Murder & Manslaughter Flashcards
what is homicide?
homicide is the unlawful killing of another human being. It encompasses murder, voluntary manslaughter and involuntary manslaughter
re: homicide
what is the common element of all homicide offence ARs?
the ARs all involve D unlawfully causing the death of the victim
re: homicide
explain ‘unlawful’
- Some killings will be lawful and therefore not homicide i.e. a police officer killing a terrorist who is about to detonate a bomb
re: homicide
explain ‘causes death’
- D must cause the death of another human being
- The usual rules of factual and legal causation apply
re: homicide
explain ‘victim’
D will only be guilty if V is a living, human being
re: homicide
for the purposes of the AR, when does death occur? what is the effect?
Death is accepted to have occurred when the brain stem has
This means the perpetrator remains responsible for the injuries – not the person who turns off the life support
re: homicide
what is the position in relation to babies?
A baby will only be protected once it is born and has an existence independent of the mother
the injury have may occurred in the womb, but if the baby is born and lives independently of the mother and then dies due to the injury, D will still be liable. In other words, it does not matter whether the injury occurred inside of the womb, it is about the time of death
re: murder
what type of offence is murder?
a common law offence
re: murder
what is the AR of murder?
give an example
When D causes the death of a human being under the Queen’s peace
i.e. enemies killed in combat would not constitute murder
re: murder
what is the question for the jury in terms of MR?
‘did D intend to kill or really hurt V?’
re: murder
what is the mens rea?
‘malice aforethought’, but this is defined as D intended to kill or cause GBH (malice in the literal sense is not actually required)
re: murder
what type of crime is this? what is the effect?
This is a crime of specific intent as it cannot be committed recklessly.
Therefore, direct and indirect intent is relevant
re: murder
explain direct and indirect intent in this context
o Direct intent death or GBH was D’s aim or purpose
o Indirect intent death or GBH was not D’s primary aim, but a virtually certain consequence of their actions and D appreciates this
re: murder
what is the sentence for murder?
Mandatory life sentence but the judge will decide a minimum term
Serious offenders may receive a whole life sentence
re: murder
what happens once D has served their sentence?
they will be released if they are no longer a threat to society and subject to a life licence
re: murder
what is a life licence?
o This means they will be recalled to prison if they commit a further offence
what are the types of manslaughter?
voluntary and involuntary
what is the difference between manslaughter and murder?
the judge has sentencing discretion – there is no mandatory life sentence (although the judge can still impose a life sentence)
re: voluntary manslaughter
what is this?
This is when one person unlawfully kills another (which would usually be murder) but of the partial defences applies:
o Diminished responsibility
o Loss of control
o Suicide pact (outside of the scope of this manual)
when is the defence of diminished responsibility and loss of control available?
only available in relation to murder
what type of defences are diminished responsibility and loss of control available?
- They are partial defences because D will still be liable for an offence (i.e. VM)
re: voluntary manslaughter
what is the AR and MR?
the same as for murder i.e.
o AR D has unlawfully caused the death of a human being
o MR D did this with intention to kill or cause GBH
re: diminished responsibility
when will this be available?
the AR & MR for murder must be met, if so:
D is not to be convicted of murder if they were suffering from an abnormality of mental functioning which:
- arose from a recognised medical condition;
- substantially impaired D’s ability to: understand their conduct, form rational judgment; or exercise self-control; and
- provides an explanation for their acts/omissions
re: diminished responsibility
what are the burdens of proof? what happens if successful?
- P must prove the AR and MR of homicide beyond all reasonable doubt
- Then, D must prove all the elements of DR on the balance of probabilities
- If D successfully pleads this, the murder charge will be reduced to VM
re: diminished responsibility
explain ‘abnormality of mental functioning’
D must have been suffering with this at the time of the offence
medical experts are usually required to evidence this
re: diminished responsibility
explain ‘recognised medical condition’
the condition must be found on an accepted classification system (i.e. WHO classification of diseases) which is supported by medical evidence
the abnormality of mental functioning must arise from the recognised medical condition
re: diminished responsibility
give examples of recognised psychiatric conditions
o Depression
o Schizophrenia
o PTSD
o Battered person’s syndrome
o Phobic anxiety
re: diminished responsibility
give examples of recognised physical conditions
o Alcohol dependency syndrome (subject to severity)
o Diabetes
o Epilepsy
re: diminished responsibility
will this defence be available where D is voluntarily intoxicated?
Generally, no.
The exception to this is if D has a recognised medical condition, and medical evidence shows the condition, not intoxication, caused the act.
re: diminished responsibility
what is the position regarding this and alcohol dependancy syndrome?
DR may be available, but it will depend on whether alcohol consumption was involuntary due to an irresistible craving or compulsion
re: diminished responsibility
when determining whether alcohol dependency syndrome was the result of an ‘irresistible craving / compulsion to drink’ what will the courts consider?
- Seriousness and extent of D’s alcohol dependency.
- D’s ability to control or abstain from drinking.
- Whether D chose to drink more than usual for specific reasons.
- D’s drinking pattern leading up to and on the day of the killing.
- D’s capacity for rational decision-making despite alcohol consumption
re: diminished responsibility
what must the recognised medical condition substantially impaired D to do?
D must demonstrate it substantially impaired their ability to either:
o Understand the nature of their conduct; and/or
o Form a rational judgement; and/or
o Exercise self-control
re: diminished responsibility
explain ‘…that provides an explanation for D’s act’
give an example
i.e. that the medical condition is the reason why they killed D
In other words, there must be a causal link
The jury will need to reach this determination with the help of medical evidence
example: D might be suffering from a recognised illness, but if they killed in a fit of rage unrelated to the condition, the defence will not be available
re: loss of control
what are the elements?
o D must lose self-control;
o The loss of control must have a qualifying trigger; and
o 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 acted in the same or similar way to D
re: loss of control
what is the evidential burden?
o P will need to prove the actus reus for murder beyond all reasonable doubt
o D will then need to provide ‘sufficient evidence’ to show that the defence might apply.
o The trial judge will decide whether sufficient evidence has been raised to leave the partial defence to the jury.
o If ‘sufficient evidence’ is adduced, the jury must assume that the defence is satisfied unless P can prove beyond reasonable doubt that it is not
re: loss of control
what is meant but ‘sufficient evidence’?
Evidence will be sufficient if a properly directed jury could reasonably conclude that the partial defence might apply.
re: loss of control
what is the definition of loss of control?
case law > ‘loss of control is a loss of an ability to act in accordance with considered judgement, or loss of normal powers of reasoning’
re: loss of control
what type of test is stage 1 D’s loss of control?
- This is a question of fact for the jury and it is subjective – did that particular D lose control? (i.e. not looking at the reasonable person)
re: loss of control
how may the loss of control take place?
the loss of control need not be sudden
there may be a loss of control when:
o D ‘snaps’; or
o Their reaction is in response to a culmination of events (i.e. domestic abuse) that occur over time
re: loss of control
when can D not rely on this defence?
If D has acted in a considered desire for revenge they cannot rely on this defence.
re: loss of control
what may be evidence of revenge?
o Planning;
o D arms themselves with a weapon;
o There is delay between the words / conduct and the killing
re: loss of control
what are the ‘qualifying triggers’ (stage 2)?
o Fear triggers
o Anger triggers
The loss of control must be a result of one or both of these triggers
re: loss of control
when can D not rely on this triggers?
D cannot rely on these triggers if they have incited the situation
re: loss of control
what is the position regarding sexual infidelity?
Sexual infidelity on its own is not a qualifying trigger, however this does not prevent D from relying on one of the other triggers
If relying on the anger trigger, infidelity may be taken into account when considering grave circumstances and justification
re: loss of control
when can the fear trigger be relied upon?
where loss of control was ‘was attributable to the defendant’s fear of serious violence from the victim against the defendant or another identified person’
re: loss of control
how is the fear trigger assessed?
- This is subjectively assessed – was D genuinely afraid of violence (even if the fear was not reasonable)?
re: loss of control
when can the anger trigger be relied upon?
how is this assessed?
where D’s loss on control was attributable to a thing(s) said or done which:
o Constituted circumstances of an extremely grave character; and
o Caused D to have a justifiable sense of being wronged
re: loss of control (anger trigger)
how is ‘…caused D to have a justified sense of being wronged’ approached?
this is objectively assessed (i.e. would a reasonable person feel justifiably wronged?)
This will be determined by a judge who must decide whether a properly directed jury could reasonably conclude this
If so, then the jury will make a decision as to whether a reasonable person would feel justifiable wronged in the circumstances.
re: loss of control (anger trigger)
give an example of ‘…circumstances of an extremely grave character’ and whether this would cause ‘D to have a justified sense of being wronged’
- D seeing their child being raped by V (circumstance of grave character). The reasonable person (i.e. objective) would feel seriously wronged.
re: loss of control
explain the 3rd limb ‘…similar reaction of a person of the same age, sex…’
this is an objective test
the comparator must also have a ‘normal degree of tolerance and self-restraint’
re: loss of control
explain the 3rd limb ‘…in the circumstances…’
‘All of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint.’
in other words, it means that all of the characteristics and history of D are relevant EXCEPT those that may impact on D’s general level of tolerance and self-restraint, for example:
Being aggressive or short tempered would not be considered
Being voluntarily intoxicated would not be considered
History of abuse would be considered
Sexual infidelity could be considered
re: loss of control
in what types of cases have judge’s not allowed loss of control as a defence?
o A baby’s persistent crying
o Honour killings
o A conditional threat to prevent the defendant seeing his children unless he agreed to the victim’s divorce settlement terms.
re: involuntary manslaughter
what are the types?
o Unlawful act manslaughter
o Manslaughter by gross negligence
re: unlawful act manslaughter
what is this also called?
- Also called constructive manslaughter
re: unlawful act manslaughter
what is the AR?
- D must do a dangerous unlawful act which causes the victim’s death
re: unlawful act manslaughter
what is the definition of ‘dangerous’?
means that the act carries the risk of some harm, but not necessarily serious harm
re: unlawful act manslaughter
how is ‘dangerous’ assessed?
this is an objective test for the jury i.e. the act must be dangerous from the point of view from the ordinary, sober reasonable person
It is not from the point of view of D, however the reasonable person will be deemed to have the knowledge that D had or should have had at the time of the offence
D can become aware of the information that makes the situation dangerous before or during the offence
re: unlawful act manslaughter
explain ‘unlawful act’
The unlawful act must be a criminal offence with a mens rea of recklessness
In other words, crimes of negligence (i.e. neglect) and strict liability cannot be relied on
there must be an act, an omission will not suffice.
re: unlawful act manslaughter
which unlawful act are the defence going to try and rely on and why?
The act need not be related to an assault, it can be a non-fatal offence i.e. burglary, robbery, theft
The defence will choose the easiest to prove which is usually common law assault (i.e. battery or assault)
re: unlawful act manslaughter
explain ‘cause of death’
- The unlawful act must cause death
- The usual rules on causation apply
re: unlawful act manslaughter
what is the position in relation to drug offences?
it can be difficult to prove the unlawful act ‘caused’ the death because if V freely and voluntarily injected themselves the chain of causation will be broken and D will not be liable for UAM
re: unlawful act manslaughter
what is the MR?
the MR is the MR for the particular criminal offence i.e. if the unlawful act is assault, then the mens rea is for assault
re: unlawful act manslaughter
what is a good way to approach an SBAQ?
write each element of the AR and MR and the fact next to it, i.e.:
AR:
- unlawful act: arson
- dangerous: setting fire to house is objectively dangerous
- cause of death: X died
MR:
- unlawful act of arson:…
what is the difference between voluntary and involuntary manslaughter?
involuntary manslaughter is a partial defence to a murder charge. D has still committed murder. D cannot be charged with involuntary manslaughter.
voluntary manslaughter is when D does not have the mens rea for murder. There are two offences of voluntary manslaughter and D can be charged with these offences.
re: gross negligence manslaughter
when does this occur?
D unlawfully causes the death of another and did not intend to kill or cause serious bodily harm
This only requires negligence and can be committed by act or omission
re: gross negligence manslaughter
what is needed for a conviction?
the court must be satisfied:
o D owed V a duty of care;
o D breached that duty;
o The breach caused V’s death; and
o The conduct was grossly negligent
re: gross negligence manslaughter
what happens in novel duty situations?
the judge will decide there is any available evidence to establish a duty
If not, the case fails at the first hurdle
If there is, the jury will then decide whether a DOC existed
re: gross negligence manslaughter
what are examples of pre-existing duties of care?
o parent and child
o doctor and patient
o employer and employee
o driver and other road users
o occupier and visitor.
re: gross negligence manslaughter
what must P prove in terms of breach of duty?
- P must prove that D breached their DOC by either performance of a positive act or failure to act
re: gross negligence manslaughter
when will D have breached their duty?
o D will have breached their DOC is their conduct fell below the conduct expected of a reasonable person.
o If D has special knowledge or expertise, they will be expected to meet the standard of care expected of reasonable person with that knowledge / expertise.
o It does not matter if D was not aware that there conduct fell below a reasonable standard.
re: gross negligence manslaughter
explain ‘causes death’
The usual rules of factual and legal causation
re: gross negligence manslaughter
what is the relationship between GNM and tort negligence?
- A lack of care sufficient in tort is not sufficient for GNM. The conduct must be exceptionally bad.
re: gross negligence manslaughter
what is the test to determine if the conduct was ‘grossly negligent’
D’s conduct fell so far below the standards of a reasonable person, having regard to the risk of death, it is justified to impose criminal penalty
- Risk of death test > a reasonable person would have foreseen a serious and obvious risk, not merely of injury of event serious injury but of death
re: gross negligence manslaughter
give an example of when the risk of death test was satisfied
o This test was satisfied by a D who smuggled illegal immigrants and shut off the air vent to reduce risk of discovery
re: gross negligence manslaughter
give an example of when the risk of death test was not satisfied
By a doctor who was treated a 12 year old boy who subsequently died from a rare disease
By an optometrist who failed to spot abnormalities during a routine eye examination and V subsequently died of an obstruction to the brain.
re: gross negligence manslaughter
who decides whether conduct grossly negligent?
- This is ultimately for the jury to decide
