Section B- Fatal Offences Murder And Manslaughter Flashcards
What is murder
Murder occurs when D kills a person with the intention to kill or cause really serious harm. It is still a common law offence as there is no statute that defines the conduct needed for murder
Lord cokes definition of murder
‘The unlawful killing of a human being under the kings peace with any country of the realm with malice aforthought express or implied’
The 4 elements that make up the actus reus of murder
Unlawful killing
Human being
Under the kings peace
Any country of the realm
Unlawful killing and cases
The killing must be unlawful but sometimes can be lawful such as
-necessity (Re A)
-self defence (martin)
Re A
Twin girls were born together and would both die if they were not separates and one of them died
Held- the COA held that it would be lawful to separate the twins due to necessity
A lawful killing may also be committed by omission case
Gibbins and proctor
What does omission mean
Failure to act
Gibbins and proctor
D deliberately separated 7 year old girl from other children and she starved to death
Held- both Ds (father and stepmom) liable for murder by omission as there was an automatic duty to be father and accepted it when she became a step mum
Victim must be a human being and case
Must be ‘independent outside the womb’
Attorney generals reference (No3 of 1994)
Brain death is recognised for a person no longer being a human being
Malcherek and Steel
Attorney generals reference (no3 of 1994)
D stabbed pregnant girlfriend who caused her to give birth prematurely and died.
Held- he couldn’t be convicted or murder at the time, the foetus was not in law classed as human being and MR aimed at mother but transferred to foetus
Malcherek and steel
Both Vs life support machines were switched off by doctors and the D argued their actions were NAIs which broke the chain of causations
Held- both convictions upheld, Vs were already brain dead- the doctors could not be liable of death
Under the kings peace
Killing enemy soldiers at a time of war can’t be the AR of murder
Any country of the realm
If the D is a British citizen he can be tried in the Uk for murder committed in another country
Elements that make up causation
CIF
CIL
NAI
Causation in fact and case
‘But for’ test- but for the Ds actions they wouldn’t have died and wont be liable if they would have died regardless.
White
White
d put poison in mums drink intendin to kill her and she died of a heart attack before
Held- white wasn’t liable for murder as ‘but for’ his actions she would have died anyway
Causation in law and case
The dependent may not be the sole cause of death but deemed legal (moral) cause of death
- who is morally responsible?
- was the D more than a minimal cause?
-did he accelerate the death?
Pagett
Pagett
D who attempted to escape armed police used his pregnant girlfriend as a shield and police shot and killed girl
Held- D was convicted as he was morally responsible, more than a minimal cause and accelerated death of his girlfriend
NAI and cases
Once causation is established, liability will be removed by a NAI which will break the chain of causation, it can be removed by: act of victim, act of third party, natural but unpredictable event.
Longbottom- contributory negligence
Robert’s- escape of victim
Dear- D treating himself
Jordan- intervening act
Blaue- eggshell conditions will never break the chain
Longbottom
Deaf man walked in road and a speeding car sounded its horn and D was killed
Held- d liable as deemed morally responsible and deaf mans negligence didn’t break the chain of causation
Robert’s
Escape of V
D undressed a girl in the car and she jumped out which caused injuries
Held- causation not removed as Vs actions not considered grossly negligent but reasonable apron the circumstances
Dear
D treating himself
V was slashed with a knife and V took no steps to stop loss of blood and re opened wounds to commit suicide
Held- D convicted as significantly contributed to the death and substantial cause of death
Jordan
V stabbed and given an antibiotic he was allergic to and died even though his wounds had nearly healed
Treatment described as ‘palpably wrong’ and doctors actions grossly negligent and causation broken
Blaue
V required life saving blood transfusion however was a Jehovah’s Witness so wasn’t able to accept the blood
Held- causation wasn’t removed as the Vs religious beliefs were considered ab eggshell condition, D must take V as he finds them
Refusal of medical treatment will never remove causation upon grounds of public policy
The men’s Rea of murder and cases
The mr for murder is known as malice aforethought which means the intention to kill or intend GBH
Direct intent- main aim to produce a certain result- mohan
Oblique intent- D intends one outcome but the actual consequence which occurs is another one - death or serious injury is virtually certain- woolin
Implied malice aforethought- vickers
Mohan
d sped towards PC and he had to jump out the way
Held- direct intent is doing everything they can to bring about the desired result
Vickers
The D broke into shop and beat the old lady who owned it and she died
Held- COA established the intention to kill or cause GBH is sufficient men’s Rea to prove malice aforthought
Woolin
Violently shook baby who was choking and threw towards pram- killing him
Held- jury must only give verdict or murder if they found D foresaw death or series injury as a virtual certainty
Voluntary manslaughter
VM is where D has satisfied the AR and MR of murder however there us a defence as to why they killed which would reduce murder to voluntary manslaughter
Both of these defences are set out in the coroners and justice act 2009 and are partial defences
Diminished responsibility sections
(S.52(1))Abnormality of mental functioning
(S.52(1)(a))Arises from a recognised medical condition
(S.52(1)(b))Substantial impairment of ability
(S.52(1)(c))Provides an explanation of the Ds conduct
Diminished responsibility and intoxication (only in pq if relevant)
Diminished responsibility
Defined in s.2 homicide act 1957 and amended by s.52 coroners and justice act 2009 as
A person should not be convicted of murder if they are suffering from
(A) an abnormality of mental functioning which
(B) arises from a recognised medical condition
(C)which substantially impairs their ability to understand the nature of their conduct; or from a rational judgement; or exercise self control
(D) and provides an explanation of Ds actions
Abnormality of mental functioning and cases
The accused must suffer from abnormality of mental functioning which is established through medical evidence. This was established in Byrne as being ‘a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal.
Jury must decide if D was suffering an AMF at the time of the killing
Byrne
d was a sexual psychopath who strangled a young woman and mutilated her body. His condition meant he could not control his perverted desires.
Held- conviction for murder was quashed by the COA and given manslaughter as his state of mind so different from that of ordinary human beings that a reasoable man would term in abnormal
Arises from a recognised medical condition and cases
The abnormality of mental functioning must arise from a medical condition that is recognised by psychiatrists according to an internationally defined list.
The list is wide and included- alcohol dependency syndrome (ADS) (tandy) battered spouse syndrome (alluwalia) depression (seers) and schizophrenia (Kay) coercive control (challen)
New conditions are added to the list such as autism (Conroy)
Where doctors agree On a RMC then murder must be withdrawn from the jury (Brennan)
Challen (coercive control)
Hit husband with hammer killing him after he had been in failthful
Held- her murder conviction was overturned by the COA after coercive control. The depression cause by the husband meant the defence of diminished responsibility could be raised.
Tandy (ADS)
Alcoholic strangled her 11 year old to death. She drank whole bottle of vodka and was an alcoholic
Held- conviction of murder upheld as had demonstrated she had exercised control as able to stop drinking at 6.30pm and the bottle wasn’t empty
Ahluwalia (BSS)
D poured petrol over sleeping husband and set him on fire as he was abusive.
Held- COA didn’t allow her to appeal on basis of provocation as their action had to be sudden rather than immediate and the longer the delay the more delibeted
However allowed diminished responsibility on BSS
Seers- RMC
D was suffering from reactive depression and stabbed his wife to death
He could rely on his depression and was not liable for stabbing his wife to death
Kay- RMC
Schizophrenia
D was paranoid schizophrenic and habitual drug user. Went on 3 day drug and alcohol binge and stabbed someone to death.
Held- whilst S can be used as a defence but as voluntary intoxication triggered his reaction the appeal was rejected
Conroy - RMC
Autisms
D has autism and adhd and lived in a residential home and formed an obsession with a resisident he went on room intending to have sex with her and when she didn’t want he strangled her
Held- COA upheld his conviction
Substantial impairment of ability (s.52(1)(b))
The abnormality of mental functioning must have substantially impaired Ds ability to do one or more of the three gateways
-understand their conduct (s.52 (1A)(a)) where the D is in an automatic state and doesn’t know what he is doing e.g. delusions
-form a rational judgement (s.52(1A)(b))- D not able to form a rational judgement e.g. paranoia or BSS.
- ability to exercise to self control (s.52(1A)(c)) D cannot stop himself from killing (Byrne)
Provides an explanation of the Ds conduct (s.52(1)(c))
New element added by coroners and justice act 2009
Ds abnormality of mental functioning must be a casual connection to why the D killed
Abnormality does not need to be the only reason why D killed but must be a significant factor
Diminished responsibility and intoxication including cases
Only go in a PQ if relevant
When d is intoxicated at the time of the killing the jury need to decide whether diminished responsibility can be used there is a number of rules to help them decide:
1. If intoxicated alone can support defence of DR- dowds
2. D has pre existing AMF and intoxicated jury must ignore he is intoxicated and decide if AMF was significant towards the killing- Kay
3. If D suffers from ADS it would be considered as RMC and defence used- Tandy
Dowds (DR and intoxication)
D and gf were binge drinkers and d stabbed gf and killed her. He appealed on the grounds that his state of acute intoxication should have a possible defence for DR
Held- appeal dismissed- acute intoxication not able for founding DR
Wood (intoxication)
Alcoholic who drunk heavily for 2 days and spends night at v house- when he wakes up he is being SA and killed the guy who SAing him.
Held- conviction for murder quashed- ADS can be a RMC
What’s the case for when someone has a RMC and is voluntarily intoxicated
Dietschmann
Kay
Dietschmann
As long as the RMC was the overriding reason for the killing then te alcohol can be disregarded
Conviction for murder substituation for manslaughter
Acts of each elememt of DR
AMF- (s.52(1))
RMC-(s.52(1)(a))
Substantial imapairment of ability (s.52(1)(b))
Provides an explanation of Ds conduct(s.52(1)(c))
Loss of control
Is a partial defence to ,under and if successful d will be guilty of manslaughter.
S.54 coroners justice act 2009 defines the defence of loss of control
Sections of loss of control
- Loss of self control
- The qualifying triggers
- The normal person test (s.54(1)(c))
Loss of SELF control sections and case
S.54(1)(a)- the killing by D must be a result of Ds loss of self control
S.54(2)- the loss of control does not have to be sudden- question for the jury.- this ,means that the length of time between what triggers caused the killing and the killing itself does not have to be short there could be a ‘cooling off period’
S.54(4)- if a person acts out of revenge then the defence will fail- there can he no evidence of plan or pre-meditation.
Although the LOC does not need to be sudden D must have really lost control or snapped. Just loosing temper is not sufficient.
Jewel
Jewell
Loss of self control
D killed and said he did so because he was sleeping badly and so unable to think straight
Held- this was insufficient and was liable of the murder of his colleague
The qualifying triggers and cases
S.55 sets out which triggers are allowed to be used for loss of control
S.55(3) d feared serious violence- does nit need to be a reasoable fear as long as it was honestly thought by D (lodge&goodwin)
S.55(4) a thing said or done which is extremely grave character and causes d to have a justifiable sense of being seriously wronged- anger (zebedee&hatter)
S.55(5) the trigger can be a combination of both the above triggers
S.55(6)(c)- the tigger cannot be due to sexual infidelity (Dawes) unless its combined with other trigger (Clinton)
Lodge
Qualifying triggers- fear violence
D lost his self control and killed v, a small scale drugs dealer after v had attacked him with a baseball bat
Held- jury accepted D had lost self control in a response to serious violence from V.
Zebedee
Justifiable sense of being seriously wronged
D murdered his 94 year old dad after he had soiled himself repeatedly
Held- conviction was upheld and the defence of loss of control failed- the thing dome did constitute circumstances of an extremely grave character and give a justifiable sense of being seriously wronged
The normal person test (s,54(1)(c))
Would a person of Ds age and sex with a normal degree of tolerance and self restraint and in the circumstances of D react the same or similar way?
-other circumstances apart from age and sex are considered such as Ds mental health history and history of sexual abuse (hill)(sexually abused as child)
Asmelash states that intoxication will not be taken into account
Rejamski
Burden of proof- the jury must be satisfied that the defence has been made out unless the CPS prove beyond reasonable doubt that the defendent had not lost control.
Rejmanski
D suffered from PTSD as a result of his service in Afghanistan and V had provoked him with negative comments about his role in the army
Held- the courts stated while a disorder such as PTSD may be relevant there was insufficient evidence that it was true cause in this case so they had to exclude it during the ‘normal person test’
