Process of Identifying Murder

Question 1

Step 1 - identify facts which could give rise to liability

Answer 1

eg X stabbed Y

Question 2

step 2 - identify relevant offence

Answer 2

murder

Question 3

step 3 - define offence

Answer 3

unlawful homicide with malice aforethough

Question 4

step 4 - what is the AR?

Answer 4

• unlawful
• killing
• reasonable person in being
• under Queen’s peace
• FROM COKE

Question 5

step 5 - how can a death be lawful? Is this death lawful?

Answer 5

• self defense
• lawful execution
• time of war

Question 6

step 6 - has D caused the killing? Factual test.

Answer 6

factual test - But For test: R v White

legal test - operating and substantial cause of death? Pagett. More than trifling cause? Kimsey

Question 7

step 7 - has D caused the killing? Legal test.

Answer 7

legal test

• operating and substantial cause of death? Pagett.
• More than trifling cause? No NIA? Kimsey

Question 8

step 8 - was victim a reasonable person in being?

Answer 8

• live human being?

Question 9

step 9 - was the killing under the Queen’s peace?

Answer 9

• not in time of war or civil unrest

Question 10

step 10 - what is the MR for murder?

Answer 10

• intention: ordinary meaning, Moloney
• to kill
• or cause GBH: serious harm R v Vickers

Question 11

step 11 - if he satisfied these, did he have a special defense?

Answer 11

• loss of comtrol

- diminished responsibility

Question 12

step 12 - definition and authority of loss of control

Answer 12

• s54(1) Coroners & Justice Act 2009
• loss of self control
• qualifying trigger
• reasonable man of same age and gender and acting under same circumstances might have done the same

Question 13

step 13 - what does loss of control mean? Does D satisfy this?

Answer 13

• ordinary meaning, more than losing temper.

- R v Richens

Question 14

step 14 - what is a qualifying trigger? What authority?

Answer 14

• s55(3) CJA 2009 fear of serious violence from victim
• s55(4) thing said or done or both which constitute circumstances of an extremely grave character and cause D to have a justifiable sense of being seriously wronged - objective test

Question 15

step 15 - what is required for diminished responsibility? What authority?

Answer 15

• s2 Homicide Act 1957
• abnormality of mental functioning
• arising from a recognised medical condition
• substantially impairs D’s ability to do the things mentioned in ss(1A)
• proved by defence on balance of probabilities (Dunbar)

Question 16

step 16 - what is an abnormality of mental function?

Answer 16

• R v Byrne - state of mind so different from that of an ordinary human being that a reasonable man would term it abnormal

Question 17

step 17 - does it arise from a recognised medical condition?

Answer 17

need medical evidence

Question 18

step 18 - did it cause a substantial impairment of D’s ability to do one of the things in s52(1A) CJA 2009?

Answer 18

• understand nature of D’s conduct
• form a rational judgement
• exercise self-control
• need not be a total loss, must be more than slight (Lloyd)