Murder Flashcards
Definition of murder under the common law
the ‘unlawful killing of a human being under the queen’s peace with malice afterthought’ (Coke)
Actus Reus
The unlawful killing of a human being under the queen’s peace’ (Coke)
Under the queen’s peace
i.e. not during a time of war (Adebolajo)
Human Being
Someone capable of independent life
- not an unborn child (Poulton)
When does life end?
Brainstem test after a life support machine was switched off (Malcherek v Steel)
When does life start?
- Has the body be expelled from the mother? (Pouton)
- Must be in existence independent from the mother (Enoch)
- Is it breathing through it’s own lungs? (Rance)
Factual Causation
(‘but for’ test) but for the defendant’s actions, the death of V would not have occurred (White)
Legal Causation
Did the defendant’s culpable act cause the death? (Dalloway)
Year and a Day Rule
Rule was abolished by the Law Reform (Year and a Day) Act.
Two occasions where the prosecution need permission of the Attorney General to convict.
- Where there is more than three years between the act and the death
- Where the individual has already been convicted of that crime
The age of criminal responsibility
Dolae Incapace: 10yrs in England and Wales
Where there are several causes, the defendant does not need to be the sole cause to be guilty (unless there is a NAI)
R v Benge
Novus Actus Interveniens
A new act that breaks the chain of causation
Convicted of murder when using someone as a human shield in a firefight, because the police fired back.
This was a natural and foreseeable reaction, so the chain of causation was unbroken
R v Pagett
The Defendant was convicted of murder despite V dying as a result of refusing a blood transfusion, and the Defendant no knowing that the Victim was a Jehovah’s witness.
The ‘thin skull rule’ (R v Blaue)
The Defendant was convicted of manslaughter when a child was scared, ran away, and fell down some stairs.
A ‘fight or flight’ act of the victim
He created the dangerous situation.
R v Mackie
A possible deliberate suicidal action by V was held not to break the chain of causation, as the injuries inflicted by D were still an ‘operating and significant cause’ of V’s death.
R v Dear.
The original injury was still an ‘operating and substantial’ cause of death even though subsequent medical treatment was negligent.
R v Smith
Mens Rea
With malice afterthought:
- an intention to kill or cause GBH
Definition of Grievous Bodily Harm
Serious or Really Serious Harm (R v Vickers)
Intention
Given it’s ordinary linguistic meaning by the jury (Moloney)
- Direct aim or purpose (Smith and Hogan txtbk)
Indirect/ Oblique Intent
Was death a virtual certainty of D’s actions?
Did D appreciate this to be the case?
(subjective test)
- If yes, then D did intent to kill or cause GBH (Woolin)
Defences for murder
Loss of Control
Diminished Responsibility.
Voluntary Manslaughter
Only a partial defence for murder based of Loss of Control and Diminished Responsibility.
The difference being that the judge has discretion.
ss. 54-56 Coroners and Justice Act 2009
Replaced ‘provocation’ with ‘loss of control’
The burden is on the prosecution to show that the defence does not apply.
The prosecution need only prove that one element is missing for the defence to fail
R v Clinton
Requirements for Loss of Control set out in s. 54 CJA
Jewell
- Killing someone as a result of losing control?
- Was there a qualifying trigger
- Would the ‘reasonable person’ have acted in a similar way
Loss of control need not be sudden
R v Ahluwalia
Loss of control need not be complete
R v Croker
- he checked before killing his wife upon reques
Fear of Serious violence is subjective as a qualifying trigger
R v Martin - claim failed because the burglar was shot as he ran away
things said of done which ‘caused D to have a justifiable sense of being wronged’ are qualifying triggers
R v Thornton
Sexual infidelity cannot be a qualifying trigger
R v Clinton
A reasonable person in D’s circumstance
DPP v Camplin
A person of D’s age and sex, in the circumstances fo D, but with a normal degree of tolerance and self-restraint.
The defence of loss of control will not apply if D was intoxicated at the time.
R v Morhall (glue sniffer)
The normal person is not a drug taker under the third limb of normal tolerance and self-restraint’
Asmelash
Self Defence and loss of control
very hard to prove
- Dawes (said she had come at him with a bottle)
- Barnsdale (it was mere speculation without evidence that the victim came at him with a rolling pin)
An attack on an ex-partner was seen as a revenge killing even though he said she had come at him with a bottle
Dawes
If the Jury properly directed could not have concluded a loss of control, it was mere speculation without evidence that the V came at him with a rolling pin.
Barnsdale
The trial judge has to evaluate the wight and the quality of the evidence for the jury in respect of the three component elements of the partial defence of loss of control.
Gurpinar
Rejmanski
- was there a loss of control
- Did this loss of control happened in a compartmental instance
- whether a person of normal standing would have killed.
Diminished Responsibility requirements
s. 52 CJA 1009
- D was suffering from an ‘abnormality of mental functioning’
- which arose from a recognised medical condition
- which substantially impaired the defendant’s ability to do certain things
- and which provides an explanation for D’s acts
Burden of proof for diminished responsibility
burden of proof is on the defence, on the balance of probabilities (R v Sutcliffe)
The classic definition of an abnormality of mind
Lord Parker in R v Bryne
- ‘a reasonable man would term it abnormal’
A recognised medical condition
could be physiological or psychological
- schizophrenia in R v Joyce and Key
‘substantial’ impairment should be given it’s ordinary english meaning
Lord Hughes in R v Goulds
- an impairment of consequence and weight
Squelch
- less than total but more than trivial
‘certain things’ which can be substantially impaired
R v Fenton (s. 2 HA 1957)
- understanding the nature of the act
- forming a rational judgement
- exercising self-control
An abnormality of mental functioning provides an explanation for D’s conduct if it
‘causes, or is a ‘significant contributing factor’ in causing D to carry out the conduct
s. 2 HA 1957
If a drunkard also had an abnormality of mind caused by a recognised medical condition
Alcoholism could indicate that being drunk was not voluntary (R v Tandy)
The jury must consider D’s dependency to the drug/ alcohol
R v Stewart
In addition to having a drug/ alcohol dependency, D must still demonstrate that they were suffering from a recognised medical condition
Heavy Binge Drinking was not enough
- R v Dowds
Substantial impairment in an impairment of
consequence and weight
Lord Hughes in Goulds
A consideration of substantial impairment can go right back to childhood
Conroy
Lack of sleep, exposure and death of family members were considered adequate for diminished responsibility
Blackman
Substantial means:
less than total but more than trivial
Squelch
