Murder

Question 1

Actus Reus

Answer 1

Unlawful killing: Killing without a legal excuse
Of another human being: Taking the life of a living person
Under the King’s peace: On British territory or somewhere subject to the Crown’s judgement and discretion

Question 2

Mens Rea

Answer 2

With malice aforethought: The defendant committed the actus reus with malice aforethought, meaning they held the intention to kill or the intention to cause grievous bodily harm (Crown (R) v Vickers)

Question 3

Absence of Defence

Answer 3

Being in war is an excuse for killing legally
Self defence is also an excuse for killing legally (provided force is appropriate)
For the betterment of society is also an excuse for killing legally

Question 4

Diminished Responsibility Defence (Allows for Voluntary Manslaughter Charge)

Answer 4

Defendant must have been suffering from an abnormality of mental functioning. Abnormality of the mind is ‘a state of mind so different from that of ordinary human beings the reasonable man would term it abnormal’ (Crown (R) v Byrne)

Question 5

Conditions for Diminished Responsibility

Answer 5

-Arose from a recognised medical condition. Simply having a condition is not enough. This must be the cause (but what if it worsened their reaction?)

-Substantially (‘more than merely trivial’ - Crown (R) v Golds) impaired D’s ability to: understand their conduct, form a rational judgement and/or exercise self control (Subsection 1A)

-Provides an explanation for D’s acts and omissions in doing or being party to the killing. Abnormal mental functioning will provide an explanation if it causes/is a significant factor in causing D to carry out the conduct (Subsection 2(1B))

Question 6

Diminished responsibility is not available as a defence to a charge of attempted murder

Answer 6

Crown (R) v Campbell [1997]

Question 7

Loss of Control Defence (Allows for Voluntary Manslaughter Charge)

Answer 7

-The burden of proof rests with the prosecution once the issue is raised (s 54(5) CJA 2009)

-The defence will not apply if the situation was caused or incited by D

Question 8

First Condition for Loss of Control Defence

Answer 8

D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control

-The element of loss of self-control can be assessed by looking at its literal meaning - Crown (R) v Clinton

Question 9

Second Condition for Loss of Control Defence

Answer 9

-The loss of self-control had a qualifying trigger (S55, CJA 2009)

-A qualifying trigger would be fear (loss was “attributable to D’s fear of serious violence from V” S55(3)) or anger (loss was “attributable to a thing or things done or said (or both)…of an extremely grave character, and caused D to have a justifiable sense of being seriously wronged” S55(4))

-A combination of things said/done will also suffice (S55 (5))

-Loss of self-control doesn’t have to be sudden though most are, the more time lapses, the less successful you are able to run the defence. Useful within domestic violence cases (Crown (R) v Ahulwalia)

Question 10

Third Condition for Loss of Control Defence

Answer 10

-A person of D’s sex and age, with normal…tolerance and self-restraint [in the same context] as D, might have reacted in the same or in a similar way to D

Question 11

Fear Defence (Loss of Control Defence)

Answer 11

-Self-defence as a defence only requires that the defendant fears violence, whereas this defence (S55(3)) requires the defendant to fear serious violence for this defence to work (Dawes, Hatter and Bowyer [2013])

-The requirement for fearing serious violence in this defence is highlighted by Crown (R) v Martin (Anthony) [2002]. Here, he used excessive force on trespassers but history of break-ins meant he could argue he feared serious violence

Question 12

Anger Defence (Loss of Control Defence)

Answer 12

-Something must actually be said/done for it to work, circumstances, like a lack of sleep or a physical pain, do not count (Crown (R) v Acott [1996])

-Gravity of the qualifying trigger should also be considered; i.e. defendant’s age, physical characteristics, seriousness of the trigger (DPP v Camplin [1978])

Question 13

Loss of Control Limitations

Answer 13

-This defence will not work if there is considered to be a ‘considered desire for revenge’ (s 54(4))

-As an excuse to use violence (ss 55(6)(a) and (b)):
(a) D’s fear of serious violence is to be disregarded…[if] caused by a thing which D incited to be done or said…[for] an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said…[for] an excuse to use violence

-The fact that a thing done or said constituted sexual infidelity is to be disregarded. This will not work as a trigger for loss of control. However, it can form “an essential part of the context to decide whether a qualifying trigger properly falls within…55(3) and 55(4)”. (Crown (R) v Clinton - common sense)

-Crown (R) v Clinton & Crown (R) v Wilcocks (for discussing mental illness) sets up the standard that if something is crucial to the case it can sometimes bypass the prohibitions, placed upon discussing it, as long as it has a genuine and unique impact

-When the offence concerned is an attempted murder