murder, diminished responsibility and loss of control

Question 1

case of martin (depressive illness/paranoia) (stage1: abnormality of mental functioning)

Answer 1

F: Martin suffered paranoid delusions, from childhood trauma, specifically sexual abuse which caused him to believe he was at risk of being violated by the burglars. his mental state, made him react more violently than the average person. he was suffering from an abnormality of mind causing the overreaction.
H: Paranoid personality disorder and depression can be inherent causes of DR

Question 2

case of cambell (epilepsy) (stage1: abnormality of mental functioning)

Answer 2

F: D picked up a hitchhiker and attacked her when she refused his sexual advances.
H:At the time of the killing D had been suffering from an abnormality of mind of such significance (epilepsy and frontal lobe damage) so that it diminished his responsibility for the act he carried out

Question 3

case of tandy (alcoholism as a disease or injury) (stage1: abnormality of mental functioning)

Answer 3

F: D was an alcoholic for a number of years. She strangled her 11 yr old daughter when she told her mother her 2nd husband had sexually assaulted her. She had been drinking vodka which was not her usual drink.
H: Abnormality of mind may include a disease caused by long-term alcoholism and/or drug addiction. However, D had not proved that she was suffering from long-term alcoholism, as she had not proved that she could not resist the first drink of the day.

Question 4

case of Dietschmann ( alcoholism as a disease or injury) (stage1: abnormality of mental functioning)

Answer 4

F: D was taking anti-depressants following the death of his aunt (with whom he was having a sexual relationship). At a party he was drunk and attacked V when he thought he had damaged a watch given to him by his aunt. V died from the attack.
H:DR could now be successful even if D would not have killed had he been sober. The abnormality of mind must nevertheless have been the substantial cause of the impaired mental responsibility leading to the killing.

Question 5

case of Dowds (alcoholism as a disease or injury) (stage1: abnormality of mental functioning)

Answer 5

binge drinking cannot in itself be an AMF

Question 6

case of ahluwalia and thornton (BWS as a disease) (stage1: abnormality of mental functioning)

Answer 6

CA allowed their appeals against a murder conviction on the basis of such a condition

Question 7

case of byrne (stage 2: substantial impairment of defendants ability)

Answer 7

F:Sexual psychopath who strangled a young woman and mutilated the body
H:His impulses were not irresistible but extremely difficult to control. In this case it was sufficient to prove substantial impairment but will depend on the jury in each case

Question 8

Golds (2016) (stage 2: substainal impairment of defendants ability)

Answer 8

substantial means “distinctly more than just past the trivial” but judge does not need to explain the meaning of substantial to a jury, they can decide this for themselves

Question 9

Dietschmann outcome (stage 3-A significant contributory factor to the killing)

Answer 9

The abnormality needs to be a substantial cause of the killing but doesn’t have to be the SOLE cause

Question 10

case of osbourne (stage 3-A significant contributory factor to the killing)

Answer 10

F: D was smoking cannabis with friends and saw V walking with an Asian woman. A fight broke out. V punched D in self-defence and left. D grabbed a plank of wood and attacked V from behind.
H: It is possible for ADHD to support a defence of diminished responsibility however in this case the ADHD suffered by D did not substantially impair his mental responsibility for his actions at the time of the killing

Question 11

what is the AR of Murder

Answer 11

“the unlawful killing of a human being under the queen’s peace”

Question 12

what is the definition of murder

Answer 12

the unlawful killing of a human being with malice aforethought within the queen’s peace (lord coke)

Question 13

what are the issues relating to the AR of murder

Answer 13

causation and omissions

Question 14

what is the queen’s peace

Answer 14

killing of the enemy in the course of war- not murder.

Question 15

what is the problem with the definition of death

Answer 15

there is no single legal definition of death but life is recognised by the brain stem activity and death occurs when brain stem activity ceases

Question 16

explain the case of Malcherek and Steel

Answer 16

F: D stabbed his wife repeatedly in the stomach she was put on life support but after a number of tests showed she was brain-dead the machine was switched off.
H: this does not break the chain of causation to D

Question 17

explain the case of AG Ref (No 3 of 1994)

Answer 17

F: men stabbed his pregnant girlfriend who then gave birth prematurely to the baby. the baby and the mother later died.
H: there was no requirement that the person had to be ‘in being’ when the act causing death was perpetrated (therefore if the baby is born alive but then died D could be charged with murder)

Question 18

what is the definition of a human being

Answer 18

someone born breathing

Question 19

what is the problem with the term brain dead

Answer 19

there is no single definition of death, brain-stem death seems to be the accepted position but there are no cases that confirm this

Question 20

what is the problem with time-limit

Answer 20

law reform (year and a day rule) act 1996 there is no time limit on when death can occur but if it is more than 3 years the attorney general’s consent is needed for prosecution

Question 21

what is the MR for murder

Answer 21

‘malice aforethought’ = an intention to kill or an intention to cause grievous bodily harm (implied malice)

Question 22

what is direct intent

Answer 22

D intends a particular consequence of their act

Question 23

what is oblique (indirect) intent

Answer 23

the outcome is a virtual certainty and the D knew that

Question 24

what is the virtual certainty test- Nedrick 1989

Answer 24

• are the consequences foreseeable?
• virtually certain?
• did the person see it?

Question 25

explain the case of R v Vickers

Answer 25

F: during D’s burglary of V’s shop V discovered D where upon D struck V with several blows. V eventually died from shock due to general injuries intending GBH was accepted as sufficient mens rea for murder because if D was willing to inflict GBH how was he to know that the V may not die?
H: an intention to cause GBH at least evidenced a willingness to accept a substantial risk that the V might die

Question 26

what is transferred malice

Answer 26

the principle that D can be guilty if he intended to commit a similar crime but against a different victim

Question 27

explain the case used to support transferred malice

Answer 27

Mitchell
F: d tried to push his way into a queue at a post office a 72 yr old man told him off and the D punched him causing him to stagger and knock over a 89 yr old woman who was injured and died,
H: D was convicted of unlawful act manslaughter

Question 28

what is the coincidence rule

Answer 28

AR + MR have to be evident at the same time, applies to all offences including murder.

Question 29

explain the case used to support coincidence rule

Answer 29

church
F: he had a fight with a woman and knocked her out he tried to bring her round for half an hour but he put her in the river as he thought she was dead, she drowned.
H: he was convicted of manslaughter

Question 30

what are the 3 main tests for loss of control

Answer 30

1) killing resulted from D’s loss of self control
2) the loss of self-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 same or in a similar way to D (objective test)

Question 31

what is the burden if proof for loss of control

Answer 31

defence proves beyond reasonable doubt

Question 32

what section states that loss of control no longer needs to be “sudden”

Answer 32

S.54(2)

Question 33

what section states that there was no “considered desire for revenge”

Answer 33

S.54(2)

Question 34

what does “considered” mean in S54(2)

Answer 34

it hasn’t been plotted

Question 35

explain the case of R v Jewell

Answer 35

F: D shot V at point blank range using a shot gun and fled the scene. he was arrested and his car was full of weapons and a ‘kit’ of spare clothes, passport, etc.
H: D claimed loss of control but being unwell, sleeping badly, tired, depressed and unable to think straight were insufficient to amount to loss of control

Question 36

what section is the fear trigger (fear of serious violence from V)

Answer 36

S55(3)

Question 37

explain the case of R v Ward

Answer 37

F: D killed V who had physically attacked D’s brother at a house party
H: even though D didn’t fear serious violence personally, but never the less applied because he feared that V would use serious violence on his brother.

Question 38

what section is the anger trigger (things said or done) which a) constituted circumstances of an extremely grave character, and b) caused D to have a justifiable sense of being seriously wronged

Answer 38

S55(4)

Question 39

explain the case of R v Zebedee

Answer 39

F: D’s father suffered Alzheimer’s and was doubly incontinent D lost control and killed him
H: on appeal it was confirmed he couldn’t have the defence because the situation wasn’t ‘extremely grave’ or gave D a ‘justifiable sense of being wronged’.

Question 40

explain the case of R v Bowyer

Answer 40

F: D and V (pimp) were having a relationship with W (prostitute) D wasn’t aware she was a prostitute but was aware of the relationship. d went to V’s house to burgle but had s fight and V taunted D saying W was “best earner” D beat up V and tied him up and V was found dead
H: D did not have a justifiable sense of being wronged when he lost control because he was breaking in to steal drugs to feed his habit.

Question 41

what section mentions self inflicting triggers

Answer 41

S55(6) a and b

Question 42

what section mentions sexual infidelity

Answer 42

S55 (6) (C)

Question 43

explain the case of Clinton

Answer 43

F: the couple had been having marital problems from some time about which Clinton was becoming suicidal. his wife told him she was having an affair. when he confronted her about this she taunted him and said he did not have the courage to commit suicide. he strangled her, he was convicted of murder and he appealed
H: sexual infidelity may be taken into account in the third component of the defence in examining the D’s circumstances

Question 44

explain the case of Asmelash

Answer 44

F: D and V were flatmates who often used to drink together one night when both men were drunk they began arguing eventually D stabbed V twice killing him
H: the trial judge directed the jury to consider whether they were sure that a person of D’s sex and age with a normal degree of tolerance and self-restraints and in the same circumstances but unaffected by alcohol would not have reacted in the same or similar way being drunk wasn’t a relevant circumstance

Question 45

explain the case of Dawes

Answer 45

F: D came home to his flat to find V asleep on the sofa with his estranged both fully clothed. prosecution argued he flew into jealous rage, grabbed a kitchen knife and stabbed V in the neck. the defence argued V had woken up to attack D (initially requesting self defence or alternatively loss of control)
H: judge decided D didn’t qualify for the defence because he has incited the violence and CA upheld conviction where D has the normal degree capacity of self-restraint and tolerance then unless the circumstances were extremely grave any normal irritation or even serious anger will not come under the act