murder and partial defences

Question 1

what is homicide?

Answer 1

general term for unlawful killings

Question 2

what are the different types of manslaughter?

Answer 2

voluntary, unlawful act, gross negligence, corporate

Question 3

what is the order of offences from most serious to least serious?

Answer 3

murder, voluntary manslaughter, unlawful act and then gross negligence manslaughter

Question 4

what is the actus reus of homicide?

Answer 4

D has caused the death of a human being- actus reus of manslaughter cannot be established without this and is easy for the prosecution to prove e.g. shot or stabbed the victim to death

Question 5

what are the other elements of the actus reus for murder?

Answer 5

if victim is human being (but has been disputed e.g. unborn child BUT law is that the child must be expelled from women’s body and be alive (R v Poulton)), must be unlawfully caused, accused must cause the death of a human being

Question 6

what case can be used as authority for the principle that death of unborn child can be murder

Answer 6

Re A (Children) 2000- separation of conjoined twins which would result in death of weaker twin- was the weaker twin a human being because had underdeveloped organs and depended on stronger twin for survival so not a separate person so it could not be murder- this was rejected by CoA

Question 7

what is the authority for the principle that switching off a victim’s life support machine being on the onus of the medical staff is IRRELEVANT- D still cause of death

Answer 7

R v Malcherek and Steel 1981- D assaulted victim resulting in brain damage, victim put on life support and doctors disconnected machine- Ds act clearly an operating and substantive cause of death

Question 8

what is a life licence?

Answer 8

they can be recalled to prison if they commit a further offence

Question 9

what are the two statutes that deal with partial defences to murder?

Answer 9

Homicide Act (HA) 1957, Coroners and Justice Act (CJA) 2009

Question 10

what is Coke’s classic definition of murder?

Answer 10

the unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought

Question 11

what is a common defence of murder?

Answer 11

if D kills enemy combatant during war

Question 12

what is mens rea for murder?

Answer 12

malice aforethought- can only be established by an intention

Question 13

what is R v Moloney 1985 definition of mens rea for murder?

Answer 13

an intention to kill or intention to cause GBH (recklessness does not suffice- there must be intention)

Question 14

what is actus reus for murder?

Answer 14

unlawful killing of a human being (not a foetus) under the Queen’s (or King’s) peace

Question 15

what types of intent can satisfy the mens rea for murder?

Answer 15

either direct OR indirect

Question 16

what are the details of R v Ahluwalia 1993?

Answer 16

D violently abused by husband for over 10 years, she poured petrol over him whilst eh was sleeping and set fire- husband died from burns- convicted of manslaughter as law recognises a defence for those who are pushed to the edge so that they lose their self control

Question 17

what are the details of R v Martin 2002?

Answer 17

D been burgled lots so when burglar came to home, whilst he was running away, D shot him (so not SD) and was convicted of manslaughter

Question 17

what are 3 special situations where the law recognises that a person has killed another with the necessary mens rea for murder should be treated less harshly?

Answer 17

diminished responsibility, loss of control, suicide pact (not a true defence as accused still liable for voluntary manslaughter- they are partial defences)

Question 18

when do partial defences apply?

Answer 18

only when the D has killed with intention to kill to cause GBH so satisfies the AR and MR for murder

Question 19

when is an offence voluntary manslaughter?

Answer 19

D has AR and MR AND a partial defence

Question 20

what is the partial defence for diminished responsibility?

Answer 20

although D has committed the AR and has necessary MR, they are suffering from a recognised medical condition which provides them for a partial excuse for their actions

Question 21

what is the partial defence of diminished responsibility outlined as in the CJA?

Answer 21

a person who kills or is a party to killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning…

Question 21

what are the 4 elements to diminished responsibility defence?

Answer 21

abnormality of mental functioning which arose from a recognised medical condition, and substantially impaired Ds liability to understand the nature of their conduct/form rational judgement/exercise self control and provides an explanation for the Ds acts and omissons in doing or being a party to the killing

Question 22

what is abnormality of mental functioning?

Answer 22

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

Question 23

what is a recdognised medical condition?

Answer 23

abnormality had to arise from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury

Question 24

what are examples fo recognised medical conditions?

Answer 24

schizophrenia, phobic anxiety disorders, bipolar, depression, battered person syndrome

Question 25

can diminished responsibility offence be used if D has alcoholism?

Answer 25

if they intoxicated at time jury must focus exclusively on the effect of the alcohol consumed as a result of their illness and disregard the effect of any alcohol consumed voluntarily

Question 25

can the defence of diminished responsibility still be considered if the D was intoxicated?

Answer 25

only used if D has alcoholism or dependency related condition

Question 26

what is the element of substantial impairment of D’s ability in the diminished responsibility defence?

Answer 26

a q of fact for jury- R v Lloyd found that it must be ‘more than trivial or minimal’

Question 27

what must be established for the defence of diminished responsibility to succeed?

Answer 27

causation- D must show that homicide would not have occurred if the mental abnormality had not been present- condition must be relevant to the act

Question 28

what is the defence of loss control?

Answer 28

everyone has a breaking point and circumstances may arise that push people so far they lose their self control- D can be less morally culpable than deliberate murderers so liable for voluntary manslaughter

Question 29

what are the two tests to define the loss of control defence?

Answer 29

was the D provoked but things said or done to suddenly and temporarily lose their self-control? (subjective test), would the provocation have made a reasonable person lose their self control and do as the D did? (objective test)

Question 30

what did Attorney-General for Jersey v Holley say about Ds characteristics?

Answer 30

they should only be taken account when determining the gravity of the provocation towards the D- D then judged according to standards of self-control to be expected of an ordinary person of the Ds sex and age

Question 31

what are the 3 elements of the defence of loff of control?

Answer 31

D must lose self control, loss of control must have a qualifying trigger, and a person the Ds sex and age with a normal degree of tolerance and in the same circumstances might have reacted in the same or similar way to the D

Question 32

how does R v Jewell define loss of control?

Answer 32

loss of the ability to act ‘in accordance with considered judgement or a loss of normal powers of reasoning’

Question 33

does the loss of control need to be sudden?

Answer 33

no- Aluwhalia case shows loss of control can be gradual

Question 34

does the defence of loss of control apply to situations of revenge?

Answer 34

no- they would have taken deliberate steps rather than acting on impulse

Question 35

what is a qualifying trigger?

Answer 35

fear and anger triggers whch cause the loss of self control- attributable to Ds fear of serious violence from V against D or another identified person, or a thing/things done or said ot to a combination of these things

Question 36

what is the fear trigger?

Answer 36

if the loss of control was ‘attributable to the Ds far of serious violence from victim against the D or another identified person’- must prove that fear was violence even if not reasonable

Question 37

what is the anger trigger?

Answer 37

Ds loss of control was attributable to things said and/or done that amounted to circumstances of an extremely grave character and caused the D to have a justifiable sense of having been seriously wronged (whether it i sjustifiable is tested objectively)

Question 38

how does the defence of loss of control relate to sexual infidelity?

Answer 38

no longer grounds for D to have justifiable sense of being seriously wronged to an extent that would warrant reducing murder to manslaughter (i.e. not a qualifying trigger but can be taken into account)