how to get away with murder Flashcards

1
Q

definition of murder

A
  • ‘D unlawfully kills another person under the Queen’s peace and does so intending to kill or cause GBH
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2
Q

rules

A
  • In each scenario, causation, specific AR and MR have been established
  • The task Is to establish which defence would be easiest to use to get away with murder
  • Getting away with concerns ease of accessibility, amount of use and chance
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3
Q

minimum prison term

A
  • For an adult the starting point for time within prison ranges from 15-30 years
  • For those 18 and under, the starting point is 12 years
  • For whole life sentences (of which there are 68) these depend on premeditation/sadism and these people will never leave
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4
Q

tariffs

A
  • There are three starting points for offenders over 21
    1. Whole life order
    2. 30 years
    3. 25 years
    4. 15 years
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5
Q

Aggravating factors

A
  • Planning or premeditation
  • Vulnerable victim due to age or disability
  • Mental or physical suffering to the V
  • Abuse of a prison of trust
  • Public service or duty
  • Concealing, destroying of dismembering the body
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6
Q

Mitigating factors

A
  • An intent to cause bodily harm rather than death
  • Lack of premeditation
  • D suffers from mental disorder which lowered his degree of blame
  • Provoked
  • Fear of violence or self defence
  • An act of mercy
  • Age of D
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7
Q

Sentencing guidelines

A
  • Due to the seriousness of the offence, the approach and ability to sentence for murder is defined in the law
  • Following the plea of guilty or the D being found guilty, the judge may wish to take advantage of pre-sentencing reports such as medical or psychiatric reports to inform the sentence
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8
Q

CPS guidelines

A
  • Impact of the crime; family and friend statements, the judge will use these to assess the impact of the crime
  • A life sentence always last for life, regardless of the tariff; D will only be released if they are no longer a risk to the public
  • They are then subject to conditions on license
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9
Q

Parole board

A
  • Make decision about the early release of certain prisoners and anyone sentence to life imprisonment
  • They act as a court but do not hold public hearings and they have their own guidelines
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10
Q

Self defence

AKA public and private defence

A
  1. The defence will not apply to an offence committed without force or in circs of prior fault
  2. D must have believe that force was immediately required in order to protect their interests
  3. The amount of force used but have been reasonable on the facts as D believed them to be
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11
Q

To satisfy

A
  • The D must have believed it was necessary to use force in the circs to defend themselves
  • The force must be reasonable
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12
Q

Things to know:

A
  • Was it necessary to use force against the V?
  • The question of D’s belief is not whether the force was reasonable but whether it was honest
  • We want to know whether they subjectively believed them and did the jury believe that force was necessary
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13
Q

What about pre-emptive force

A
  • It is acceptable to use force pre-emptively?
  • Devlin v Armstrong [1971]: force can be used to ward off an attack, as long as they honestly believed the attack was imminent
  • Incredibly narrow- but it is possible
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14
Q

reasonable force

A
  • The question of this issue is one of the proportionality and even if it did equate to more force than was threatened the defence will be satisfied
  • If unreasonable, the defence will fail on all elements
  • Was the degree of force used by d objectively reasonable based on the subjective facts as they believed it to be?
  • Should be noted, that the question is not one of the harm caused- but of the force used
  • If d’s force results in an unreasonable harm, this does not negate the defence
  • If unreasonable force, defence will fail
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15
Q

effectiveness

A

Ease of use- 7.5/10
Getting away with murder- 8/10
Alternate consequences- no alternate consequence, if it cannot be satisfied- loss of control may be used

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16
Q

Insanity- the denial of the offence

A
  • Where d claims to have no fulfilled all the elements due to the some malfunctioning of her body
  • This needs to be an internal factor
  • There are two areas; unfitness to please and insanity as a defence
  • This is a denial of offending
  • The d must on the balance of probs, prove they were insane
17
Q

denial of offending

A
  • The d must suffer from a disease of the mind
  • Which caused a defect of reasoning?
  • This must have caused lack of responsibility because d did not know the nature or quality of act or did not know it was wrong
18
Q

Disease of the mind

A
  • This can be mental or physical, as est in Kemp [1957 (congestion of blood)
  • While medical experts will be used, the definition is legal
  • It can be temporary, curable or long-lasting and permanent
19
Q

defect of reasoning

A
  • Not absentmindness or apathy- Clarke [1972]- mild forgetfulness will not apply
  • Merely means that the D was not able to reason effectively, due to the condition they suffered from
  • D must not know what they were doing
  • Reference to the physical conduct and not one of moral or legal issues
  • Applies to delusions or times of being unconscious
  • This is a denial of potentially the AR and MR
20
Q

D must not know their act was wrong

A
  • This applies when the D does not know their act was legally wrong
  • In windle [1953] where the d killed his wife with 100 aspirin- was held to be murder due to the face he knew he was likely to ‘hang for this’
21
Q

Insanity

A

Ease of use – 3/10
Getting away with murder- 1/10
Any other consequences- a hospital order or supervision order mean you are not ‘free’ but simply not in prison

22
Q

automatism

A
  • AKA as ‘sane automatism’
  • The d is making the claim that some external factor affected their body and caused them to lack voluntariness
  • The claim of involuntariness= lack AR= acquittal
23
Q

how does this work

A
  • X overpowers d and manipulates them to plunge a knife into V
  • Where d spasm uncontrollably causing to strike V
  • D reacts to a sudden noise
  • Attack of a swarm of bees
24
Q

Bratty [1963]

A

“no act is punishable if it done involuntarily… which means an act which is done by the muscles without control of the mind’

25
Q

elements

A
  • Involuntary action arising from external source of reflex action (R v Kemp)
  • Action was completely involuntary
  • Automatism was not self induced
  • It must be an external factor, which makes it different to insanity which requires there to be internal
  • R v Quick established that it is for the jury to decide whether the defence has been made out and that the D was genuinely made involuntarily

Ease of use- 6/10
Getting away with murder- 7/10
Any other consequences? N/A

26
Q

partial defences

A

Loss of control, diminished responsibility and suicide pact
- These will not allow you to get away with murder but will reduce your sentence and therefore technically allow you to get away with murder

27
Q

Loss of control

A
  • When d kills as a result of their loss of control, due to violence or a thing said or done which was so grave
  • Must be justifiable sense of being wronged
  • Fear of serious violence- often used as a step from self defence

Ease of use- 6/10
Getting away with murder- technically- 10/10
Realistically 1/10

28
Q

diminished responsibility

A
  • D has a recognised medical condition which led to an abnormality of mind which substantially impaired their capacity and cause them to kill
  • Insanity requires a defect of reason which completely undermines the ability to understand the nature and quality of their act
  • However, DR asks for substantial impairment
  • This is traditionally used as a ‘step down’ from insanity

Ease of use- 3/10
Getting away with murder- technically 10/10 realistically 5/10
There are no hospital orders as a result of this defence

29
Q

best defence

A
  • Self defence gives the best chance of a full acquittal- but if the force or violence is pre induced then the defence will not be applicable
  • Insanity is significantly more obvious for everyone involved, but the penalties for succeeding are significantly more serious (it is also very difficult to prove if faked)