Murder & Voluntary Manslaughter

Question 1

What is the common law definition of murder?

Answer 1

Unlawful killing of a reasonable person who is in being under the King’s peace with malice aforethought

Question 2

What is the actus reus of murder?

Answer 2

Unlawful killing of a reasonable person in being under the King’s peace

• Unlawful: all killing unlawful except killing in battle, death penalty, self-defence
• Killing: must cause death, ie. need to establish causation
• A reasonable person in being ie. living person (moment baby born with existence independent of mother)
• Under the King’s peace: ordinary state of affairs in society

Question 3

What is the mens rea of murder?

Answer 3

With malice aforethought ie. intention to kill or cause GBH

→ Can be direct intent or indirect (oblique) intent

Question 4

When will a defendant have oblique intent to murder?

Answer 4

1. Was death or serious injury a virtual certainty of the defendant’s actions?
2. Did the defendant appreciate this to be the case?

nb. indirect intent only applies to murder

Question 5

What are the 3 steps of establishing causation in murder?

Answer 5

1) Can factual causation be established? (but for D’s actions, death of V would not have occurred)

2) Can legal causation be established? (did D’s culpable act cause the death)

3) Is there a novus actus interveniens which breaks the chain of causation?

Question 6

What is the full defence to murder?

Answer 6

Self defence

Question 7

What are the 2 partial defences to murder & the effect if they are successfully argued?

Answer 7

Loss of control + diminished responsibility

→ If successfully argued, D will be liable for voluntary manslaughter instead of murder

Question 8

When will a person be convicted of voluntary manslaughter?

Answer 8

AR & MR of murder + successfully shows diminished responsib / loss of control

Question 9

What is the burden of proof in the defence of loss of control?

Answer 9

The evidential burden is on the defendant (ie. sufficient evidence to raise it) → once discharged, burden of proof is on prosecution to disprove it beyond a reasonable doubt

Question 10

What are the 3 elements of the defence of loss of control?

Answer 10

1. Defendant kills as a result of loss of self-control
2. The loss of control had a qualifying trigger
3. A person of D’s sex & age with a normal degree of tolerance & self-restraint and in the circumstances of D might have reacted in the same or similar way as D did

Question 11

Loss of control - 1. D loses control

Does the loss of control have to be sudden?

Answer 11

No - loss of control does not need to be sudden or complete

but nb. longer delay more likely to negate provocation

(will not be a loss of control if D acted in a considered desire for revenge)

Question 12

Loss of control - 2. Loss of control had a qualifying trigger

What are the two possible qualifying triggers?

Answer 12

→ Fear of serious violence from the victim against the defendant or another

• subjective (eg. R v Martin: D had personality disorder making them abnormally anxious)

→ Things said or done that constitute circumstances of extremely grave character which caused D to have a justifiable sense of being seriously wronged

• objective

think of it as subjective fear + objectively justifiable anger

Question 13

Loss of control - 2. Loss of control had a qualifying trigger

Will the defence be successful if the trigger is activated by sexual infidelity?

Answer 13

No - sexual infidelity + any excuse to use violence excluded unless there were additional reasons for the loss of control

sexual infidelity is sole reason = defence fails

sexual infidelity part of wider picture = jury can consider all evidence, including the infidelity

Question 14

Loss of control - 3. A person of D’s sex & age, with a normal degree of tolerance & self-restraint and in the circumstances of D , might have reacted in the same or a similar way

Is this judged objectively or subjectively?

Answer 14

Objectively except for anything about the defendant which means they don’t have a normal degree of tolerance & self-restraint

Question 15

Is loss of control available as a defence if the defendant was intoxicated at the time?

Answer 15

Will be assessed as whether a sober person do as the defendant did in the circumstances (eg. if awful qualifying trigger, anyone might react as he did)

eg. R v Marshall: D was glue-sniffer - D could not rely on the effect the glue had on him, but court could take into account D’s sensitivity about being goaded for his glue addiction

Question 16

What is the burden of proof for the defence of diminished responsibility?

Answer 16

The burden of proof is on the defendant to prove it on the balance of probabilities

(Nb. if found, mandatory life sentence does not apply)

Question 17

What are the 4 key requirements for proving diminished responsibility?

Answer 17

1. D was suffering from an abnormality of mental functioning
2. Arising from a recognised medical condition
3. Which substantially impairs the Defendant’s ability to do certain things
4. And which provides an explanation for the defendant’s acts & omissions in killing

All 4 elements must be satisfied

Question 18

Diminished responsibility - 1. Abnormality of mental functioning

What does this mean?

Answer 18

Spot on the facts

Something less than insanity where D has a ‘state of mind so different from that of ordinary human beings that the reasonable person would call it abnormal’

Question 19

Diminished responsibility - 2. Arising from a recognised medical condition

Does this have to be a mental condition?

Answer 19

No - can be mental or physical, so long as it is medically recognised

Question 20

Diminished responsibility - 3. Which substantially impaired D’s ability to do certain things

What are the 3 possible ‘certain things’?

Answer 20

Substantially (ie. more than trivial!) impairs the defendant’s ability to:

a. Understand the nature of their conduct

or

b. Form rational judgement

or

c. Exercise self-control

Impairment must be caused by the abnormality of mental functioning

Question 21

Diminished responsibility - 4. Which provides an explanation for D’s acts &/or omissions in killing

What is the role of medical experts here?

Answer 21

Need to show that there is a causal link between abnormality of mental functioning arising from recognised medical condition & the killing → jury decides as matter of fact

Medical experts can comment on all 4 elements of the defence

• If medical experts disagree, the jury must decide between them
• If the defence expert evidence is unopposed, the jury should only reject if there is evidence to support a different conclusion

Question 22

Diminished responsibility - 4. Which provides an explanation for D’s acts &/or omissions in killing

What should the jury do if the medical experts agree or disagree?

Answer 22

If medical experts disagree, the jury must decide between them

• If the defence expert evidence is unopposed, the jury should only reject if there is evidence to support a different conclusion

Question 23

What is the effect of intoxication on diminished responsibility?

Answer 23

Being drunk is not an abnormality of mental functioning

If D also had an abnormality of mental functioning arising from a recognised medical condition which had some effect on the killing (eg. alcoholism, some other condition that meant being drunk was not voluntary), being drunk does not necessarily negate defence

Question 24

Will alcoholism be considered an abnormality arising from a recognised medical condition?

Answer 24

R v Stewart: jury should consider

• extent/seriousness of D’s dependency
• extent to which ability to control drinking was reduced
• whether D capable of abstinence & if so, for how long
• whether D was choosing to drink more than usual for a particular reason

essentially, defence only succeeds where so unable to control that drinking has become involuntary