to D
3rd requirement of LOC
2 steps
Jury will assess…
1. The gravity of the qualifying trigger to a person in D’s circumstances; then
2. Whether as a result of that trigger a normal person might have done (something similar to) what the D did
What will increase the gravity of the qualifying trigger to a person in D’s circumstances?
1st step for 3rd requirement
Taunting a person because of their race, physical infirmities, shameful incident in the past may be considered to be more offensive to person addressed
Non-exhaustive
How is it judged whether a ‘normal person’ would react the same?
2nd step for 3rd requirement
Normal person has ordinary powers of tolerance and self-restraint (jury should not take into account characteristics/circumstances that would affect normal tolerance e.g. bad temper, intoxcation, PTSD, personality disorder etc.)
Wholly-objective
Result of this is that some characteristics/circumstances will be considered in assessing magnitude of qualifying trigger but not the tolerance and self-restraint a normal person would have
What happens to the normal person test if a mental disorder is relevant to the conduct of the D?
Can be used to understand qualifying trigger but not relevant to normal person test as they should be compared against normal person not suffering
Diminished responsibility should probably be used instead
What are the limitations on the use of qualifying triggers in using LOC?
Cannot be used:
- For revenge (clear planning)
- As an excuse to use violence (but not enough that D ‘started it’; must have had intent from outset)
- If thing said or done constituted sexual infidelity, or
- If D is charged with attempted murder
Can sexual infidelity be included in the defence at all?
Yes - should be considered when it is not the sole qualifying trigger - will usually include other factors to make up trigger e.g. losing home or children
Possible to include jury has whole story as long as not only QT
How can intoxication be used for the loss of control defence to still run?
For normal person test:
- Addiction can be taken into account in assessing gravity of qualifying anger trigger (e.g. taunted about addiction)
- Normal person can be given this characteristic but will still have normal levels of self-restraint and be sober
I.e. intoxicated person not precluded from using LOC
E.g. 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?
D’s drug or alcohol addiction can be taken into account in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction. 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
How is the diminished responsibility defence satisfied when D is voluntarily intoxicated?
Jury must be satisfied that, if D was intoxicated at time of killing, despite the drink:
1. He was suffering from mental abnormality
2. Which impraired mental responsibility for his fatal acts
Defence can still operate if jury consider alcohol played a part in inability
What is the approach of the court when D who has alcohol dependency syndrome (as mental condition) is seeking to rely on DR?
- Must be decided if ADS was a significant factor in leading D to consume alcohol (if so = impaired)
- Must be clear evidnece of ADS rather than voluntary and temporary drunkenness (even if based on habitual binge drinking)
- Consider extent and seriousness of dependency, extent to which ability to control drinking reduced, whether capable of abstinence and if so for how long, whether there was a special occasion to drink
How is involuntary manslaughter distinguished from murder and what are the 2 kinds?
Distinguished by a lack of malice afterthought
1. Unlawful act (constructive) manslaughter
2. Gross negligence manslaughter
What are the requirements for unlawful act manslaughter?
- D intentionally (voluntarily) did an act
- Which was unlawful
- And dangerous
- Which caused the death of the victim
Intentionally = did the act, not intended the consequences
What are the 3 conditions of an unlawful act?
2nd requirement for UAM
Act must be:
1. A criminal act
2. An intrinsically unlawful act
3. An act rather than omission (this would come under gross negligence manslaughter)
What must the ‘criminal act’ be?
1st condition of 2nd requirement
- Criminal, not civil
- Proven of both AR and MR (as an act itself)
- Not done in reasonable use of self-defence
- Not serious; can simply be common assault
- Any act, but will usually be offence against person
E.g. Lamb - D pointed revolver at V as a joke and both parties believed no risk of revolver firing but did - D had no intention of committing assault so all elements of offence not proven
What is meant by ‘intrinsically unlawful act’?
2nd condition of 2nd requirement
Unlawful act cannot be based on a lawful act which becomes unlawful because of manner in which it is performed e.g. driving
How will an act be ‘dangerous’?
3rd requirement
If sober and reasonable person would recognise that there is at least the risk of some physical harm resulting (objective)
NB some harm = does not have to be serious
Can a dangerous act produce emotional effects?
No, unless the effect of the shock becomes physical e.g. on nervous system
Does the harm foreseen by the reasonable person have to be actually caused?
No
What knowledge will the ‘reasonable person’ have when deciding the dangerousness of a D’s act?
I.e. what will be used to decide if D’s act is dangerous?
- Knowledge of circumstances if in D’s shoes at time of offence
- Any knowledge that D became aware of during act (e.g. were robbing house of an old unhealthy man prone to shock)
- Any special knowledge D has/ought to have known (e.g. weight of a gun they claim to be filled with blanks)
What rules apply when deciding if unlawful act caused death of victim?
4th requirement
The normal causation rules (factual and legal)
Will the supply of drugs by D to V cause the death when:
1. D directly administers drug (e.g. injects with syringe)
2. Supplies V with drug (e.g. fills syringe and passes it over)
?
- D causes V’s death as consent by V is no defence
- D does not cause V’s death if they are a fully informed and responsible adult who voluntarily self-administers
How is gross negligence manslaugher different to unlawful act manslaughter?
No requirement that D was involved in criminal act
What is the basis of gross negligence manslaughter? (GNM)
D breached DOC (with act or omission) owed to V with a degree of negligence that showed such disregard for life and safety of others as to amount to a crime against the state
More than a mere matter of compensation; so bad needs criminal charge
Gross negligence is the correct test, NOT recklenssness
What are the requriements for gross negligence manslaughter?
- Existence of a DOC
- Breach of a duty
- Breach causes death
- Risk of death
- Breach of duty was so bad to amount to ‘gross negligence’
When will there be a duty of care?
1st requirement for GNM
D owes duty towards anyone where harm caused by acts was foreseeable
- Everyone has general duty to take care to avoid injury by positive act to neighbour
- Liability for omission can arise where D under specific duty to act (statute, contract, special relationship etc.)
Can there still be a duty of care in criminal cases?
E.g. lorry carrying 58 immigrants who suffocated
Yes
When will there be a breach of the duty of care?
2nd requirement for GNM
Where D’s acts fall below standard expected from reasonable person (with any special skills of the D)
How will it be shown that breach caused the death of victim?
3rd requirement for GNM
Normal causation rules
Will risk of injury be enough for a risk of death?
4th requirement for GNM
Not enough - must be an obvious and serious risk of death
Will there be an obvious risk of death if there is a possibility that an assessment might reveal something life-threatening?
E.g. optometrist failed to review optic nerves which would have saved life
No - obvious risk is a clear one at present, not one which might become apparent on further investigation
When will a breach be serious enough to constitute gross negligence?
5th requirement for GNM
No firm conclusion as to what this constitutes but consider:
- Easier to find GN where there is a series of acts/ommissions (but a single devastating act can be grossly negligent)
- Can be GN by D even if others also responsible
- Jury should consider knowledge/experience that should alert D of danger
- Court can take into account that D did not believe risk
- No requirement of mental state but not wholly irrelevant
