Homicide Flashcards
What is the test for legal causation?
The defendant must be the operating and substantial cause
What is voluntary manslaughter
D has AR and MR for murder but can rely on one of 2 defences:
- loss of control; or
- diminished responsibility
What are the elements of the loss of control defence?
1) Loss of self-control
2) Qualifying trigger
3) Reaction of normal person in D’s shoes (normal degree of self-restraint)
What is the loss of self control?
There must be evidence of a loss of self-control and that loss of self-control must have caused the killing
How is a loss of control determined?
It is a matter of fact for the jury. A mere loss of temper is not enough. D must have been unable to restrain himself
What is the qualifying trigger for loss of control?
- D’s fear of serious violence
- things said and/or done which were very serious and caused D to have a justifiable sense that he was seriously wronged
What 3 things are needed for a justifiable sense of wrong?
- Something must be said or done (or both) to D which caused D to lose self-control
- The things said and/or done must have been very serious
- D must have had a justifiable sense of being wronged
What test is used to determine a justifiable sense of being wronged?
An objective test: would a reasonable person of D’s age and sex have considered/viewed the things said or done as so very serious that they would have lost control
When can’t this trigger be used?
Qualfiying trigger for loss of control defence
If D incited the provocation or if sexual infidelity is the only cause for the sense of being wronged
How is the normal person test satisfied for loss of control?
Ask if a normal person who is the same age and gender as D would have also killed someone had they been put in D’s position and subject to the same trigger
What cannot be considered for the normal person test?
Any characteristics of D that affect their self-control (e.g., bad temper or a psychiatric disorder)
Is voluntary intoxication considered for the normal person test?
No, if D is voluntarily intoxicated this is irrelevant when applying the normal person test
- what would a normal (not drunk) person have done?
Note the defence can still be used, it just will not negate the MR
What are the elements of diminished responsibility?
Abnormality of mental functioning which arises from a medical condition, substantially impairs D’s ability to understand what they are doing and causes the killing
What is the test for abnormality of mental functioning?
It is an objective test - it must be a state of mind so different from that of ordinary human beings a reasonable man would define it as abnormal
What does arising from recognised medical condition mean?
Mental health condition recognised by doctors and the medical profession. D can be undiagnosed or diagnosed
What are examples of recognised mental health conditions:
- Adjustment disorder
- PTSD
- Asperger’s syndrome
- Depression
- Epilepsy
- Psychopathy
- Schizophrenia
What does substantially impairs D’s ability mean?
Abnormality of mental functioning must substantially impair D’s ability to do one of:
a) understand nature of his conduct;
b) form a rational judgment; or
c) exercise self-control
How does causation work for diminished responsibility?
Abnormality of mental functioning must cause or be a significant contributory factor in causing D to kill (usual causation rules apply)
There must be a causal link between D’s killing and his abnormal state of mind
What is the AR of unlawful act manslaughter?
D must have voluntarily/ intentionally committed an unlawful act which is dangerous and which causes death
Does D have to foresee the risk of death resulting from the unlawful act?
No - focus on the unlawful act itself for the MR
D must commit a crime such as assault, battery, criminal damage, but does not have to foresee a risk of death from this crime
What is the test for whether the act is dangerous?
It is an objective test: would a reasonable person in the shoes of D recognise that D’s actions would result in V being subject to some harm?
What is the MR of unlawful act manslaughter?
MR of the offence + intention to commit the unlawful act
What are the elements of gross negligence manslaughter?
D must have a duty of care to V which they have negligently breached, the breach was a substantial cause of V’s death, there was a risk of death and the breach is sufficiently serious to be criminal
Where does a duty of care arise?
D is under a duty of care to anyone where D’s actions could cause foreseeable harm to that person
Can a breach occur by omission?
Where D is under a specific duty to act (e.g., parent-child) and they fail to do so, this creates a duty of care and a breach by omission
What is the risk of death that D must foresee to breach their duty?
There must be an obvious and serious risk of death at the time of the breach (objective test)
An obvious and serious risk not merely of injury, or even serious injury, but of death
How does the risk of death test apply to medical examinations?
The test is whether the reasonable/competent person would have seen the obvious risk at the time of the breach of duty (not if the duty had not been breached)
Whether there is an obvious and serious risk at the time - not whether there is a failure to carry out the investigation/examination
Can the risk of death be one which becomes apparent from further investigation?
No, the risk of death must have been really obvious at the time of breach, not something that could only become apparent from further investigation
How is whether the breach was sufficiently serious to constitute gross negligence judged?
A judge will direct the jury on the meaning of gross negligence as ‘whether, having regard to the risk of death involved, the conduct of D was so bad in all circumstances as to amount to a criminal act or omission’
How is gross negligence determined?
It is determined on the facts of the case
Can a single act be grossly negligent?
Yes, a single devastating act can be grossly negligent
- equally, if D is responsible for a series of acts/omissions this may make it easier for the jury to find gross negligence
Does the the unlawful act for unlawful act manslaughter need to be intentional?
Yes, D must intentionally / voluntarily do an act. Omission is not enough
What the elements for an act to be unlawful for unlawful act manslaughter?
The act must be:
- criminal act
- intrinsically unlawful
- an act rather than an omission
The unlawful act must be a criminal act
- cannot be civil
- the criminal act must be independent (both AR and MR of criminal act must be proven)
- there must be no valid defence
- criminal act need not be serious (can simply be common assault)
What happens if there is a valid defence for the act considered for unlawful act manslaugher?
If there is a valid defence = the act is not unlawful.
D will not have committed an unlawful act
For example, if there is a defence of self-defence
Can a person be guilty of unlawful act manslaughter by an omission?
No - must be an act rather than an omission
A failure to do something whilst under a duty to would be charged as gross negligence manslaughter
What are the requirements for ‘dangerous’ for the act to be considered dangerous for unlawful act manslaughter?
What the reasonable, sober person…
The reasonable, sober person would see some harm happening
It is a risk of some harm, albeit not serious harm
The reasonable person knows whatever D knows
What is the test for a dangerous unlawful act?
It is an objective test and depends NOT on the accused’s appreciation of the likely harm, but on what the sober and reasonable person would appreciate
What is the type of harm for unlawful act?
Must be physical harm, not emotional (but includes shock which produces physical effects)
What are the legal principles for the act being dangerous (unlawful act manslaughter)
- the sober and reasonable person knows everything they would have known in D’s shoes at the time of the offence
- sober and reasonable person has any special knowledge that D has or ought to have
Being reasonable, they do not make any unreasonable mistakes made by D
What happens if D becomes aware of a fact during the commission of the offence which would make the act dangerous?
Defendant could become liable for unlawful act manslaughter
What are the special partial defences to murder?
Loss of control or diminished responsibility
Where D has AR / MR of murder, but the murder conviction is reduced to voluntary manslaughter by way of loss of control or diminished responsibility
What is the burden of proof for the loss of control defence?
Burden of proof is on the prosecution to prove this defence does not apply
What is the burden of proof for diminished responsibility?
Burden of proof is on the defence to prove on the balance of probabilities that this partial defence applies
For what offence is the defence of diminished responsibility not available?
Not available as a defence to a charge of attempted murder
