Murder and partial defences Flashcards
A man and his wife belong to a musical society. He receives a text from a friend saying: “Your wife is cheating on you with another man in the orchestra!” At the next rehearsal, the man decides to confront the suspected lover who plays in the same orchestra. He goes up to the lover and asks him if he is having an affair with his wife. The lover replies: “We’ve been having sex for weeks – you’re such a loser and she’s leaving you for me!”
The man’s wife is working a late shift at the local hospital. Angry with her for cheating on him and wanting to get his own back, the man goes to his car and drives to where she works. He sits outside for six hours until she finishes her shift. As his wife leaves the hospital building, he carries out his plan to attack her. He accelerates as fast as he can and hits her with his car. She later dies of her injuries.
Can the man successfully rely on the partial defence of loss of control?
A-Yes, because sexual infidelity is a qualifying trigger.
B-Yes, because the affair was extremely grave and he had a justifiable sense of being seriously wronged.
C-No, because the trigger came from someone other than the victim.
D-No, because there was a gap in time between the trigger and the loss of control.
E-No, because he was acting out of a considered desire for revenge.
Option E is the correct answer because he struck his wife in revenge for her affair. The fact pattern states that he was “angry with his wife for cheating on him” and “wanting to get his own back”. Acting out of a considered desire for revenge is precluded by the legislation (s. 54(4) Coroners and Justice Act 2009 (‘CJA’)) so the man will not be able to rely on a loss of control to reduce the murder conviction to manslaughter.
Option A is wrong because sexual infidelity is not a qualifying trigger.
Option B is wrong because things said or done which constitutes sexual infidelity are specifically disregarded under the legislation (s. 55(6)(c) CJA).
Option C is wrong because it suggests that the trigger must come from the victim. There is no requirement that the victim be the one to trigger the loss of control
Option D is wrong because it suggests that loss of control cannot be relied on where there is a gap in time between the trigger and the action. There is no requirement that the loss of control is sudden.
A woman is 40 years of age and has been married to a man for 15 years. During this time, the man has subjected his wife to frequent and serious violent attacks and daily verbal abuse. She also suspects the man of having an affair with her best friend and she is furious about this. One evening, the man returns home and immediately begins to complain about how untidy the house is and what the woman has cooked for their evening meal. As the man is sitting eating his dinner with his back to her, the woman throws a pan of boiling water over him. The man subsequently dies from his injuries.
Which of the following best describes the woman’s liability for the man’s death?
A-The woman is liable for murder because of the manner in which she kills the man particularly as he was no threat to her at the time she attacks him.
B-The woman cannot argue the partial defence of loss of control because it is unreasonable to lose control just because the man complains about the state of the house and what has been cooked for dinner.
C-The woman cannot rely on the anger trigger because sexual infidelity must be disregarded as a thing said or done and this is a factor in her response.
D-The woman may rely on the qualifying trigger of fear because she is afraid of serious violence from the man as his abuse occurs on a frequent basis.
E-The woman may rely on loss of control as a partial defence because a 40-year-old woman with a normal degree of tolerance and self-restraint and in her circumstances would have reacted in the same or similar way.
The correct answer is option D. One of the qualifying triggers for loss of control is that a defendant feared serious violence from the victim against either themselves or another identified person. This would apply here as the woman suffered abuse from the man on a frequent basis.
Option A is wrong because it is irrelevant that the man was no threat to her at the time she attacks him provided that she is genuinely in fear of serious violence (the fear trigger). The method the woman uses would be relevant to the third element when the jury consider how a person of her age and sex with a normal degree of tolerance and self-restraint might have reacted in those circumstances.
Option B is wrong because the final incident need not be significant in itself; for loss of control, the defendant may rely upon an accumulation of events to explain their reaction to the final one. Option C is wrong because, although sexual infidelity on its own may not be relied upon for the anger trigger, it can be as part of the overall context. Here, there are other factors, primarily the man’s physical and verbal abuse. Option E is wrong due to the inclusion of the word ‘would’. The jury must be satisfied that a 40-year-old woman ‘might’ have reacted in the same or similar way.
A man violently attacks an opposing football supporter following a football match intending to cause the victim serious harm, but not intending to kill him. The man punches the victim in the face and repeatedly stamps on his head when he is on the ground. The victim staggers over to a steward and asks her for help but she believes he is drunk and refuses to call an ambulance.
The victim is later found lying unconscious in an alleyway and is rushed to hospital where brain damage is identified which was sustained as a result of the attack by the man and the delay in receiving treatment whilst he was lying in the alleyway. The victim later dies and the man is charged with murder.
Which statement best explains the man’s potential liability for murder?
A-He cannot be found guilty of murder because the steward’s refusal to call an ambulance contributed to the victim’s death.
B-He can be found guilty of murder because he has participated in a joint enterprise with the steward resulting in the victim’s death.
C-He cannot be found guilty of murder because the steward’s refusal to call an ambulance broke the chain of causation.
D-He can be found guilty of murder because his conduct was a substantial and operative cause of the victim’s death.
E-He cannot be found guilty of murder because he did not intend to kill the victim.
Option D is correct as despite the fact that there was an intervening event, the injuries inflicted by the defendant were still an operating and substantial cause of the victim’s death (R v Malcherek and Steel [1981]).
A woman was diagnosed with depression five years previously. At times, she becomes resentful and jealous of others who appear to have better and happier lives than she does.
Her sister visits regularly. She finds the woman difficult to deal with and one day, she snaps and shouts: “Why don’t you at least try to do something to help yourself!” The woman is outraged by her sister’s apparent lack of sympathy and decides that she will retaliate. After spending some time planning her response, the woman purchases a large knife, telephones her sister to ask her to visit and leaves the knife ready by the front door. As soon as her sister enters the house, the woman stabs her to death.
The woman is charged with murder but argues that she was suffering from diminished responsibility when she attacked her sister.
Is the woman likely to succeed in pleading diminished responsibility as a partial defence to murder?
A-Yes, because all the woman needs to establish is that depression is a recognised medical condition, which it is.
B-Yes, because the woman’s depression impaired her ability to form a rational judgment.
C-No, because the woman’s depression did not significantly impair her ability to exercise self-control.
D-No, because the woman acted in a considered desire for revenge as she formed and carried out a plan to kill her sister.
E-No, because although the woman has depression, these do not provide an explanation for her act of killing her sister.
Option E is correct. Although the woman has depression, there is no evidence that this provides an explanation for the killing as is required by s.2 of the Homicide Act 1957, as amended by s.52 of the Coroners and Justice Act 2009. There is no causal link between the medical condition and the woman’s behaviour which is motivated by resentment and anger.
Option A is wrong as the test for diminished responsibility requires more than just proof that the defendant is suffering from a recognised medical condition.
Option B is wrong as there is no evidence that the depression impaired the woman’s ability to form a rational judgment under s.2(1)(A) HA 1957. She wanted to retaliate and she did this in a deliberate and planned way, including buying the knife, telephoning her sister and attacking her as soon as she entered the woman’s house.
Option C is wrong as the statute requires a ‘substantial’ and not a ‘significant’ impairment of the woman’s ability to lose control (which she did not on the facts).
Option D is wrong. Although it correctly states that the woman will not succeed in establishing the partial defence, the reason given is not. The reference to a ‘considered desire for revenge’ relates to the partial defence of loss of control under s.54(4) CJA 2009.
A man is facing trial for murder after he caused the death of his wife by stabbing her during an argument outside a restaurant. An expert has been instructed by the defence solicitor who confirms that the man was suffering from battered person syndrome at the time of the stabbing and that this amounted to an abnormality of mental functioning arising from this recognised medical condition.
Which of the following statements best describes the operation of the partial defences to murder as they apply to the man?
A-The partial defence of diminished responsibility will be available to the man only if the abnormality of mental functioning was the sole cause of him stabbing his wife.
B-The man should be able to rely on the partial defence of diminished responsibility provided that the abnormality of mental functioning prevented him from forming the intention to kill or to cause grievous bodily harm to his wife.
C-For the man to be successful in this defence, he will need to prove the defence beyond reasonable doubt, and it will be for the prosecution to then disprove it.
D-The man will also be allowed to rely on the partial defence of loss of control if he relies on this partial defence of diminished responsibility at trial.
E-If the jury are satisfied that the defence is established, the man will be acquitted of all charges against him.
The correct answer is option D as the man is not prevented from arguing loss of control, just because he is also arguing diminished responsibility, as both can be argued at the same time.
Option A is wrong because the abnormality need not be the sole cause of impairment of his ability to do one of the three things, but instead a ‘substantial’ cause.
Option B is wrong because a lack of mens rea to murder means that the man is not guilty of murder and therefore ought not be arguing a partial defence to it.
Option C is wrong because the burden of proof is on the defence but only on the balance of probabilities.
Option E is wrong because this is only a partial defence and therefore the man will be guilty of voluntary manslaughter and sentenced accordingly.
