Fatal offences Flashcards

Question

Wollin 1998

Answer 1

D lost his temper while feeding his baby son and threw the baby against the wall. The baby died of its injuries. Edited the nedricks virtual certainty test - if the answers to the questions were ‘yes’ the jury must find rather than infer intention. Legal principle confirmed the virtual certainty test in nedrick.

Answer 2

A person commits when he kills another with the necessary intent. Intention for murder is nothing less than the intention to kill or cause serious bodily harm . The d’s foresight of the consequences of his actions is no more than evidence from which the jury might infer intent.

Answer 3

Aged 18 and over life sentence Aged 10- 17 detained at his majesty’s pleasure ( the judge has no discretion to change the sentence ) The mandatory life sentence means that the judge cannot change the starting point of the sentence. The defendant can put forward a special defence of loss of control or diminished responsibility to reduce the sentence. The judge can set a minimum number of years that the offender must serve before they can apply for release on licence. Criminal justice act 2003 Whole of life sentence ( predetermined killing of two or more, sexual or sadistic child killing) 30 years murder of police of prison officers , sexual or sadistic killing 15 years other types of murder This reflects different levels of fault within the crime.

Answer 4

There are two partial defences to murder which if plead successfully by d , will lead to a conviction of man slaughter not an acquittal Loss of control, Diminished responsibility ( suicide pact. ) This gives the judge the opportunity to give a discreationary life sentence . The defendant has the ar and mr but may have a reason why the murder happened

Answer 5

Provocation Diminished responsibility

Answer 6

Loss of control Diminished responsibility Suicide pact

Answer 7

- the old defence of provocation was a common law defence that was given statutory recognition in the homicide act 1957 - the defence can only be used for a murder charge -the defendant has actus reus of of murder but not men’s rea - allows the judge more discretion over the sentencing - vm carries a maximum sentence of life imprisonment

Answer 8

Murder reduced to manslaughter if d suffered a sudden loss of control due to provocation by the victim.

Answer 9

1 was the d provoked to lose his self control ( subjective test ) - provoked whether by things done or things said or by both together to lose his self control 2 would a reasonable man have lost his self control in the circumstance (objective test ) - whether the provocation was enough to make a reasonable man do as he did

Answer 10

- changes the partial defences to loss of control - a successful defence will mean the defendant is found guilty of voluntary manslaughter not murder

Answer 11

Coroners and justice act. 2009 - s 54 - sets out circumstances in which this new partial defences applies - s 55 defines the qualifying triggers

Answer 12

The defendant must have lost self control, - there must be a qualifying trigger - a person of same sex and age would have reacted as the defendant in the same circumstances

Answer 13

- the defendant must put forward sufficient evidence of the possibility of a defence - r v jewellery 2014 it is then for prosecution to disprove .

Answer 14

D shot the v at point blank range using a shotgun and fled the scene. He was subsequently arrested in his car, which contained weapons , ammunition and what was described as a survival kit, including spare clothes , a tent a passport a driving licence and a cheque book. At his trial , d told him the jury that when he got out of his car outsides v’s house. The judge considered that there was insufficient evidence of d having lost self control, and this decision was supported by the court of appeal.

Answer 15

- did the defendant lose control when they did the act that caused the death ? - the judge must decide that the defendant has completely lost control - a partial loss of control is not enough - the definition used in r v gurpinar 2015 was : “ has d lost his ability to maintain his actions in accordance with considered judgement or has he lost normal powers of reasoning

Answer 16

The appellant poured petrol and caustic soda on her sleeping husband and then set fire to him. He died six days later from his injuries. The couple had an arranged marriage and the husband had been violent and abusive throughout the marriage. He was also having an affair. On the night of the killing he had threatened to hit her with an iron and told her that he would beat her the next day if she did not provide him with money . At her trial she admitted killing her husband but raised the defence provocation however the jury convicted her of murder. She appealed on the grounds that the judges director. To the jury relating to provocation was wrong and also raised the defence if dismissed responsibility. The judges direction on provocation was correct. The Duffey direction was good law and the judge had directed the jury on the issue of the abuse suffered by the appellant and thus the jury would have considered the affect of this in reaching their verdict. The appeal on the grounds of provocation was therefore unsuccessful. However the appeal was allowed on the grounds of diminished responsibility, the court did however stress that it was exceptional that fresh evidence would be allowed. “ ordinarily of course, any available defences should be advances at trial. Accordingly if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would acquire much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not pursue it, otherwise as must be clear defendants might be encouraged to run one defence at trial in the belief that if it fails the court would allow a different defence to be raised and give the defendant in effect two opportunities to run different defences. Nothing could be further from the truth. Likewise, if there is no evidence to support dismissed responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism. “

Answer 17

D must at the time of the offence have lost self - control resulting in his killing a person in one of three types of situation s known as qualifiying triggers

Answer 18

Things said / done which amount to sexual infidelity are to be disregarded. If d kills v because they have been unfaithful a loc defence cannot be claimed. The thing said / done could still amount to a “ qualifying trigger” if ignoring the sexual infidelity there are other circumstances of an extremely grave character

Answer 19

D and V undergoing. Marriage crisis , financial issue and d clinically depressed v told d she had had an affair with another man. When v came back to the family home, she taunted d with details of her sexual exploits. She said she didn’t want her children to live with him and taunted him about looking up Suicide websites , saying he didn’t have the courage to do it, the day after and beat and strangled v to death. The court of appeal stated that sexual infidelity was not the only trigger, the court order a retrial so the jury considered all matter.

Answer 20

The defence is not allowed if the defendant acted in a ‘ considered desire for revenge ‘ if the defendant has time to consider revenge then the response was not sudden.

Answer 21

Following several incidents of threats and harassment, the two defendants made a plan to attack the person who had threatened them. They carried out this plan and killed them two days later. They were convicted of murder and their convictions were upheld , as there was no sudden losss of self - control.

Answer 22

The defendants youngest son told the defendant that a drug dealer was supplying drugs to all his sons had threatened to punish them for changing to different dealer. The defendant went into a rage and armed with a shotgun and razor and drove immediately to the dealers house. The defendant seriously injured the dealer with a razor and as the dealer was trying to escape the defendant shot and killed the dealer. It was held in court that the defendant had remained out of control and there was no time to cool down between the provocation and the killing therefore the defendant had succeeded in pleading for provocation as a defence to murder.

Answer 23

If d might not have acted as he did as a result of fear of serious violence alone or things said/ done. However , a combination might have caused him to act in the way he did, allowing for the partial defence of Loc. factors to be considered for loc defence to succeed : Characteristics - s 54 - jury needs to take into account whether a person of d 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 similar way to d ‘ Same age / sex as d - camplin 1978 - a 15yr old boy killed his sexual tormented. D lost self control - ‘ a person having the power of self control to be expected of a n ordinary person of the sex and age of the accused “ the reasonable man is not confined to an adult male. Would the reasonable man sharing the characteristics of the d, be similarly provoked and react as the accused did ?

Answer 24

- d loss of self control need not be sudden , it is possible for there to be a delay between the incident causing the loc and the killing - the delay may be take. Into account : - by the judge when deciding to leave the defence to the jury - by the jury when deciding if the killing resulted from a loc

Answer 25

… D had been abused by the v over many years. V threatened d with violence the next day . When he was asleep , d poured petrol over the v and set him alight. Convicted of murder - appealed on grounds of provocation old law disallowed as too long a delay. Appeal upheld on ground of the old diminished responsibility law - however it is likely that the same facts would successfully be able to use the loss of control defence if they came through the courts now .

Answer 26

Revenge - loc defence is not available to d who acts from motives of revenge - even where d loses self - control as a result of one of the qualifying triggers Incitement - loc defence not available where d deliberate incited one of the qualifiying triggger in order to provide and excuse for violence.

Answer 27

- where the jury, properly directed by the judge feels there is enough evidence to raise the issue of loc it is up to the prosecution to disprove the defence beyond reasonable doubt.

Answer 28

- where 1 d successfully pleads a loc defence, it doesn’t necessarily follow that an other d will be convicted of manslaughter rather than murder.

Answer 29

1 was a qualifying triggers present ? Would it justify a loc ? 2 would an ordinary person of the same age/ she’s as d with an ordinary level of tolerance and self - restraint, and in the same circumstances as the d have acted in the same way? 3 was there a delay between the incident causing the loc and the killing ? How far is it relevant ? 4 was d motivated by revenge , a wish to provoke violence or sexual jealousy?

Answer 30

Recognised mental condition Definition- s2 of the homicide act 1957 , amended by s 52 of the coroners and justice act 2009 1 a person who kills or is a party to the killing of another is not the convicted if murder if d was suffering from an abnormality of mental functioning which A arose from a recognised mental condition. B substantially impaired d s ability to do one or more things mentioned in subsection 1 a and C provides and explanation for d’s acts and omissions in doing or being a party to the Killing

Answer 31

1a A to understand the nature of d’s conduct B to form a rational judgement C to exercise self control, 1B for the purpose of subsection 1c an abnormality of mental functioning provides an explanation for d’s conduct if it causes , or is a significant contributory factor in causing d to carry out that conduct.

Answer 32

1 the defendant is suffering from an abnormality of mental functioning which arose from a recognised mental condition 2 the abnormality of mental functioning must have substantially impaired the defendants ability to : understand the nature of their conduct or form a rational judgment or exercise self control.

Answer 33

The defendant was a sexual psychopath who strangled a young women and then mutiliated her body. The medical evidence was that, because of his condition was unable to control his perverted desires. He was convicted of murder but the court of appeal quashed the conviction and substituted a conviction for voluntary manslaughter.

Answer 34

- must arise from a recognised mental condition - icd international classification of diseases isa diagnostic manual used by the world health organisation who - examples of accepted disorders Anxiety disorders Personality disorders Alcohol dependency Schizophrenia Epilepsy Sleep disorders Diabetes

Answer 35

Suggested that developmental immaturity should be included for defendants under 18, as the frontal lobe doesn’t fully enough to control impulsive behaviour till around 14. The government decided that conditions such as autistic spectrum disorder would be covered under recognised conditions relevant to juveniles and that developmental immaturity was nit the same as learning disability.

Answer 36

The abnormality must have substantially impaired the defendants ability to : A understand the nature of their own conduct B for a rational judgement C exercise self control

Answer 37

Substantial does not mean total, nor does it mean trivial or minimal. It is something in between. It is for the jury to decide if the defendants mental responsibility is impaired and if it substantially impaired. The judge can withdraw the fact if there is no evidence on which the jury could conclude this.

Answer 38

D killed his partner and admitted the killing. The medical evidence was that he had an abnormality of mental functioning arising from a medical condition. The only issue was whether he was in a psychotic state at the time of the killing. The Supreme Court upheld the conviction and said the judge is not ordinarily required to define the meaning of substantially. This should only be done where there is a risk that the jury will not understand the meaning of the word. The court directed that substantially in the context of this defence means an impairment which was of some importance or was a serious degree of impairment. It needed to be something more than trivial. The reason for this meaning is that there must be an important reason to reduce murder to manslaughter , not merely a reason which just passes a trivial level .

Answer 39

Ability to understand the nature of their act The defendant is an automatic state Suffering from delusions Severe learning difficulties Ability to form a rational judgment Paranoia, schizophrenia , battered women syndrome Ability to exercise self control R v Byrne unable to control his sexual desires

Answer 40

The defendant was suffering from depression but was also drunk when he killed the victim. Even through the abnormality was the depression , the court accepted diminished responsibility because even though he may not have killed had he been sober , the depression was a substantial cause.

Answer 41

The defence must prove that the defendant was suffering from diminished responsibility at the time of the offence on the balance of probabilities. Expert evidence is required from at least two witnesses.

Answer 42

The abnormality of mental functioning needs to only be a significant contributory factor. Intoxication could also be a factor there are three possibilities to consider : 1 that the defendant was intoxicated at the time of the killing and tries to use the defence diminished responsibility 2 that the defendant was intoxicated and has a pre existing abnormality of mental functioning must 3 that the intoxication is due to an addiction

Answer 43

- intoxication on its own cannot be used as a defence - intoxication is not considered an abnormality of the mind - the stance was not altered in the coroners and justice act 2009 - it was considered in r v dowds 2012 by the Coa who stated that if parliament had intended to change the law they would have introduced changes to that act

Answer 44

D was upset because in his view , v was behaving in a way that was disrespectful to the memory of d’S aunt who had just died. He killed v by repeatedly kicking him and stamping on him. The psychiatrists called agreed that’d was suffering from an adjustment disorder in the form of depressed grief reaction to the death of his aunt. However, they disagreed on whether the depression had substantially impaired d’s mental responsibility. He had also drunk large amounts of alcohol before the murder. He was convicted and appealed. Lord Hatton observed that if the jury decided that d would not have killed without taking the drink or drugs it was unlikely it would find that the abnormality on its own was sufficient enough to impair his responsibility .

Answer 45

- this is a recognised mental condition and can amount to an abnormality of mental functioning - this can form the basis of a diminished responsibility defence

Answer 46

D was an alcoholic and , after drinking heavily had gone to vs flat. D claimed he had fallen asleep there and been woken by v trying to perform oral sex on him. D repeatedly hit v with a meat cleaver , killing him. At the trial medical experts agreed that’d d was suffering from ads but disagreed as to whether this had damaged his brain. The judge directed the jury that if they found that d had suffered brain damage from his long term abuse of alcohol that the defence of dimished responsibility was available to him . But if they found that he had not suffered brain damage then they had to decide whether the drinking had been voluntary. If it was voluntary , then d could not use the defence.

Answer 47

- the old defence used the phrase ‘ abnormality of the mind’ 1 a the defendant suffered from an abnormality of the mind This could have been depression , mercy killing premenstrual syndrome or battered women syndrome r v Hobson 1997 1 b the abnormality arose from a condition of arrested or retarded development or any inherited causes : or induced by disease of injury 2 the abnormality was a substantial cause of the defendants act of killing Not necessarily the only cause but an substantial cause 3 the abnormality substantially impaired the defendants mental responsibility for their acts

Answer 48

- an unlawful killing when the defendant has no men’s Rea for murder the defendant has no intention of committing murder. 1 unlawful act manslaughter ( constructive manslaughter 2 gross negligence manslaughter

Answer 49

An act has been committed which is : Unlawful act Dangerous objectively Substantial cause of death D had the men’s Rea for the unlawful act

Answer 50

Must be a criminal offence - not a civil wrong - Franklin 1883 - civil wrong is not enough the defendant threw a box over the pier and it hit a swimmer and killed them - assault , burglary r v Watson 1989 arson goodfellow 1986 criminal damage dpp v Newbury and jones 1976 Must be an act. - not an omission Lowe - d was convicted of wilfully neglecting his son and of the manslaughter of his son - conviction quashed by the cofa- a failure to act could not support a conviction of unlawful act manslaughter

Answer 51

What caused the death - was there an unlawful act? - l and friend were playing with a revolver which they both knew was loaded. They thought that it would not fire unless one of the bullets was opposite the barrel. They knew there was no bullet in this position , they didn’t realise that the cylinder turned so the next bullet would be fires. L pointed the gun at his friend and pulled the trigger killing him. No unlawful act point a gun was not an assault The friend didn’t fear any violence from lamb

Answer 52

Church 1966 Such that all sober and reasonable people would inevitably recognise must subject the other person to at least the risk of some harm resulting therefor. , albeit not serious harm “

Answer 53

- if a sober and reasonable person realises that some harm can be done by the unlawful act then this part of the test is satisfied . - it doesn’t matter if the defendant themselves realised there was some risk of harm - the law commission criticised the concept because a conviction could be based on damage to property

Answer 54

D threatened another man with an open cut throat razor , in order to frighten him. The mistress of the other man tried to intervene and because she was drunk, accidentally fell onto the open blade which cut her throat and killed her . On appeal d’s conviction for manslaughter was upheld. The act of threatening the other man with the razor was technically assault. It was also an act which was dangerous because it was likely to injure someone. Humphries explained this I. Judgment when he said : “ where the act which a person is engaged in performing is unlawful then if at the same time it is a dangerous act that is an act which is likely to injure another person and quite inadvertently he causes the death of another person by that act, then he is guilty of manslaughter. “

Answer 55

D decided to set fire to his council flat so that the council would have to rehouse him and his family . The fire got out of control and his wife , son and another women died in the fire. He was convicted of manslaughter and appealed p. The coa upheld the conviction because all the elements of unlawful act manslaughter were present : - the act was unlawful - arson criminal damage act 1971 - reasonable people would recognise that setting a fire would result in some risk of harm - the act caused the death - d had the men’s Rea of arson He intended to set the fire

Answer 56

- the risk of harm refer to physical harm - causing fear and apprehension is not enough , even if the fear causes shock - it’s acknowledged that fear can cause shock which can cause physical harm - heart attack

Answer 57

Three defendants attempted to rob a petrol station. They were masked and armed with a pick axe handles. The petrol station attendant managed to sound the alarm but died from a heart attack . The defendants were charged with unlawful act manslaughter. The conviction was later quashed as the court decided at it was only foreseeable if the victims special condition was known to the defendant.

Answer 58

3 girls started a fight in which a 4 th suffered minor bruises. The girl later ran away but collapsed after 100m . Her death was from inherent heart condition which had been aggravated by her running. The girls who started the fight convicted of unlawful act manslaughter on a basis of affray. Convictions quashed on grounds that v had not been running away from a serious threat, but to get home . The only dangerous act directed at her was a punch, which didn’t cause her death. The acts of violence , affray were not dangerous enough for a reasonable person to have foreseen any harm to the victim. The original attack wasn’t serious enough to be the cause of death.

Answer 59

Two defendants threw a brick through the window of a house and entered it intending to steal property. The occupier was a frail 87 year old man who heard a noise and came to investigate what had happened . The two defendants physically abused him then left. The man died from a heart attack 90 mins later. Although the court of appeal quashed the conviction for manslaughter, the court stated that the act of burglary could be dangerous in that it would be apparent to the sober and reasonable person that an elderly man could suffer harm from the confrontation.

Answer 60

Series of unlawful act which caused the death. D pushed the v head first over the rail on a landing so she fell on her head to the floor below. He then dragged her upstairs by a rope tied around her neck. Finally he cut her neck with a knife before cutting up and disposing of the body. - held that the d could be convicted of unlawful act manslaughter even though it couldn’t be shown which unlawful dangerous or grossly negligent act was the actual cause of death.

Answer 61

D , at the request of the v, filled a syringe with herion. He gave it to the v to inject himself. The v died as a result of the drug and d was found guilty of unlawful act manslaughter. Conviction quashed held that the victims voluntary act of injecting himself broke the chain of causation. The unlawful act relied on in trial was under s 23 OAPA causing a noxious substance to be issued to the v. The victim an adult made a voluntary and informed decision to act as he did, the d had not administered the noxious substance - v did this and the chain was broken.

Answer 62

D had intention to commit the dangerous and unlawful act which caused death - positive act - intentional act So men’s Rea for the unlawful act

Answer 63

D’s were two teenage boys. As a train approached , they pushed a piece of paving stone off a bridge. It hit the train went through a window and killed the train guard. D can be convicted of unlawful act manslaughter if he did not foresee that his act might cause harm to another, he need not be aware his act was unlawful , nor need he intend or consider the risk of injury. It is enough that he realised what he was doing and intended to do it. Unlawful , dangerous , substantial cause of death + mr for the act

Answer 64

- the defendant owes a duty of care to the victim and they have failed to uphold that duty of care . - it becomes gross negligence when the breach of duty of the care has caused a death

Answer 65

The appellant was an anaesthetic in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected and, the patient suffered a heart attack brought on by lack of oxygen . The patient also suffered brain damage and subsequently died, the appellant failed to notice or respond to obvious signs of disconnection. The doctors giving evidence at the trial said a competent anaesthetist would have noticed the disconnected tube in seconds and the d’s failure were abysmal. The jury convicted him of gross negligence manslaughter and the conviction was upheld by the House of Lords.

Answer 66

- the existence of a duty of care by the defendant towards the victim - an act or omission in breach of the duty - which creates a serious and obvious risk of death - and which causes the death - the whole must amount to gross negligence - conduct so bad in all circumstances as to be criminal conduct.

Answer 67

The ordinary principle of duty of care used in adomako were set out in caparo v dickman 1990 this is covered in more detail in tort law. An act or omission can form the basis of negligence. It may not be necessary to prove duty of care if the act creates an obvious or serious risk of death it almost inevitably carries with it a duty to not endanger life.

Answer 68

The defendants supplied herion to v and then left her alone. She died the conviction of unlawful act manslaughter was quashed but stated that duty still existed.

Answer 69

D agreed to bring 60 illegal immigrants into England. They were put in the back of his lorry for the cross channel ferry crossing. The only air in the lorry was through a small vent and it was agreed that this vent should be closed at certain times to prevent the immigrants from being discovered. The crossing took longer than usual at Dover customs officers found 58 of the immigrants had died. D argued that it was impossible to determine the extent of his duty , but the court of appeal upheld that d knew that the safety of the immigrants depended on his own actions in relation to the vent and he clearly assumed a duty of care.

Answer 70

- there has been a debate about the duty of care when the d created a situation that has allowed a victim to harm themselves - r v Evan’s creating a situation where her half sister injected herself with drugs . - a duty now arises if the defendant is aware or ought to have been aware that the victims life was at risk any one of the following applies : 1 the defendant contributed by supplying or 2 the defendant was in a relationship such as parent / child or 3 the defendant and victim were engaged in a dangerous joint enterprise which went wrong 4 the defendant voluntarily assumed a duty of care

Answer 71

- once a duty of care has been shown , you must then show that the breach of this duty was the cause of death of the victim - the general rules of causation applies

Answer 72

D was a doctor who attended a women for the birth of her child at home. During the childbirth part of the women’s uterus came away. D did not send the v to the hospital for five days, and she later died. D’s conviction was quashed on the basis that he had carried out the normal procedures that any competent doctor would have done. He had not been grossly negligent. It was later decided in adomako that this was a matter for the jury to decide. This can lead to inconsistency in the judgements.

Answer 73

- r v stone and dobinson , Bateman and adomako had all debated whether the risk was to the health and welfare of the victim or if it had to be a risk of death. This was resolved in r v mIsra and srivcastava.

Answer 74

V had an operation on his knee. The two defendants were senior house doctors who were responsible for the post operative care of the v. They failed to identify and treat v for an infection which occurred after the operation and v later died, the defendants were convicted of gross negligence manslaughter and appealed on the basis that the elements of the offence were uncertain and so breach article 7 of the eurpean convention on human rights which says that no one will be guilty of a crime if it was not an offence at the time it was committed. The court of appeal held that adomako had clearly laid down the elements so there was no breach of article 7. The test in gross negligence manslaughter involves consideration of the risk o death. It is not sufficient to show a risk of bodily injury or injury to health. The defendants conviction for manslaughter was upheld.

Answer 75

- selling illegal drugs to someone who later dies can make the dealer liable for gross negligence

Answer 76

D was a herion addict used to injecting herion. The victim was also a drug user but who was not known to inject herion. They were living rough and went into a stairway of a block of flats where d prepared a syringe of herion and gave it to the victim who injected himself. D then injected himself when d had recovered from the effects of the herion he realised the victim was very ill. He asked a passer by to call an ambulance and left the scene. A conviction of unlawful act manslaughter was quashed but the judge suggested that gross negligence manslaughter might be possible as there is a duty of care to not supply and prepare illegal drugs,

Answer 77

The defendant will be judged by their behaviour rather than their state of mind. There must be on obvious risk of death which is objective,

Answer 78

The defendant will be found guilty of gross negligence manslaughter. A convictions for gross negligence manslaughter carried a maximum life sentence imprisonment.

Fatal offences Flashcards

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