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A-Level Law (OCR) // Criminal, Tort > Paper 1.10 - Murder, Manslaughter and its Defences > Flashcards

Paper 1.10 - Murder, Manslaughter and its Defences Flashcards

Criminal Law - Loss of Control, Attempted Crimes

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1
Q

What is the definition of murder?

A

The unlawful killing of another reasonable creature in being under the King’s Peace with malice aforethought.

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2
Q

Where did the definition of murder develop from?

A

Case law (no Act of Parliament criminalises murder).

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3
Q

What is the sentence for murder?

A

Mandatory life.

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4
Q

What is the starting tariff for murder for an adult?

A

15-30 years (on licence for life).

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5
Q

What are the tariffs for sentencing a murderer for the following:
Use of a knife? Gun? Killing a PO?

A

Knife: 25 years.
Gun: 30 years.
Police Officer: 30 years.

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6
Q

What is the starting tariff for murder for a child?

A

12 years.

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7
Q

What is the category of offence of murder and what court is sit heard in?

A

Indictable / Crown

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8
Q

What is the actus reus of murder?

A

The unlawful killing of a reasonable creature in being under the King’s Peace.

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9
Q

What is the mens rea of murder?

A

Malice aforethought.

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10
Q

What are the four points of the actus reus of murder?

A

Unlawful, Killing, Reasonable Creature, Under the King’s Peace.

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11
Q

What are some examples of lawful killings?

A

Self-defence, doctors, police, army.

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12
Q

What is the case example of a lawful killing?

A

Re A
Conjoined twins were both killing each other, however a medical procedure could be used to save one that involved killing the other. Doctors were granted permission to perform the operation by a judge.
OR
Bland - Hillsborough disaster.

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13
Q

In the case of Martin, why wasn’t the d allowed to use self-defence?

A

The burglars were fleeing the scene and therefore not dangerous to him.

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14
Q

What two types of causations must d possess to be guilty of murder?

A

Factual and legal.

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15
Q

What is factual causation?

A

The ‘But For’ test: but for d’s actions or omissions, the end result would not have happened (White).

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16
Q

What is legal causation in terms of murder?

A

D played a significant (more than minimal) part in the death under Kimsey.

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17
Q

In order for d to be the cause of the death in murder, what must there NOT be that breaks the chain of causation?

A

Any intervening acts.

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18
Q

Name five types of intervening acts and give a relevant case example of each.

A

Bad medical care (Jordan & Smith)
Free will (Kennedy)
V escaping (Roberts & Williams)
Third party involvement (Malcherek & Steele)
Egg shell skull (Blaue)

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19
Q

TRUE OR FALSE: Murder can be an omission.

A

TRUE: This was the case in Gibbins and Proctor.

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20
Q

In order for a murder to take place, d must kill a what?

A

Reasonable creature in being / human being.

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21
Q

According to AG Ref, does a foetus count as a reasonable creature in being?

A

No; D stabbed the foetus however it died from complications after its birth.

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22
Q

According to Bland, is a brain dead person a reasonable creature in being?

A

Yes; the doctors were not permitted to take an active step toward killing Bland, however they were permitted to stop artificial feeding.

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23
Q

What does under the King’s Peace mean in terms of murder?

A

Killing does not take place in a time of war.

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24
Q

What does ‘malice aforethought’ mean?

A

Intention to kill (‘express malice’) or cause serious harm (‘implied malice’).

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25
Q

What does ‘express malice’ mean?

A

Intent to kill.

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26
Q

What does ‘implied malice’ mean?

A

Intent to cause serious harm.

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27
Q

What is the definition of intention under what case?

A

The decision to bring about the prohibited consequence under Mohan.

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28
Q

What are the two forms of intention?

A

Direct and indirect.

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29
Q

What is direct intention?

A

The decision to bring about a prohibited consequence.

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30
Q

What is indirect intention?

A

D’s actions meant prohbitied consequences were virtually certain.

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31
Q

What is the case example of indirect intention?

A

Woollin
D threw his baby at a pram and missed; baby died. Murder.

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32
Q

What case decides that intent to cause serious harm is enough for murder?

A

Vickers
D broke into V (a deaf old lady)’s sweet shop to steal. V found D, causing him to punch and kick V several times causing her death. D was convicted of murder.

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33
Q

Is loss of control a full or partial defence?

A

Partial.

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34
Q

What crime is loss of control available for?

A

Murder.

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35
Q

What does a successful loss of control mean for a defendant?

A

Reduces crime from murder to manslaughter.

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36
Q

What is the sentence for a defendant with the defence of loss of control?

A

Discretionary life sentence.

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37
Q

Who is the burden upon for loss of control and to what standard?

A

Prosecution must prove d did not lose self control; beyond reasonable doubt.

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38
Q

What defence does loss of control replace before 2009?

A

Provocation.

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39
Q

What section of which Act sets out loss of control?

A

s54(1) of the Coroners and Justice Act 2009

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40
Q

What are the three elements for loss of control?

A
  1. D must lose self control.
  2. There must be a qualifying trigger to lose self control.
  3. A person of the same sex and age would have acted in the same way (Objective Test).
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41
Q

What section of the Coroners and Justice Act 2009 defines a total loss of control and what three things does it say about element one of loss of control?

A

s54(2)
- does not include ‘having a temper’.
- doesn’t need to be sudden.
- d must lose the ability to maintain judgement.

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42
Q

The judgment in Jewell sets out that loss of control is not a suitable defence for those seeking revenge. What are Jewell’s case facts?

A

D shot V at point blank and escaped the scene. He was later caught and arrested with a survival kit in his car. CA decided that since he had enough mental planning to make an escape bag, he hadn’t lost control.

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43
Q

What constitutes a qualifying trigger in loss of control?

A

D fears serious violence
OR
Things said or done are of grave character and cause d a justifiable sense of being wronged.

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44
Q

What section of the Coroners and Justice Act 2009 lays out how d fears serious violence as a trigger in a loss of control case and what does it say about element two of loss of control?

A

s55(3)
D doesn’t have to fear violence against themselves, it can be against someone else.

45
Q

The case of Ward links to the qualifying trigger that d fears serious violence. What are its case facts?

A

D, D’s brother and V spent the night drinking. V waited outside for a taxi in the morning, but attempted to force his way back in due to the cold. This caused a fight between D’s brother and V. Fearing violence for his brother, D hit V with a pickaxe handle, killing V.

46
Q

If D incites violence then he may not receive the qualifying trigger for fearing serious violence. What case relates to this?

A

Dawes
D found his wife and V asleep together on the sofa. He woke them up and they began to argue. D stabbed V. Since he incited the violence he did not get the qualifying trigger.

47
Q

What section of the Coroners and Justice Act 2009 lays out ‘things said or done’ as a trigger in a loss of control case?

A

s55(4)

48
Q

What is the case example for qualifying triggers in the category of ‘things said or done’?

A

Zebedee
D killed his Alzheimer stricken father out of annoyance when he was doubly incontinent. V’s actions had not been extremely grave in character nor caused a justifiable sense of being wronged.

49
Q

TRUE OR FALSE: Sexual infidelity is a qualifying trigger for loss of control because it is extremely grave in character and gives d a justifiable sense of being wronged.

A

False. The Coroners and Just Act 2009 specifically notes that it is not a qualifying trigger.
This explored in Clinton - where V has to taunt D for her cheating before it becomes a trigger.

50
Q

Element three of loss of control is the objective test. What is the full description of element three?

A

A person of d’s sex and age with a normal degree of tolerance and self-restraint and in the same circumstance as d might have reacted in the same or similar way.

51
Q

What are the four key points for element three of loss of control?

A

D’s mental state ie temper is not taken into account.
Only sex and age are considered when looking at the self control applicable ie kids are lower.
‘Circumstances’ can include depression, abuse or even being teased, but not intoxication.
It is up to the jury to decide a normal degree of tolerance.

52
Q

What is the case example of element three of loss of control?

A

Christian
D stabbed two Vs over an argument about shower temperature. A reasonable person would not have killed the two people so d was guilty.

53
Q

What two types of defences is diminished responsibility?

A

Special; only applicable to murder.
Partial; reduces murder to manslaughter (discretionary life).

54
Q

Who is the burden of proof on in diminished responsibility cases and to what standard?

A

Defence; in the balance of probabilities.

55
Q

TRUE OR FALSE: Medical evidence is a requirement in both diminished responsibility and loss of control cases.

A

FALSE: It is only a requirement in diminished responsibility.

56
Q

What section of what Act defines diminished responsibility?

A

s52 of the Coroners and Justice Act 2009.

57
Q

What are the three conditions required for d to receive the diminished responsibility defence?

A
  1. D must suffer an abnormality of mental function from a recognised medical condition (WHO).
  2. This substantially impairs d’s ability to:
    - Understand the nature of his conduct.
    - Form rational judgement.
    - Exercise self control.
  3. The above provides an explanation for d’s actions / omissions.
58
Q

What is a case example for element one of diminished responsibility and what happens in it?

A

Byrne (1960)
D, a sexual psychopath, strangled and mutilated a young woman. Sexual psychopathy is recognised as a medical condition therefore he received the defence of diminished responsibility.
OR
Ahluwalia (1992)
D had been sexually and physically abused by her husband for years. She set him on fire one night when he was asleep and was convicted of murder. On appeal, she received the defence of diminished responsibility because battered woman’s syndrome had become recognised as a condition.

59
Q

In the second element of diminished responsibility, what is meant by substantially and which two cases define this?

A

Byrne - substantial is defined by the jury.
Lloyd - substantial is more than minimal but less than total.

60
Q

What happened in the case of Golds, the case study for element 2 of diminished responsibility?

A

D killed his partner and admitted his guilt. He had an abnormality of mental function from his condition; however there was no way of knowing if d was in a psychotic state when he killed - d was convicted of murder by jury as it was deemed he did not have a substantial impairment.

61
Q

What are the three things d must not be able to do in order to qualify for element two of diminished responsibility?

A
  • understand their conduct (delusions, learning difficulties)
  • form a rational judgement (paranoia, schizophrenic)
  • exercise self-control (psychopathy)
62
Q

For element three of diminished responsibility, what must there be between d’s abnormality of function and the killing?

A

A causal connection / link eg the abnormality does not need to be the sole reason but only play a significant part.

63
Q

Can diminished responsibility apply to a person who is only intoxicated? What is the case example of this?

A

No; Dowds - the temporary effects of alcohol cannot provide the defence of DR.

64
Q

Can diminished responsibility apply to a person who is intoxicated and has an abnormality of mental function? What is the case example of this?

A

Only if D would have killed without the intoxication; Dietschmann - Lord Hutton: ‘Has D satisfied you that despite the drink, that his mental abnormalities substantially impaired his mental responsibilities for his fatal acts [..]?’

65
Q

Can diminished responsibility apply to a person with an addiction to alcohol? What is the case example of this?

A

Yes, however the brain must be damaged from the addiction; Wood - D received brain damage from his ADS, so alcohol was consumed involuntarily.

66
Q

What type of crime is an attempted crime?

A

An inchoate / incomplete offence.

67
Q

What is the definition of an attempt?

A

D tries and intends to commit a crime but for some reason fails to complete it.

68
Q

When will a d be found guilty of an attempt? What section of what Act dictates this?

A

D ‘does an act which is more than merely preparatory’ of a crime; s1(1) of Criminal Attempts Act 1981.

69
Q

What is the actus reus of attempted crimes?

A

More than merely preparatory (MTMP).

70
Q

What is the mens rea of attempted crimes?

A

Intent.

71
Q

What are the sentences for attempted crimes under what section of what act?

A

Attempts are punishable to the same extent as the full offence; s4(1) Criminal Attempts Act 1981.

72
Q

What is the case example for MTMP?

A

Jones
D entered V’s car with a sawn-off shotgun but V managed to defend himself. D was convicted of attempted murder because entering the car was more than merely preparatory.
OR ANY OF
Gullefer - jumping on the track to cancel his bet; quashed.
Campbell - fake gun, with note outside post office; quashed.
Geddes - D, armed, in boys’ toilets; quashed.
Griffin - divorced mum convicted of child abduction for holiday.

73
Q

According to Gullefer, what must d do to be guilty of an attempt?

A

Embark on the crime proper.

74
Q

What happened in the case of Husseyn, the case study for mens rea of attempted crimes?

A

D and another man were loitering near a van and ran off when approached by police. CA quashed convictions of attempting to steal; MR was present but AR (more than merely preparatory) was not.

75
Q

In terms of attempted crimes, what is conditional intent?

A

Intent that only applies in the right environment eg only stealing from a handbag if there is anything valuable.

76
Q

Is conditional intent enough to qualify for the mens rea of an attempted crime? What case decided this?

A

Yes; AG Ref 1979.

77
Q

What is the case that decided that recklessness is insufficient as mens rea for attempted crimes?

A

Millard and Vernon
Ds pushed against a wooden fence at a football ground; prosecution alleged they were intending criminal damage and should be guilty. CA found that they were only reckless and therefore not guilty.

78
Q

There are exceptions to attempted crimes where lower MRs are accepted. Name the case study of this.

A

Khan and Others
Ds attempted to drag a girl off the street so that they could rape her. However there was no evidence that this was their intent so recklessness was the MR; Ds were found guilty.

79
Q

What case defined intention? Name it and its details.

A

Mohan
D, driving, responded to an officers instruction to stop, but then accelerated toward the officer. D was acquitted of attempted ABH as he did not intend harm; he was only reckless.

80
Q

What is the difference in the MR of murder and of attempted murder?

A

Murder == intent to kill or cause serious harm.
Attempted Murder == intent to kill.

81
Q

What is the case study for attempted murder?

A

White
D put cyanide into his mother’s drink however she died of a heart attack before she could drink it. D was convicted of attempted murder.

82
Q

What section of what Act prohibits attempting impossible crimes?

A

s1(2) of the Criminal Attempts Act 1981.

83
Q

What is the criminal case study for attempting impossible crimes?

A

Shivpuri
D agreed to receive ‘drugs’ to transport them. Even though the case he was given did not contain drugs, D was convicted of attempting to be knowingly concerned in dealing with prohibited drugs.

84
Q

What is involuntary manslaughter and what are the two types?

A

Unlawful killing of another human being with no malice aforethought.
UDAM and GNM.

85
Q

What is the maximum sentence for involuntary manslaughter?

A

Discretionary life.

86
Q

What does UDAM stand for?

A

Unlawful and Dangerous Acts Manslaughter.

87
Q

What case sets out the 4 elements of UDAM?

A

Larkin.

88
Q

What are the four elements of UDAM?

A

D must commit an unlawful act.
The unlawful act must be dangerous.
The act must cause a death.
D must have the MR of the unlawful act.

89
Q

What are the conditions for committing an unlawful act under elements one of UDAM? Name any relevant cases.

A

D must have committed an unlawful act.
It must be an act rather than an omission (Lowe).
It must be a criminal offence rather than civil (Franklin).

90
Q

What is the case study for element one of UDAM: ‘d must commit an unlawful act’?

A

Lamb
Two boys are messing around with an ‘unloaded’ gun when it discharges and kills one of the boys. Since there was no unlawful act by d, there was no UDAM - no assault as there was no violence apprehended.

91
Q

TRUE OR FALSE: Transferred malice does not apply to UDAM, because the unlawful act must be directed at the victim.

A

False: this was denied in Mitchell - where D kill an old woman by shoving a man into her.

92
Q

TRUE OR FALSE: Under Goodfellow, UDAM can also be directed at property.

A

True: In Goodfellow, D burnt down his council flat to get rehoused, leading to the death of his family.

93
Q

Under element two of UDAM, what is defined as ‘dangerous’? What test is this called?

A

‘a sober and reasonable person would foresee the risk of some harm albeit not serious harm’ - Church test.

94
Q

In Dawson, 3 Ds, armed, rob a petrol station, leading to the death of an attendant by heart attack. Why was the conviction quashed on appeal?

A

Judge told the jury to consider the V’s heart condition however the robbers couldn’t have known about it. Furthermore, as the Ds did not cause any physical harm (fear is mental), there was no dangerous act.

95
Q

In Watson, 2 Ds attack V after V discovers their attempted burglary. 90 minutes later, the police showed up to find V, dying of a heart attack. Why was the Ds’ conviction quashed and what did the court define as a dangerous act in this case?

A

It was too difficult to tell what caused the heart attack; the attack or the police entering loudly. However, causation aside, the court found that burglary can be classed a dangerous act if it was apparent that V is frail.

96
Q

What are the three factors in element three of UDAM: ‘the unlawful and dangerous act must cause death’?

A

Factual causation
Legal causation
No intervening acts

97
Q

Under element four of UDAM, to what degree must D have mens rea?

A

D only needs the mens rea for the unlawful act.

98
Q

What is the case study for element four of UDAM: ‘d must have mens rea for the unlawful act’?

A

Newbury and Jones
Ds dropped a paving stone onto a moving train killing a guard. HL convicted the pair of UDAM.

99
Q

What does GNM stand for?

A

Gross Negligence Manslaughter.

100
Q

What is gross negligence manslaughter?

A

D owes V a duty of care but breaches it in a grossly negligent way leading to V’s death.

101
Q

TRUE OR FALSE: GNM can only be committed as an omission.

A

False - In Evans, V was given heroin by her mother, resulting in her death and her mother’s conviction.

102
Q

What are the six elements of GNM?

A

D must owe V a duty of care.
D breaches this duty.
There is serious and obvious risk of death at the time.
The risk was reasonably foreseeable at the time.
The breach caused V’s death.
The breach is so gross it is criminal (rather than civil).

103
Q

What is the case study for element one of GNM: D must owe V a duty of care?

A

Donoghue v Stevenson - snail in ginger beer.
Adomako - anaesthetist failed to notice disconnected oxygen tube.
Singh - landlord failed to repair faults leading to gas fire.

104
Q

TRUE OR FALSE: D owes V a duty of care even if d’s activity is illegal.

A

True - Affirmed in Wacker, where a lorry driver accidentally killed 58 illegal immigrants by starving them of oxygen.

105
Q

What happened in the case of Evans, one of the case examples of GNM?

A

V was given heroin by her mother and half sister, causing her death by overdose. Mother and half sister had broke their special and voluntarily assumed relationships respectively by not calling the hospital.

106
Q

What determines a breach of duty in GNM? Give a case example.

A

The accused must reach the standard of a reasonably competent equivalent person.
Adomako - anaesthetist failed to notice disconnected oxygen tube.
Bateman - Doctor did not send mother to hospital after home birth, leading to her death.

107
Q

In GNM, risk of death must be serious and obvious at the time of breach. What does serious and obvious mean, and what case defines this?

A

Serious - more than minimal, not necessarily life threatening.
Obvious - present and unambiguous, requires no further investigation.
Broughton.

108
Q

In GNM, the breach must cause d’s death. What are the three factors of causation?

A

Factual Causation - ‘but for test’
Legal Causation - ‘significant part in the death - Kimsey’
No Intervening Acts - bad medical care, egg shell skull, free will.

109
Q

What decides whether the offence of GNM is criminal?

A

Negligence must be so gross that shows a disregard for human life (Bateman).

A-Level Law (OCR) // Criminal, Tort (24 decks)

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