What is the AR for murder?
D causes the unlawful death of a human being under the Queen’s peace
How are the beginning and end of life defined in relation to murder?
Law provides that as soon as a baby is born and has an existence independent of its mother, it is protected by the law of homicide
End of life is construed as when the brain stem has died
What is the MR of murder? Explain the elements
Malice aforethought
- This means an intention to kill or an intention to cause GBH
i) Direct intention – aim or purpose to kill or cause GBH
ii) Oblique intention may also be applicable- Outcome was virtually certain, and D was aware of this
What defences might operate for murder?
1) Self-defence - complete defence
2) Diminished responsibility - partial defence to murder only; reduces conviction to voluntary manslaughter
- Legal burden on D to prove DR on balance of probabilities
3) Loss of control - partial defence to murder only; reduces conviction to voluntary manslaughter
- Legal burden on prosecution to disprove loss of control beyond reasonable doubt
What are the four elements of the diminished responsibility defence? Explain the details of each element
1) Abnormality of mental functioning, which
2) Must arise from a recognised medical condition
- Could be a psychiatric condition or could arise from diabetes or epilepsy, depression, schizophrenia, PTSD
3) It must substantially impair D’s ability to do one or more of the following:
i) Understand the nature of their conduct
- Doesn’t understand stabbing someone will kill them
ii) Form a rational judgment
- Has an obsessive mistaken belief for example
iii) Exercise self-control
- Whether the impairment is substantial is a question of fact, but it generally means ‘important’ or ‘weighty’
4) Must provide an explanation for D’s act or omission in doing the killing
- Killing them in a fit of rage, when you have paranoid personality disorder would not provide an explanation
- D must show the homicide would not have happened without their recognised medical condition impacting them
- The abnormality of mental functioning does not have to be the sole cause of their acts
Can alcohol dependency syndrome be a recognised medical condition for the purposes of diminished responsibility?
Yes, whilst having alcohol dependency syndrome and being intoxicated at time of offence may allow dim res to be claimed, intoxication alone won’t
Jury must focus on the effect of alcohol consumed as a direct result of the illness and ignore the effect of alcohol which is voluntarily consumed
What are the three key elements of the loss of control defence?
1) D lost self-control
2) Loss of control had a qualifying trigger
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 or a similar way as D did
Explain the loss of self control element of the loss of control defence
Whether D has lost self-control is a subjective assessment
Means a loss of the ability to act ‘in accordance with considered judgement, or a loss of normal powers of reasoning’
Doesn’t have to be sudden and can build from various incidents (pattern of abuse)
If D acts with a considered desire for revenge, what does this mean and how does it affect the loss of control defence?
Prevents D from relying on defence
- May mean they planned the killing
- May mean they had armed themselves with a weapon
- May mean there was a significant delay between provoking words/conduct and killing
What are the possible ‘qualifying triggers’ for the loss of control defence?
Only one is needed
1) Fear – Fear of serious violence from V against D or another identified person
- Subjective assessment, so jury must be satisfied that D was genuinely afraid, even if fear was unreasonable
2) Anger – things said and/or done that amount to circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged
- Whether there was a ‘justifiable’ sense of being wronged, is an objective assessment undertaken by the judge initially
What cannot be a qualifying trigger for loss of control?
Sexual infidelity is specifically excluded in legislation, but if the sexual infidelity is part of a wider background/context where there is/are other triggers, it can be considered
Explain the reaction of a person of D’s sex and age element of the loss of control defence
This is an objective assessment, but jury considers the context of D’s age and sex and all other relevant circumstances of D, except they don’t assume characteristics which detract from a normal degree of tolerance and self-restraint
Aggressive character/short temper not considered
