Homicide Flashcards
Name the AR and MR for murder
AR: Unlawful killing of a human being in the queens peace
MR: Malice aforethought and intention to kill, or intention to cause GBH (meaning serious harm)
Name the AR and MR for voluntary manslaughter
AR: Unlawful killing of a human being in the queens peace
MR: malice aforethought and intention to kill or intention to cause GBH (serious harm)
AND
Partial / special defence - loss of control / diminishing responsibility
What are the two special defences to murder?
Loss of control
Diminished
What is the defence of diminished responsibility?
D who kills is not to be convicted of murder if 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 any of the following:
i) to understand the nature of D's conduct ii) to form a rational judgment iii) to exercise self-control
c) provides an explanation for D’s acts and omissions in doing the killing
How is ‘abnormality of mental functioning’ interpreted?
A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal
How is ‘recognised medical condition interpreted’?
Abnormality must be CAUSED by the recognised medical condition
How is ‘substantial’ interpreted in terms of ‘substantial impairment of D’s ability’?
More than merely trivial
Analysing the subsections of loss of control: what does ‘ understand the nature of D’s conduct ‘ mean?
Example: child abandoned and left to play video games doesn’t understand that you can’t revive people
How is ‘provides an explanation for D’s acts and omissions’ understood?
Causal link between mental abnormality and recognised medical condition - need not be ONLY cause
What are the three key requirements of the loss of control defence?
D must have lost self control
This was due to the fear and or anger qualifying trigger
A normal person might have acted in a similar way to D, with a normal degree of tolerance and self-restraint
How is the question of ‘loss of self control’ considered by the jury?
This is a question for the jury, taking into account all of the evidence
Loss of control need not be sudden - but court will consider delay between provocation and killing
Cannot be a considered desire for revenge
How does the loss of control defence fail?
Only one of the components needs to be absent - and the defence fails
What is a qualifying trigger?
1) D’s fear of serious violence from V against D or another identified person
2) D’s loss of self-control was attributable to a thing or things done or said which
i) Constituted circumstances of an extremely grave character
ii) Caused D to have a justifiable sense of being seriously wronged
3) Or a combination of the above factors
‘Things said or done’ - circumstances are not enough
What is disregarded in terms of the qualifying anger trigger?
Fear of serious violence is disregarded to the extent that it was caused by a thing which D incited to be done as an excuse for violence
A sense of being seriously wronged is not justifiable is D incited the thing as an excuse to use violence
Which part of the defence is the ‘fear trigger’?
D’s fear of serious violence from V against D or another identified person
Which part of the defence is the ‘anger trigger’?
D’s loss of self-control was attributable to a thing or things done or said which
i) Constituted circumstances of an extremely grave character
ii) Caused D to have a justifiable sense of being seriously wronged
What is the ‘normal person’ test from the third element of the loss of control defence?
“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 a similar way to D”
Circumstances of D - includes all D’s characteristics except those who’s only relevance is that they bear on D’s general capacity for tolerance or self restraint
1) Gravity of QT - if facts are true may be worse
2) As a result of that trigger a normal person might have done what D did, or something similar
Name the characteristics likely to be excluded in assessing the normal person’s capacity for tolerance and self-restraint
Bad temper
Intoxication
Extreme sensitivity
PTSD
Personality disorder
What are the limitations on the loss of control defence?
In an act of considered desire for revenge (any evidence of planning)
As an excuse to use violence (it is insufficient that D started it - must have been intention from outset)
If the thing said / done constituted sexual infidelity (only when it is the sole qualifying trigger - can be considered if one of many factors)
If the defendant is charged with attempted murder
What question should you ask about the defence of intoxication?
Did D form the mens rea, even while intoxicated?
How do you approach intoxication and the loss of control defence?
LoC defence must be approached without reference to D’s voluntary intoxication - would a sober individual have behaved the same way? If so, not deprived of the defence automatically
How do you approach intoxication and diminished responsiblity?
Court’s approach depends on:
D has an abnormality of mental functioning and is voluntarily intoxicated
VS
As a result of alcohol dependency syndrome
How does court approach intoxication when it is independent of the abnormality?
Despite intoxication
1) D was suffering from mental abnormality
2) His abnormality substantially impaired his mental responsibility for his fatal acts
How does the court approach intoxication from ADS in diminished responsibility?
Jury decides whether ADS was a significant factor in leading to D’s decision to consume alcohol
Factors that the jury may consider to judge this:
Extent and seriousness of D’s dependency
Extent to which ability to control drinking was reduced
Capable of abstinence? How long for?
Particular occasion to get more drunk than usual?
