Partons law Flashcards
Murder
Murder is an example of unlawful homicide.
Homicide is the killing of one human being by another.
There is lawful or unlawful
unlawful homicides include voluntary/ involuntary manslaughter and murder with murder being most serious.
Definition of murder
Murder is a common law offence and is defined in the 17th century by Judge sir Edward coke.
“ the unlawful killing of an reasonable person in being under the queens / kings peace with malice aforethought express or implied.
Year and a day rule
Before 1996 if a person died a year and day after the offence had been committed, you couldn’t be charge. However this was reinforced and passed
This allowed if you could prove that the original act was the operative and substantial cause that led to V death then the cps could prosecute for murder.
Actus reus of murder.
- unlawful killing
The unlawful killing
Exceptions can be made for it not to be an unlawful killing and it being a lawful killing which are recognised by the law as being justified.
Self defence - level of force considered needs to be reasonable.
prevention of crime
authorised killing - war, life support machine and death penalty.
- AR of murder
ommisions
Ommision-
if you can prove an ommision- where D had a duty which he failed to perfom leading to death of V then the AR of murder may exist.
duty of relationship
contractual duty
Duty arising from accidental creation of dangerous chain of events.
AR of murder
3. Reasonable person in being
Question arises when a person can be classed as a human.
Foetus in the womb is not independent from its mother therefore by law is not considered as in being.
Only considered a reasonable person in being when its fully expelled from its mother;
Yet to be decided whether thats the first breath or cutting of ambilical cord.
However if a child is deliberately injured in the womb and then later dies when born then the attacker can be criminally liable.
This was decided in the Attorneys General Reference (no3 of 1994) 1997. The verdict is manslaughter rather than murder.
D stabbed women who was pregnant. 17 days later her child was born but died days later and D was the opreative and substantial cause therefore convicted of manslaughter.
Child destruction if baby dies in womb.
Doctors are permitted to turn off life support machine who are brain dead, therefore not considered a reasonable person in being and therefore its not unlawful homicide.
Malcherek and steel 1981
two appeals heard together
Malcherek stabbed V
Steel hit v over head with a stone
Both Vs were on life support machines which were turned off due to them being brain dead.
appealed saying there was an intervening act however they were brain dead so doctors not liable.
‘Under the queens peace’
AR of murder
If you are a soldier in war and kill another solider then your not guilty of unlawful homicide. as such a person is not under the queens peace.
However if you kill a prisoner of war then you are.
(someone surrenders and you shoot them)
Causation
Has to be proven that there was a direct unbroken link between d’s actions and the criminal consequence.
Vs death must be the direct result of Ds actions
There must no be no intervening act that breaks the chain of causation.
Factual causation; But for test
Death would’t have happened but for the actions of D
White (-)
intent to kill occured
no link between death and act
Paget (+)
actions were the factual cause of death
LEGAL CAUSATION:
required that the act was the operative and substantial cause of death
need to be more than minimal
can still be guilty of unlawful homicide even if you only contributed towards the act.
(more than slight and trifling link)
cato 1976
both D were injecting each other of herione
next morning one died
Survived one charged with friends manslaughter
as COA held that herione wasn’t only cause.
Other person helped it along
and the unlawful act was injecting one another. (more than minimal)
ACTIONS TAKEN BY VICTEM;
Have to consider the unknown circumstances such as ;
Thin skull where you can’t plead ignorance.
Where it wouldn’t matter if the physical or mental condition made it worse
e.g blaue
NEW INTERVENING ACT. If the chain of causation has been broken by a new intervening act then D is no longer responsible proving hte New act is sufficently different and serious. e.g JORDAN SMITH CHESIRE
Actions taken by victim;
consider the nature and seriousness of threat and the reasonableness of act.
ROBERT
WILLIAMS
MENS REA OF MURDER
Malice aforethought express or implied is the MR of murder and was defined by Sir edward coke.
1. Case law has since developed this definition
malice doesn’t need to be present for situations such as love and compassion - gray 1965
assisted suicide.
2. Aforethought- doesn’t need any previous planning aslong as the intention to kill was before and not afterwards.
3. Mens rea of murder = intention to kill or intention to cause GBH. Guilty of murder if you have either intentions as established in vickers.
MR of MURDER;
Vickers 1957
D broke into a shop intending to steal money.
D attacked V and she fell down the stairs and died.
He appealed saying he didn’t intend to kill her.
However Intention to cause GBH was enough to imply the necessary intention for murder.
no intention to kill but intention to cause GBH constituted enough for a murder conviction.
MR of MURDER;
cunningham 1982
D attacked V with a bar over his head
D died
Appealed saying he didn’t intend to kill him and challenged the judicial precedent in Vickers 1957.
H.O.L declined.
1966 practice statement is used by the supreme court- who use it to depart from precedent. can overrule precedent set by themselves or someone else in another case.
As seen in BRB v Herrington which overruled precedent set in addie v dumbreck 1929
A v D;
Child killed on somebody else property.
H.O.l trespassing so its their own fault and owner of property therefore did not owe a duty of care and so isn’t liable.
BRB v Herrington;
Boys trespassed onto railway- stumbled onto live wire track and were electrocuted.
H.O.L originally should have followed precedent set in A v D however they used the 1966 practise statement and overruled precedent by holding the railway company liable.
MR of MURDER;
Foresight of consequences
- Completes the Mens rea
- usually expression of intention to kill is clear.
- Implied intention - vickers 1957
- problem occurs when intention wasn’t to kill nor cause GBH
- A person commits murder when he kills another person with the necessary intent.
Intent for murder is nothing less than intention to kill or cause GBH.
Defendents foresight of consequence of his actions is no more than evidences from which the jury may find evidence.
Moloney 1965
Drinking alcohol with stepfather- loaded gun and accidently shoots father.
Says he has no intention to kill
Trial judge said theres oblique intention.
Moloney appeals - substitued to manslaughter;
the foresight of probabilty of death wasn’t enough and wasn’t direct.
Hancock and Shankland 1986
They were on a strike and wanted to block roads leading to mine - so they dropped large blocks of rock into road from the bridge.
hit a taxi and killed them
Prosecution held intended nothing but serious harm - enough for murder so convicted
Appealed
H.O.L ruled in such a case the degree of probability of death was most important
Said jury should be directed that
if there was a large probability of consequence then large probability that is was forseen
If it was forseen then large probability that it was intended
Judge realise its their decision by considering all evidence.
Nedrick
Put parafin through letter box - blew up house and killed a child.
saying he didn’t intend to kill only wanted to frighten women.
Judge said high probability - enough for murder
COA suggested jurys consider the following
Do they feel the death/injury were a virtual certain result of the accused act.
Did the accused realise the death/ injury was a virtually certain result of act?
If yes then he intended it.
Woolin 1998
D threw child against wall
Child died
Nedrick was a fine direct
Foresight of consequence amounts to intention
matthew and ayleen 2004
V drowned when thrown into river
foresight of consequence was enough for intention
coa - FOC and intention is a rule of evidence
VOLUNTARY MANSLAUGHTER
opening
- Happens when murder is tried and we satisfy the actus reus and mens rea of murder.
- Under the law of murder you can try to plead two possible defences to reduce offence from murder to voluntary manslaughter on the grounds of
diminished resposibilty
loss of control - Both defences stated in the coroners + justice act and homicide act 1957.
- Both are special defences as they’re only available for murder charge.
VOLUNTARY MANSLAUGHTER
LOSS OF CONTROL
Loss of control replaced the defence of provocation in the coroners and justice act 2009
defence of provocation allowed if you had a sudden loss of control due to provoking words or conduct and you acted like a reasonable person in that situation then they woud allow the idea that you had been provoked and use this defence.
NEW DEFINiTION;
When are person kills or is party to a killing they’re not to be charged with murder if;
1. D’s act or ommision resulted from Ds loss of control.
2. D’s loss of control was due to a qualifying trigger.
3. A person of Ds age, sex with normal degree of tolerance and self restraint in the same circumstance would have reacted in a similar or same way.
- the loss of self control
s54 (2) states loss of control doesn’t need to be sudden and there can be a time delay between the qualifying trigger and Ds reaction to killing V.
However there does need to be proof of loss of control
The longer the time delay the less likely the Judge are going to believe loss of control.
Ibrams v Gregory 1989
D and young women had been harrassed + threatened by V. So they hatched a plan to get v drunk and kill him.
Foud guilty but appealed on the grounds of being provoked and saying they had a loss of control.
Trial judge said they persued a plan and were masters of there own mind.
s54 (4) cleary expressly states that you cannot use defence of LOC if killing is for revenge.
The longer the time delay between the trigger + killing the less likely the defence is to succeed unless D can prove he remained out of control
Bailie 1995;
D found out that sons was threatend by drug dealers and given drugs.
So got a cut throat razor and went to his house
He got delayed by road traffics which should have made him regain control.
got to Vs house and killed him
Convicted but appealed= successful as between the trigger/loss of control and killing D never regained control even though there was a delay.
The main difference between L.O.C and provocation was the removal of suddeness - had to be temporary and sudden. The main reason for reform was this defence was difficult to plead for women who killed their husbands after suffering abuse = less likely to respond immediately.
Ahluwalia 1992 - where V killed D after suffering abuse by setting him alight.
Her appeal was successsful on the grounds of diminished responsibility because there was too long a delay between abuse + killing to use defence of provocation.
Thornton 1996
D abused V who killed him.
1st appeal = Convicted and defence of provocation failed as there was no sudden loss of control.
2nd appeal - COA said they recognised the final incident may not seem enough to lose control, but in her incident her husbands abuse was considered the final straw in build up to provocation.
- The qualifying trigger
D must prove that his loss of control was a result of one of the permitted triggers in the act. 3 qualifying triggers are;
- Fear of serious violence from victime.
D needs to establish that he lost control due to a genuine fear of serious violence
- Doesn’t matter if it’s unreasonable aslong as it is present.
- Doesn’t need to be actual violence- the judge needs to be convinced.
- Threat of minor assault not accepted
- Fear must be from someone you recognise
- Even though there is no requirement for violence to be sudden, if it is anticipated at a much later date then the defence is likely to fail. - Things said or done which constituted circumstances of a grave character and caused D to have justifiable sense of being seriously wronged. also known as the anger trigger
- Concerns that trvial acts and words could be cited as a reason to loose control.
E.g Doughty 1986 - doesn’t constitute to anger
killed a crying baby. Said that crying babies could amount to provocation
D has to satisfy two aspects in order for defence to be available;
That circumstances were of a grave character and D had a justifiable sense of being seriously wronged.
These are assessed objectively- for jury to decide what a reasonable person would think.
D may feel aggravated due to insults but this is insufficient if jury think it’s circumstances are not of a grave character and doesn’t think it was a justifiable sense of being wronged.
Anger trigger applies if D killed v who raped son/daughter
C = combination of triggers
Restrictions of the qualifying trigger;
- Incitement
D’s fear of violence would be disregarded as a trigger if D himself deliberately incited the violence. - sexual infidelity;
cannot be regarded as a trigger
( D who finds out about affair cannot use defence of l.o.c)
can be other related grave circumstances
( if d found out about affair with underage kids)
Could argue L.o.c wasn’t due to infidelity but due to criminal actions.
Clinton 2012;
Wife saw website on suicide and told D he didn’t have guts to do it aswell as all affairs she’s had.
D killed V
Argues that Vs other comments about not having guts could be sufficient for a second trigger as sexual infidelity couldn’t be regarded as a trigger.
retrial ordered
- Revenge
Defence is not available to D who acts out of motive of revenge even if D loses control as a result of one of the qualifying triggers.
- Objective test
- A jury must consider whether a D’s age + sex with a normal degree of tolerance and self restraint would have reacted in a similar way given the circumstances.
Camplin 1978 -
15yr old who was sexually abused by middle age man. It was decided that Ds age + sex were relevant in considering the objective test. - After all these years of being uncertain as to what characteristics were relevant under the law of provocation.
The position now is that all of Ds circumstances are taken into account. All that is not is the capacity of self restraint and tolerance.
This means a jury can now consider Ds history of abuse ahluwalia and thorntons
However its insufficient if d is bad tempered or prone to violence. as illustrated in mohammed 2005
Mohammed 2005 was a strict muslim father and caughter her daughter in bed with a guy. he stabbed daughter serveral times.
His temper was irrelevant in deciding what a reasonable person with normal powers of restraint would do.
Holley 2005
concerned alcoholic with depression who killed her violent partner.
- a significant factor to objective test is that Ds alcoholism and depression couldn’t be considered as they affect a persons capacity of tolerance and self restraint.
However its a recognised medical condition so could be used to argue diminished responsibility.
Burden of proof loss of control;
- burden lies with the prosecution to prove your guilty.
- When you raise the defence of loss of control then the burden of proof lies with the defence who have to prove that.
- The trial judge has to believe there is enough evidence for the jury to consider.
- if not then he can tell jury to discard the defence of l.o.c
- If your using the defence of l.o.c its the prosecutions job to disprove that defence.
- So if the evidence is put to the jury, the burden of disproving it beyond all reasonable doubt is on the prosecution.
Diminished responsibility
- The defence of Diminished responsibility was introduced in the homicide act 1957
- If on trial for murder and you successfully plead defence of Diminished responsibility the verdict is changed to manslaughter.
- New definition- The abnormality of mind was replaced with the words abnormality of mental functioning.
- If a person kills or is party to the killing they are not to be convicted of murder if the D is suffering from an abornormality of mental function which
a) arose from a recognised medical condition
b) substantially impaired Ds ability to
understand the nature of his conduct
form a rational judgement
exercise self control.
c) provided an explanation for ds act or omission in doing the kill or being apart of it.
