Murder

Question 1

Definition

Answer 1

The unlawful killing of a reasonable creature under the Queen’s peace with malice aforethought.

Question 2

Actus reus

Answer 2

The actus reus requires the accused to have caused the death of the victim and it has 3 components:
1) Victim must be a human being
2) Question of when the victim dies
3) Causation

Question 3

Actus reus - Victim must be a human being

Answer 3

At which point does a foetus become a human being? The child must be wholly expelled from the mother’s body and be alive and must have an existence independent of the mother. Time of death which is the consideration.

Question 4

Actus Reus - When does the victim die?

Answer 4

Authority in Malcherek states that this occurs with the ‘irreversible death of the brain stem which controls the basic functions of the body’. In this case the defendant argued that as the death occurred when the doctors turned off the life support machine it was the doctors act and not his own that caused the death. The court rejected this stating the defendant’s act was clearly an operating and substantial cause of death.

Question 5

Actus reus - Causation - Requirements

Answer 5

The defendant’s act must be a substantial cause of the death and the courts have developed 2 tests to determine causation both of which must be satisfied. 1st test = but for test. 2 test = legal causation.

Question 6

Actus reus - Causation - 1st test - Factual causation

Answer 6

But for test - But for the defendant’s conduct would the victim’s death have occurred in the way it did? If the answer is no factual causation will be established. Must significantly (more than negligible) accelerated the death.

Question 7

Actus reus - Causation - 2nd test - Legal causation - Definition

Answer 7

The defendant’s conduct must be a substantial and operating cause of the consequence. Specifically in the event of intervening acts which are independent of the actions of the defendant.

Question 8

Actus reus - Causation - 2nd test - Legal causation - Intervening acts

Answer 8

Intervening acts will not break the chain of causation if defendant’s actions were still an operating and substantial cause of death. And if the defendant or a reasonable person foresaw or could have foreseen the event.

Question 9

Actus reus - Causation - 2nd test - Legal causation - Intervening acts - Euthanasia

Answer 9

R v Wallace established the argument that voluntary euthanasia doesn’t necessarily break the chain of causation. The judge stated that the question was whether it was reasonably foreseeable that the victim would commit suicide as a result of their injuries. Is euthanasia within the range or reasonable responses which might have been expected from a victim in his situation?

Question 10

Actus reus - Causation - Causation in cases of medical negligence

Answer 10

Even if the negligent medical treatment is the immediate cause of the victim’s death it should not break the chain of causation unless it is so independent of the defendant’s actions it makes the defendant’s actions insignificant

Question 11

Actus reus - Causation - Taking your victim as you find him

Answer 11

Defendants take their victims as they find them. If the victim suffers from a medical issue or refuses medical treatment due to religious beliefs the defendant is still liable.

Question 12

Mens rea - Definition

Answer 12

The intention to kill or cause grievous bodily harm (really serious harm). 2 types of intent: direct intent and indirect intent.

Question 13

Mens rea - Direct intent

Answer 13

Defendant desired it to happen or that it was their aim, purpose or goal.

Question 14

Mens rea - Indirect intent

Answer 14

The defendant could have foreseen the consequence as virtually certain so in the case of murder that death or grievous bodily harm would occur. However the jury may find intention but they do not have to it would therefore be wrong to say that if the defendant foresaw the consequence as virtually certain he did intend it - Q for jury to decide

Question 15

Murder - Type of charge

Answer 15

Indictable only

Question 16

Voluntary manslaughter - Definition

Answer 16

3 situations where someone who has killed with the necessary mens rea for murder will be treated differently ie. he will not be given an automatic life sentence:
a) Diminished responsibility
b) Loss of control
c) Suicide pact

Question 17

Voluntary manslaughter - Diminished responsibility - Requirements

Answer 17

4 elements which need to be satisfied:
1) Abnormality of mental functioning
2) Arose from a recognised medical condition
3) Substantially impaired D’s ability to understand the nature of his conduct
4) Provides an explanation for D’s act

Question 18

Voluntary manslaughter - Diminished responsibility - Abnormality of mental functioning

Answer 18

A state of mind so different from ordinary human beings that the reasonable man would term it abnormal

Question 19

Voluntary manslaughter - Diminished responsibility - Recognised medical condition

Answer 19

Needs to be included in the WHO’s international classification of diseases and the American psychiatric association’s diagnostic and statistical manual of mental disorders. E.g schizophrenia, phobic anxiety disorder, bipolar affective disorder, depression and battered person syndrome

Question 20

Voluntary manslaughter - Diminished responsibility - Substantial impairment of D’s ability to one or more of the things set out in S. 2(1A) Homicide act

Answer 20

Defendant’s ability to do particular things must be substantially impaired e.g:
- Lacks the ability to exercise self-control
- Does not understand the nature of his conduct
- Suffering from something that impairs his ability to form a rational judgment

Question 21

Voluntary manslaughter - Diminished responsibility - Explanation for D’s act

Answer 21

Defendant must show that the homicide would not have happened if the mental abnormality which amounts to a recognised medical condition had not occurred. Any abnormality of mental functioning must have been at least a significant contributory factor in causing the defendant to do as he did.

Question 22

Voluntary manslaughter - Diminished responsibility - Alcohol dependancy syndrome

Answer 22

R v Wood - in the context of alcohol dependancy syndrome it must be established that the defendant’s syndrome was of such an extent and nature that it constituted an abnormality of mind induced by disease or illness and whether the defendant’s actions at the time of the killing were substantially impaired as a result

Question 23

Voluntary manslaughter - Loss of control

Answer 23

Partial defence. 2 tests set out in Homicide act:
1) Was the defendant provoked by things said or done to suddenly and temporarily lose his self-control - decided on case basis
2) Would the provocation make a reasonable person to lose his self-control and do as the defendant did? - Established using S.54 and S. 55.

Question 24

Voluntary manslaughter - Loss of control - 2nd test requirements

Answer 24

1) Must have resulted from loss of self-control
2) This loss of self control had a qualifying trigger
3) A person of D’s sex and age with a normal degree of tolerance and self-restraint and in the circumstances might have reacted the same way

Question 25

Voluntary manslaughter - Loss of control - 2nd test - Must have resulted from a loss of self control

Answer 25

Defence will not apply where D acted in a desire for revenge.

Question 26

Voluntary manslaughter - Loss of control - 2nd test - Qualifying trigger

Answer 26

1) Loss of control attributable to D’s fear of serious violence from V against D or another identified person
2) Loss of control attributable to a thing or things done or said which a) constituted circumstances of an extremely grave character b) caused D to have a justifiable sense of being seriously wronged
3) Loss of self control attributable to combination of matters of above

Question 27

Voluntary manslaughter - Loss of control - 2nd test - Similar reaction of a person of D’s sex and age

Answer 27

Women may react more quickly than men to threats of serious violence and may thus have a lower capacity for self-restraint when faces with threats

Question 28

Indirect intent and small risk of harm

Answer 28

To have an indirect intent to cause death or really serious harm it must be both a virtually certain consequence of their actions and they must foresee it as a virtually certain consequence. Small risk of harm is not a virtual certainty.

Question 29

Loss of control and burden

Answer 29

The evidential burden is on the defence. The legal burden is on the prosecution to disprove the defence beyond reasonable doubt.

Question 30

Murder or unlawful act manslaughter and intent?

Answer 30

For murder the mens rea needs to be intend to cause really serious harm if not it’s unlawful act manslaughter.

Question 31

Loss of control - Trigger event - Timing

Answer 31

Doesn’t matter if they are nit being threatened in the moment as long as they are genuinely scared.

Question 32

Can diminished responibility be a defence to constructive manslaughter?

Answer 32

No. This partial defence if only a defence to murder

Question 33

Loss of control and violence

Answer 33

Must be fear of serious violence not some violence

Question 34

Can you argue both loss of control and diminished responisbility?

Answer 34

Yes

Question 35

Voluntary manslaughter - Type of charge

Answer 35

Indictable only