Murder notes (Criminal law) PDF

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Revised notes on murder, with the defences of diminished responsibility and loss of control...

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Murder No statutory defintion Definition- Lord Justice Coke  (When a man of sound memory and the age of discretion) unlawfully killeth any reasonable creature in rerum natura under the King’s peace, with mailce aforethought Actus Reus  Unlawful killing of a human being in the Queen’s Peace ‘any reasonable creature’= human being  Not a foetus  Born alive, wholly expelled and capable of existence independently from the mother  David Ormerod in Smith and Hogan = independent existence, independent circulation and should have breathed after birth (problematic)  Born alive, wholly expelled and capable of existence independently from the mother  Death= where the brain stem has ceased to function, no electrical activity (3 Law Lords accepted this definition obiter in Airedale NHS Trust v. Bland Queen’s (King’s) Peace  Outside of wartime Causation Homicide is a result crime so the act or omission of D must have caused the death of V (or accelerated it) Factual  Apply the ‘but for’ test as established in White. But add ‘when she/he did’ onto the end of it Legal  D’s contribution to V’s death must be the operating and substantial cause (Smith)  Substantial = “more than slight or trifling” (Kimsey), D’s action not sole cause but must be more than minimal – Benge  There must be no novus actus interveniens (no break in the chain) Can include o The ‘free, deliberate and informed act of a third party’ Pagett – shot at police, used girlfriend as shield, officers shot her, deliberate act but not free (self defence) o Abnormal natural event coinciding with or occurring after D’s conduct o Negligent medical treatment, but sub-standard won’t if original injury still playing significant part o Smith- stabbed but then dropped twice and wrong treatment but didn’t break chain (original wound substantial cause of death) o Cheshire o Jordan- original wound was nearly healed, hospital gave him antibiotics he was allergic too, broke the chain. Medical treatment was ‘palpably wrong’

o Actions or reactions of the victims o Roberts- V jumped from moving car to escape assault. Her reaction was reasonably foreseeable- fight or flight response o Chain only broken if V’s actions are ‘daft’ o Neglect by the Victim o Dear- refused treatment, chain intact o Think Skull Rule o D must take V as they find them, applies to pre-existing physical or psychological defects (and un-diagnosed) o Blaue- Jehovah’s witness refused blood transfusion after stabbing, chain not broken o Hayward- Husband chased wife, she died of exertion and undiagnosed thyroid condition Mens Rea Malice aforethought = no wickedness or premeditation “intention to kill or cause GBH” Moloney It is either EXPRESS or IMPLIED Express malice  Intention to kill  R v Vickers Implied malice  Intention to cause GBH  GBH= “really serious harm” DPP v Smith, “serious harm” Saunders Mens rea can extend to oblique intention… has the meaning attributed to it in Woollin. The degree of foresight in relation to oblique intention has differed over the years;  Moloney- If the result was a “natural consequence” of D’s actions, and D realised this. Fairly low standard, problematic because something can be a natural consequence without being certain (conception)  Hancock and Shankland- Lord Scarman changes foresight to “degrees of probability”, higher probability= increases likelihood that consequence was foreseen= greater probability it was intended  Nedrick- result (of death/serious injury) was a “virtually certain” result of D’s actions AND did D appreciate the result was virtually certain? Lord Lane changes test to “foresight of virtual certainty”  Woollin- Lord Steyn endorsed Nedrick and the “virtually certain” test with both elements.

Rule of law vs. rule of evidence Lord Steyn in Woollin replaces the word “infer” to “find”, this was interpreted to mean that Steyn changed foresight from a rule of evidence to a rule of law.

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Previously indirect foresight was just a way of proving direct intent but this made indirect intent its own form Re A- treated virtual certainty test as a rule of law (only a civil case though, not binding) Re v Matthews and Alleyne- law has not yet reached a definition, remains a rule of evidence

Defences Diminished Responsibility- s.2(1) Homicide Act 1957. Will reduce murder to manslaughter 1. The accused must suffer from an abnormality of mental functioning

2. Arising from a recognised medical condition

3. That substantially impaired his ability to… Understand the nature of his conduct

To form rational judgement

Exercise selfcontrol

4. Which provides an explanation for the killing

1. Abnormality of mental functioning  Previously abnormality of mind o (Lord Parker) Bryne - “a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgment.”  For jury to decide after hearing medical evidence

2. AMF must arise from a recognised medical condition

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Previously had to arise from a condition of arrested or retarded development, disease or injury of any inherent cause Now you don’t have to fit into one of these categories o Allows for advances when more conditions become recognised o If it has ‘merit’ as a condition it could still be argued- v. generous approach

Intoxication as a recognised medical condition?? - Very restricted Dowds - Voluntarily acutely intoxicated not a recognised medical condition in context of DRdefence not allowed. - LJ Hughes- generally not allowed elsewhere in criminal law so why let succeed here?? Bunch - D binge drinking, could be recognised medical condition if amounted to alcohol dependency syndrome- but only if you can show a causal link to the abnormality of mental functioning. 3. Substantially impaired ability too… Substantial definition - R v Golds -In first instance judge to refuse direction on what is meant by ‘substantial’ - If further needed, give direction in terms of Simcox “more than minimal, short of complete impairment” (quite restricted, has to have affected ability quite a lot) 4. Provides an explanation for the killing  Looking for a causal connection between D’s abnormality and D’s act/omission  Not clear how far of an explanation it has to provide Burden of proof (REVERSED) - D proves defence of DR … on the balance of probabilities (prosecution prove murder beyond all reasonable doubt) - S 2(2) Homicide Act 1957 - Lambert questioned whether D’s getting a fair trial (article 6 ECHR), court said as long as the trial is fair then no breach of article 6

Loss of Control Introduced by s.54 Coroners and Justice Act 2009, previously defence of provocation (1) 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-

wider than provocation (had to act in SAME way) (2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.- suddenness has evidential value (3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to 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 or self-restraint. – cannot consider things that make a D less able to control themselves (e.g. Battered women’s syndrome) R v Asmelash- Tried to argue D’s intoxication was a relevant characteristic (something the jury could take into account). Held: NO, like in DR intoxication cannot be let in by the ‘backdoor’ as a defence (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. ‘Qualifying Trigger’ s.55 C&JA 2009  FEAR s.55(3) – fear of serious violence  ANGER s.55(4) – LOC attributable to things done/said which constituted circumstances of extremely grave character and caused D to have a justifiable sense of being seriously wronged  Combo of both s.55(5)  EXCLUSIONS- s.55(6) o (a) and (b) if you incited the reaction from V then you killed them it’s not an excuse because you basically started it o (c) Cheating- R v. Clinton, Parker and Evans [2012]  Sexual infidelity cannot 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 circumstance 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). Burden of Proof  S.54(6) If evidence appears that LOC could be relied upon, the judge reviews and decides if a jury could, if properly directed, reasonably conclude that the defence might apply.  After that, prosecution must disprove beyond all reasonable doubt.

*Some defendants may point to LOC over DR as they don’t want to be seen as ‘mad’*...