Week 5 & 6 Homocide Notes

Criminal Law Topic 5 & 6: Homicide and the defences

Murder

AR: the unlawful killing of another person in the Queens peaceMR: an intention to kill or cause death or grievous bodily harm to the victim

A person convicted murder must be given a life imprisonment

Actus reus: the unlawful killing of another person in the Queens peace Unlawful: only defence is self denfence. A person: the victim of homicide must be a person: a foetus is not a person yet. Child must be capable of breathing, although need not actually have begun to breathe (Enoch 1830)There are offences under OATA 1861: procuring miscarriage or child destruction which give rises to life imprisonment Killed: the context of murder that D accelerated Vs death by more than a negligible amount (Adams [1957]) Queens peace: It must be in Queens peace so killing of enemy is not murder(Hirst [2008]) English court can try a British citizen of murder in any country [OATA 1861 s9, British Nationality Act 1948 s3] Within a year and a day: abolition by Law Reform (Year and a Day Rule) Act 1996

It is important that Ds act or omission caused Vs death

Mens Rea: an intention to kill or cause death or grievous bodily harm to the victim

Intention: as in Woolins direction jury finds intention only if the death or GBH is the virtually certain result that of the defendants actions and the defendant appreciated that Kill or cause GBH: GBH means really serious harm (Janjua [1999], DPP v Smith [1961]). Harm can be it would not even pose a risk the life of the victim (Bollom [2003]). The transfer of mens rea doctrine applies in murder for persons but not for animal or damage a piece of property.

Notes: Three alternative of MR1. Direct intenet to kill (express malice): causing death is main aim2. Direct intention to cause GBH (implied malice): causing GBH is the defendants purpose but death occurred as a result3. Oblique intention: D has some other aim other than causing GBH or death but his actions rendered death as a virtually certainty.

Manslaughter

The Homicide Act 1957 contained three defences that operated to reduce liability from murder to voluntary manslaughter. Voluntary manslaughter: Killings which are murder but for the extenuating circumstances that AR and MR are the same of murder.

D pleads loss of control to a charge of murder D pleads diminished responsibility to a charge of murder D pleads suicide to a charge of murder

Involuntary manslaughter: Killings which D does not have the intent to cause GBH or kill but there is sufficient fault.

D convicted of reckless manslaughter or gross negligence manslaughter or constructive manslaughter.

Voluntary manslaughter

A. Loss of controlThe defendant must show:i) He or she loss of controlii) The loss of self-control was caused by a qualifying trigger three limbs def andiii) A person of the defendants age and sex with a normal degree of tolerance and self-resistant would have reacted in the same way.

Loss of control is a defence to murder, but not a defence to attempted murder. If the defendant is successful, D is still guilty of manslaughter. For other offences such as assaults, the fact that the defendant as provoked into attacking the victim may be relevant in deciding the appropriate sentence, but it does not provide a defence.

i) LOST SELF CONTROL

R v. Dawes [2013]: Judge LJ

Loss of self control is a subjective questionLoss of self control does not matter whether it the loss is sudden or not.

The guilty of murder the defendant S54 (4) D acted in a considered desire for revenge. NOT AVILABLE54(2) : it does not matter whether or not the loss of control was sudden.The loss of control plays a minor role: it remains to be seen how the court understand the requirement. Just that not revenge!

ii) LOST SELF CONTROL AS A RESULT OF QUALIFYING TRIGGER

S55 The definition of qualifying trigger a. Fear of serious violence: b. An extremely provocative act :c. A combination of a fear of violence and an extremely provocative act

a. Fear of serious violence as a qualifying trigger

1. A fear is suffice,2. It must be serious3. Threat can be to anyone and of course violence to D or another person. 4. Trigger only applied in case where D kills person that poses to them(R v. Clinton [2012])5. S55(6) a D cannot rely this trigger if what caused the fear of violence was an excuse. 6. It must be LOSS OF CONTORL7. Self defence is a complete defence to murder

b. Being seriously wronged as a qualified trigger:


Ending a relationship does not qualify a qualifying trigger it must face extremely grave character

R v Doughty [1986] : Babys crying not justifiable not qualified justifiable sense of being wronged

R v Clinton [2012] Bingham LJ: wife admitted to husband having affairs, sexual encounters. Going suicide, no balls said wife, kill wife

it was held that defendant must feel gravely wrong to rely on the triggerThe definition of sexual is problematicInfidelity is accepted as continued relationshipS55 6(C): D facing a serious wrong is better able to present a dfence.

1. Where D is facing circumstances of an extremely grave character and the defendant has a justifiable sense of being seriously wronged. Extremely grave character : statue does not explain what does that mean2. Justifiable sense of being wronged.(Doughty: baby not justifiable) 3. The act must be a serious wrong to the defendant4. The trigger can only be used where there is something said or done. So circumstances alone could not amount to a qualifying trigger. 5. Clinton, it was held that defendant must feel gravely wrong to rely on the trigger. This suggests that if the defendant was seriously insulted, but was not upset, they cannot rely this trigger.6. Section 55 (b) makes it clear that D cannot rely on something said or done if he or she inclined it for the purpose of providing an excuse. So if D asked V to say the most insulting thing that V could think in order to provide him or her with an excuse of killing V -> N/A7. Section55 6(c) provides sexual infidelity is not a thing said or done that can amount to a qualifying trigger. -> PROBLEMATIC IN CLINTON

iii) Would a person with normal tolerance and self-restraint have acted as D did?

a) The normal degree of tolerance and self-restraintb) The reference to the Ds circumstancesc) The reaction of a hypothetical person

R v. Camplin [2013]: Diplock LJ

Court cannot expect an old head on young shoulder and therefore required the jury to consider whether the D has demonstrate the level of self control expected of a person of his age.


This was a counter intuitive but was required by the wording of the statue

It is an objective questionEven D with mental, need to show the normal degreeOld law of provocation: Skeptical:

R v Ahluwalia [1992]: was arranged marriage. Suffered violence. Last straw!

An extremely provocative act: A combination of a fear of violence and an extremely provocative act

Diminished Responsibility

Diminished responsibility is a defence only to murder and if successful to reduce the charge to manslaughter

The D must show that he or she suffered from an abnormality of mental functioning, arising from a recogonised medical condition, which provides an explanation for committing the killing It must also be shown that the abnormality substantially impaired his or her ability to understand that nature of his or her conduct, from a rational judgment and exercise self control.

Homicide Act 1957 -> Coroner and Justice Act 2009 s2(1):

Four requirement: A. He was suffering from an abnormality of mental functioning.B. The abnormality of mental functioning was caused by a recogonised medical condition.C. As a result of the abnormality, Ds ability to understand the nature of his or her conduct, form a rational judgment, or exercise self-control, was substantially impaired. D. That abnormality of mental functioning provided an explanation for the defendants conduct, in that it was significant contributory factor in carrying it out.

a. He was suffering from an abnormality of mental functioning.

R v Bryne [1960]

It held that it is enough the Ds mind was sufficiently different from a normal mind to be classified as abnormal..

R v Vinarge [1979]: Othellos syndrome

The new law: recogonised medical condition

b. The effect of the abnormality of mental functioning There must be a failure to understand the nature of the conduct could mean D does not know what he is doing! D has to show that his or her ability to make an assessment of what is the right thing to do has been substantially impaired by mental abnormalityThe final possible impact of the abnormality is that it affects the Ds ability to exercise self control.

R v R [2010]: R kill his cousin, whose wife he was having an affair.

Oxford dictionary: - have substance, real importance.

R v Osborne [2010]: ADHD: need to be SUBSTANTIAL

c. Explanation for the actsS 2(1)(c): Proof that Ds abnormality of mental functioning provides an explanation of Ds act or omissions or being or in doing a party of killing

Intoxication

R v Dowds [2012]: Vast amount of alcohol and killed his partner. No recollections -Whether judge has been correct to rule that transient cute intoxication was to raise partial deference

Where D suffers from alcohol dependency syndrome then that will be treated as an abnormality of mental functioning for the purpose of the defence, if it is a severe case. If jury decides that the syndrome has caused involuntary drinking, then the impact of involuntary intoxication can be included as an abnormality of mental functioning.

Voluntary acute intoxication is not capable of founding Diminished responsibility

If D so drunk, cant show GBH - Majeski

Suicide

Def suicide s4 Homicide Act 1957 s4(3)

A common agreement between two or more persons having its object the death of all of them, whether or not it is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.

S2(1): Suicide Act 1961

Mercy killing and euthanasia If the patient is competent and asks for treatment to withdraw, then doctor must follow patients wishes, even if as a result a patient will die. P does not have right to permit others to do acts which will cause his death , he does have the right to refuse treatment and let nature take its course (Re B) If the patient incompetent a doctor can withdraw treatment, if to do so would be in a patients best treatment It appears to be lawful for a doctor to administer a pain reliving drug which shorten Ps life R (Nicklinson) v Ministry of Justice, DPP produce guidance on when a relative who kills and terminate P will be prosecute for murder Suicide is no longer a crime, but assisting someone to commit is an offence [Suicide Act 1961] R (Purdy) v DPP, DPP had to issue clear guidance on which case of assisted suicide would be prosecute.

Infanticide

Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child. ----- s 1(1) Infanticide Act 1938

Involuntary manslaughter

1. Constructive manslaughter: the word constructive means it is constructed from a liability of a lesser crime.1 unlawful2 Dangerous3 Caused death of victimLord Hope AGref 1998

a. Unlawful act

Dhaliwal: husband abusive to his wife, causing her severe emotional trauma, which lead to her taking her own life.: Emotional wreck is not unlawful act.

Andrews v DPP: dangerous driving -> constructive manslaughter -> a lawful act with a degree of carelessness which the legislature makes criminal.

Meeking: CA suggested that a negligence act could form the basis of a constructive manslaughter.

Meeking: Senior the defendant failed to summon medical help for his child.

Lowe: CM could not be based on an omission Failed to reconcile each other!

b. Dangerous act: It is being judged objectively. This means that there is no need to show that the defendant was aware that his act was dangerous. This is demonstrated by Dawson

Carley: the shock could be included in physical harmJohnson: spitting is not dangerousBristow: a burglary from an isolated vehicle repair shop was held to be dangerous.

Dawson can be contrasted with JM and SM where the defendant got into a fight with a group of bouncers outside a club. Heart aneurism and died.

Lamb: load gun: no bullet. Went off opposite and shot. -> dangerous act, but no unlawful act.

Chruch: He pushed body into river where she is drowned. Court has to be risk some harm

Newbury and Jones: he need not to recogonise it is danger from his unlawful act

c. Caused the deathAGs ref 1994: rejected Ds unlawful conduct must to be aimed at the Victim

2. Gross negligence manslaughter

It must be shown that

The D owed a victim a duty of careThe defendant breach that duty of careThe breach of that duty caused the death of the victimThe breach is so gross that it justify a criminal convciton

R v Adomako: anatheist who failed to notice for six minutes that a tube that supplied oxygen to his patent become disconnected.

i) A duty:Wacker: duty of care being judged in the law of tort in negligence. Neighbor principle

Evans: whether there is duty of care, judge decide, not jury

ii) A breach of a dutySpecial skills, breach is different

iii) Causing the deathHayward: D drive a hrose and cart without holding reins when he hit a girl.Girl died, but not caused the death of the girl, his negligence did not. Even if, he would not have avoided that.

iv) Gross negligenceAdomako: jury has wide discretion.AGs ref 1999: it is not necessary for D to foresee a risk.

3. Subjective reckless manslaughterSubjective reckless manslaughterThe defendant killed the victim foreseeing a risk of death or serious injury

If D killed V, foreseeing a risk of death or serious injury, then he can be convicted of subjective reckless manslaughter. Constructive and gross negligence is easier to prove.

Case Lists for Homicide


Loss of self control is a subjective questionLoss of self control does not matter whether it the loss is sudden or not.Ending a relationship does not qualify a qualifying trigger it must face extremely grave character

R v Doughty [1986] : Babys crying not justifiable not qualified justifiable sense of being wronged


it was held that defendant must feel gravely wrong to rely on the triggerThe definition of sexual is problematicInfidelity is accepted as continued relationshipS55 6(C): D facing a serious wrong is better able to present a dfence.

R v. Camplin [2013]: Diplock LJ

Court cannot expect an old head on young shoulder and therefore required the jury to consider whether the D has demonstrate the level of self control expected of a person of his age.


This was a counter intuitive but was required by the wording of the statue

R v R [2010]: R kill his cousin, whose wife he was having an affair.

Oxford dictionary: - have substance, real importance.

R v Osborne [2010]: ADHD: need to be SUBSTANTIAL

R v Dowds [2012]: Vast amount of alcohol and killed his partner. No recollections -Whether judge has been correct to rule that transient cute intoxication was to raise partial deference

Where D suffers from alcohol dependency syndrome then that will be treated as an abnormality of mental functioning for the purpose of the defence, if it is a severe case. If jury decides that the syndrome has caused involuntary drinking, then the impact of involuntary intoxication can be included as an abnormality of mental functioning.

Voluntary acute intoxication is not capable of founding Diminished responsibility

R v Meeking: failure to call doctor

CA suggested that a negligence act could form the basis of a constructive manslaughter.

R v Lamb: failure to call doctor

CM could not be based on an omissionR v Lamb contrast with R v Meeking

R v Chruch: He pushed body into river where she is drowned. Court has to be risk some harm

Not enough that an unlawful act caused death. The unlawful act must be one that all sober and reasonably people would inevitably recognise must subject other person to the risk of some harm.

R v Newbury and Jones: threw a slab from a bridge onto a train, killing the guard.

he need not to recogonise it is danger from his unlawful act


D must have departed from the proper standard of care incumbent upon him. Where a person holds themselves out as possessing some special skills or knowledge will be judge in the reasonably competent professional


D must have departed from the proper standard of care incumbent upon him. Where a person holds themselves out as possessing some special skills or knowledge will be judge in the reasonably competent professional

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Week 5 & 6 Homocide Notes