MURDER/ VOLUNTARY MANSLAUGHTER

Question 1

What is the definition of murder?

Answer 1

‘unlawful homicide with malice aforethought’.

Question 2

What is the actus reus of murder?

Answer 2

Unlawful homicide

Question 3

What are the elements of the actus reus for murder?

Answer 3

Unlawful (lawful= acts of war/ death penalty/ self-defence)
Killing (both elements of causation required)
Human being (born alive)
Queen’s peace (jurisdiction - England & Wales)

Question 4

What is the mens rea of murder?

Answer 4

Malice aforethought
- intention to kill (Vickers)
- intention to cause GBH (Vickers)
(GBH = serious harm (Saunders))

Question 5

What are the special defences available for murder?

Answer 5

• diminished responsibility

- loss of control

Question 6

Is diminished responsibility a full or partial defence?

Answer 6

• a partial defence - the defendant is not acquitted but convicted of a lesser offence of voluntary manslaughter (s2(3) HA 1957)

Question 7

Who does the burden fall on to prove diminished responsibility?

Answer 7

• falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility (s2(2) HA 1957).

Question 8

Is diminished responsibility available as a defence to an attempted murder charge?

Answer 8

No (R v Campbell)

Question 9

What are the 4 key aspects of diminished responsibility?

Answer 9

s2(1) HA 1957:

• Abnormality of mental functioning
• Recognised medical condition
• Substantial impairment of D’s ability to do one or more things
• Provides an explanation for D’s acts and omissions.

Question 10

Explain the ‘abnormality of mental functioning’ aspect of diminished responsibility.

Answer 10

• CJA 2009 made reforms
• A defendant would be suffering from an abnormality of the mind if they had a ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’ (R v Byrne)

Question 11

Explain the ‘Recognised medical condition’ aspect of diminished responsibility.

Answer 11

• an undiagnosed recognised medical condition will be sufficient to satisfy the element
• The abnormality must be caused by the recognised medical condition and not by something else, such as hatred, jealousy or bad temper.
• Alcohol Dependency Syndrome (ADS) is a recognised medical condition.

Question 12

Explain the ‘Substantial impairment of D’s ability to do one or more things’ aspect of diminished responsibility.

Answer 12

• The abnormality of mental functioning must have substantially impaired the defendant’s ability to do one of the things stated within theHA 1957, s 2(1A).
• substantial = more than merely trivial (R v Golds)
  s2(1A):
• To understand the nature of D’s conduct
• To form a rational judgment
• To exercise self-control

Question 13

Explain the ‘Provides an explanation for D’s acts and omissions.’ aspect of diminished responsibility.

Answer 13

The abnormality of mental functioning:

• Must provide an explanation for D’s acts and omissions in doing or being a party to the killing,s 2(1)(c); and
• Provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct,s 2(1B) CJA 2009.

A causal link between the abnormality of mental functioning arising from a recognised medical condition and the killing must be established.
- it doesn’t need to be the only cause. The defence can still operate, even if the jury consider that alcohol may have played a part(Dietschmann)

Question 14

Is loss of control a full or partial defence?

Answer 14

partial

Question 15

Who does the burden fall on to prove loss of control?

Answer 15

• The burden of proof rests with the prosecution once the issue is raised,s54(5) CJA 2009
• The prosecution need to prove that only one of the components is absent for the defence to fail (R v Clinton,Parker and Evans)

Question 16

What are the 3 requirements for the loss of control defence?

Answer 16

s54(1) CJA 2009

1. loss of control
2. qualifying trigger
3. normal person test

Question 17

Explain the ‘loss of control’ requirement for the loss of control defence.

Answer 17

• The defendant’s act or omission in killing, must have resulted from a loss of self-control.
• mere loss of temper is not enough (R v Richens)
• loss of control does not need to be sudden (s54(2) CJA 2009)
• defence will fail if D was acting out of a considered desire for revenge (s54(4) CJA 2009)
• the longer the delay between the provocation & the killing, the less likely the D lost self control (R v Ahulwalia)

Question 18

Explain the ‘qualifying trigger’ requirement for the loss of control defence.

Answer 18

Fear of serious violence (s55(3))
- attributes the loss of self-control to the defendant’s fear of serious violence.
- broad application
- D cannot rely on the fear trigger if D incited it as an excuse to use violence,sections55(6)(a).
Anger trigger has 3 parts:
- things said and/ or done (something must acc have been said or done)
- that constitute circumstances of an extremely grave nature (objective, threshold has gone up, must have been unusual & not the part of normal trials/ disappointment of life)
- that caused D to have a justifiable sense of being seriously wronged (objective, sense of being seriously wrong must be in accordance to society’s norms & values)

Question 19

Explain the ‘normal person test’ requirement for the loss of control defence.

Answer 19

The normal person test is whether “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 in a similar way to D.” (s54(1)(c)). The two things the jury will have to access is:

1. The gravity of the qualifying trigger to a person in the defendant’s circumstances; then
2. Whether as a result of that trigger a normal person might have done what the defendant did or something similar.
   - The normal person will have ordinary powers of tolerance and self-restraint.
   - The jury will not be allowed to take into account any characteristics or circumstances that would affect normal tolerance and the ability to exercise restraint. ( they can consider in assessing the magnitude of the qualifying trigger, but ignore when assessing the tolerance and self-restraint)

Question 20

What are the limitations of the anger trigger?

Answer 20

Limitations:
D cannot rely on the anger trigger if:
- D incited it as an excuse to use violence,sections55(6)(b);or
- The thing said/done constituted sexual infidelity-section 55(6)(c).

Question 21

When can the defence of loss of control NOT be used?

Answer 21

(1) In an act of ‘considered desire for revenge’.
- defence cannot be used if it stems from an act of revenge (s 54(4) CJA 2009)
- This would cover cases where there is clear evidence of planning.
(2) As an excuse to use violence.
- s55(6) CJA 2009
- “actively welcoming violence” (Clinton)
(3) If the thing said/done constituted sexual infidelity.
(4) If the defendant is charged with attempted murder.

Question 22

What are the exceptions to considering sexual infidelity in loss of control cases?

Answer 22

• if sexual infidelity is in the background, but is not the true trigger or the sole trigger for the loss of control.
• where there has not in fact been any sexual infidelity because V, or someone else, has lied or made it up to taunt D.
• if the sexual infidelity has not taken place yet, e.g. V is about to leave D for someone else, but has not yet been sexually intimate with them.

Question 23

How does intoxication negate the mens rea?

Answer 23

• A defendant can use evidence of their intoxication to show that they did not form the necessarymens reafor murder (did not form themens reaof intention to kill or cause GBH)
• If, due to intoxication, the defendant did not form themens rea ofmurder,then the defendant will be entitled to an acquittal.

Question 24

How does intoxication impact the loss of control defence?

Answer 24

• can still use the loss of control defence
• only consider it if there is a connection between the things said/done which make up the qualifying trigger - then the jury can take it into account when assessing the gravity of the qualifying trigger
• If someone with an alcohol problem is mercilessly taunted - then consider the circumstances for consideration

Question 25

How does intoxication impact the diminished responsibility defence?

Answer 25

Independent of the abnormality
- the jury must consider the other effect and determine whether it amounted to an abnormality
As a result of alcohol dependency syndrome (ADS)
- the jury must decide whether the ADS was a significant factor in leading the defendant to consume the alcohol (if yes, then D’s responsibility was impaired due to an abnormality of mental function)

Question 26

What is the mandatory sentence for a murder charge?

Answer 26

Life sentence