Murder Flashcards
1
Q
How did Lord Coke define murder?
A
Murder is the unlawful killing of a reasonable creature in being under the King’s peace, with malice aforethought, express or implied.
2
Q
Is murder defined in statute or common law?
A
It is defined in common law.
3
Q
What sentence does murder carry?
A
Murder carries a mandatory life sentence, but the judge sets the minimum term to be served.
4
Q
What are the three components of the actus reus of murder?
A
- Unlawful killing
- Of a reasonable creature in being
- Under the King’s peace
5
Q
What does unlawful killing require?
A
D must have factually and legally caused the death of the victim. The killing must not be legally justified (e.g. self-defence).
6
Q
Can murder be committed by omission?
A
Yes — if D had a duty to act and failed to do so, as in Gibbons and Proctor.
7
Q
What does it mean that murder is a ‘result crime’?
A
It means the result (death) must be proved. D must have caused the death through both factual and legal causation.
8
Q
Which case confirms factual causation applies even if V was already terminally ill?
A
R v Dyson – child was terminally ill, but D’s act accelerated death, so causation was satisfied.
9
Q
What is a ‘reasonable creature in being’?
A
A living human being — not a foetus or a person who is legally dead (e.g. brain dead).
10
Q
Is a foetus considered a reasonable creature in being?
A
No — the child must have an existence independent of the mother.
11
Q
Which case involved a foetus and what was the result?
A
AG’s Ref No.3 of 1994 – attacker injured a pregnant woman, baby later died. D could be liable for manslaughter, not murder.
12
Q
What case confirms the baby must breathe independently to be ‘born alive’?
A
Rance v Mid-Downs Health Authority – child must breathe through its own lungs to be considered alive.
13
Q
Is a brain-dead person a reasonable creature in being?
A
No – although no case has formally ruled this, it is strongly suggested that brain-dead individuals are not considered reasonable creatures in being.
14
Q
Which case confirmed doctors can turn off life support without being liable for murder?
A
Malcherek – doctors switching off life support did not break the chain of causation.
15
Q
What does ‘under the King’s peace’ mean?
A
The killing must take place in peacetime, not during active war against an enemy.
16
Q
Do you always need to discuss RCIB and King’s Peace?
A
No — only mention them if they are in dispute. Otherwise, simply state: ‘In this case, reasonable creature in being and under the King’s peace is not in dispute.’
17
Q
What is the mens rea for murder?
A
Malice aforethought, which can be either:
• Express: Intention to kill
• Implied: Intention to cause grievous bodily harm (GBH)
18
Q
Do both forms of malice need to be proven?
A
No — either express or implied malice will suffice.
19
Q
Which case confirmed that intention to do GBH is enough for murder?
A
Vickers – intention to cause serious harm (GBH) is sufficient.
20
Q
Which case confirmed Vickers was correct?
A
Cunningham – reaffirmed that intention to cause GBH = murder.
21
Q
Is murder a specific or basic intent offence?
A
Murder is a specific intent offence.
22
Q
What levels of intent are recognised in murder?
A
• Direct intent (clear aim to kill/cause GBH)
• Oblique (indirect) intent (death or GBH is a virtual certainty and D realises this)
23
Q
What is the lowest level of mens rea accepted for murder?
A
Indirect (oblique) intention to cause GBH.
24
Q
A
25
What type of defence is Diminished Responsibility?
It is a special, partial defence available only for murder, reducing it to voluntary manslaughter.
26
What legislation governs Diminished Responsibility?
S.2 Homicide Act 1957, as amended by S.52 Coroners and Justice Act 2009.
27
What is the standard of proof for Diminished Responsibility?
Balance of probabilities (51%) — the burden is on the defence.
28
What must the defendant prove for the first element?
That they were suffering from an abnormality of mental functioning at the time of the killing.
29
Which case defines Abnormality of Mental Functioning (AOMF)?
Byrne — “A state of mind so different from that of an ordinary human being that the reasonable person would term it abnormal.”
30
Who decides whether there was an AOMF?
It is a question of fact for the jury to decide based on medical evidence.
31
Is the jury deciding whether D’s acts were abnormal?
No — they assess whether D’s state of mind was abnormal, not the acts themselves.
32
What must have caused the AOMF?
A recognised medical condition (physical or mental).
33
Where must the condition be recognised?
It must be listed in the World Health Organisation (WHO) classification of diseases.
34
Which case accepted Battered Woman Syndrome as an RMC?
Ahluwalia.
35
What must the RMC have substantially impaired?
D’s ability to do one or more of the following: a) Understand the nature of their conduct b) Form a rational judgement c) Exercise self-control.
36
What case relates to understanding the nature of conduct?
Bentley — used where D has low mental age or delusions.
37
What case supports impairment of rational judgement?
Martin — paranoia impaired D’s ability to assess the situation rationally.
38
What case relates to impairment of self-control?
Byrne — D had sexual psychopathy and could not control his impulses.
39
What did Lloyd say about 'substantial' impairment?
It “does not mean total, but nor does it mean trivial or minimal.”
40
What did Golds clarify about the meaning of 'substantial'?
Substantial means significant, not minimal.
41
What is the fourth element of the defence?
The AOMF must explain D’s involvement in the killing of the victim.
42
What does the law require regarding causation of the act?
There must be a causal link between the AOMF and the killing.
43
What level of causation is required?
The AOMF must be a significant contributory factor, not necessarily the sole cause.
44
What happens if D would have killed regardless of AOMF?
The defence will likely fail, as AOMF must significantly influence the act.
45
Can intoxication alone support DR?
No — intoxication alone cannot support the defence of diminished responsibility.
46
Which case confirmed that intoxication alone is insufficient?
Dowds — voluntary acute intoxication is not an RMC.
47
What did Di Duca say about temporary intoxication?
The immediate effects of alcohol/drugs are transient and do not amount to an AOMF.
48
What if D is intoxicated but also has an unrelated RMC?
Jury must ask: would D have killed regardless of the intoxication?
49
Which case supports this?
Dietschmann — if AOMF explains the killing despite intoxication, DR may apply.
50
Can ADS be a recognised medical condition?
Yes — ADS is recognised as an RMC if it causes an AOMF.
51
What did Stewart clarify about ADS?
Not every alcoholic has an AOMF — D must show substantial impairment due to ADS.
52
What did Wood establish about ADS?
D must show that alcoholism (not voluntary drinking) caused the AOMF. Involuntary drinking = abnormality.
53
What did Tandy decide about alcohol’s effects?
Temporary effects of alcohol are transient and do not amount to an AOMF.
54
55
What type of defence is Loss of Control?
It is a special defence, available only for murder, and a partial defence that reduces murder to voluntary manslaughter.
56
Where is Loss of Control defined in law?
s.54–55 Coroners and Justice Act 2009. It replaced the former common law defence of provocation under the Homicide Act 1957.
57
What is the standard and burden of proof for Loss of Control?
The standard is beyond reasonable doubt. The burden is on the prosecution to disprove the defence.
58
What are the 3 elements of the Loss of Control defence?
1. D lost self-control
2. The loss resulted from a qualifying trigger
3. A person of D’s sex and age, with normal tolerance and self-restraint, and in D’s circumstances, might have reacted in the same or similar way.
59
What does s.54(1)(a) state?
That D’s acts/omissions in doing or being party to the killing must result from a loss of control.
60
Is the term “loss of control” defined in statute?
No – it is not defined and is an issue for the jury to decide.
61
What definition of loss of control was provided in Jewell?
Loss of control means “a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning.”
62
Is D’s bare assertion of loss of control enough?
No – there must be more than a bare assertion (Jewell).
63
What does s.54(2) say about the timing of the loss of control?
It does not have to be sudden, but a longer delay makes it harder to prove.
64
Which case allows for a ‘slow burn’ loss of control?
Ahluwalia – slow-burn reaction accepted, often seen in battered women cases.
65
When is the defence excluded under s.54(4)?
Where D acted in a considered desire for revenge, the defence is not available.
66
What does the CPS say about revenge and qualifying triggers?
Even if qualifying triggers exist, if D was acting out of revenge, the defence fails.
67
Which case shows revenge removes the defence due to planning?
Ibrams and Gregory – planning and delay showed no sudden loss of control.
68
What must be shown for the qualifying trigger?
That D’s loss of control resulted from a qualifying trigger under s.55 CJA 2009.
69
What are the two types of qualifying triggers?
1. Fear trigger – fear of serious violence
2. Anger trigger – things said/done of a grave character causing serious wrong.
70
What is the fear trigger under s.55(3)?
D must fear serious violence from V against D or another identified person.
71
Is the fear trigger subjective or objective?
Subjective – even if D’s fear is unreasonable, if genuine, the trigger applies.
72
What is the anger trigger under s.55(4)?
Things said or done must:
a) Constitute circumstances of an extremely grave character
b) Cause D to feel a justifiable sense of being seriously wronged
Both must be present.
73
Is the anger trigger tested subjectively or objectively?
Objectively – would the reasonable person find the situation grave and feel seriously wronged in D’s position?
74
Which case shows that breakups don’t usually meet the anger trigger?
Hatter – relationship breakdowns are not normally grave or justify a serious sense of being wronged.
75
What does s.55(6)(a)–(b) state about incitement?
If D incites the victim to do the act that led to the trigger (violence or wrong), D cannot rely on that trigger.
76
What did Dawes say about seeking trouble and incitement?
D behaving badly generally doesn’t disqualify the defence. However, if D deliberately provoked V to create an excuse for violence, the defence is excluded.
77
What does s.55(6)(c) state about sexual infidelity?
Sexual infidelity alone cannot be a qualifying trigger.
78
What clarification did Clinton provide on sexual infidelity?
Where there are other qualifying triggers, sexual infidelity can be considered in context to determine whether the things said/done were extremely grave and caused serious wrong.
79
Can humiliation or taunting about infidelity be considered?
Yes – if they’re not purely sexual infidelity, they may be used to support the defence (Clinton).
80
Can sexual infidelity be relevant in the third element?
Yes – it may be relevant to D’s circumstances when applying the objective test.
81
What does s.54(1)(c) require?
Whether a person of D’s sex and age, with a normal degree of tolerance and self-restraint, and in D’s circumstances, might have reacted in the same or similar way.
82
What case supports the use of age and sex in the test?
Camplin – 15-year-old boy; court said age and sex must be considered.
83
What does s.54(3) state about D’s characteristics?
Only D’s circumstances are relevant — not their capacity for self-control (e.g. low IQ or temper irrelevant).
84
What did Holley clarify about personal characteristics?
Only age and sex are relevant to the level of self-restraint. Conditions like being ‘hot-tempered’ are not considered.
85
When can personal characteristics be relevant?
If they relate to the circumstances of the loss of control, not D’s ability to exercise self-control.
86
Which case allowed childhood abuse as relevant circumstance?
Hill – D had a history of sexual abuse. When V tried to sexually assault him, his past was relevant to explain his reaction.
87
Is intoxication relevant in the objective test?
No – Asmelash held that the jury must consider a reasonable sober person, so intoxication is excluded.
88
What did Van Dongen show about proportionality of response?
The jury may accept that a reasonable person might lose control, but not react as D did (e.g. repeatedly kicking V while they lay defenceless).
89
90
Is Unlawful Act Manslaughter (UAM) statutory or common law?
It is a common law offence.
91
What type of offence is UAM and what is the sentencing range?
It is an indictable offence. Sentencing is discretionary, with a maximum of life imprisonment.
92
What are the two types of involuntary manslaughter?
1. Unlawful Act Manslaughter
2. Gross Negligence Manslaughter
93
Which case outlines the 4 elements of UAM?
DPP v Newbury and Jones – the case sets out the four essential elements.
94
What are the four elements of Unlawful Act Manslaughter?
1. Unlawful act
2. Dangerous act
3. Causation of death
4. Required mens rea for the unlawful act
95
What must the death be caused by in UAM?
An initial unlawful act – typically a non-fatal offence against the person (NFOAP).
96
Can a civil wrong form the basis of UAM?
No – Franklin confirmed that a civil wrong is not sufficient; the act must be criminal.
97
Can an omission be enough for UAM?
No – Lowe confirmed that an omission will not suffice for UAM.
98
Must the unlawful act be complete?
Yes – Lamb stated the unlawful act must be fully complete, i.e. must have both actus reus and mens rea.
99
What if the scenario involves a crime you haven’t studied (e.g. theft)?
In an exam, state the relevant offence involved and assess whether the elements of UAM are satisfied.
100
What test is used to determine if the act was dangerous?
The objective test from Church – Would a reasonable person foresee a risk of some harm from the act?
101
Does the harm have to be serious or specific?
No – JM and SM held that the type of harm need not be foreseen, only some harm.
102
Must the act be aimed at the victim?
No – Mitchell showed that an act need not be aimed at the victim to satisfy UAM.
103
Does the thin skull rule apply to UAM?
No – Dawson held the reasonable person is not expected to know about V’s vulnerabilities.
104
Can property offences be used for UAM?
Yes – Goodfellow confirmed that an offence against property can be the basis for UAM if it causes death.
105
Can V’s frailty be considered in the dangerousness test?
Yes – Watson held that the frailty of the victim (once obvious) can be considered by the reasonable person.
106
What did Carey say about assaults and danger?
Not all assaults are automatically dangerous — only if a reasonable person would see them as posing a risk of physical harm.
107
What must be proven in terms of causation for UAM?
Both factual and legal causation must be established — including consideration of novus actus interveniens.
108
What happens if D injects V with drugs (without intent to kill or cause GBH)?
D can be liable under s.23 Offences Against the Person Act 1861 (administering a noxious substance) – a potential unlawful act for UAM.
109
What if D only prepares the drugs and V self-injects?
D will not be liable – Kennedy held that self-injection breaks the chain of causation.
110
When can D still be liable for playing a role in the act?
Rodgers – D applied a tourniquet to help V inject, so he was part of the mechanics of the act, thus liable.
111
What level of mens rea is required for UAM?
D must have the mens rea for the initial unlawful act (e.g. intent or recklessness depending on the offence).
112
Does D need to foresee death or serious harm?
No – Newbury and Jones confirmed D does not need to foresee harm or know the act was unlawful — it’s enough that:
• The act was intentional
• D had the required mens rea for that act
113
What if D had intention to kill or cause GBH?
Then the correct charge is murder, not manslaughter.
114
115
116
What is Gross Negligence Manslaughter (GNM)?
A form of involuntary manslaughter where D causes V’s death but does not have the mens rea for murder.
117
Is GNM a statutory or common law offence?
It is a common law offence.
118
What is the leading case for GNM?
R v Adomako.
119
How many elements are there in GNM?
There are four elements that must be proven.
120
Can GNM be committed by omission?
Yes — GNM can be committed by omission. No separate offence needs to be proved, and no specific actus reus or mens rea is required.
121
What is the first element of GNM?
That D owed V a duty of care.
122
How can a duty of care be established in an exam?
1. Show the law already recognises the duty in that situation, or 2. Apply the Donoghue v Stevenson test to establish duty of care.
123
What did Adomako confirm about duty of care?
That doctors owe patients a duty of care, and this principle applies to all medical professionals. The ordinary principles of negligence apply.
124
What case involved voluntary assumption of care?
Stone and Dobinson.
125
What case involved a duty arising from public office?
Dytham.
126
What case involved a contractual duty?
Pittwood.
127
What case involved a duty from a relationship?
Gibbins and Proctor.
128
What case involved a duty from creating a dangerous situation?
Miller.
129
How is duty established under Donoghue v Stevenson?
Apply Lord Atkin’s neighbourhood principle — "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely injure your neighbour."
130
Who is considered a neighbour under this principle?
Anyone who may be potentially injured by your acts or omissions.
131
Does criminal conduct remove the duty of care?
No – Wacker held that even if D and V are involved in criminal conduct, a duty of care can still exist.
132
What is the second element of GNM?
That D breached their duty of care and caused V’s death.
133
Who decides if there was a breach of duty?
This is a question of fact for the jury.
134
What case defines breach of duty?
Blyth v Birmingham Waterworks — breach occurs when D "fails to do something a reasonable person would do or does something they wouldn’t."
135
What standard applies to professionals?
Bolam v Friern Barnet Hospital — professionals must meet the standards of a competent professional in that field.
136
What principles apply for establishing causation?
Apply normal rules of causation: • Factual causation ("but for" test) • Legal causation (was D’s act a substantial and operating cause?)
137
What is the third element of GNM?
That D’s negligence was gross.
138
Is ordinary negligence enough for GNM?
No – Andrews said that civil negligence is not enough for criminal liability.
139
What did Bateman say about gross negligence?
Gross negligence is where D shows "such disregard for life and safety of others as to amount to a crime."
140
What was the test given in Adomako?
Whether D’s conduct was "so bad in all the circumstances as to amount to a criminal act or omission."
141
What is the fourth element of GNM?
There must be an obvious risk of death arising from the breach.
142
What case confirmed that the risk must be of death?
Misra – the risk must be of death, not just bodily injury or serious harm.
