Homicide Flashcards
Sir Edward Coke: definition of murder
Unlawful killing of a person who is in being and under the King’s peace, the death following within a year and a day
Beckford
Unlawful killing = not justified (i.e. no defence)
The King’s (or Queen’s) peace
i.e. killing not of enemy combats in war times
“Death within a year and a day” rule (Coke)
Abolished, but A-G must give approval for prosecutions brought more than three years later or when the defendant has already been convicted of an offence connected to the death somehow
“Murder”
Unlawful homicide committed with malice afterthought
MR: intention to kill/cause GBH
Rahman (Lord Bingham)
Intention to cause GBH is given natural meaning, no need for intention to kill to prove MR for murder
“Manslaughter”
- Voluntary: D has committed homicide with malice afterthought and so could be convicted for murder, but mitigating circumstances reduce their culpability
- Involuntary: unlawful killing committed WITHOUT malice afterthought (i.e. MR for murder is missing) but WITH a state of mind that the law still considers culpable
Voluntary Manslaughter
Reduced culpability:
Homicide Act 1957 vs. Coroners and Justice Act 2009 (applicable to homicides after 4th October 2010)
Defences:
diminished responsibility
loss of self-control
suicide pacts
Mitigating defence - diminished responsibility: s. 2 Homicide Act 1957 and proposals for reform
Old law was heavily criticised:
term “substantially impaired mental responsibility” instead of “diminished responsibility” –> expecting doctors/psychiatrists to make statements on moral culpability was seen as undesirable as was asking juries whether there was an “abnormality of the mind” (NOT a medical term) and the consider whether this affected moral culpability was also difficult
NEW defence of diminished responsibility
s. 52 Coroners and Justice Act 2009 - CHANGES:
“abnormality of mind” –> “abnormality of mental functioning”, having to result from a recognised medical condition
D must now show that ability to either understand the nature of their conduct, from a rational judgement or to exercise self-control were substantially impaired - D must now show that this was at least a substantial contributory factor in causing their conduct
Diminished responsibility: “abnormality of mental functioning”
Must arise from a recognised medical condition but may include physical conditions too (alcoholism, diabetes, epilepsy). Depressive illnesses are included.
Voluntary intoxication in itself does not count as recognised medical condition although medical professionals consider it so (Dowds) - POLICY REASONS
Dowds
Although medical professionals consider voluntary intoxication as recognised medical illness, the courts do not - POLICY REASONS
Diminished responsibility: “substantially impaired”
(i) ability to understand nature of conduct
(differentiate from M’Naghten insanity: intent would be lacking altogether, whereas here some intent but understanding of nature of conduct is impaired)
(ii) ability to form rational judgement: perception of reality is impaired by medical condition
(ALLEN: might be used by mercy killers - argue continued distress has led to medical condition that impair judgement)
(iii) ability to exercise self-control (may be used when none of the triggers for separate defence of loss of self-control are operative)
Golds (2014 !!!)
It is for the jury to decide what “substantially” impaired means, if they need clarification ask “would it have any great difference?” - before that it was thought “more than trivial was still benchmark (Lloyd) - WE DON’T KNOW WHAT THE IMPACT WILL BE
Diminished responsibility: “Explanation for D’s conduct in killing”
Causal connection: other factors can be operative as well but abnormality must have been a significant contributory factor
Moral culpability factor is gone here
Mitigating defence: Loss of self-control
Common law, modified by Homicide Act 1957, s. 3 –> s. 54-55 Coroners and Justice act 2009
Abolished provocation and introducing loss of control in its place
BURDEN OF PROOF still on prosecution to disprove defence beyond reasonable doubt though judge must decide whether sufficient evidence has been presented for it to apply at all
s. 54(1) Coroners and Justice Act 2009
(a) loss of control need no longer be sudden, unlike in old law
(b) qualifying triggers under s. 55
(c) reaction of person with normal degree of tolerance and self-restraint
Loss of control: need no longer be sudden, unlike in the old law
Helps domestic violence victims being excluded from the defence.
HOWEVER problems - the more time has passed after qualifying trigger, the harder it will be to establish actual loss of control
Clinton
Loss of control defence does not apply to pure revenge, calmly carried out
Sexual infidelity only disqualifies defence of loss of control if the ONLY qualifying trigger - sexual infidelity might still be a contributory factor to another trigger (D discovering partner sexually abusing D’s child)
s. 55 Coroners and Justice Act 2009: qualifying triggers for loss of control
1) fear of serious violence
2) justifiable sense of being seriously wronged
You may rely on both triggers
s. 55(6) you cannot deliberately incite a trigger to then justify provocation
Loss of control: fear of serious violence
Now enough to anticipate attack. will also apply where a lesser degree of force would have qualified for self-defence but was exceeded. Threat to others must be to actual identifiable people not unspecified others.
Loss of control: sense of being seriously wronged
Higher threshold than old provocation - “extremely grave character”. Objective test - judge asks if a jury, reasonably directed, could conclude that it was, only then left to jury
Human Rights Act 1998: honour killings
Honour killings can never qualify for loss of control: sense of being seriously wronged defence
s. 55(6)(c)
Sexual infidelity can not be invoked as a trigger for loss of control: sense of being seriously wronged
HOWEVER: can be contributory factor to another trigger (Clinton)
Dawes
New defence of loss of control: being seriously wronged is narrower than provocation was - judge now applies high bar with objective test BEFORE they leave it to jury (old law: ANY evidence for provocation –> judge would have to leave defence to jury)
Loss of control: reaction of a person with normal degree of tolerance and self-restraint
Objective test: the normal person (none of D’s characteristics) BUT inhabiting the same circumstances (sexual orientation, abusive relationship) - these circumstances are subject to judge’s decision about whether they are important enough to be taken into account though
Asmelash
Voluntary intoxication will not be taken into account when determining loss of control. However, if a sober person would have reacted the same way, it DOES NOT PREVENT defence
If taunted about alcoholism/drug problems –> voluntary intoxication WILL be admitted as evidence
Mitigating defence: suicide pacts
s. 4(1) Homicide Act 1957: If D can prove on balance of probabilities that a suicide pact existed, they will be convicted of manslaughter not murder
Woolmington v DPP
Suicide pacts as mitigating defence murder –> manslaughter: has to be proven ON BALANCE OF PROBABILITY
“Involuntary manslaughter”
D lacks mens rea for murder but the killing was unlawful (i.e. no defences apply): operates in the grey area between murder an accidental death
2 types of involuntary manslaughter
- Constructive manslaughter
2. Gross negligence manslaughter
“Constructive manslaughter”
Killing results from a dangerous act which constitutes a crime and the mens rea for that act is present
Andrews v DPP
For constructive manslaughter, something more than negligence is required
Lamb
An act can only be unlawful in the terms of constructive manslaughter if it is done with mens rea
Kennedy (No 2)
Unlawful act on which constructive manslaughter is based must itself be a crime and a significant cause of death.
In the drug supply cases, it was the injection that caused danger and it was free, deliberate and informed act by V and NOT UNLAWFUL –> D is not liable as accessory and their actions before mainly “but for causes”
Lowe
Omission will not suffice for constructive manslaughter (although might qualify for gross negligence manslaughter)
Jennings
It is for the jury to decide whether there is an unlawful act for constructive manslaughter. If there is none, the judge might also direct the jury on gross negligence manslaughter
Church
Test for dangerousness of unlawful act (constructive manslaughter): would sober and reasonable people inevitable recognise that there would be some harm?
Dawson
Dangerousness of unlawful act (constructive manslaughter): must be risk of physical harm not emotional disturbance ALTHOUGH shock leading to physical injury will count
DPP V Newbury || JM and SM
D does not need to know the act was unlawful or dangerous - enough that sober and reasonable people would foresee some harm without specifically knowing what it would be
Bristow
Unlawful act sufficiently dangerous if foreseeable: someone would get hurt by D’s car while they fled the scene of a burglary
Watson
If D becomes aware of new information during the course of the act this might be taken into account for constructive manslaughter: D became aware that V was frail and old midway through burglary, V then died of a heart attack
Ball
Sober and reasonable person is also aware of the background to the unlawful act and any preparatory acts done by D that set it in context for the purpose of determining its objective dangerousness
“Gross Negligence Manslaughter”
Relied upon by the prosecution where the act of D is not otherwise unlawful or where death results from D’s omission to act
Andrews v DPP
Original test for GNM: duty of care –> breach causing death –> left to the jury to determine whether D’s negligence was so gross it demanded punishment as a crime rather than suit in tort
Degree of negligence: very high - reckless
Ball
The test of whether the act for unlawful act manslaughter was unlawful is OBJECTIVE
“Gross negligence manslaughter”
The act in not unlawful, but there is a HIGH degree of negligence
Adomako
Elements for gross negligence manslaughter:
1) Duty
2) Breach of duty
3) There is an obvious risk of death
4) Causation
5) GROSS negligence
Wacker
A lorry driver who conceals immigrants in a lorry has a duty of care in relation to gross negligence manslaughter
Winter
A firefighter has a duty of care in relation to gross negligence manslaughter to civilians, even when they have ignored requests to move away
Litchfield
A ship’s master has a duty of care in relation to gross negligence manslaughter to their crew
Evans (Gemma)
A drug dealer has a duty of care in relation to gross negligence manslaughter if they fail to take adequate steps to summon medical attention for a person to whom they have supplied drugs
The question as to whether a duty of care exists is a matter of law –> for the judge to determine
Andrews v DPP
Breach of duty must be established beyond reasonable doubt, judged objectively against the standard against the reasonably competent person performing the activity in question
HERE: reasonably competent driver
Bateman
Breach of duty judged objectively against the standard of the reasonable competent doctor
Singh || Misra
It is not necessary for the prosecution to prove that D actually foresaw the risk of death, only that the act/omission created an obvious risk of death
“Gross” in gross negligence manslaughter
This is a question for the jury - Adomako
Reid: a diver jumped into pool without considering the danger of hitting someone - killed another swimmer
Mens rea for gross negligence manslaughter
AG’s reference (No 2 1999): proof of D’s state of ind not necessary, fault element is negligence that is gross
