Homicide

Question 1

What is the test for legal causation?

Answer 1

The defendant must be the operating and substantial cause

Question 2

What is voluntary manslaughter

Answer 2

D has AR and MR for murder but can rely on one of 2 defences:
- loss of control; or
- diminished responsibility

Question 3

What are the elements of the loss of control defence?

Answer 3

1) Loss of self-control
2) Qualifying trigger
3) Reaction of normal person in D’s shoes (normal degree of self-restraint)

Question 4

What is the loss of self control?

Answer 4

There must be evidence of a loss of self-control and that loss of self-control must have caused the killing

Question 5

How is a loss of control determined?

Answer 5

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

Question 6

What is the qualifying trigger for loss of control?

Answer 6

1. D’s fear of serious violence
2. things said and/or done which were very serious and caused D to have a justifiable sense that he was seriously wronged

Question 7

What 3 things are needed for a justifiable sense of wrong?

Answer 7

1. Something must be said or done (or both) to D which caused D to lose self-control
2. The things said and/or done must have been very serious
3. D must have had a justifiable sense of being wronged

Question 8

What test is used to determine a justifiable sense of being wronged?

Answer 8

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

Question 9

When can’t this trigger be used?

Qualfiying trigger for loss of control defence

Answer 9

If D incited the provocation or if sexual infidelity is the only cause for the sense of being wronged

Question 10

How is the normal person test satisfied for loss of control?

Answer 10

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

Question 11

What cannot be considered for the normal person test?

Answer 11

Any characteristics of D that affect their self-control (e.g., bad temper or a psychiatric disorder)

Question 12

Is voluntary intoxication considered for the normal person test?

Answer 12

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

Question 13

What are the elements of diminished responsibility?

Answer 13

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

Question 14

What is the test for abnormality of mental functioning?

Answer 14

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

Question 15

What does arising from recognised medical condition mean?

Answer 15

Mental health condition recognised by doctors and the medical profession. D can be undiagnosed or diagnosed

Question 16

What are examples of recognised mental health conditions:

Answer 16

• Adjustment disorder
• PTSD
• Asperger’s syndrome
• Depression
• Epilepsy
• Psychopathy
• Schizophrenia

Question 17

What does substantially impairs D’s ability mean?

Answer 17

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

Question 18

How does causation work for diminished responsibility?

Answer 18

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

Question 19

What is the AR of unlawful act manslaughter?

Answer 19

D must have voluntarily/ intentionally committed an unlawful act which is dangerous and which causes death

Question 20

Does D have to foresee the risk of death resulting from the unlawful act?

Answer 20

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

Question 21

What is the test for whether the act is dangerous?

Answer 21

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?

Question 22

What is the MR of unlawful act manslaughter?

Answer 22

MR of the offence + intention to commit the unlawful act

Question 23

What are the elements of gross negligence manslaughter?

Answer 23

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

Question 24

Where does a duty of care arise?

Answer 24

D is under a duty of care to anyone where D’s actions could cause foreseeable harm to that person

Question 25

Can a breach occur by omission?

Answer 25

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

Question 26

What is the risk of death that D must foresee to breach their duty?

Answer 26

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

Question 27

How does the risk of death test apply to medical examinations?

Answer 27

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

Question 28

Can the risk of death be one which becomes apparent from further investigation?

Answer 28

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

Question 29

How is whether the breach was sufficiently serious to constitute gross negligence judged?

Answer 29

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’

Question 30

How is gross negligence determined?

Answer 30

It is determined on the facts of the case

Question 31

Can a single act be grossly negligent?

Answer 31

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

Question 32

Does the the unlawful act for unlawful act manslaughter need to be intentional?

Answer 32

Yes, D must intentionally / voluntarily do an act. Omission is not enough

Question 33

What the elements for an act to be unlawful for unlawful act manslaughter?

Answer 33

The act must be:
- criminal act
- intrinsically unlawful
- an act rather than an omission

Question 34

The unlawful act must be a criminal act

Answer 34

• 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)

Question 35

What happens if there is a valid defence for the act considered for unlawful act manslaugher?

Answer 35

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

Question 36

Can a person be guilty of unlawful act manslaughter by an omission?

Answer 36

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

Question 37

What are the requirements for ‘dangerous’ for the act to be considered dangerous for unlawful act manslaughter?

What the reasonable, sober person…

Answer 37

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

Question 38

What is the test for a dangerous unlawful act?

Answer 38

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

Question 39

What is the type of harm for unlawful act?

Answer 39

Must be physical harm, not emotional (but includes shock which produces physical effects)

Question 40

What are the legal principles for the act being dangerous (unlawful act manslaughter)

Answer 40

• 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

Question 41

What happens if D becomes aware of a fact during the commission of the offence which would make the act dangerous?

Answer 41

Defendant could become liable for unlawful act manslaughter

Question 42

What are the special partial defences to murder?

Answer 42

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

Question 43

What is the burden of proof for the loss of control defence?

Answer 43

Burden of proof is on the prosecution to prove this defence does not apply

Question 44

What is the burden of proof for diminished responsibility?

Answer 44

Burden of proof is on the defence to prove on the balance of probabilities that this partial defence applies

Question 45

For what offence is the defence of diminished responsibility not available?

Answer 45

Not available as a defence to a charge of attempted murder