Criminal - actus, mens, homicide Flashcards
What was the basis of the misdirection in Evans (Gemma) 2009?
Judge to decide on duty as a q of law. Jury should decide if that duty arose on the facts.
Misdirection with regards to these principles, but the conviction was still ok. Upheld.
In which recent case was it questioned whether a murder charge should be removed from a jury due to uncontradicted evidence of an abnormality of mental functioning?
Brennan 2014
The judge needs to ask whether the jury could rally convict if properly directed. Look at the evidence.
Case for battered woman syndrome?
Ahluwalia
S.54 (1) (c) - someone of D’s characteristics - would they act in the same way?
What sort of characteristics can be taken into account?
2 cases?
Shameful past incidents, race, physical and mental infirmities
Things affecting the GRAVITY of provocation (Morhall - glue sniffer taunting - took into account glue sniffing as affected gravity)
Luc Thiet Thuan - can take mental infirmity into account
Mens rea is presumed unless what?
Mens rea is presumed unless there is compellingly clear evidence to rebut it.
Which case to show conduct must be voluntary?
Kay v butterworth
Driving without due care. Court: should’ve pulled over as soon as felt drowsy. Convicted.
Reasonable foreseeability is a factor.
What is diminished responsibility?
Partial defence to murder
Burden on D to prove on balance of probs (I.e. More than trivial)
4 requirements set out in s52 CJA
In which case did someone spill oil into a river! But the acts of a third party (the saboteur) weren’t enough to constitute a novus actus?
Empress Khan
Company was liable as didn’t protect others from harm (Hoffmann)
Which case to show that you need factual causation, I.e. There must be a connection between D’s act and the consequences?
Dalloway. Horse and cart, not holding reins, but wouldn’t’ve been able to stop in time even if had been driving perfectly. So no crime.
Main case for Transferred Malice?
Latimer 1886
Use Cunningham for ‘malice’ = an act is malicious if it is done intentionally or recklessly as to causing some harm.
So d liable if intend (or reckless thereto) to commit crime against one but in fact commits against another.
Name three recent cases where strict liability was imposed
R v G 2008 - boy 15 raped girl 12. Hale said that parliament’s intention was to prevent sexual activity to protect a group in society. So imposed SL. Attaching label of rape even though couldn’t prove the girl was unwilling.
Jackson 2006
Dyemi 2008 - stungun carried around shopping precinct. Imposed SL since there was a social element - prevent people carrying firearms. Firearms Act.
What are the cons of imposing strict liability?
. Stigmatisation (e.g. Rape in R v G 2008) - could affect employment prospects
. Injustice
. SL does not necessarily act as a deterrent - this assumes people are aware of the imposition of strict liability for certain crimes, how can it deter people if they don’t know what they’re doing is wrong?
Does D’s act need to be the sole cause of the harm?
No, but it must have been a more than minimal cause (Pagett, per Lord Goff)
How does alcoholism operate in connection with partial defences?
Can’t use loss of control. Morhall.
If separate to the AMF then intox won’t negate the defence of diminished responsibility. Doesn’t matter if alcoholism contributed to the AMF.
If alcoholism is the AMF then it needs to have been a significant factor in D becoming intoxicated so the defence will operate, so habitual drinking will not suffice (Dowds)
Despite the initial alcoholism, D’s mind may be functioning normally when he actually commits the crime (Stewart)
Dim responsibility will operate where the alcoholism in the AMF and this AMF caused D to get drunk in the first place.
Taunting cases? 5.
Humphreys (15 yr old prostitute)
Bedder (tried to have sex. Taunted)
Camplin (non-consensual buggery. Taunting)
Morhall (glue sniffer)
Clinton (with sexual infidelity, rejected on retrial. Commonsense)
Which case to show familial relationships give rise to a duty to act? There are two
Instan - aunt sick, duty, even though didn’t know she was ill, aunt was infirm therefore duty
Stone and Dobinson - stone’s sister found dead (sister therefore duty). Dobinson = live-in lover - had assumed a duty (she turned away social workers). Reckless disregard for health and welfare, so both godly of gross negligence manslaughter.
In Kennedy no1 D was found guilty of manslaughter. Which case overturned this? What was the point of law?
Dias 2002
Self-injection is not unlawful - can’t be convicted of your own manslaughter. So V’s act = novus actus.
Which case involved raising a vein with a tourniquet? What was established?
Rogers 2003. D was actively involved, so acting in concert together, so joint principal offenders. (V principal offer do but can’t be convicted since can’t be convicted of your own manslaughter)
Two cases on mistake?
Bailey - ignorance of the law is no defence
Smith - mistake may negate mens rea where it is a mistake of fact and prevents D from forming the full mens rea.
(D thought he was damaging his own property so he couldn’t form mens: intentionally/recklessly damaging property belonging to another)
What does a ‘person in being’ mean?
Must be born human, born alive (Poulton), capable of independent life (AG’s ref (No 3 of 1994) foetus, man)
Umbilical cord must be severed (Reeves)
Dead when brain is dead Malcherek and Steel
Can intoxication be a complete defence to murder?
Yes, if it prevents d from forming the mens rea.
Asmelash 2013
Voluntary intoxication is of no relevance. The only relevance might be the gravity of provocation.
Smouldering mattress case. What was it called? And what was the point of law?
Miller 1983
Lord Diplock: there was supervening fault - coincidence of actus reus and mens rea, so creation of a duty. Creation of a dangerous situation (recognised smouldering, went into a different room, arson)
Here a duty was superimposed - to take reasonable steps to counteract the harm set in motion
Who criticised the CJA law on diminished responsibility?
Ronnie McKay
Said old law worked well in practice (in favour of the old mercy killing defence). Called it a “benevolent conspiracy”
If there had been premeditation this would negate the diminished responsibility defence. Tullock 2000
Law com wanted to include developmental immaturity as a partial defence, but didn’t since it thought it would make the defence too wide. McKay thinks this a shame.
Law com is tentative to produce radical change, so it instead included tentative and unnecessary changes in the act. McKay thinks the act is full of “judge’s compromises”
Which test for factual causation? Who decides? Judge or jury?
But for test. Jury decides. Applying law to the facts. Evans
Case for continuing act theory?
Fagan!
Car on police officer’s foot, wouldn’t remove.
Just needed the mens era to occur at one point, then it coincides with the actus reus. (So in effect this is an exception to the ‘coincidence of. Actus and Mens rule)
Where an actus occurs over a period of time it is sufficient that mens rea occurs at some point during that time.
S54 (1) (a). Elaborate.
Loss of control need not be complete, but d must’ve been unable to restrain himself (richens)
Must be more than a loss of temper (fenton)
No req that it be sudden (54 (2)) but the longer the delay the less likely it is that the defence will apply (esp if evidence of planning) Ahluwalia
Loss of control must take place at time of killing
What case would you use to demonstrate the high threshold set by the CJA self-control test?
Jewell 2014
Work colleague dispute. Pre-planned (left note to neighbours asking them to feed the cat!)
Bolsters the fact that the CJA test for loss of self control is very high - have to complete ALL 3 elements.
Which case for post-natal depression?
Reynolds
Which case would you use for the fact that jealousy will not suffice?
Fenton
What needs to be true about the mens rea for the crime in order for the malice to be transferred? Case?
Transferred malice sentence? 5 cases.
Needs to match the crime actually committed!
Pembliton 1874
Pub melee - stone thrown at head, missed, smashed window.
An act is malicious if it is done intentionally or recklessly as to causing some harm (Cunningham). D will be liable where intent (or are reckless) to commit a crime against one but in fact commits against another (Latimer). Need the mens rea for crime intended to match the one actually carried out (Pembliton).
Gnango (2011)
AG’s ref (no3 of 1994)
D stabbed pregnant gf,many born prematurely and died.
Trial judge said the woman and foetus were one person so no murder/man.
HoL - Lord Mustil used transferred malice doctrine, but couldn’t be murder. Was unlawful act man (no req that the act aimed at the unborn baby for this as this is a constructed crime, constructed manslaughter)
Prof smith criticism: said there was an intention to kill A but instead killed B so should have been transferred malice and conviction for murder. Mustil said this would create a legal fiction.
What is the mens rea for murder?
Intention to kill or cause GBH (Vickers)
Intention - Moloney Lord bridge
Kill - ordinary meaning
GBH - serious harm (Saunders) or really serious harm (DPP v Smith).
Same reform point as before - hierarchical system mirroring that in the US.
When will self-defence be a complete defence to murder?
If the force is necessary and reasonable
Which Scottish high court decision in 2009 departed from the authority of Kennedy No2?
Michael Kare v HM Advocate 2009
Same facts as Kennedy
Turned to s African law, and said that V’s act is not a novus actus.
Said need immediacy, directness of action,many foreseeability to make D liable.
Which case states that the mind = perception, understanding, judgment and will?
Brown 1993
Does a D assume a duty of care towards a lover? Case?
No.
Bardsley.
Lover took morphine and overdosed. There was no duty of care to a lover.
What is the test for oblique intent? Case?
A) Was the consequence of D’s actions (death/serious injury) a virtual certainty? Objective limb
Woolin, per Lord Steyn
B) if yes, did D appreciate that it was a virtual certainty? Subjective limb.
Direct intention? What is it? Case?
Intention should be given its basic meaning, i.e. ‘Direct aim, purpose, or want’
Moloney, per Lord Bridge. This is the golden rule!
What about legal causation for murder?
Needs to be sine qua non, I.e. An indisputable result of their actions.
Which case would you use to show mens rea with no actus reus?
Deller
Car salesman he though he was lying when he wasn’t, so there was no crime
Carol Withey on loss of self control in CJA?
Still not self-evident that battered women suffered loss of control at the time of killing - more could be done to protect them. Cooling off period idea.
But, she does note that Baille wouldn’t pass now (good thing. Ham sandwich)
Must question is such piece-meal reforms will solve wider problems governing murder.
Need more clarity on how overlaps with defence of self-defence.
What did Lord Steyn say in Acott?
Things must be said or done, circumstances alone are not enough.
What was Re A about?
Re A - conjoined twins case. Operation = positive intervention. Allowed on the basis of necessity. One bound to die either way. Had to preserve the other’s life. Moral pathway hard to tread.
Sanctity of life versus autonomy.
Which old law cases would probably satisfy the new CJA test on loss of self control?
Battered women cases
. Ahluwalia - convicted of murder under old law, wouldn’t under new (grave circs - previous beatings, threats operating at the time of murder, sexual infidelity)
. Thornton
. Humphreys (15 yr old prostitution case - raped by pimp, laughed at when tried to slit her wrists, she stabbed him to death)
In miller would there be a difference in outcome if you used Glanville’s continuing act theory, or Smith and Hogan’s duty theory?
No.
The duty to take reasonable steps to prevent the harm set in motion was superimposed.
Continuing act theory - just need to establish mens rea at one point (he left the room without putting out the smouldering!)
What will loss of control do if proven? Ss 54-56 JCA2009
Be a partial defence to murder (reduces it to voluntary manslaughter)
Burden of proof on the prosecution (beyond reasonable doubt)
What was Bland about?
Hillsborough. Switching off life support machine. This is not manslaughter. No commission by omission (doctor turning off = omission). Cf. bystander - would be murder/man depending on the requisite intention.
Lord Goff: what is in the best interests of the patient? Has the patient communicated wishes? No indication or communication? Doctor shouldn’t be liable.
Old law test for loss of control?
Duffy
Had to be sudden and temporary
Strict liability. What is it? What is the difference between the old law and the new law?
Where dispense with the need for mens rea. Old law (sweet v parsley) made distinction between mala in se crimes (where obv crim, like murder) and mala prohibitor crimes (where presumption of need for mens easier to rebut, e.g. Regulatory or quasi crimes which no-one thinks of as 'criminal')
Now: emphasis is more on fault - less likely to say a crime is one of strict liability. Look at the language of the statute in order to determine this. Nature of crime, parliament’s intentions.
What do you need for legal causation? Judge or jury to decide?
Responsibility and culpability. D’s actions must be the operating and substantial cause of the consequences (Pagett). This means that d’s act must have been more than a minimal cause (Lord Goff in Pagett)
Must have a connection between D’s act and the consequences (Dalloway)
What was Pagett about? What else did it establish in relation to legal causation?
Girl used as human shield in a rooftop chase and shootout.
D convicted even though it was a police bullet that killed her.
A novus actus can break the chain of causation. Here d caused v’s death.
