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
