Homicide 1 Murder Notes

Criminal Law : Homicide 1, Murder

• Homicide not a specific crim in itself, covers 2 crimes. Plan of lectures:

  • (1) Murder (AR and MR)

    • Has two special defences: first special defence—Loss of Control & Diminished Responsibility.

  • (2) Involuntary Manslaughter: where cannot prove MR for murder.

AR for Murder

• Unlawful killing of another human being under the Queen’s Peace: Coke (3 Inst 47).

• ‘Unlawful’: Killing is always unlawful unless:

  • (1) killing an enemy soldier in battle.

  • (2) ‘advancement of justice’ (i.e. the death penalty)—but of course we no longer have death penalty, so unlikely this would apply.

  • (3) Self defence [[probably best to deal with as part of ‘defences’, although can mention it in AR].

• ‘Killing’: see causation—need to show D’s actions caused the death.

  • Causation always an issue—at very least deal with basics of factual and legal causation whenever you have homicide.

• Kill ‘a reasonable person’

  • A person born alive and capable of independent life:

  • R v Poulton

  • AG’s Reference (No 3 of 1994)

  • R v Reeves

  • Point made: if the person dying is a foetus in the womb, that is not homicide.

• ‘Under the Queen’s Peace’

  • Doesn’t add very much.

  • It’s a matter of jurisdiction—murder is one crime which has long been a crime that can be prosecution wherever it takes place—if it happens overseas, can be prosecuted if the defendant or victim is a British citizen.

MR for Murder

• Intention to kill OR cause GBH (R v Vickers)

• Can get tricky issues of oblique intent—but not always, if nothing on the facts that gives rise to oblique intent, no need to discuss it.

• When D’s purpose or objective = death or GBH or victim, necessary direct intent will be found.

• Where purpose in acting is to achieve something other than death/GBH, a Woollin direction (on oblique intent) can be given to the jury, from which they may find the necessary intent [[remember judges have said the need for this direction will rarely arise]].

Summary—AR & MR for murder

• A/R: Unlawful killing of another human being under the Queen’s Peace

• M/R: Intention to kill/cause GBH (R v Vickers)

• These tend to be fairly straightforward, apart from causation in AR.

• The complexities often come in the defences.

Sentence

• Murder carries a mandatory life sentence—Murder (Abolition of Death Penalty) Act 1965.

• Judge has no discretion in sentencing—other than to recommend a minimum term before a prisoner can be released on licence.

• The mandatory life sentence has been crucial in shaping the developing of law re homicide

DEFENCES to murder

• Full defence:

  • self-defence

• Partial defences:

  • (1) Loss of control

  • (2) Diminished responsibility

  • [[both these defences apply ONLY to murder]].

Special Defence 1: Loss of Control

• ‘Loss of control’ is a relatively new defence, it replaces previous defence of ‘Provocation’, abolished 4 Oct 2010

  • Calls for reform.

• Need for reform:

  • eg comments in AG for Jersey v Holley (2005).

  • Law Commission report 2006.

• Coroners and Justice Act (CJA) 2009: abolished defence of Provocation, introduced new defence of Loss of Control (ss54-56 CJA 2009).

  • Came into force 4 Oct 2010.

  • Abolishes defence of provocation—new one of ‘loss of control’.

• Preliminary points:

• NOTE THAT, from the explanatory notes of the Act, we know that the aim of the act is to limit/narrow the availability of this defence (acknowledge in Clinton).

• Effect of Defence, partial defence—not acquitted completely, not a full defence.

  • A partial defence—if it works, D is acquitted of murder, and convicted of voluntary manslaughter instead (so will avoid the mandatory life sentence): s54(7) (has the MR for murder, but factors to be taken into account). Because murder has a mandatory life sentence. And under voluntary manslaughter, life sentence is the maximum penalty, rather than voluntary. Gives discretion to judges, some flexibility.

• Burden of Proof s54(5) and (6)

  • S54(5): once the issue is raised, burden of proof is on prosecution.

  • Burden of proof is on the prosecution—although only if facts give rise to the defence, in which case the prosecution must disprove it.

  • Prosecution only needs to show that 1 of the 3 components is absent for the defence to fail (R v Clinton Parker & Evans (2012), CA)).

  • S54(6), for judge to decide whether defence can be put before the jury: if a trial judge considers that no defence of loss of control will ever work, the judge can direct the jury not to take it in account.

  • R v Jewell (2014), CA: dicta from CA seems that the power of the judge to remove the issue of loss of control from the jury may prove to be a significant change from the old law of provocation.

• Relevance of previous law:

  • R v Clinton, Parker & Evans, CA:

  • Makes clear that loss of self-control replaced the old law on provocation—and that application of this defence should be made with reference to the CJA 2009.

  • Stressed that the old common law is now largely irrelevant—it can be referred to, but any use of old common law must be justified.

  • CA gave an overview of how the defence works—read the judgement of LJ Judge. Points made:

  • (1) Lord Justice Judge: Emphasised that the new statutory defence, from the 2009 Act—its common law heritage is irrelevant. [lecturer not sure he agrees, says case law can be relevant. Wording of new law is in some places similar to old law. Most importantly, if using old cases from before 2009 Act, you have to justify why you think it’s relevant.

• SO NOTE: due to Lord Judge’s comments in Clinton, any use of old common law cases must be explained/justified within an answer. Eg: This area of law is not defined within the Act however we may secure some guidance on what the courts will be looking for with reference to R v Richens where it was held that……’

Elements of the Defence--s54(1)—3 issues the jury needs to consider:

• s54(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) Did D kill another person as a result of losing...

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