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
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
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
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
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
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
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
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
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
10
Q
Self defence
AKA public and private defence
A
- The defence will not apply to an offence committed without force or in circs of prior fault
- D must have believe that force was immediately required in order to protect their interests
- The amount of force used but have been reasonable on the facts as D believed them to be
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
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
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
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
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
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)
