Mitigating, Justifying and Excusing Homicide

Question 1

what are the 3 categories of defence?

Answer 1

justification/permission - self-defence
excuse - loss of self-control defence
exemption - mental/physical incapacity

Question 2

what is the defence of ‘provocation’?

what is it governed principally by?

Answer 2

loss of self-control defence

Homicide Act 1957 s.3

Question 3

what were the 3 categories previously found to be a justification for provocation under R v Mawgridge 1707?

Answer 3

insulting someone
seeing an Englishman unlawfully deprived of his liberty
catching your wife in the act of adultery

Question 4

what was created in 2009 to replace the partial defence of provocation under s3 of Homicide Act 1957?

Answer 4

Coroners and Justice Act 2009 ss54-55

Question 5

what change was made to the Homicide Act 1957 in the CJA 2009 for the loss of self-control defence?

Answer 5

maintained subjective condition - that D has a partial defence to murder if they killed V as a result of loss of self-control

readdressed objective condition

Question 6

what is the current defence of loss of self-control?

s.54

Answer 6

subjective
killed V as a result of loss of self-control

objective

a. caused by fear of serious violence AND/OR things said or done amounting to exceptionally grave circumstances (‘qualifying trigger’)
b. person of ordinary powers of tolerance and self restraint might have acted in the same way in the circumstances

Question 7

what is meant by a ‘qualifying trigger’?

s.55

Answer 7

fear of serious violence
things said/ done that constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged

Question 8

what will exclude action from V that serves as a qualifying trigger for D’s ‘loss of self-control’ defence?

Answer 8

if D incited the comment or action

ALSO action in response to sexual infidelity

Question 9

why did the Ministry of Justice articulate that sexual infidelity should not be a consideration of being a qualifying trigger?

Answer 9

because these scenarios ‘are essentially commonplace and people need to be able to deal with them without resorting to violence’

Question 10

what judge expressed uneasiness about the exclusion of sexual infidelity as a consideration for loss of self-control defence?

Answer 10

Lord Phillips

Question 11

what did Clinton (2012) establish about the consideration of infidelity for loss of self-control defence?

Answer 11

cannot take it into account when it is the ONLY provocation

Question 12

what did Dawes (2013) establish about the loss of self-control defence?

Answer 12

judges should not leave consideration of the defence to the jury if there is no evidence of a loss of control or at least one of the triggering conditions

Question 13

what is the checklist for the defence of loss of self-control?

Answer 13

1. evidence that a reasonable jury would find the defendant to succeed
2. evidence of a loss of self-control due to a qualifying trigger
3. qualifying triggers satisfied - grave circumstances and being seriously wronged OR fear of serious violence
4. whether a person with the normal degree of tolerance or self restraint would have acted similarly
5. whether disqualifying conditions are applicable - revenge, self-induced or infidelity

Question 14

where can reference to self-defence for killing be found in statute?

what does it hold?

Answer 14

Criminal Law Act 1967 s3

person may use force that is reasonable in the circumstances, in the prevention of a crime or in effecting or assisting in the lawful arrest of suspected/offenders

Question 15

what case held that the law of self-defence ‘is not complicated’ and a ‘universally recognised, common sense concept’?

Answer 15

Keane v McGrath 2010

Question 16

what is the subjective element of self-defence manslaughter?

what case?

Answer 16

D judged on basis of facts as he believed them to be - even if he has made a mistake
doesn’t matter if there are reasonable grounds for this belief

Gladstone Williams 1984

Question 17

what indicates that reasonable action has been taken as self-defence?

case?

Answer 17

D honestly and instinctively believed that it was necessary for them to act in this way

Palmer 1971

Question 18

what was held as not sufficiently being self-defence in Keane v McGrath?

Answer 18

simple retaliation

this could easily be manufactured to create an excuse to hit the initiator

Question 19

what can D not rely on within self-defence?

what cases?

Answer 19

voluntary/ self-induced intoxication

O’Grady
Hatton

Question 20

when will self-induced intoxication not disallow a claim for self-defence?

Answer 20

if the action came from another basis

ex// aggressive or violent action towards them

Question 21

what part of the ECHR excludes self-defence from violating a fundamental human right?

Answer 21

art.2 (2)

unlawful violence
prevent detained escaping
stopping a riot

Question 22

what codified self-defence manslaughter?

Answer 22

Criminal Justice and Immigration Act 2008

Question 23

what are the rules for self-defence under statute?

subjective
objective

Answer 23

use of force was reasonable in the circumstances that D believed them to be
not a consideration as to whether force itself was objectively mistaken or unreasonable
D cannot rely on self-induced intoxication

degree of force not to be seen as unreasonable in the circumstances that D thought them to be
D only did what was completely necessary in the situation they believed it to be (Palmer)
belief of the situation was held honestly and instinctively

Question 24

in regard to the killing of burglars, what is there no duty to do?

under what act?

Answer 24

no duty to retreat
might be a consideration in the circumstances

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Question 25

how does s76 in the Criminal Justice and Immigration Act 2008 differentiate between the standards of a house owner vs anyone else?

Answer 25

house owner’s actions only seen as unreasonable if ‘grossly’ disproportionate in the circumstances as they believed them to be

Question 26

what did David Cameron argue the limits of house owner entitlements in self defence pleas are?

why is this problematic?

Answer 26

‘you couldn’t, for instance, stab a burglar if he was already unconscious’

this would not be seen as reasonable anyway as force is unnecessary as D is no longer posing as a threat