Murder and Partial Defences (Voluntary Manslaughter)

Question 1

What is the full legal definition of murder (acts reus and mens rea)?

Answer 1

Homicide is the unlawful killing of a reasonable are`ture in being under the Queen’s peace with malice aforethought.

Question 2

Does the act of medical staff turning off life support absolve the person who inflicting injuries putting the victim in hospital in the first place?

Answer 2

No. This would be irrelevant and the perpetrator would still be liable.

Question 3

Give the MR of murder.

Answer 3

Tis in the definition is malice aforethought, however has developed to now be the intention to either kill or cause serious harm to the victim.

Question 4

Give the AR of murder.

Answer 4

The unlawful killing of another human being.

Question 5

What is oblique/ indirect intent?

Answer 5

Where the death/ serious harm was not D’s intended aim but merely a virtually certain consequence of their actions and it is clear D appreciated this was this case.

Question 6

What is direct intent in the context of murder?

Answer 6

Direct intent means that death or GBH was D’s aim to purpose.

Question 7

True or False: The elements of murder must be satisfied even in cases of voluntary manslaughter.

Answer 7

True.

Question 8

What are the three partial defences to order (which will result in a conviction for voluntary manslaughter if successfully pleaded)?

Answer 8

• Diminished Responsibility;
• Loss of control;
• Suicide Pact

Question 9

Who has the legal burden of proving all of the elements of diminished responsibility?

Answer 9

The defence have the legal burden to prove diminished responsibility, but the standard of proof is the balance of probabilities.

Question 9

List the requirements for diminished responsibility to be successfully argued (provided the murder elements have been satisfied).

Answer 9

1) Abnormality of mental functioning; which;
2) Arose from a medically recognised condition; and
3) Substantially impaired D’s ability to understand the nature of their conduct and/or form a rational judgment and/or exercise self control; and
4) Provides an explanation for D’s act or omission in doing the killing.

If all of the above is successfully argued, D cannot be found guilty of murder.

Question 10

Explain the requirement of a recognised medical condition (for diminished responsibility).

Answer 10

• Usually accepted to be those conditions recognised on the WHO international classification of diseases list. This is however not a closed list.

Question 10

Explain the requirement of abnormality of mental functioning (for diminished responsibility).

Answer 10

This is usually determined based on the medical evidence given by medical experts at trial.

Question 11

Give some examples of psychiatric conditions which may constitute a recognised medical condition for the defence of diminished responsibility.

Answer 11

1) Depression;
2) Schizophrenia
3) PTSD
4) Battered persons disorder;
5) Phobic anxiety.

Question 12

Give some examples of physical conditions which may constitute a recognised medical condition for the defence of diminished responsibility.

Answer 12

1) Alcohol dependency;
2) Diabetes;
3) Epilepsy.

Question 13

What must the jury consider when asking whether the recognised medical condition provides an explanation for D’s act of killing?

Answer 13

There must be a causal link between D’s recognised medical condition and their conduct which provides an explanation for their act of killing. (in other words there must be a causal link between D’s medical condition and their behaviour).

Question 13

Explain the relationship between intoxication and recognised medical condition for the purposes of diminished responsibility.

Answer 13

Intoxication alone (provided there is no dependancy related condition) will not excuse D from liability and therefore will not satisfy the medical condition test for diminished responsibility.

However, if the intoxication induced a pre-existing recognised medical condition, this will likely be sufficient. Eg if consuming a large amount of alcohol induced schizophrenia, this would be sufficient. the recognised medical condition must be a cause of D’s actions but need not be the only cause.

Question 14

Explain the substantial impairment element of diminished responsibility.

Answer 14

The abnormality of mental functioning should impair D’s mental functioning substantially (ie important and weighty). As such, the matter of impairment will be a question on the fact for the jury.

The impairment element refers to the nature in which thew abnormality of mental functioning substantially prevents D to exercise self-control, rational judgment or understand the nature of their conduct.

Question 15

List the requirements for successfully pleading loss of control.

Answer 15

1) D must lose self-control; and
2) Loss of control must have a qualifying trigger; and
3) A person of D’s sex and age with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same way or in a similar way that D did.

Question 16

Explain the burden of proof in relation to loss of control.

Answer 16

Where the defence adduces evidence raising the defence of loss of control, the burden reverts back to the prosecution to disprove the loss of control beyond the reasonable doubt. If the prosecution fails to do so, jury must assume the defence of loss of control has been satisfied.

Question 17

Define the loss of control element of the loss of control defence.

Answer 17

It must be established that D lost self control. This is subjective and assessed by the jury, but it is not enough to merely ask Ould the reasonable person have lot self control.

In R v Jewell, COA offered guidance indicating. loss of control will be D’s loss of ability to act ‘in accordance with considered judgment, or a loss of normal powers of reasoning’.

Question 18

Does the loss of control need to be sudden?

Answer 18

• No. Killings which occur in the context of domestic violence where D’s reaction builds up over time, are not excluded from the definition.
• Important to note though that the greater length of time D has to deliberate, the less likely the killing will be deemed to follow a loss of control.

Question 19

Summarise where it may be deemed there was a loss of control.

Answer 19

1) Where D snaps; and

2) Where their reaction is a response to a culmination of events such as incidents of abuse which occur over time.

Question 20

Will a revenge killing satisfy the loss of control element for the defence of loss of control?

Answer 20

No. s54(4) CJA 2009 states loss of control defence will not apply where D acted in a considered desire for revenge.

Question 20

Explain the qualifying trigger elect of the defence of loss of control.

Answer 20

• The qualifying triggers were introduced as the ‘fear’ and ‘anger’ triggers.
• The loss of control must therefore be down to one of these or a combination of both;
• Important to note D cannot rely on these triggers where they have incited the situation to provide them with an excuse to use violence in response.

Question 21

Explain the fear trigger (as a qualifying trigger) relating to the loss of control defence.

Answer 21

• will apply where loss of control was attributable to D’s fear of serious violence from the victim against D or another identified person.
• This his subjective question for the jury, so they must be satisfied the accused was genuinely afford of such violence (even if the fear is not reasonable).

Question 21

What factors may indicate loss of control is not a sufficient defence (and the killing was more revenge motivated)?

Answer 21

1) D arms themself with a weapon;
2) There is evidence of planning;
3) There is a significant delay between provoking words or conduct and the killing.

Question 22

Explain the anger trigger (as a qualifying trigger) relating to the loss of control defence.

Answer 22

• Applies where D’s loss of control was down to things said/done amounting to circumstances of an extremely grave character and caused D to have justifiable sense of being seriously wronged.
• this is an objective question for the judge, who will decide whether given the circumstances the jury could reasonably determine whether this has occurred. Judicial direction to the jury is therefore key where the anger trigger is being argued.

Question 23

Can sexual infidelity amount to a qualifying trigger for loss of control.

Answer 23

• No - sexual infidelity is to be disregarded carding to s55 CJA 2009.
• However it has been decided that the existence of sexual infidelity does not necessarily mean the defence cannot be argued (ie if the sexual infidelity forms ‘an essential part of the context’ - for instance being one of many insults/ factors thrown at D of extremely grave character leading to them having a justifiable sense of being wronged).

Question 24

Explain the similar reaction of a person of the same sex and age element of the defence of loss of control (ie someone of D’s similar age and sex would have reacted in a similar way given the circumstances).

Answer 24

• Objective test for the most part.
• Eg a child will not be judged at the same standard of self control as an adult.
• D’s circumstances are those which relate to the defendant (but not really specific characteristics attributable to D). As such if D is particularly aggressive, they will not be able to rely on such characteristics as an excuse for the killing).
• Note the ‘normal’ person will have the same history and characteristics as the defendant in so far as they are relevant to the qualifying triggers that prompted the loss of self- control.

Question 25

Explain the sufficiency of evidence rule.

Answer 25

• Judge does not have to allow a defence to be put before the jury.
• As such if they feel the evidence presented is insufficient in establishing all of the elements of the defence, the judge has the power to strike the defence out and remove it from the consideration of the jury.

Question 26

Aside from the sufficiency of evidence rule, where else might the judge remove the partial defence entirely from the consideration of the jury?

Answer 26

deaths in response to:

1) Persistent crying of a baby;
2) So called honour killings;
3) Conditional threat to prevent D from seeing his children unless he agreed to the victim’s divorce settlement.

Question 27

What did the case of R v Woollen illustrate with regards to the MR for murder?

Answer 27

It is essential that (aside from the death being a virtually certain consequence of D’s action) D MUST foresee the death or serious harm as a virtual certainty.

Note in exam questions, if it is indicated the D only foresees a small risk of serious harm/ death this is not sufficient.