Homocide Flashcards
(36 cards)
What is the definition of murder?
The unlawful killing of a human being under the Kings’ Peace, with malice aforethought.
What is voluntary manslaughter?
This is where the defendant has satisfied the actus reus and mens rea of murder, but murder conviction is reduced to voluntary manslaughter by way of diminished responsibility or loss of control.
What is involuntary manslaughter?
This is where the defendant has killed the victim, but lacks the mens rea of murder.
What are the special defences for murder?
Loss of control and diminished responsibility
What happens if a partial defence for murder is successful?
The accused will be convicted of voluntary manslaughter
What is the sentence for murder?
Murder carries a mandatory life sentence. The judge has no discretion in sentencing other than to recommend a minimum term before a prisoner can be released on licence.
What is the burden to prove diminished responsibility?
The burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility
What are the requirements to prove diminished responsibility?
If D was suffering from an abnormality of mental functioning which-
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in
subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the
killing.
(1A) Those things are—
(a) to understand the nature of D’s conduct;
(b) to form a rational judgment;
(c) to exercise self-control.
(1B) For the purposes of subsection (1)(c), 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.
What is an ‘abnormality of mental functioning’?
‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’
How does Alcohol Dependency Syndrome relate to diminished responsibility?
ADS is a medically recognised condition as the ICD and DSM recognised a number of medical conditions that would give rise to significant problems if raised as issues in legal cases, including ‘unhappiness’, ‘irritability and anger’, and ‘intermittent explosive disorder’.
What does substantial impairment mean?
It had a more than merely trivial effect on D’s ability to understand the nature of D’s conduct, to form a rational judgment, to exercise self-control.
Therefore, a causal link between the abnormality of mental functioning arising from a recognised medical condition and the killing must be established.
What does diminished responsibility not apply to?
Attempted murder
Where does the burden of proof for loss of control lie?
The prosecution need to prove that only one of the components is absent for the defence to fail.
What are the requirements for a loss of control offence?
Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of
murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) 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 to D.
What does a loss of self-control constitute?
Although there need not be a complete loss of control so that defendants do not know what they are doing, defendants must be unable to restrain themselves, a mere loss of temper would not be enough.
The loss of control need not be sudden (s 54(2)) but the defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’
What is a qualifying trigger?
(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which-
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence
What is unique about the fear trigger?
The first trigger (s 55(3)) ‘attributes’ the loss of self-control to the defendant’s fear of serious violence.
What constitutes things said of done under the anger trigger?
This is objective and the circumstances could not be events which ordinary people
would regard as trivial.
Limitations
D cannot rely on the anger trigger if:
* D incited it as an excuse to use violence (s 55(6)(b)); or
* The thing said/done constituted sexual infidelity (s 55(6)(c)).
Is a justifiable sense of being seriously wronged an objective or subjective test?
This is judged according to the normative standards of a normal person communally situated in Britain so is objective.
What is the normal person test?
For loss of control to be established, 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 to D.
The test for determining the proportionality of D’s reaction remains a wholly-objective one.
The normal person will have ordinary powers of tolerance and self-restraint.
Characteristics or circumstances likely to be excluded in assessing the normal person’s capacity for tolerance and self-restraint:
* Bad temper
* Intoxication
* Extreme sensitivity
* Post-traumatic stress disorder (R v Rejmankski)
* Personality disorder (R v Rejmankski)
What about mental health and loss of control?
If a mental disorder has a relevance to the defendant’s conduct other than a bearing on is general capacity for tolerance or self-restraint, it is not excluded by subs, e.g. if someone is taunted about their mental health.
When can the defence of loss of control NOT be used?
(a) In an act of ‘considered desire for revenge’;
(b) As an excuse to use violence;
(c) If the thing said/done constituted sexual infidelity;
(d) If the defendant is charged with attempted murder
When does the sexual infidelity limitation apply?
It is likely that in most cases where sexual infidelity has caused the defendant to lose their selfcontrol, there will be other factors which could make up a qualifying trigger such as the threat that the defendant will lose the children, as was the case in R v Clinton, or that they will lose their home. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the ‘whole story’.
In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and 55(4), the prohibition in section 55(6)(c) does not operate to exclude it.
How can intoxication impact the mens rea for murder?
If D is intoxicated loss of control and/or diminished responsibility can still be potentially argued as partial defences to murder, reducing the conviction to voluntary manslaughter if successful.
If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence just because he was not sober.
