Murder & Manslaughter Flashcards

Question

re: diminished responsibility explain 'abnormality of mental functioning'

Answer 1

D must have been suffering with this at the time of the offence medical experts are usually required to evidence this

Answer 2

the condition must be found on an accepted classification system (i.e. WHO classification of diseases) which is supported by medical evidence the abnormality of mental functioning must arise from the recognised medical condition

Answer 3

o Depression o Schizophrenia o PTSD o Battered person’s syndrome o Phobic anxiety

Answer 4

o Alcohol dependency syndrome (subject to severity) o Diabetes o Epilepsy

Answer 5

Generally, no. The exception to this is if D has a recognised medical condition, and medical evidence shows the condition, not intoxication, caused the act.

Answer 6

DR may be available, but it will depend on whether alcohol consumption was involuntary due to an irresistible craving or compulsion

Answer 7

- Seriousness and extent of D's alcohol dependency. - D's ability to control or abstain from drinking. - Whether D chose to drink more than usual for specific reasons. - D's drinking pattern leading up to and on the day of the killing. - D's capacity for rational decision-making despite alcohol consumption

Answer 8

D must demonstrate it substantially impaired their ability to either: o Understand the nature of their conduct; and/or o Form a rational judgement; and/or o Exercise self-control

Answer 9

i.e. that the medical condition is the reason why they killed D In other words, there must be a causal link The jury will need to reach this determination with the help of medical evidence example: D might be suffering from a recognised illness, but if they killed in a fit of rage unrelated to the condition, the defence will not be available

Answer 10

o D must lose self-control; o The loss of control must have a qualifying trigger; and o 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 acted in the same or similar way to D

Answer 11

o P will need to prove the actus reus for murder beyond all reasonable doubt o D will then need to provide ‘sufficient evidence’ to show that the defence might apply. o The trial judge will decide whether sufficient evidence has been raised to leave the partial defence to the jury. o If ‘sufficient evidence’ is adduced, the jury must assume that the defence is satisfied unless P can prove beyond reasonable doubt that it is not

Answer 12

Evidence will be sufficient if a properly directed jury could reasonably conclude that the partial defence might apply.

Answer 13

case law > ‘loss of control is a loss of an ability to act in accordance with considered judgement, or loss of normal powers of reasoning’

Answer 14

* This is a question of fact for the jury and it is subjective – did that particular D lose control? (i.e. not looking at the reasonable person)

Answer 15

the loss of control need not be sudden there may be a loss of control when: o D ‘snaps’; or o Their reaction is in response to a culmination of events (i.e. domestic abuse) that occur over time

Answer 16

If D has acted in a considered desire for revenge they cannot rely on this defence.

Answer 17

o Planning; o D arms themselves with a weapon; o There is delay between the words / conduct and the killing

Answer 18

o Fear triggers o Anger triggers The loss of control must be a result of one or both of these triggers

Answer 19

D cannot rely on these triggers if they have incited the situation

Answer 20

Sexual infidelity on its own is not a qualifying trigger, however this does not prevent D from relying on one of the other triggers If relying on the anger trigger, infidelity may be taken into account when considering grave circumstances and justification

Answer 21

where loss of control was ‘was attributable to the defendant’s fear of serious violence from the victim against the defendant or another identified person’

Answer 22

* This is subjectively assessed – was D genuinely afraid of violence (even if the fear was not reasonable)?

Answer 23

where D’s loss on control was attributable to a thing(s) said or done which: o Constituted circumstances of an extremely grave character; and o Caused D to have a justifiable sense of being wronged

Answer 24

this is objectively assessed (i.e. would a reasonable person feel justifiably wronged?) This will be determined by a judge who must decide whether a properly directed jury could reasonably conclude this If so, then the jury will make a decision as to whether a reasonable person would feel justifiable wronged in the circumstances.

Answer 25

- D seeing their child being raped by V (circumstance of grave character). The reasonable person (i.e. objective) would feel seriously wronged.

Answer 26

this is an objective test the comparator must also have a 'normal degree of tolerance and self-restraint'

Answer 27

'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.' in other words, it means that all of the characteristics and history of D are relevant EXCEPT those that may impact on D’s general level of tolerance and self-restraint, for example:  Being aggressive or short tempered would not be considered  Being voluntarily intoxicated would not be considered  History of abuse would be considered  Sexual infidelity could be considered

Answer 28

o A baby’s persistent crying o Honour killings o A conditional threat to prevent the defendant seeing his children unless he agreed to the victim’s divorce settlement terms.

Answer 29

o Unlawful act manslaughter o Manslaughter by gross negligence

Answer 30

* Also called constructive manslaughter

Answer 31

* D must do a dangerous unlawful act which causes the victim’s death

Answer 32

means that the act carries the risk of some harm, but not necessarily serious harm

Answer 33

this is an objective test for the jury i.e. the act must be dangerous from the point of view from the ordinary, sober reasonable person It is not from the point of view of D, however the reasonable person will be deemed to have the knowledge that D had or should have had at the time of the offence D can become aware of the information that makes the situation dangerous before or during the offence

Answer 34

The unlawful act must be a criminal offence with a mens rea of recklessness In other words, crimes of negligence (i.e. neglect) and strict liability cannot be relied on there must be an act, an omission will not suffice.

Answer 35

The act need not be related to an assault, it can be a non-fatal offence i.e. burglary, robbery, theft The defence will choose the easiest to prove which is usually common law assault (i.e. battery or assault)

Answer 36

* The unlawful act must cause death * The usual rules on causation apply

Answer 37

it can be difficult to prove the unlawful act 'caused' the death because if V freely and voluntarily injected themselves the chain of causation will be broken and D will not be liable for UAM

Answer 38

the MR is the MR for the particular criminal offence i.e. if the unlawful act is assault, then the mens rea is for assault

Answer 39

write each element of the AR and MR and the fact next to it, i.e.: AR: - unlawful act: arson - dangerous: setting fire to house is objectively dangerous - cause of death: X died MR: - unlawful act of arson:...

Answer 40

involuntary manslaughter is a partial defence to a murder charge. D has still committed murder. D cannot be charged with involuntary manslaughter. voluntary manslaughter is when D does not have the mens rea for murder. There are two offences of voluntary manslaughter and D can be charged with these offences.

Answer 41

D unlawfully causes the death of another and did not intend to kill or cause serious bodily harm This only requires negligence and can be committed by act or omission

Answer 42

the court must be satisfied: o D owed V a duty of care; o D breached that duty; o The breach caused V’s death; and o The conduct was grossly negligent

Answer 43

the judge will decide there is any available evidence to establish a duty If not, the case fails at the first hurdle If there is, the jury will then decide whether a DOC existed

Answer 44

o parent and child o doctor and patient o employer and employee o driver and other road users o occupier and visitor.

Answer 45

* P must prove that D breached their DOC by either performance of a positive act or failure to act

Answer 46

o D will have breached their DOC is their conduct fell below the conduct expected of a reasonable person. o If D has special knowledge or expertise, they will be expected to meet the standard of care expected of reasonable person with that knowledge / expertise. o It does not matter if D was not aware that there conduct fell below a reasonable standard.

Answer 47

The usual rules of factual and legal causation

Answer 48

* A lack of care sufficient in tort is not sufficient for GNM. The conduct must be exceptionally bad.

Answer 49

D’s conduct fell so far below the standards of a reasonable person, having regard to the risk of death, it is justified to impose criminal penalty * Risk of death test > a reasonable person would have foreseen a serious and obvious risk, not merely of injury of event serious injury but of death

Answer 50

o This test was satisfied by a D who smuggled illegal immigrants and shut off the air vent to reduce risk of discovery

Answer 51

 By a doctor who was treated a 12 year old boy who subsequently died from a rare disease  By an optometrist who failed to spot abnormalities during a routine eye examination and V subsequently died of an obstruction to the brain.

Answer 52

* This is ultimately for the jury to decide

Murder & Manslaughter Flashcards

(76 cards)