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Criminal Law : Homicide 1, Murder
?????Homicide not a specific crim in itself, covers 2 crimes. Plan of lectures: o (1) Murder (AR and MR)
? Has two special defences: first special defence---Loss of Control & Diminished Responsibility. o (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: o (1) killing an enemy soldier in battle. o (2) 'advancement of justice' (i.e. the death penalty)---but of course we no longer have death penalty, so unlikely this would apply. o (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. o Causation always an issue---at very least deal with basics of factual and legal causation whenever you have homicide.
? Kill 'a reasonable person' o A person born alive and capable of independent life: o R v Poulton o AG's Reference (No 3 of 1994) o R v Reeves o Point made: if the person dying is a foetus in the womb, that is not homicide.
? 'Under the Queen's Peace' o Doesn't add very much. o 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
1 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: o self-defence
?????Partial defences: o (1) Loss of control o (2) Diminished responsibility o [[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 o Calls for reform.
?????Need for reform: o eg comments in AG for Jersey v Holley (2005). o Law Commission report 2006.
?????Coroners and Justice Act (CJA) 2009: abolished defence of Provocation, introduced new defence of Loss of Control (ss5456 CJA 2009). o Came into force 4 Oct 2010. o Abolishes defence of provocation---new one of 'loss of control'.
?????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).
2 ?????Effect of Defence, partial defence---not acquitted completely, not a full defence. o 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) o S54(5): once the issue is raised, burden of proof is on prosecution. o Burden of proof is on the prosecution---although only if facts give rise to the defence, in which case the prosecution must disprove it. o 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)). o 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. o 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: o R v Clinton, Parker & Evans, CA: o 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. o 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. o CA gave an overview of how the defence works---read the judgement of LJ Judge. Points made: o (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
3 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: o (a) Did D kill another person as a result of losing control?
S54(1)(a) o (b) Did the loss of control have a qualifying trigger?
S54(1)(b). o (c) Might 'another person' of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, have reacted in the same or similar way? S54(1)(c)
?????All three 3 elements need to be analysed sequentially and in detail (R v Clinton).
?????Note that, although burden of proof is on prosecution, prosecution need disprove only one of the 3 elements (emphasised by Lord Judge in Clinton).
?????So they are 3 hurdles which Defendant has to get over---burden of proof remains on prosecution, but only have to trip up D on one of the three hurdles. Element (1)---Did D lose control [ s54(1)(a) ]
?????D's act or omission in killing must have resulted from a loss of selfcontrol.
?????It's essentially a factual issue.
?????Clinton: element of loss of self-control can be assessed by looking at its literal meaning (old case law largely irrelevant).
?????But, the element of loss of control was also part of the old law, so can look at it:
?????Loss of control need not be complete: R v Richens (1993): this is a case from the old law, which had similar wording, so still valid o There need not be a complete loss of control (so that D does not know what he is doing); but D must be unable to restrain himself at that point. o Mere loss of temper is not enough.
? ?? ? Is a question for the jury whether D actually loss control, considering all evidence.
?????Note the loss of control need not be sudden s54(2): 'it does not matter that the loss of control was not sudden'. o To understand this, need to consider old defence of 'Provocation'---where there was, sort of, a requirement that the loss of control must be sudden. o Although that was relaxed over time.
4 o Before changes to law, good eg of: R v Ahluwalia (2002) (under old law of Provocation)---long-term abusive relationship. Victim told wife their marriage was over, he wanted her to leave the house; he threatened to beat her; he threatened to burn her. Argument petered out, victim went to bed. Ahluwalia, in middle of night, poured petrol over victim and set fire to him and killed him. Pleaded defence of 'provocation'. Prosecution said there was a long period (several hours) between the argument and the act, so there was no sudden loss of control. o CA: the possibility of D having lost control was not negative by the lapse of time---although jury should consider any evidence of delay, and of sufficient planning, are relevant factors the jury might consider in deciding whether there was loss of control. i.e. if there's delay, the defence may still work, but 'the longer the delay, the more likely it is that the prosecution will negative provocation'. o In this case, the appeal failed, not so much f delay, but because there was clear evidence of planning---which didn't suggest loss of self control. o Although s54(2) says doesn't have to be sudden, the reasoning in Ahluwalia is still relevant to defence of 'loss of control'.
?????Note also s54(4): no defence if D 'acted in a considered desire for revenge'. o So evidence of planning (like in Ahluwalia)---might be evidence of 'considered desire for revenge'. o Clinton: directed that if D acting out of 'considered desire for revenge' should be considered in this element (see section below). o And you could also argue that a long delay and planning might show no 'loss of control' at all. o But the mere fact of delay does not in itself take away the defence. o R v Jewell: trial judge gives useful direction on how this element may be assessed.
?????Remember burden of proof on prosecution---if there's doubt, favour the defendant. Element (2)---Did loss of control have a qualifying trigger [ s54(1)
(b) ]---set out in s55
?????If there's loss of control, it must have a qualifying trigger.
?????Clinton: said that the provisions requiring a qualifying trigger addressed the criticism of old defence of provocation-that it was too easy to rely upon by D. Said that new defence was more difficult to raise for D than old defence of provocation. Emphasised
5 the words 'serious', 'extreme' and 'seriously'---said these have 'raised the bar' for the defence. o Lord Judge: 'these provisions have raised the bar' CF old defence.
?????S55---identifies 2 qualifying triggers o Both qualifying triggers may apply in any facts of a particular case (s55(5))---can have a combination of the 2 triggers.
?????Old law for provocation: made clear that must be a definite acts/words/series of acts that provoked the defendant. No requirement to assess the quality of the trigger---just that there was one which provoked loss of control.
?????Now, new law---you have to evaluate the trigger, decide if it is a 'qualifying' trigger Qualifying Trigger (1)---Fear of serious violence from the victim, towards the D or somebody else---s55(3)
?????Did D subjectively fear serious violence from the victim aimed at him or another? [[not objective]].
?????Note: from wording of statute, no specific direction on the way in which the D should fear serious violence? broader application than previously.
?????Dawes, CA: despite the fact there might be factual overlaps, this is different defence to that of self-defence. Eg selfdefence requires only that D fears violence, whereas CJA 2009 s55(3) requires serious violence to be feared by D.
?????Designed to cover a situation where a jury might conclude that D was justified in using force to defend himself, but that the level of force was unreasonable---thus preventing defence of self-defence from operating, so instead turn to loss of selfcontrol.
?????Egs of when this might arise:
?????Eg, self-defence gone wrong (R v Martin (Anthony) (2002)---
this was a case well before 2009 Act, but the defence might have worked today. Martin had suffered a series of break-ins in his isolated farmhouse. He placed various security measures/booby traps around his property. Had a shotgun, waiting for burglars to come in. He shot at two suspected burglars, one of victims died. o The Defence of self-defence failed, because excessive force was used. Probably because the burglar was shot in the back when he was leaving---so probably no need for an immediate response. o But if this case was today, defence of loss of control might be available: using fear of serious violence as qualifying trigger.
6 o But note under the defence of loss of control, no requirement for fear of immediate violence, just a fear of 'serious' violence. When Martin was convicted, people said there was a gap in the law, there should be a partial defence.
?????Another eg, spousal abuse. You may be constantly living under fear of abuse.
?????Lord Judge in Clinton: in Section 55(3), it is not enough that D is fearful of violence---must fear serious violence. Qualifying Trigger (2), s55(4)---'things said or done':
?????Two requirements: o 'Things done or said' (or both) which: o (a) 'constitute circumstances of an extremely grave character': ss55(4)(a); AND o (b) which 'caused D to have a justifiable sense of being seriously wronged' [ s55(4)(b) ].
?????High threshold: this narrows the possibility of defence caused by things said or done. There was a previous perception that the defence of provocation was too easy, and there wasn't sufficient attention to assessing the excuses for what D did. So was designed to make it harder to run the defence than the old law.
?????Hence 'extremely grave' character; 'justifiable sense of being seriously wronged'
?????Objectively judged, both (a) and (b) (Clinton; and Dawes): not enough for D to feel it is 'extremely grave' or sense of being 'seriously wrong'---it's what the reasonable person thinks is 'extremely grave', 'seriously wronged' etc.
?????Both requirements must be satisfied.
?????When is a circumstance 'extremely grave'?
?????When is a feeling of being seriously wronged justifiable?
?????Examples given, eg in reports of Law Commission, are often extreme. Eg a father coming home one day and finding his daughter being raped in his house.
?????Not everyday hurts and insults, must be something unusual.
?????Could look to the previous case law, eg on marital abuse.
?????Not much guidance, but it's a high threshold.
?????(1) 'Things said or done (or both)': o Same as old law, requirement that there must be something actually said or done or both. o Circumstances on their own will not be enough---R v Acott (1996), Lord Steyn: eg if a person was driving in slowmoving traffic caused by snow, and lost self-control, he would not be able to rely on this defence. [[can apply this old case because same terminology under the old law of provocation]]. o Mistake 7
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