Homicide offences

Question 1

What are the homicide offences?

Answer 1

• murder
• voluntary manslaughter (loss of control)
  -voluntary manslaughter (diminished responsibility)
• involuntary manslaughter (unlawful act)
• involuntary manslaughter (gross negligence)

Question 2

How is murder defined?

Answer 2

The unlawful killing of a human being under the King’s peace with malice aforethought

Question 3

What are the elements of murder?

Answer 3

1. killing of a person
2. killing must be unlawful
3. D must have caused the death
4. killing at a time of peace
5. D must have intended to kill or cause GBH

Question 4

What does killing must be unlawful mean?

Answer 4

Requires all elements of the actus reus and mens rea for murder to be fulfilled and that there are no available defences

Question 5

What does ‘the defendant must have caused death’ mean?

Answer 5

Murder is a result crime so the prosecution must prove the defendant was both the factual and legal cause of death

Question 6

What is the mens rea element for murder?

Answer 6

That the defendant need to intend to kill or intent to cause grievous bodily harm

Question 7

Does the intention for murder have to be direct or oblique?

Answer 7

Either. It can be an intention to kill or to cause GBH or as a result that death or GBH was a virtual certainty

Question 8

What are the partial defences to murder?

Answer 8

1. loss of control
2. diminished responsibility

Question 9

If the defendant successfully pleads to one of the partial defences to murder what will they convicted of?

Answer 9

Voluntary manslaughter

Question 10

What are the elements of the defence loss of control?

Answer 10

1. D’s acts or omissions in doing or being a party to the killing resulted from D’s loss of self-control
2. the loss of self-control had a qualifying trigger
3. A person of D’s sex and age, with normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D

Question 11

What is meant by loss of control?

Answer 11

To amount to more than irritation or even serious anger, it requires that the defendant has lost their ability to reason clearly

Question 12

Does the loss of control have to be sudden?

Answer 12

No but more difficult if there is a delay between the trigger and the killing

Question 13

What are the qualifying triggers for the defence of loss of control?

Answer 13

1. fear trigger
2. anger trigger

Question 14

How is the fear trigger satisfied for the defence of loss of control?

Answer 14

If the defendant loses self-control because they were in fear of serious violence being used against themselves or against another identified person by the victim

Question 15

Is the fear trigger a subjective or objective test?

Answer 15

Subjective

Question 16

How is the anger trigger satisfied for the defence of loss of control?

Answer 16

If the defendant loses their self-control because they had:
- responded to something ‘said or done’
- what was said or done was of an ‘extremely grave character’
- what was said or done had caused the defendant ‘to have a justifiable sense of being seriously wronged

Question 17

Is the anger trigger subjective or objective?

Answer 17

Both.
Objective - extremely grave character & justifiable sense
Subjective - of being seriously wronged

Question 18

What are the limits on the triggers for the defence of loss of control?

Answer 18

• if fear or anger is incited by the defendant then the trigger may not be satisfied
• if the defendant has incited the thing said or done
• sexual infidelity cannot be the thing said or done

Question 19

What is the final limb of the test for the defence of loss of control?

Answer 19

The reasonable person test requires that:
- a person of the defendant’s sex and age
- with a normal degree of tolerance and self-restraint
- and in the circumstances of the defendant
- might have reacted in the same or in a similar way to the defendant

Question 20

Is the reasonable person test objective or subjective?

Answer 20

Objective

Question 21

Does the reasonable person test take into consideration the defendant’s particular vulnerabilities?

Answer 21

No

Question 22

What are the elements for the defence of diminished responsibility?

Answer 22

1. D must suffer from an abnormality of mental functioning
2. The abnormality must arise from a recognised medical condition
3. The abnormality must cause a substantial impairment
4. The abnormality provides an explanation for the killing

Question 23

What amounts to a recognised medical condition in relation to the defence of diminished responsibility?

Answer 23

The defendant will need to prove with psychiatric evidence they have/had:
- mental condition such as schizophrenia or depression
- physical condition such as sleep walking or diabetes

Question 24

What do we mean by ‘substantial impairment’ in relation to diminished responsibility?

Answer 24

The abnormality must impair D’s ability to:
1. understand the nature of their own conduct
2. form a rational judgment
- exercise self-control

Question 25

What are the relevant offences if the defendant does not intend to kill or cause GBH but has brought about the death of another?

Answer 25

The relevant offences are: - unlawful act manslaughter - gross negligence manslaughter

Question 26

What are the elements to unlawful act manslaughter?

Answer 26

1. D must intentionally do an act 2. the act done is unlawful 3. the act is objectively dangerous 4. the act has, in fact and law, caused death

Question 27

What is meant by the act done is unlawful for unlawful act manslaughter?

Answer 27

The act must be a criminal offence - a civil wrong cannot amount to an unlawful act nor will an offence that is satisfied by proof of negligence or a strict liability offence - and the offence must be proven in full

Question 28

Does the defendant have to appreciate that the act was dangerous?

Answer 28

No, it is an objective test, if a reasonable person sees an obvious risk of harm the test will be satisfied

Question 29

What are the important points that flow from the objectively dangerous test for unlawful act manslaughter?

Answer 29

The reasonable person must see an inevitable risk of some harm: - inevitable is narrow - risk is almost certain - some harm - no requirement to foresee death or serious harm - no requirement for the reasonable person foresees the particular form of harm - the harm risked must be harm to the victim

Question 30

When is gross negligence manslaughter the appropriate offence?

Answer 30

Where: - there is no unlawful act - the death arises from an omission to act

Question 31

What are the elements of gross negligence manslaughter?

Answer 31

1. D owes a duty of care to the victim 2. D breaches that duty 3. the breach involves a serious and obvious risk of death that was reasonably foreseeable 4. the breach of duty causes death 5. D's conduct can be characterised as grossly negligent

Question 32

When does a defendant owe a duty of care to the victim for gross negligence manslaughter?

Answer 32

Whether a duty exists will largely depend on the relationship between the parties - it also depends on whether the death has resulted from a positive act or from a failure to act

Question 33

When is there a duty owed if the death has resulted from a positive act for gross negligence manslaughter?

Answer 33

The court will look at the ordinary principles of negligence - the defendant will owe a duty to those who may suffer harm as a result of their actions. Criminal law is not constrained by any other tort principles that restrict where a duty is found - one can be found in a criminal enterprise

Question 34

When is there a duty owed if the death has resulted from a failure to act for gross negligence manslaughter?

Answer 34

It is necessary to first establish there is a duty to act. If there is, then is there a duty of care? This is a question for the judge as a matter of law.

Question 35

Is the test to whether the defendant has breached their duty of care subjective or objective for gross negligence manslaughter?

Answer 35

Objective - the jury assess whether the defendant's conduct has fallen short of what would be expected of a reasonable person in the circumstances - any special skills given to the reasonable person

Question 36

What must the breach of duty be for gross negligence manslaughter?

Answer 36

- such that a reasonable person would foresee it would give rise to a serious and obvious risk of death - so bad that it is capable of being characterised by the jury as 'gross' - truly exceptionally bad