Murder and Voluntary Manslaughter PDF

Preview

Summary

Download Murder and Voluntary Manslaughter PDF

Description

Criminal Law - Murder and Voluntary Manslaughter Murder Murder is the most serious form of homicide recognised in English Law, this carries the most severe penalty possible, any defendant convicted of Murder will be sentenced to a Mandatory Life Sentence. Murder is a Common Law Offence (Not Defined anywhere, in any Act of Parliament.) The original definition of murder derives from a book from the 17th Century, by Sir Edward Coke: “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought…” – Coke’s Institutes, 3 Co Inst 47 This definition is what the courts have adapted to and formed the basis of how murder is defined in todays terms. Coke’s definition can be explained now as followed: “A person will be guilty of murder if they unlawfully kill another human being, under the king/queens peace, with the intention to kill/inflict GBH” Murder: Actus Reus The Actus Reus elements of murder are as follows:

• Unlawful The requirement for murder to be unlawful is very important, in some cases killings which happen in self defence will be lawful and therefore the defendant will not be classified as a murderer. A-Gs Reference (No 3 of 1994) (1996) 2 ALL ER 10 (https://www.lawteacher.net/cases/a-gs-refno3-of-1994.php)

• Killing With Murder being a result crime, the prosecution must prove the defendant caused death of the victim. Prosecution must show that the defendant was the Factual Cause, Legal Cause and that there was No Intervening Act which broke the chain of Causation. • Death Difficulties can often emerge regarding precisely when life ends, and a person is legally ‘dead’, in current law, a person can only be legally ‘dead’ when they are diagnosed as being ‘brainstem dead’. • Human Being A defendant can only be charged with Murder if the victim is a human being, in some circumstances this can be seen as complicated issue, dependant on views and beliefs. Significantly, foetuses and unborn children are NOT considered human beings in the eyes of the law and therefore cannot be murdered. (Refer to UNLAWFUL for Case Law) • Under Queens Peace Killings of enemy soldiers during times of war are excluded from murder, therefore during battle he will not be subject to conviction. Although, enemy soldiers who have surrendered or been taken prisoner will be protected by the law of murder. (R (Al Skeini) v Secretary of State for Defence (2007) UKHL 26)

Murder Mens Rea Murder is committed when the defendants performs the Actus Reus of murder with “Malice Aforethought” - Prior to new Case Law Malice Aforethought required that a defendant had premeditated and planned the killer although this is no longer the case. In the case of R v Vickers (1957) 2 QB 664 it established the Mens Rea of murder can constitute to proving an intention to either:

- Kill; or - Cause Grievous Bodily Harm In DPP v Smith (1961) AC 290 it states that the word Grievous means Really Serious. Voluntary Manslaughter - Loss of Control A defendant will be convicted of the offence of Voluntary Manslaughter when they are charged with murder and have admitted to performing the Actus Reus of murder however they successfully plead one of four partial “special” defences which ultimately reduces their liability for murder to liability for manslaughter. A defendant who is convicted of Voluntary Manslaughter caused the death of the victim and had the intention to kill or cause GBH however pleaded to a special defence. Four Partial Special Defences The four partial special defences which enables a conviction to be downgraded from Murder to Voluntary Manslaughter are as follows:

• • • •

Loss of Control; Diminished Responsibility Suicide Pact Infanticide.

Loss of Control was first introduced as special defence by Section 54 of the Coroners and Justice Act 2009, Section 56 of this same act was abolished which contained the equivalent special defence of provocation which was based in a combination of common law and statute. Section 54 CJA 2009 (1)Where a person (“D) kills or is party to the killing of another (“V”), D is not to be convicted of murder if• D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of selfcontrol, • The loss of self control had a qualifying trigger, and • A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances might have reacted in the same or similar way to D.

So how would one be able to successfully use the defence of “Loss of Control”? A defendant must show these 3 elements; • They experienced a “loss of control”; • The loss of control must have been cause by a “qualifying trigger” and • That a person of the defendants age and gender, with a normal degree of tolerance and selfrestraint might have acted in the same (or similar) way in the same circumstances. The defence of Loss of Control is truly subjective and this must be assessed in such way, they must have completely lost control of their actions and it doesn't matter if a “reasonable person” would have lost control in the defendants circumstances. The defendant does not need to lose awareness of what they are doing, but they must not be able to restrain themselves from what they are doing (Richens (1993) 4 All ER 877.) Section 54(2) of the CJA 2009 specifies that there is a loss of control does not need to be sudden, so therefore it does not need to immediately occur as an immediate reaction to one incident a cooling period allowed. However, the longer the delay between the event that causes the loss of control, the loss of control happening and the less likely it will be that the defence will succeed. R v Ahluwalia (1993) 96 Cr App R 133 There are 2 Qualifying Triggers: The fear trigger or the anger trigger. The so-called “Fear Trigger” will be present when the defendant fears being subjected to serious violence. • This fear will be subjectively assessed (i.e. the defendant must genuinely believe they may experience serious violence – though such a fear needn’t necessarily be reasonable). • However, it must be shown that the defendant’s fear was directed at another identified person (i.e. not a general fear). The so-called “Anger Trigger” applies when a defendant’s loss of control is attributable to things that are said or done which amount to circumstances of an extremely grave character, and cause the defendant to have a justifiable sense of having been seriously wronged (Section 55(4) CJA 2009) These are issues for the jury to decide, and will be assessed objectively – R v Dawes, Hatter and Bowyer [2013] EWCA Crim 322

Diminished Responsibility The defence of diminished responsibility can be found in s.2(1) Homicide Act 1957, it is another partial defence and, like the loss of control this is applicable to murder. The prices wording has since be amended by s 52 Coroners and Justice Act 2009. (1)A person (“D”) who kills or is a party to the killing 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 (1 A), and c) Provides an explanation for D’s acts or omissions in ! doing or being a party to the killing.

Abnormality of Mental Functioning The leading authority abnormalities of mental functioning is R v Byrne (1960) 2 QB 396 Here, Lord Parker defined the term as: “a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal” however there requirement that the defendant is insane or or on the order of insanity, or that they do not know that what they are doing wrong. Recognised Medical Condition Any medical condition might be enough to satisfy the requirement (e.g depression, bipolar disorder, ADHD, brain damage, diabetes) Self- Induced intoxication generally cannot serve as a basis for diminished responsibility - R v Dowds (2012) EWCA Crim 281 If, however, the defendant is an alcoholic, and has an irresistible craving for dink, they may be able to argue that self-induced intoxication has caused their abnormality of the mind - R v Stewart (2009) 1 WLR 2507 In order to successfully use this defence, the defendant must show that they experienced an abnormality of mental functioning, arising from a recognised medical condition, that substantially impaired the defendant’s ability to understand what they were doing, form a rational judgement, or control themselves, and that this provides an explanation for their actions (i.e. why they killed the victim)....