Murder & Partial Defences Flashcards
What is the definition of murder?
‘The unlawful killing of a human being under the Queens peace with malice aforethought, express or implied’
Who gave us the definition of murder?
Sir Edward Coke
When is a person considered to be dead?
When there is no brain activity / a person is brain dead
What case illustrates death?
R v Malcherek
Who is a human being?
Someone who can sustain life on their own and is wholly independent of their mother (not a foetus) and is not on life support for brain damage
What is meant by ‘under Queens peace’?
Killing under peacetime is illegal, however killing during a war is not a criminal offence
What is the mens rea for murder?
Malice aforethought, express or implied
What is meant by express malice?
The intent to kill
What is meant by implied malice?
The intent to cause GBH
What case illustrates an implied malice?
R v Vickers
What are the two partial defences that can be used with murder?
Loss of control and diminished responsibility
If a partial defence is successful, what would a defendant have their charge dropped to?
Voluntary manslaughter
What act deals with loss of control?
s54-s55 of the Coroners & Justice Act 2009
What is the first qualifying trigger and what section of the act tells us this?
s55(3), fear of serious violence, D lost control because of a genuine fear of serious violence aimed at them or an identified person
What is the second qualifying trigger and which section of the act tells us this?
s55(4), things said or done, this must be of an extremely grave nature and something more that what an ordinary person would consider trivial (justifiable sense of being seriously wronged)
What does s55(5) of the act tell us?
Both QTs can be combined to make one
What are the three exclusions for QTs found under s55(6)?
A, fear of violence not allowed if the D encouraged V to do something, B, fear of violence not allowed if the D incited the threat, and C, sexual infidelity is never a QT
What case showed that sexual infidelity can be considered when combined with at least one QT?
R v Clinton
What does s54(2) state in relation to loss of control?
Loss of control does not need to be sudden, there can still be a time delay, but there still needs to be loss of control when they kill
Which section of the act states a person cannot use the defence if they kill for revenge?
s54(4)
What test must we use in deciding if a person can rely on loss of control?
Would a person of the Ds sex and age and of ‘ordinary tolerance and self-restraint’ reacted in the same or similar way given the circumstances
What case shows us that intoxication doesn’t deprive a person of loss of control but is not taken into account?
Asmelash
What did the case of R v Rose say?
The defence does not come into play until the actus reus and mens rea of murder have been proven
Which acts does diminished responsibility come from?
s2(1) Homicide Act 1957 as amended by s52 of the Coroners & Justice Act 2009
What is the definition of an abnormality of mind?
A state of mind so different from that of an ordinary person that the reasonable man would find it abnormal
What case establishes the definition of an abnormality of mind?
R v Byrne
What section tells us that an AMF must be from a medical condition?
s52(1)(a)
What kind of medical conditions can be considered?
Both psychological and physical conditions such as ADS, PTSD, diabetes and brain damage
What section of the act covers substantial impairment?
s52(1)(b)
What case defines substantial impairment and what is the definition?
R v Golds, it must be important or weighty
What three things can be substantially impaired?
Ability to understand the nature of his conduct, ability to form a rational judgement or ability to exercise self control
What case can be used to show the D could not exercise self control?
R v Byrne
What three things does the ability to exercise self control not include?
A short temper, excitability or depressive illness that isn’t substantial
What does s52(1)(c) state?
There must be a causal link between the Ds AMF and the death of the V, this does not need to be the only factor but a significant one
Is intoxication alone enough for the defence and what case shows us this?
No, intoxication isn’t enough by itself as shown in the case of Di Duca
What happens if the D is intoxicated but has an AMF? What is the case for this?
The intoxication should be ignored and the AMF should be focused on alone, as shown in Dietschman
What happens if the D is suffering from ADS (alcohol dependency syndrome) and what case shows us this?
This is a recognized medical condition, therefore should be considered earlier, as shown in R v Wood
