Homocide Offences Flashcards
What is the definition of murder under English law?
Murder is defined as ‘unlawful homicide with malice aforethought.’
What distinguishes murder from other forms of homicide?
Murder is distinguished by the defendant acting with a specific intent.
What is the mandatory sentence for murder?
Murder carries a mandatory life sentence pursuant to the Murder (Abolition of Death Penalty) Act 1965.
What are the actus reus elements of murder?
The actus reus elements are ‘unlawful homicide.’
What is unlawful homicide as defined by Sir Edward Coke?
Unlawful homicide is defined as: ..unlawfully killing a reasonable person who is in being and under the King’s peace…
When is killing considered lawful?
Killing is lawful in cases such as killing enemy soldiers in battle, advancement of justice, and self-defence.
What is the factual cause in homicide?
‘But for’ the acts or omissions of the defendant, the relevant consequence would not have occurred, R v White [1910] 2 KB 124.
What is the legal cause in homicide?
The defendant’s act must be the ‘substantial’ cause of the prohibited harm, R v Hughes [2013] UKSC 56.
What does ‘a reasonable person in being’ mean?
The victim must be a human being; it is not possible to murder a corpse.
When does a person become ‘in being’?
A person is ‘in being’ when born alive and capable of independent life.
What did R v Reeves (1839) establish about being ‘in being’?
It was established that it was not necessary for the umbilical cord to have been cut.
What did R v Poulton (1832) clarify about being born alive?
The child must be fully expelled from the mother’s body and born alive.
What was the outcome of AG-Ref (No 3 of 1994)?
The child was not a live person when stabbed, so it could not be murder.
What is the mens rea for murder?
The mens rea for murder is ‘malice aforethought,’ which includes intention to kill or intention to cause grievous bodily harm.
What does grievous bodily harm mean?
Grievous bodily harm means ‘serious harm,’ Saunders [1985] Crim LR 230.
Is mercy killing a defense in English law?
No, mercy killing is no defense in English law (Inglis [2011] 1 WLR 1110).
What was the ruling in R v Vickers (1957)?
The Court of Appeal confirmed the mens rea of murder as intention to kill or intention to cause grievous bodily harm.
What is direct intent?
Direct intent is where the consequence is what the defendant, subjectively, aims to happen, R v Moloney [1985] 1 All ER 1025.
What are the conditions for finding oblique intent?
Death or serious injury must be a virtual certainty, and the defendant must appreciate that, R v Woollin [1999] AC 82.
What is the difference between motive and intention?
Motive is not the same as intention but can be used as evidence of intention, DPP v Chandler [1964] AC 763.
What are the key elements of murder summarized?
Murder is the unlawful killing of a reasonable person who is in being under the King’s peace with malice aforethought.
What is diminished responsibility?
Diminished responsibility is a partial defence that, if successful, results in a conviction for a lesser offence, known as voluntary manslaughter.
Homicide Act (HA) 1957, s2(3)
What is the burden of proof for diminished responsibility?
The burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility.
s 2(2) HA 1957
Is diminished responsibility available for attempted murder?
No, diminished responsibility is not available as a defence to a charge of attempted murder.
R v Campbell [1997] Crim LR 495
What does the Homicide Act 1957, s 2(1) state about diminished responsibility?
A person is not to be convicted of murder if suffering from an abnormality of mental functioning arising from a recognised medical condition that substantially impaired their ability to understand their conduct, form a rational judgment, or exercise self-control.
What is meant by ‘abnormality of mental functioning’?
An abnormality of mental functioning is a state of mind so different from that of ordinary human beings that it is considered abnormal.
R v Byrne [1960] 2 QB 396
What must the abnormality of mental functioning arise from?
The abnormality must arise from a recognised medical condition, which can be diagnosed or undiagnosed at the time of the killing.
Alcohol Dependency Syndrome (ADS) is a recognised medical condition.
What was the outcome of R v Dowds regarding voluntary intoxication?
The Court of Appeal concluded that voluntary intoxication cannot give rise to a defence of diminished responsibility, despite being recognised as a medical condition.
R v DOWDS [2011] EWCA Crim 281
What does ‘substantial impairment’ mean in the context of diminished responsibility?
Substantial impairment means something greater than ‘more than merely trivial’.
R v Golds [2016] UKSC 61
What are the three abilities that must be substantially impaired?
The abilities are to understand the nature of D’s conduct, to form a rational judgment, and to exercise self-control.
What must the abnormality of mental functioning provide?
It must provide an explanation for D’s acts and omissions in the killing, and it must be a significant contributory factor.
s 2(1B) HA 1957
What did R v Brennan establish regarding expert medical evidence?
A judge should withdraw the murder charge from the jury when the expert medical evidence is uncontested or when there is no other evidence capable of rebutting it.
R v Brennan [2014] EWCA Crim 2387
What are the four elements of diminished responsibility?
- Abnormality of mental functioning.
- Arising from a recognised medical condition.
- Substantially impairing the defendant’s ability.
- Providing an explanation for D’s conduct.
What is the significance of the Law Commission’s Report No 304?
It provided examples illustrating the impairment of abilities required for diminished responsibility, such as understanding conduct and forming rational judgments.
What are the three key requirements of the loss of control defence?
- D must have lost self-control; 2. Due to the fear and/or anger qualifying trigger; 3. A normal person might have acted in a similar way to D.
What type of defence is loss of control?
Loss of control is a partial defence to murder.
Who bears the burden of proof once the loss of control issue is raised?
The burden of proof rests with the prosecution.
What must the prosecution prove for the loss of control defence to fail?
The prosecution needs to prove that only one of the components is absent.
What is the significance of CJA 2009, s 54(6)?
It is for the judge to decide whether the defence can be put before the jury.
What happens if the loss of control defence is successful?
The conviction is reduced from murder to voluntary manslaughter.
What does CJA 2009, s 54(1) state regarding loss of self-control?
‘Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of murder if… D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control…’
What does R v Clinton, Parker and Evans [2012] EWCA Crim 2 clarify?
This defence has replaced the old law on provocation and should be applied with reference to the Coroners and Justice Act 2009.
What is required for the element of loss of self-control?
The defendant’s act or omission in killing must have resulted from a loss of self-control.
Can loss of control be sudden?
The loss of control need not be sudden.
What happens if D acts out of a ‘considered desire for revenge’?
The defence will be lost.
What defines a qualifying trigger according to CJA 2009, s 55?
A loss of self-control had a qualifying trigger if subsections (3), (4), or (5) applies.
What does CJA 2009, s 55(3) specify about fear?
D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
What is the anger trigger?
The anger trigger consists of things said and/or done that constitute circumstances of an extremely grave nature and caused D to have a justifiable sense of being seriously wronged.
What limitations exist for the anger trigger?
D cannot rely on the anger trigger if D incited it as an excuse to use violence or if the thing said/done constituted sexual infidelity.
What does R v Acott [1996] Crim LR 664 illustrate?
There must be something actually said or done; circumstances alone are not enough.
What does the phrase ‘constitutes circumstances of an extremely grave nature’ imply?
It must be determined objectively and should not be established easily.
What does the CJA 2009, s 54(1)(c) provide about a normal person’s reaction?
A person of D’s sex and age, with a normal degree of tolerance and self-restraint, might have reacted in the same or a similar way to D.
What is the test for determining the proportionality of D’s reaction?
The jury will assess the gravity of the qualifying trigger and whether a normal person might have reacted similarly.
What characteristics are excluded in assessing the normal person’s capacity for tolerance?
Bad temper, intoxication, extreme sensitivity, post-traumatic stress disorder, and personality disorder.
What does R v Rejmanski [2017] EWCA Crim 2061 explain about mental disorders?
If a mental disorder is relevant to the defendant’s conduct, it can be considered, but not in assessing tolerance and self-restraint.
What is the significance of R v Wilcocks [2016] EWCA Crim 2043?
The case illustrates that a personality disorder reducing a defendant’s capacity for tolerance and self-restraint does not affect the loss of control defense, except in certain circumstances.
Example: If a personality disorder made the defendant unusually likely to become angry, it is relevant for diminished responsibility but not for loss of control.
What are the three aspects of loss of control?
- D lost self-control (not complete but unable to exercise self-restraint).
- D acted as a result of a qualifying trigger (fear or anger).
- A normal person might have reacted similarly.
Reference: R v Richens.
What are the qualifying triggers for loss of control?
- Fear trigger: D fears serious violence.
- Anger trigger: things said/done that are extremely grave and cause D to feel seriously wronged.
What are the limitations on the loss of control defense?
The defense cannot be used:
1. In an act of considered desire for revenge.
2. As an excuse to use violence.
3. If the thing said/done constituted sexual infidelity.
4. If charged with attempted murder.
What does ‘considered desire for revenge’ imply?
The defense cannot be used if it stems from an act of revenge, particularly if there is evidence of planning.
Reference: Coroners and Justice Act (CJA) 2009, s 54(4).
How does the law treat excuses for violence?
D’s fear of violence is disregarded if caused by something D incited to excuse violence.
Reference: CJA 2009, s 55(6).
What is the stance on sexual infidelity as a qualifying trigger?
The defense cannot rely on sexual infidelity as a qualifying trigger, but it may be considered if it is not the sole trigger.
Reference: CJA 2009, s 55(6)(c).
What did Lord Judge state in R v Clinton regarding sexual infidelity?
Sexual infidelity should be considered if it is integral to the facts and not the sole qualifying trigger.
Reference: R v Clinton, Parker and Evans [2012] EWCA Crim 2.
Can loss of control be a defense for attempted murder?
No, loss of control is not a defense to attempted murder.
Reference: R v Campbell [1997] Crim LR 495.
What are the two forms of intoxication in relation to murder?
Intoxication can negate the mens rea of murder or influence the special defences of loss of control and diminished responsibility.
How can intoxication affect the mens rea for murder?
A defendant can use evidence of intoxication to show they did not form the mens rea of intention to kill or cause grievous bodily harm.
What must the prosecution prove in a murder case?
The prosecution must prove, beyond reasonable doubt, that the defendant committed the actus reus and the mens rea of murder.
What was established in R v Asmelash regarding loss of control and intoxication?
The loss of control defence must be approached without reference to the defendant’s voluntary intoxication.
What is the significance of R v Morhall in relation to intoxication and provocation?
The case clarifies that a defendant is not precluded from using the loss of control defence just because they are intoxicated.
What must be considered when assessing diminished responsibility related to intoxication?
The courts consider whether the intoxication is independent of the abnormality or as a result of alcohol dependency syndrome (ADS).
What did R v Dietschmann establish regarding intoxication and abnormality of mental functioning?
The jury must consider the effect of matters other than alcohol to determine if there was an abnormality of mental functioning.
What did R v Dowds clarify about voluntary intoxication and diminished responsibility?
Voluntary acute intoxication cannot be relied upon to establish diminished responsibility.
What is the role of alcohol dependency syndrome (ADS) in diminished responsibility?
If the defendant has ADS, the jury must consider whether it significantly impaired the defendant’s mental responsibility.
What factors should the jury consider regarding ADS in diminished responsibility cases?
Factors include the extent and seriousness of the dependency, ability to control drinking, and capability of abstinence.
What is unlawful act manslaughter?
Unlawful act manslaughter occurs when the accused lacks the mens rea for murder but kills someone while committing an unlawful act.
What must the prosecution prove in unlawful act manslaughter?
The prosecution must prove that the defendant intentionally did an unlawful act that was dangerous and caused the victim’s death.
What is the significance of R v Newbury and Jones in unlawful act manslaughter?
It established the modern definition of unlawful act manslaughter, requiring intentional, unlawful, and dangerous acts.
What does it mean for an act to be unlawful in unlawful act manslaughter?
The act must be a criminal act, intrinsically unlawful, and must be an act rather than an omission.
What did R v Lamb establish regarding unlawful acts?
The unlawful act must be proven to have been committed with the necessary mens rea; a practical joke that results in death may not qualify.
What is the relationship between self-defence and unlawful act manslaughter as seen in R v Scarlett?
If the defendant used reasonable force in self-defence, there would be no unlawful act, and the manslaughter conviction could be quashed.
What happens if a crime is prevented?
There would be no unlawful assault, and the defendant’s conviction for unlawful act manslaughter would be quashed.
What is required for an unlawful act?
The unlawful act need not be serious and can simply be a common assault. It will typically be an offence against the person but can also include theft or criminal damage.
What does it mean for an act to be intrinsically unlawful?
The unlawful act cannot be based on a lawful act that becomes unlawful only due to negligence or recklessness, such as driving.
Which case established that the act must be intrinsically unlawful?
Andrews v Director of Public Prosecutions [1937] AC 576 established that the act must be intrinsically unlawful.
What is required regarding the nature of the act in unlawful act manslaughter?
There must be an act rather than an omission; a person cannot be guilty of unlawful act manslaughter by an omission.
What did R v Lowe [1973] QB 702 determine?
The Court of Appeal quashed the defendant’s manslaughter conviction due to a criminal omission to care for his daughter.
What must the act be in terms of danger?
The act must be dangerous, meaning a sober and reasonable person would recognize it as likely to cause some harm.
What did R v Church [1966] 1 QB 59 state about dangerousness?
The dangerousness of the act is judged from the viewpoint of a sober and reasonable person.
What type of harm must result from the unlawful act?
The type of harm must be physical, not emotional, although shock that produces physical effects can be considered harm.
What did R v Dawson (1985) state about the type of harm?
The Court of Appeal stated that the harm must be physical, but shock can also be considered harm.
What did R v JM & SM (2012) clarify about foreseeability?
The type of harm a reasonable person would foresee does not have to be the harm that actually occurred.
How is the dangerousness of an act assessed?
It is assessed based on the knowledge a sober and reasonable person would have had if they were in the accused’s position.
What was the outcome of R v Dawson regarding knowledge of the victim’s condition?
The Court of Appeal overturned the conviction because the jury was misdirected about the reasonable person’s knowledge of the victim’s heart condition.
What did R v Watson [1989] establish about awareness during the commission of an offence?
A defendant can become liable if they become aware of facts during the commission of the offence that make the act dangerous.
What was the significance of R v Ball [1989] in terms of knowledge?
The reasonable person is assumed to have any special knowledge that the defendant has.
What is required for causation in unlawful act manslaughter?
The unlawful act must have both factually and legally caused the death of the victim.
What is factual causation?
Factual causation requires proving that ‘but for’ the acts or omissions of the accused, the consequence would not have occurred.
What is legal causation?
Legal causation requires that the defendant be the ‘operating and substantial’ cause of the prohibited consequence.
What did R v Cato [1976] establish regarding drug administration?
Cato was convicted of manslaughter for injecting the deceased with heroin, as consent was no defense.
What did R v Kennedy [2007] clarify about drug supply?
In cases where a fully-informed adult self-administers drugs, the supplier is not guilty of manslaughter.
What is the summary of the elements of unlawful act manslaughter?
The prosecution must prove that the defendant intentionally did an unlawful act that caused the death of a person.
What is gross negligence manslaughter?
Gross negligence manslaughter occurs when a defendant breaches a duty of care owed to a victim, resulting in death. This can be through a positive act or omission that is so severe it warrants a criminal charge.
Is a criminal act required for gross negligence manslaughter?
No, unlike unlawful act manslaughter, there is no requirement for the defendant to be involved in a criminal act.
What are the basic requirements for gross negligence manslaughter as laid down in R v Adomako?
- Existence of a duty of care; 2. Breach of that duty; 3. Breach causes death; 4. There was a risk of death; 5. Breach was so bad as to amount to gross negligence.
What is meant by ‘duty of care’ in gross negligence manslaughter?
Duty of care refers to the legal obligation to avoid causing harm to others where harm is foreseeable.
What case established the classic definition of negligence in relation to manslaughter?
R v Bateman (1925) established that negligence must show such disregard for life and safety as to amount to a crime against the State.
What did Lord Atkin state in Andrews v DPP regarding negligence?
Lord Atkin stated that the degree of negligence is close to reckless but not entirely the same, indicating that recklessness suggests indifference to risk.
What was the outcome of R v Adomako?
In R v Adomako, the defendant was convicted of manslaughter for failing to notice a dislodged oxygen tube during surgery, leading to the patient’s death.
What is the significance of R v Singh in establishing duty of care?
In R v Singh, the court found that the maintenance man had a duty of care towards the tenants, as he was responsible for their safety.
What did the Court of Appeal conclude in R v Wacker regarding duty of care?
The Court of Appeal upheld the conviction, stating that the law of negligence applies even in cases involving criminal enterprises.
What are the two aspects of causation in gross negligence manslaughter?
- Factual causation: ‘but for’ the defendant’s actions, the consequence would not have occurred. 2. Legal causation: the defendant must be the ‘operating and substantial’ cause of the consequence.
What did R v Misra and Srivastava confirm about the risk of death?
The case confirmed that there must be an obvious and serious risk of death, not merely of injury.
What was the ruling in R v Rose regarding the risk of death?
The Court of Appeal overturned Rose’s conviction, stating that there was no obvious and serious risk of death at the time of the breach of duty.
How did the court differentiate between civil negligence and criminal gross negligence in R v Litchfield?
The court noted that the captain’s conduct was so bad that it could be condemned as criminal, emphasizing the obvious and serious risk he created.
What themes can guide the application of gross negligence law?
- Series of acts/omissions may indicate gross negligence. 2. A single act can be grossly negligent. 3. Mistakes caused by others may mitigate liability. 4. Personal responsibility is crucial.
What may be a reason for not convicting in cases of gross negligence?
The involvement of others in the circumstances leading up to the death, as seen in Prentice & Sullman.
Can a defendant be grossly negligent even if others are responsible?
Yes, if the defendant has a clear personal responsibility and the ability to discharge it, as illustrated in Singh.
What should the jury consider regarding the defendant’s knowledge or experience?
If the defendant has knowledge/experience that alerts them to danger, it may be a helpful fact for the jury to consider, contrasting Singh and Litchfield with Prentice & Sullman.
Is there a requirement for a mental state in gross negligence cases?
No, there is no requirement for any mental state, but the defendant’s state of mind can be relevant, as shown in Litchfield.
What indicates a likelihood of conviction regarding risk of death?
If someone has seen a high risk of death or has a ‘couldn’t care less’ attitude towards it, they are highly likely to be convicted.
How can a defendant’s state of mind work in their favor?
If the defendant genuinely did not believe there was a risk, this can be taken into account by the court.
What is the existence of a duty of care?
Everyone has a general duty to take care to avoid injury by a positive act to their neighbour. Liability can arise for an omission if the defendant is under a specific duty to act.
What constitutes a breach of duty?
The question is whether the defendant’s acts fell below the standard expected of a reasonable person, who is attributed with any special skill used by the defendant.
What must be established regarding causation in gross negligence?
Both factual and legal causation principles apply to establish that the breach causes death.
What defines a risk of death in gross negligence cases?
There must be an obvious and serious risk not merely of injury or serious injury, but of death, as stated in Singh.
What constitutes ‘gross negligence’?
The breach of duty must be so bad, considering the risk of death, that it amounts to a criminal act or omission, as described in Adomako.
