Homicide

Question 1

What are the Elements of Murder?

Answer 1

• Actus Reus : Unlawfully killing a person in being under the King’s Peace.
• Mens Rea : Malice aforethought.

A person is brought into being when they are fully expelled from their mother’s body.

Question 2

What is Malice Aforethought?

Answer 2

The intention to kill or cause greivous bodily harm (“GBH”).

Question 3

What are the Special Defences to Murder?

Answer 3

• Loss of Control.
• Diminished Responsibility.

A Special Defence is a Partial Defence available only against Murder. Neither are applicable against Attempted Murder.

Question 4

What is Loss of Control?

Answer 4

Elements:

• The Actus Reus arose from a Loss of Self-Control due to a Qualifying Trigger; and
• A normal person of the Defendant’s age and sex may have behaved similarly under the circumstances.

Burden and Standard of Proof:

• The Defence has an Evidential Burden.
• The Prosecution has a Legal Burden, namely to disprove Beyond Reasonable Doubt.

Question 5

What constitutes a Loss of Self-Control?

Answer 5

True loss of the ability to think clearly and make rational decisions.

Question 6

What is a Qualifying Trigger?

Answer 6

• Fear of serious violence.
• Things said or done of an extremely grave nature, justifiably causing a sense of being seriously wronged.

Judged objectively based on modern British norms and values.

Sexual infidelity, considered revenge, and violent pretenses do not apply.

Question 7

What is Diminished Responsibility?

Answer 7

Elements:

• The Defendant’s abnormality of mental functioning, caused by a recognised medical condition;
• Substantially impaired their ability to understand their conduct, form rational judgments, or exercise self-control.

Burden and Standard of Proof:

• The Defence has a Legal Burden, namely to prove on the Balance of Probabilities.

Question 8

What is an Abnormality of Mental Function?

Answer 8

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

Question 9

What is the Impact of Intoxication?

Answer 9

• It may undermine arguments for the presence of Mens Rea.
• It is irrelevant to the objective aspects of the Loss of Control Defence.
• It is only relevant in a Diminished Responsibility Defence if it stems from addiction.

This assumes the Intoxication was voluntary.

In a Loss of Control Defence where the Defendant is an addict, that attribute may given in the Normal Person Test, but sobriety and ordinary levels of tolerance and self-restraint would still prevail.

Question 10

What is Voluntary Manslaughter?

Answer 10

The reduced Charge for Murder where a Special Defence is established.

Question 11

What are the Two Types of Involuntary Manslaughter?

Answer 11

• Constructive Manslaughter.
• Gross Negligence Manslaughter.

Question 12

What are the Elements of Constructive Manslaughter?

Answer 12

• Actus Reus : Performing an intrinsiclly criminal, dangerous act that causes another to die.
• Mens Rea : Intention to perform the relevant act.

The act cannot be an omission.

The act cannot be conditionally unlawful, e.g. because it was performed negligently.

Question 13

For Constructive Manslaughter, what constitutes a Dangerous Act?

Answer 13

One that a sober, reasonble person understands will subject others to, at the very least, the risk of some harm.

Question 14

What are the Elements of Gross Negligence Manslaughter?

Answer 14

• Actus Reus : Breaching a Duty of Care, where doing so carried an obvious, lethal risk at the material time that actually materialised.
• Mens Rea : Gross Negligence.

Question 15

What constitutes Gross Negligence?

Answer 15

Negligence so serious that it shows a disregard for life and deserves criminal punishment.