Murder & Voluntary Manslaughter (done) Flashcards

Question

What happens to the burden of proof when a defendant is claiming diminished responsibility?

Answer 1

s.2 Homicide Act puts the burden of proof on the defendant so that he/she must prove their abnormality of mind on the balance of probabilities.

Answer 2

“A state of mental functioning the reasonable man would find abnormal” - Lord Parker in R v Byrne

Answer 3

It must be a recognised health condition under the World Health Health Organisation (WHO) guidelines and there must be medical evidence to support the condition.

Answer 4

1) Epilepsy (Campbell) 2) Chronic depression (Gittens) 3) Battered Woman’s syndrome. (Ahluwalia (1993))

Answer 5

- The impairment need not be total, but must be more than trivial (Lloyd) - “An impairment which was of some importance, or was a serious degree of impairment” (Golds) - Whether the impairment is substantial enough would be for the jury to decide (Byrne)

Answer 6

Under the Coroners and Justice Act 2009 D’s ability to do one of three things must be substantially impaired: 1) Ability to understand the nurture of their conduct. 2) Ability to form a rational judgement 3) Ability to exercise self control

Answer 7

D does not know what they are doing at all e.g suffering from severe delusions, severe learning difficulties as they cannot understand the nature of their conduct as they are in an automatic state

Answer 8

Even if D does know what the nature of their conduct they may be unable to form a rational judgement about what they are doing e.g schizophrenia, paranoia, or battered woman syndrome (Ahluwalia)

Answer 9

Where D knows what they are doing, but cannot control their actions because of their abnormality of mental functioning e.g Byrne (1960)

Answer 10

This element was established in the Coroners and Justice Act 2009. It means that D has to prove his abnormality of mental functioning provides an explanation for his acts & omissions which led to V’s death. This means there must be a casual connection between D’s condition and the killing. The abnormality does not have to be the only factor, but must be the most significant factor (Tandy).

Answer 11

Drink is only capable of giving rise to a defence under s.2 Homicide Act 1957, if it either causes damage to the brain or produces an irresistible craving so that consumption is voluntary. (R v Tandy 1989)

Answer 12

No as the courts confirmed that the ‘transient’ state of intoxication was not an abnormality of mind ( R v Dowds 2012)

Answer 13

(Dietschmann 2003), on appeal in this case Lord Hutton decided that if the consumption of alcohol was ignored and the pre- existing abnormality substantially impaired his mental functioning then D could be found not guilty of murder.

Answer 14

Following the case of Wood (2008) the jury must decide which of D’s drinks were voluntary and involuntary and would only consider the effects of those which are involuntary. The key consideration would be of the overall syndrome and not the effect of one drink.

Answer 15

There will be a discretionary sentence of anything up to life imprisonment under a.2 (2) of the Homicide Act 1957

Answer 16

Loss of control is a partial defence to a charge of murder. If it is successful then D will be found guilty of voluntary manslaughter instead of murder. This allows the judge discretion in sentencing.

Answer 17

Loss of control replaces the former defence of provocation. The law is set out in a.54 Coroners and Justice Act 2009

Answer 18

1) There must be 'An action undertaken without careful thought' which does not need to be sudden as the law allows for a heating up period (Ahluwalia) but it must be a loss of control (R v Jewell). 2) s.55 Coroners & Justice Act 2009 sets out the qualifying triggers required for a loss of control. 3)s.54(3) confirmed in A-G for Jersey v Holley that only age and sex can be used to compare D to see if their actions in the circumstances were reasonable (an objective test). This ignores D’s characteristics such as being short tempered.

Answer 19

1) The ‘fear’ trigger - D’s fear of serious violence from V against D or another identified person. (Martin) 2) The ‘anger’ trigger - Things said or done (or both)

Answer 20

1) Constituted circumstances of an extremely grave character. 2) Caused D to have a justifiable sense of being seriously wronged (Doughty). Compare to Zebedee (2012) where there was no qualifying triggers.

Answer 21

A subjective test where D must fear violence from V or another identified person. It cannot be a general fear of violence.

Answer 22

1) An excessive use of force 2) Makes a mistake

Answer 23

No D cannot have incited violence to have an excessive use of force. R v Dawes (2013)

Answer 24

1) Sexual infidelity established in the Coroners & Justice Act 2009 2) Considered desire for revenge

Answer 25

No however Clinton 2012 indicated that sexual infidelity could be considered if it provides the context in which another trigger factor operated.

Answer 26

If D has time to consider revenge, the defence will not be available (Clinton). The longer the time for deliberation, less likely to plead (Ibrams & Gregory)

Answer 27

‘A person of D’s age and sex, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way.’ Confirmed in A-G for Jersey v Holley (2005)

Answer 28

Other circumstances can be taken into consideration such as a history of abuse (Hill). Characteristics such as being short-tempered. A defendant cannot rely on the defence when they self-administered drugs or alcohol which impaired their normal judgment. Asmelash (2013)

Answer 29

Yes as the jury can decide that the ‘normal person’ would have lost-control in those circumstances. However, if they decide that the normal person would not have reacted in that way then D will fail, Van Dongen (2005)

Answer 30

D will be sentenced to a discretionary sentence of anything up to life imprisonment under s.2 (2) Homicide Act 1957