Homicide - actus reus and mens rea PDF

Preview

Summary

General notes on homicide - split into actus reus and mens rea....

Description

Homicide Definition: ● Homicide is the killing of one person by another.. It can be both lawful and unlawful. ● Homicide, like a lot of legal categories, is very broad and encompasses a range of killings which have different moral elements (e.g. mercy killings). Whilst the actus reus for each of the different types of homicide is the same, the mens rea are crucially different and what lead to the homicide being categorised in a certain way. General Homicide in the criminal law can be divided up into the following: (1) Murder (2) Manslaughter (3) Infanticide (4) Specific offences concerned with causing death while driving Homicide Actus reus ●

●

●

Mens rea

The actus reus of muder is the unlawful ● The mens rea of murder is the intention to killing of another person in the queen’s kill or cause GBH → established in peace-. The killing of enemy aliens on Cunningham (1982). Historically, mens British soil during times of war is not an rea for murder has been described as unlawful killing → Coke (1797). ‘malice aforethought’, but this is The victim of the homicide must be a misleading as in Inglis [2010], it was held person → Where does life begin? that there need not be malice nor ill-will According to the law the human life for murder, just the intention to kill or behind at birth; Vo v France (2005) and inflict GBH. Thus, this also includes AGR No. 3 [1998] → foetus does not mercy killings. necessarily have a right to life. Intention: The killing has to be unlawful → the ● In most cases it will not be necessary for a defendant can depend upon the defence of judge to give any special direction to the self-defence jury in regards to the meaning of ○ Re A [2000] - Surgical separation intention. In difficult cases where the of conjoined twins - if surgeons defendant may have not acted with the didn’t operate to separate both intention to kill or cause GBH, then the Woollin (1998) direction is to be applied: would die but if they did operate ○ The jury aren’t entitled to infer then the stronger twin would the necessary intention, unless survive but the weaker twin they feel sure that the death or would certainly die. The law of serious bodily harm was a virtual murder is pitched on the grounds certainty (barring some of intention - if you intend to kill unforeseen intervention) as a or cause GBH then you can be result of the defendants actions convicted of murder. The surgery and the defendant appreciated that was an intentional act that came fact. with the knowledge that one of the twins would die. In this case

●

the doctrine of necessity was the defence used to justify what would in all other circumstances would be murder - the court felt that saving one twin was better than losing both. Therefore the doctrine of necessity was successfully argued in order to avoid the disproportionate consequences of the law of murder. When does life end? The law accepts the medical definition of death (brain death) → Re A (A minor) [1992]: ○ Malcherek and Steel [1981]stabbed their victim - tried to argue that when the hospital wanted to switch off the life support machine that is what caused the death - the act of the hospital in ceasing the treatment broke the chain of causation - this argument was rejected by the courts - at the point of switching off the life support the victim was already brain stem dead. ○ Airedale NHS Trust v Bland [1993]- 96th Hillsborough victim case - his carers and clinicians asked the courts for permission to withdraw his treatment and wanted a ruling that in doing so it wouldn’t be murder. The House of Lords said withdrawing treatment from a patient who is in a persistent vegetative state, when it is deemed to be in the best interests for the person, this will not be murder. Tony Bland wasn’t brain stem dead so it was more complex to decide if the law of murder could be avoided.

Killed ● In the context of muder it must be shown that the defendant caused the death of the victim by more than a negligible amount → Malcherek and Steel [1981] ● This is applied fairly generously in cases involving doctors. A doctor who provides a dying patient with drugs to ease his or

The decision is one for the jury to be reached upon a consideration of all the evidence. Kill or cause GBH ● GBH means really serious harm → DPP v Smith [1961] 61. A harm can be classified as GBH even if it doesn’t endanger the life of a potential victim → Bollom [2003] ● Through the doctrine of transferred mens rea, the intention to inflict GBH extends to when D attempts to cause GBH to B but instead inflicts GBH to C → Mitchell [1983] (CA) (Constructive malice). ● However, if, for example, D attempts to kill or cause GBH to an animal but instead kills a human, then they will not be liable for murder but likely manslaughter. ● The most important statutory provision regarding the mens rea of murder is s. 1(1) and (2), which make it clear taht it is no longer sufficient for a murder conviction to show that the defendant killed while committing some other crime, only an intention to kill or cause GBH shall suffice → R v Vickers [1957] Manslaughter: Two types of manslaughter: ● Voluntary manslaughter: these are killings which would be murder but for the existence of defined extenuating circumstances. This is in line with the principle of substantive law → fair labelling for a crime. Here the law is acknowledging that even when a defendant had the actus reus and mens rea of murder, she does not deserve the label of ‘muderer’. ● Involuntary manslaughter: cases where the defendant lacks the actus reus and mens rea for muder (lack of intention to kill or cause GBH) but there is sufficient fault to justify criminal liability. Main difficulty for the courts is in defining how little fault is sufficient to justify a manslaughter conviction. ○

Kinds of manslaughter: ● Loss of control ● Diminished responsibility ● Suicide pact

her pain will not have committed the actus reus of murder if the durgs shortent the lifespan of the patient by a few minutes. However, the doctor would if the time involved was days or weeks → Adams [1957]

● ● ●

Reckless manslaughter Gross negligence manslaughter Constructive (or unlawful act) manslaughter

Loss of control: ● Loss of control is only a defence to murder. The defendant must show: (1) He or she had lost self-control; (2) The loss of self-control was caused by a ‘qualifying trigger’; and (3) a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint would have acted in the same way. ● If the defendant’s plea for loss of control is successful, then they will still be guilty of manslaughter → s. 1(7) of the Coroners and Justice Act 2009. ○ Coroners and Justice Act 2009 replaced the defence of provocation with the defence of a loss of control → s. 56 ● In section 54 of the C&J Act 2009, there are three limbs to the defence of loss of control: (1) The defendant must show that his or her acts or omissions resulted from a loss of self-control; (2) The loss of self-control must result from a ‘qualifying trigger’; and (3) It must be shown that a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint would have acted in the same way. ● For there to be a successful defence of loc, all three criteria must be satisfied. The defendant lost self-control ● A good interpretation of loss of control is that the defendant knew what they were doing but lacked the necessary restraint to stop themselves from committing the act. In Jewel [2014], loss of control was said to involve ‘loss of the ability to act in accordance with considered judgement or a loss of the normal powers of reasoning’. Where, therefore, the evidence suggests a sustained and calculated attack it is unlikely for the defendant to rely on this defence. ○ S. 54(4) excludes this defence for defendants that act in desire for revenge. ● Under the Coroners and Justice Act, contrary to old law which stated that the loss of control had to be ‘sudden and temporary’, in s. 54(2) the legislation explicitly states that loc need not be sudden. In Dawes [2013] Lord Judge CJ explained that this was because different people react in different ways to events and thus not everyone will have a sudden and temporary loss of control and s. 54(2) is just acknowledging that. ● Whilst traditionally the law of provocation focused primarily on anger, the new law does not need anger for there to be a loss of control. Loss of control can be fueled by fear of violence, grief or moral outrage. These are all qualifying triggers for the defence of loss of control. ● It has been suggested (Herring (2011b) that under the new law loss of control will play a minor role and is primarily there so that defendants that act out of revenge should not be able to rely upon the defence of a loss of control. Loss of control as being a result of a qualifying trigger: ● To be a qualifying trigger the thing said or done must fall within one of the three categories in section 55: ○ Fear of serious violence ○ an extremely provocative act and; ○ a combination of both.

(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (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— ● 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; ● 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; ● the fact that a thing done or said constituted sexual infidelity is to be disregarded. Being seriously wronged as a qualifying trigger: ● Statute [s. 55(4)(a)] says that the circumstances have to be of an extremely grave character → no clear-cut definition of what that means. ● Defendant must have a justifiable sense of being seriously wronged → R v Clinton ● The act must be a serious wrong to the defendant. The trigger can only be used where something has been said or done. ● In Clinton it was held that the defendant must feel gravely wronged to rely on the trigger. That implies that if the defendant was extremely insulted, but was not upset by what was said, then they would not have a qualifying trigger. ● S. 55(6)(a) makes it clear that 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 → R v Dawes [2013] ● S. 55(6)(c) specifically provides that sexual infidelity is not a thing said or done that can amount to qualifying trigger → curb jury’s tendencies for sympathy in cases of sexual infidelity. ● Clinton (2013) established that sexual infidelity can be considered by the jury in a contextual sense. R v Clinton [2013] QB D and his wife both suffered from depression for which they were on prescribed medication. D was experiencing financial difficulties and stress at work. D and his wife agreed to a trial separation for four weeks as she needed time out. She left him with the children and moved into her parent’s home. D did not cope well with this and became obsessional and had been looking at suicide websites. Two weeks later she revealed to him that she was having an affair. He asked for her to come to the matrimonial home in order to tell the children together that their marriage was over. She agreed to meet. However D arranged for the children to be elsewhere at the time she was due to come and he was heavily intoxicated. At the meeting D killed her by repeatedly beating her on the head with a wooden baton and strangled her with a belt. He then took photos of her naked body in various poses and texted them to her lover. ● Held; The defence of loss of control should have been put to the jury. His conviction for murder was quashed and a retrial ordered. ● Sexual infidelity can not be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.

Where other factors count as a qualifying trigger, sexual infidelity may be taken into account in assessing whether things done or said amounted to circumstances of an extremely grave character and gave D a justifiable sense of being wronged under s.55(4) ● Sexual infidelity may be taken into account in the third component of the defence in examining the defendant’s circumstances under s.54(1)(c). Clinton exposed several issues with the exclusion of sections 54 and 55: ● The definition of sexual infidelity remains unclear. Does pornography constitue as sexual infidelity? Although in Clinton Lord Judge CJ did state that for sexual infidelity to be regarded as relevant there had to be a continuing relationship. ● Section 55(6)(c) could mean that a defendant who is facing a less serious wrong is better able to present the defence purely because of the blanket ban on sexual infidelity → questions regarding the proportionality of this statute and the possible injustices that may arise from this. ● Sexual infidelity is a well-known cause of loss of control. Thus, it is arguably artificial to completely disregard it in criminal proceedings. Juries in cases such as Clinton will not understand why sexual infidelity is being excluded. ● Sexual infidelity can be considered a factor when considering the defence of diminished responsibility. It will be confusing, in practical terms, to inform the jury that sexual infidelity can be used as the premise for one defence (diminished responsibility) but not the other (loss of control). Regardless, Clinton is a perfect example of ‘judicial creativity’ in maneuvering around the difficult task of interpreting statutes. Would a person with normal tolerance and self-restraint have acted as the defendant did? ● Would a reasonable person (same age and sex) of normal tolerance and self-restraint have acted in the same manner as D did? ● This test is an objective test that is left to the jury. ● Even when the defendant has lower levels of self-control, through no fault of their own e.g. PTSD or other mental illnesses, they will be trialed as if they were a ‘normal’ person. ○ So would a homophobe who found out ● Quote s. 54(1)(c) ● s. 54(1)(c) states that the jury should consider how the person of D’s age and sex in the cirumstances of D would have acted. One consequence of this is that the trigger must be seen in light of the defendant’s history → Hill [2008] (if someone suffered sexual abuse as a child they may find it more provocative than a normal person would have). ● At times the courts have referred to the concept of cumulative provocation or ‘cumulative impact’ (small things add up) → Dawes [2013] ● The defendant can use their circumstances or characteristics to illustrate that a particular wrong has been done to them but cannot rely on it to affect the level of self-control the law expects from them. ● How does this play out with victims of domestic violence? → R v Ahluwalia [1992] Diminished responsibility ● Definition: the defendant must show that he or she suffered from an abnormality of mental functioning, arising from a known medical condition, which provides an explanation for committing the killing. It must be shown that the mental abnormality imparied their ability to understand the nature of their actions , form rational judgment and exercise self-control. ● Diminished responsibility is a defence only to muder and even then it is a partial defence, with the final conviction, if the defence is successful, will be manslaughter → Campbell [1997] (DR cannot be used as a defence to attempted murder). ● Section 2(1) of the Homicide Act 1957 defines DR as: ○ A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder 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. ● Often if a defendant pleads guilty to manslaughter on the ground of diminished responsibility the prosecution will accept such a plea and will not seek to disprove it. However, in Vinagre (1979), the CoA stated that this should only be done in cases where there is clear evidence of a defendant’s mental abnormality. ‘Abnormality of mental functioning’ ● Applying the new law, the Court of Appeal in Squelch (2017) recognised paranoid personality disorder as a recognised medical condition and in Conroy (2017) recognised autism spectrum disorder. ● The disorder does not have to be a ‘serious’ one, but rather the disorder must be medically acknowledged and shown to impair the defendants reasoning to the point that they were unable to rationalise their actions. If this is satisfied, then the defence of DR can be used. ● However, the defendant must introduce evidence from an expert witness to establish the defence. If the expert witness presented does not have any contradictory evidence, then the jury must accept the evidence. However, if there is contradictory expert evidence, then the jury has discretion and can decide which evidence is the most compelling → R v Brennan (2014). The effect of the abnormality of mental functioning ● It must be shown that the effect of the mental abnormality would be to substantially impair one of the following; the ability for the defendant to comprehend the nature of his actions, his ability to form rational judgment, or his ability to exercise self-control. ● Failure to understand the the nature of their could potentially mean that the defendant lacked the requisite mens rea and thus it could not fulfill the mens rea aspect of a murder conviction. Furthermore, a defendant who is suffering from a disease of the mind means that they do not know the nature and quality/gravity of their acts can use the defence of insanity, which is a complete defence → principle of fair labelling. ● Law Commission (2006b): if a boy plays video games that have killing scenes all of his life, becomes desensitised to killing, gets mad and kills another child when the other child tries to take his game. When interviewed, if he shows no understanding of the gravity of his action (that a person killed cannot be simply revived). The example given would be a valid ground for the substantial impairment of mental capabilities. This was rejected R v Conroy [2017] (autism case) ● Lastly, the final possible act of the abnormality is that it affects the defendant’s ability to exercise self-control. However, there is a difference between the defence of a loss of self control and the loss of control in the context of diminished responsibility: ○ Firstly, for DR it is necessary to show that there was an abnormality of mental functioning; there is no need to show that for loss of control. ○ Second, for loss of control the defendant must have shown a degree of tolerance and self-restraint, while diminished responsibility has no such requirement. ● DR is appropriate in cases where the defendant suffered from a mental abnormality, lost self-control and killed. ● An important thing to note is that all that needs to be shown is in either of the three criteria, that there was a substantial impairment on the defendant’s ability to do one of the three things discussed, there is no need for full impairment. R v Golds [2016] UKSC → Facts: Golds admitted to killing his partner and prior to the killing he had sexually assaulted her. The question for the ju...