Criminal Law 3 - Murder and Defences Flashcards
(35 cards)
Murder and the Partial Defences
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Actus reus of homicide
Unlawfully causes the death of the victim.
‘Unlawful’
‘Victim’ ‘ - human being.
As soon as a baby is born and has existence independent of the mother it is protect.
Time of death not whether injury happened in the womb.
‘Causes’ - usual causation rules.
Sentence?
Mandatory life
Definition ?
The unlawful killing of a reasonable creature in being under the Queen’s (or King’s) peace with malice aforethought
Actus Reus
Causes the death of a human being (in times of peace).
Mens rea
Intention either to kill or cause grievous bodily harm
(Specific intent).
GBH? - really serious harm
Can be :
Direct intent : D’s aim or purpose
Indirect or oblique intent - death or serious harm is not the D’s primary aim but is a virtually certain consequence of their actions and D appreciates this.
Difference between manslaughter and murder?
Judge has discretion in sentencing, no mandatory life sentence.
Voluntary Manslaughter
Elements of murder must first be proved.
Three situations :
a) diminished responsibility
b) loss of control
c) suicide pact
Actus and mens rea?
Same as for murder.
Prosecution must first prove both elements.
Diminished responsibility
Statutory defence - S2 Homicides Act 1957
Amended by s52 of the CJA 2009.
Four elements to be proved :
a) an abnormality of mental functioning
b) arose from a recognised medical condition: and
c) substantially impaired the defendant’s ability to understand the nature of their conduct and / or from a rational judgement and / or exercise self-control and
d) provides an explanation for the D’s act or omission in doing the killing..
Standard of proof switches to D on the balance of probabilities.
(more likely than not).
a) an abnormality of mental functioning
b) Arose from a medically recognised medical condition.
jury will make decision after hearing expert medical evidence.
Examples - depression, schizophrenia, PTSD
Diabetes, alcohol dependancy syndrome, epilepsy
Intoxication ?
An offender who voluntarily takes alcohol or drugs is not excused from responsibility.
Alcohol dependancy syndrome - jury should focus solely on effect of alcohol consumed as a result of this and not voluntarily. Expert evidence most likely required.
Substantial impairment of the defendant’s ability
Must demonstrate that this impaired their ability to do one of the three things :
a) to understand the nature of their conduct
b) form a rational judgement
c) exercise self control
‘Substantial’ - question of fact for the jury.
Provides an explanation for the D’s acts or omissions in killing
Must establish causal link between D’s medical condition and their behaviour.
Consider extent to which D is answerable for their behaviour in light of the state of mind and ability to control their physical actions.
Loss of control
Again reduces to voluntary manslaughter
S54 CJA 2009 ;
a) D must lose self-control
b) the loss of control must have a qualifying trigger and
c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint might have reacted in the same or in a similar way as D did.
Only an evidential burden.
Burden revert back to P to disprove loss of control beyond a reasonable doubt.
Loss of self-control
Question of fact subjectively assessed (as to loss of self-control).
R v Jewell (2004) - loss of the ability to act in accordance with considered judgement or a loss of normal powers of reasoning.
No need to be sudden.
Domestic violence context (building up over time) not excluded.
Could be a ‘snap’ or a cumulation of events.
Considered desire for revenge
Defence will not apply where D acted in a considered desire for revenge.
Help determine :
D arms themselves with a weapon
Evidence of planning
Significant delay between the provoking words or conduct and the killing.
Jury will assess all evidence. A delay may weaken the defence but it still may be worthwhile.
Qualifying trigger
Loss of result must be result of one or both.
Fear trigger (s55 (3))- attributable to D’s fear of serious violence from the victim against the D or another identified person.
D’s fear of serious violence is subjectively assessed. Even if not reasonable jury must be convinced it is genuine.
Must be from the victim against the D or another identified person rather than a more general fear.
Anger trigger s55(4) -
loss of control was attributable to things said or done that amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged.
D’s sense of being wronged is an objective question determined initially by the judge who must decide whether a properly directed jury could reasonably conclude that it was.
Sexual infidelity -
the fact that a thing done or said constituted sexual infidelity is to be disregarded (s55 (6) (c)).
If ‘only provocation’ must be excluded. (R v Clinton 2012).
However not subject to a blanket exclusion.
Where other factors exist it may also be taken into account in assessing whether things done or said amounted to circumstances of an extremely grave character and gave the D a justifiable sense of being seriously wronged.
It can be taken into account in the third component of the defence in examine whether a person of D’s sex and age with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same or in a similar way.
Similar reaction of a person of the same age and sex.
Objective test.
S54 (1)(c) CJA 2009 -
a person of D’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same or a similar way to D.
‘Circumstances’ - all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint.
If D short-tempered, will not be able to rely on it.
Sufficiency of evidence
Loss of control can only be presented to the jury is there is sufficient evidence that :
‘ in the opinion of the trial judge, a jury properly directed, could reasonably conclude that the defence might apply’.
Judge intervened where deaths were in response to :
baby’s persistent crying
honour killings
conditional threat to prevent D from being his children unless agreed to divorce settlement terms. vf
Involuntary Manslaughter
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Involuntary Manslaughter
Has the required AR but not the MR.
Unlawful act manslaughter
AR -
D must :
do an unlawful act, which ;
is dangerous : and
causes the victims death
MR -
of the unlawful act.
