Homicide

Question 1

Elements of murder

Answer 1

Actus Reus: defendant unlawfully killed another human being under the King’s peace; and

Mens rea: Defendant committed the actus reus with intention to kill or cause grievous bodily harm

And no valid defence.

Question 2

Sentencing for murder

Answer 2

Murder carries a mandatory life sentence. Judge has no discretion in sentencing other than to recommend a minimum terms before a prisoner can be released on licence.

Question 3

Unlawful killing exceptions

Answer 3

• killing enemy soldiers in battle
• Advancement of justice (although the UK no longer has the death penalty)
• Self-defence: reasonable force necessary to prevent crime or protect self, others or property

Question 4

Murder

Answer 4

Must be both the factual and legal cause.

Factual - but for the acts or omissions of the defendant, the relevant consequence would not have occurred in the way that it did.

Legal - the defendant’s act must be the substantial cause of the prohibited harm. Does NOT mean it has to be the only or principal cause but it needs to be more than minimal

Question 5

Is it possible to murder a corpse?

Answer 5

No it is not.

Moment when the brain dies the person will be held to have died.

Question 6

When does a person come into being?

Answer 6

• Child must be fully expelled from the mother’s body and born alive
• Not necessary for the umbilical cord to be cut
• Case where woman was stabbed in the abdomen - child born prematurely and died: child was not alive when stabbed and therefore could not be murder

Question 7

“Queen’s peace”

Answer 7

Refers to jurisdiction

Question 8

Malice aforethought

Answer 8

• intention to kill; or
• intention to cause grievous bodily harm - means ‘serious harm’

Defendant does not need to have any malice nor does it need to be premeditated.

Mercy killing is no defence in English law

Defendant can have malice aforethought even if they kill a person in the spur of the moment.

Question 9

Principles of intention

Answer 9

• Generally the meaning of intention should be left to the common sense of the jury. However, direct intent is where the consequence is what the defendant, subjectively aims to happen
• Where D’s aim or purpose in acting is something other than death or grievous bodily harm, juries are not entitled to find oblique intent unless they feel sure:

Death or serious injury was a virtual certainty as a result of the defendant’s action; and
The defendant appreciated that

• Judges have said that the need for a Woolin direction will rarely arise. Oblique intention is not intention but evidence of it.
• Motive is not the same as intention but can be used as evidence os intention.

Question 10

What are the two special defences to murder

Answer 10

Diminished Responsibility

Loss of Control

Question 11

What type of defence is diminished responsibility?

Answer 11

It is a partial defence - meaning if it is successful defendant is not acquitted but convicted of a lesser offence -> voluntary manslaughter.

Question 12

Effect of voluntary manslaughter

Answer 12

Mean judge will have discretion in sentencing and the defendant will avoid the mandatory life sentence handed down to those convicted of murder.

Question 13

Who is the burden on for diminished responsibility?

Answer 13

Burden falls on the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility.

Question 14

Is diminished responsibility available as a defence to a charge of attempted murder?

Answer 14

No.

Question 15

Elements of defence of diminished responsibility

Answer 15

D was suffering from an abnormality of mental functioning which:

(a) arose from a recognised medical condition;

(b) substantially impaired D’s ability to do one of more of the following:
- understand the nature of their conduct
- form a rational judgment
- exercise self-control

(c) and provides an explanation for D’s acts or omissions in doing or being a party to the killing.

Abnormality of mental functioning provides an explanation for D’s conduct if it causes or is a significant contributory factor in causing D to carry out that conduct

Question 16

Abnormality of mental functioning

Answer 16

A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.

Must be CAUSED by the recognised mental condition.

Must not be acting out hatred, jealousy or bad temper

Question 17

Recognised medical condition

Answer 17

• Can be undiagnosed at the time
• Abnormality must be caused by the recognised medical condition
• Alcohol Dependency Syndrome is a recognised medical condition - but voluntary intoxication is not

Question 18

Substantial impairment

Answer 18

Greater than trivial impairment of:
- conduct: does not understand what they are doing e.g. boy who kills friend because people come back to life in video games
- rational judgment: delusional, worn down
- exercise self control: devil takes control of him

Question 19

Provides an explanation

Answer 19

Needs a causal link between abnormality of mental functioning arising from a recognised medical condition and the killing.
BUT need not be the only cause.
Defence can still operate even if alcohol has played a part.

Question 20

Medical expert evidence: R v Brennan

Answer 20

A judge should withdraw the murder charge from the jury when either the expert medical evidence is uncontested or when there is no other evidence which is capable of rebutting the medical evidence.

Held to be legitimate and helpful for expert psychiatrists to give evidence.

All four elements of the defence are concerned with psychiatric matters.

Question 21

Three requirements for loss of control

Answer 21

• 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: 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.

Question 22

Burden of proof for loss of control

Answer 22

Evidential burden to raise the defence.

Burden of proof then rests with the prosecution to disprove it.
- prosecution only need to prove that one of the components is absent for the defence to fail.

Question 23

Who decides whether the jury can hear the defence?

Answer 23

The judge will decide whether the defence can be put before the jury.

Question 24

Loss of self-control

Answer 24

Can be assessed by looking at ordinary meaning. Whether the defendant actually lost control is a question for the jury taking into account all of the evidence.

• It need not be sudden, but the jury should consider any delay between provocation and the killing (the longer the delay the less likely the defendant lost control)
• If acting out of a considered desire for revenge the defence will be lost.

Question 25

Two qualifying triggers

Answer 25

• Fear trigger - must fear serious violence
• Anger trigger - sense of being seriously wronged

Question 26

Fear trigger - serious violence

Answer 26

Must fear serious violence (higher bar than self defence)

Likely to be used to cover a situation where a jury might conclude that the defendant was justified in using force but that the level of force was unreasonable (preventing defence of self-defence)

CANNOT rely on fear trigger if D incited it as an excuse to use violence.

Question 27

Anger trigger: three parts

Answer 27

• things said or done
• that constitute circumstances of an extremely grave nature; and
• that caused D to have a justifiable sense of being seriously wronged.

Question 28

Things said or done

Answer 28

Something must be actually said or done - circumstances are not enough on their own. e.g. slow traffic would not justify loss of self control

Second hand word of such acts count.

Cannot rely on the anger trigger if:
- incited it as an excuse to use violence; or
- the thing said/done constituted sexual infidelity

Question 29

Justifiable sense of being seriously wronged

Answer 29

This is an objective question. Must be one that accords with contemporary society’s norms and values - must be shown that a normal person in contemporary Britain would have felt seriously wronged in the same situation.

E.g. a man’s daughter dating someone of a different race or religion would not count - even if it felt like that to him. BUT finding out someone molested your child would count.

Question 30

Normal Person test

Answer 30

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.

Two steps:
1. The gravity of the qualifying trigger to a person in the defendant’s circumstances; then
2. Whether as a result of that trigger a normal person might have done what the defendant did or something similar

Question 31

What can the jury take into account in the normal person test?

Answer 31

Wholly-objective.

The normal person will have ordinary powers of tolerance and self-restraint.

Jury will NOT be allowed to take into account any characteristics or circumstances that would affect normal tolerance and the ability to exercise restraint.
Examples of characteristics likely to be excluded:
- Bad temper
- Intoxication
- Extreme sensitivity
- Post-traumatic stress disorder
- Personality disorder

Question 32

Can excluded circumstances ever be included?

Answer 32

Yes - they can be considered when assessing the magnitude of the qualifying trigger but ignored in assessing how much tolerance and self-restraint the normal man would have.

EG someone has a personality disorder which makes them unusually angry or aggressive at the slightest provocation - would not be relevant for loss of control.
But if this caused him to attempt suicide then you could take it into account as one of the circumstances the effect on him being taunted that he should have killed himself.

Question 33

Limitations on use of loss of control as a defence

Answer 33

1. Considered desire for revenge
2. Excuse to use violence
3. Sexual infidelity
4. Attempted murder

Question 34

Considered desire for revenge

Answer 34

Defence cannot be used if it stems from an act of revenge.

The would cover cases where there is clear evidence of planning.

‘Considered’: means defendant has had time to think about the qualifying trigger - clear that if the defendant is acting out of planned revenge the defendant will not have lost self control.

Question 35

Excuse to use violence

Answer 35

Defendant’s actions were done with a view to providing an excuse for violence - it is not enough that the defendant ‘started it’. They must have had the intent from the outset to provoke the reaction that then led to the killing. Therefore only in rare cases that these subsections will apply.

Question 36

Sexual infidelity

Answer 36

Defence cannot be relied on if the thing said/done constituted sexual infidelity. This subsection was brought in to prevent defendants from using sexual infidelity as an excuse for killing.

But only excluded where infidelity is the sole qualifying trigger, if there are other things said or done, of if there is also a fear of serious violence then sexual infidelity should be considered.

So CAN be considered in situations where the defendant may also lose their home or their kids so that the jury has the whole story.

Question 37

Attempted murder

Answer 37

Loss of control is not a defence to attempted murder.

Question 38

Intoxication and loss of control

Answer 38

• defendant is not precluded from using the defence just because they are intoxicated
• Intoxication will be ignored if it has no connection to things said or done which make up the qualifying trigger
• If there is a connection between things said or done which make up the qualifying trigger (eg taunted about intoxication) then jury can take that information into account in assessing the gravity of the qualifying trigger

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

Question 39

Intoxication and diminished responsibility

Answer 39

Two approaches:

1) independent of the abnormality - the defendant has an abnormality of mental functioning AND is voluntarily intoxicated

2) As a result of alcohol dependency syndrome (ADS)

Question 40

Intoxication independent of the abnormality

Answer 40

If the defendant was intoxicated at the time of the killing, the jury should then ask themselves: has the defendant satisfied you that, despite the drink

1. he was suffering from mental abnormality
2. his mental abnormality substantially impaired his mental responsibility for his fatal acts

Note: it is possible for the jury to still find that the defence operates, even if they consider that the alcohol may have played a part in the defendant’s inability to do one of the factors.

Question 41

intoxication and alcohol dependency syndrome (diminished responsibility)

Answer 41

1. Jury must be satisfied that there was an abnormality of mind (ADS can assist in determining this) - but are open to conclude that despite the condition, defendant was not suffering from an abnormality of mental functioning.
2. If jury are satisfied that the defendant was suffering from an abnormality, they then need to be satisfied that this arises from a recognised medical condition. Will likely be satisfied if clear evidence of ADS.

Note: any attempt to rely on voluntary and temporary drunkenness even when based on habitual heavy binge drinking will not be sufficient.

3. Factors jury may take into account:
   - extent and seriousness of the defendant’s dependency
   - extent to which his ability to control his drinking was reduced
   - whether he was capable of abstinence and if so, for how long
   - whether he was choosing for some particular reason to decide to get drunk or to drink more than usual

Question 42

Mens Rea for murder and intoxication

Answer 42

Even though intoxicated, did D form the mens rea of intention to kill or intention to cause grievous bodily harm? Drunken intent is still intent.

Question 43

Involuntary manslaughter

Answer 43

• Unlawful act manslaughter
• Gross negligence manslaughter

Question 44

Elements of unlawful act manslaughter

Answer 44

1) the defendants intentionally (voluntarily) did an act
2) the act was unlawful
3) the unlawful act was dangerous
4) the unlawful act caused the death of the victim

Question 45

Defendant’s act was intentional

Answer 45

Accused must have intentionally (voluntarily) carried out an act which results in the death of a person.

This refers to intention with regard to the doing of the act - not to the consequences which flow from it

Question 46

Three aspects to an act being unlawful

Answer 46

It must be:
- a criminal act - not a civil wrong, but it need not be serious, can simply be common assault

• an intrinsically unlawful - cannot be based on a lawful act which becomes unlawful only because of the negligent or reckless manner in which it is performed e.g. driving
• an act rather than an omission - if an omission would be charged under gross negligence manslaughter

Question 47

Act must be dangerous

Answer 47

Test for accused appreciation of the likely harm is objective: what the sober and reasonable person would appreciate - must foresee the risk of some harm.

• Type of harm the reasonable person would have foreseen does not have to be that actually caused.
• Physical not emotional harm, but includes shock that produces physical effects.
• The sober and reasonable person knows everything they would have known if they had been in the defendant’s shoes at the time of the offence and gained at the scene of the offence.
• Defendant could become liable if they became aware of a fact during the commission of the offence which would make the act dangerous.
• The sober and reasonable person has any special knowledge that the defendant has or ought to have known - eg assessing weight of the gun with bullets vs blanks
• Being reasonable, they do not make any unreasonable mistakes made by the defendant

Question 48

Unlawful act must have caused the death of the victim

Answer 48

Result Crime: requires that the conduct of the defendant cause a particular result.

Factual causation: must be proved that ‘but for’ the acts of the accused, the relevant consequence would not have occurred in the way that it did.

Legal causation: operating and substantial cause
- substantial: more than minimal
- operating: there is no novus actus interveniens which breaks the chain of causation: medical negligence, acts of third parties, acts of victims, thin skull rule.

Question 49

Causing death by supplying drugs

Answer 49

Two distinct situations:

a) Directly administers the drug to V (eg taking a syringe and injecting V with it); and

b) merely supplying V with the drugs or assisting V such as mixing the cocktail or filling the syringe before passing it to V

Question 50

Administration of the drug by the defendant

Answer 50

Unlawful to administer a noxious thing (contrary to OAPA) and deceased’s death was caused by this unlawful act. Consent by the victim is no defence to this.

Question 51

Deceased is unaware of what they are taking or deceived

Answer 51

May still be guilty of an offence under OAPA.

Question 52

Free and voluntarily self-administering the drugs

Answer 52

Deceased has a choice whether or not to inject themselves or not - therefore their own act and cannot be guilty so long as V is a fully informed and responsible adult who freely and voluntarily self-administers

Question 53

Basis of gross negligence manslaughter

Answer 53

The basis of gross negligence manslaughter will be that the defendant has breached a duty of care owed to the victim. This is done through a positive act or omission which must be considered so bad it necessitates a criminal charge.

Question 54

Requirements for gross negligence manslaughter

Answer 54

a) existence of a duty of care
b) breach of that duty
c) that the breach causes death
d) that there was a risk of death
e) that the breach of duty was so bad as to amount to ‘gross negligence’

Question 55

Duty of care

Answer 55

Same as in tort - will owe such a duty towards anyone where harm caused by their acts was foreseeable
Established: everyone has a general duty to take care to avoid injury by a positive act to their neighbour.

Judge will decide whether there is sufficient evidence to go before the jury based on the specific facts of each case.

Can arise in criminal law even where it wouldn’t in tort - eg immigrants suffocated in the back of the lorry being smuggled in (tort wouldn’t recognise because it is illegal)

Question 56

Breach of duty of care

Answer 56

Ordinary principles apply, questions is:

Whether the defendant’s acts fell below the standard expected of a reasonable person.

Reasonable person will be attributed with any special skill used by the defendant.

Question 57

Causation

Answer 57

Normal rules apply: but for and legal causation

Question 58

Risk of death

Answer 58

Must be an obvious and serious risk not merely of injury or serious injury but of death.

Must be clear and unambiguous at the time of breach, not one which might become apparent on further investigation.

EG doctor’s failure to carry out eye exam which would have caught illness and prevented death was held not to constitute GNM because it is not enough that an assessment might reveal something life threatening - must be an obvious risk of death.

Question 59

Themes of what constitutes gross negligence

Answer 59

• Where defendant is responsible for a series of acts/omissions rather than a single event
• Single devastating act can be grossly negligent
• There can be gross negligence by the defendant, even if others are also responsible for the circumstances leading up to death eg despite involvement of others the defendant has a clear personal responsibility and the ability to discharge it
• Where the defendant’s mistakes are themselves in part or in whole brought about by mistakes of others, this may be a reason for not convicting
• if the defendant has knowledge/experience that should alert them to the danger this may be helpful for the jury
• no requirement for any mental state BUT state of mind is not irrelevant
• If someone has seen a high risk of death or has a couldn’t care less attitude to a high risk of death, it seems clear that they are highly likely to be convicted
• The defendant’s state of mind may also work in their favour e.g. if the defendant genuinely did not believe there was a risk, this is a factor that the court can take into account

Question 60

Cases which constitute gross negligence

Answer 60

Captain of ship sailing close to the coast knowing would have to rely on engines which could break down because using contaminated fuel and three crew members died (GNM)

Adomako: anaesthetist - oxygen tube became disconnected, had multiple opportunities to notice - abysmal standard of care (GNM)

Doctors repeatedly ignored warnings from nurses and other doctors that the patient was experiencing complications and did nothing - the patient died.

Repeated problems with gas fires and monoxide poisoning over a period of 4 months. Aware of the danger and maintenance man - liable when tenant died from monoxide poisoning

Not:
- two junior doctors who injected wrong drug into spine which killed patient not grossly negligent as mistake was failure of supervisors and inadequacies of drug storage.