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CRIMINAL LAW --- TOPIC 3 --- HOMICIDE MURDER Definition:
? Actus Reus: the unlawful killing of another person in the Queen's peace.
? Mens Rea: an intention to cause death or GBH to V. A person convicted of murder must be given a life sentence. ACTUS REUS Issue 1: defining a person: When does life begin? The law regards life as beginning at birth --- fetuses cannot be victims of murder because they are not considered to be 'alive'. However, a person can be injured in the womb and then die after they have been born alive. Fetuses are protected by the offences of 'procuring a miscarriage' and 'child destruction' under the Offences Against the Person Act 1861, both of which carry a maximum sentence of life in prison. When does life end? The law accepts the medical definition of death (i.e. when V has stopped breathing, the heart stops pumping and the brain ceases to function --- brain death). Issue 2: unlawfully If the D is able to rely on self-defense, then he has not killed unlawfully. Further, it must be shown that the killing took place under the Queen's peace; therefore, killing during warfare is not murder (an English court can try a British citizen for murder /
manslaughter committed in any country). Issue 3: killed It must be shown that D has caused the death of the V (see notes on causation). In the context of murder, it must be shown that the D accelerated V's death by more than a negligible amount. This is interpreted in a context specific way --- so a doctor administering drugs to a dying man does not kill him. The 'year and a day' rule was abolished in the Law Reform (Year and a Day Rule) Act
1996. MENS REA The MR of murder is intention to kill / cause GBH --- this was established in the following:
Facts: D killed V by hitting him repeatedly on the head with a chair (unprovoked attack motivated by sexual jealousy). D denied intent to kill. But there was evidence from which the jury inferred intention to cause GBH. D is convicted of murder. CA upholds this. He appeals Lord Hailsham:
? Upholds GBH rulethat the mens rea of murder is an intention to kill or cause grievous bodily harm - malice aforethought for murder can be implied where D intended by voluntary act to cause GBH and person then dies as a result.
? "At the time when the defendant inflicted the injuries on Kim . . . did he intend to do him really serious harm? ' If the answer to that question is ' yes,' you find him guilty of murder. If the answer to the question is ' no,' then you find him not guilty of murder, but guilty of manslaughter." This direction was rightly characterised by Lord Lane C.J Lord Edmund-Davies in dissent:
? A broken arm is a "really serious" injury, but intending this should not allow murder conviction. (so, doesn't like the GBH rule):
? "There should be no conviction for murder unless an intent to kill is established, the wide range of punishment for manslaughter being fully adequate to deal with all less heinous forms of homicide. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, an action which, while undoubtedly involving the infliction of "really serious harm " and, as such, calling for severe punishment, would in most cases be unlikely to kill."
? "I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill." NB Lord Mustill in Attorney-General's Reference (No 3 of 1994) said "the grievous harm rule is an outcropping of old law from which the surrounding strata of rationalisations have weathered away". Herring: the 'correspondence principle' is that the only appropriate mens rea for murder is intent to kill. Some people are a bit more flexible e.g. Steyn in Powell says it should be an "intention to kill or an intention to cause really serious harm coupled with awareness of the risk of death." Others, though, reject the correspondence principle and see intention to cause serious harm as "crossing a moral threshold, at which point the defendant is responsible for creating his own bad luck." The following statutory provision makes it clear that constructive malice is no longer good law.
s.1 Homicide Act 1957: "where a person kills in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence. MANSLAUGHTER There are two main kinds of manslaughter:
1. Voluntary manslaughter: killings which would be murder but for the existence of defined extenuating circumstances. Here the law is acknowledging that in certain circumstances even though the D had the MR and AR for murder, he or she does not deserve that label. This category includes: a. D who pleads loss of control charge to murder. b. D who pleads diminished responsibility for murder c. D who pleads suicide pact to murder.
2. Involuntary manslaughter: these are killings where the D does not intend to kill / cause GBH but there is sufficient fault to justify criminal liability. The difficulty the courts have found is in defining how little fault is sufficient to justify a manslaughter conviction. a. D convicted of reckless manslaughter b. D convicted of gross negligence manslaughter c. D convicted of constructive / unlawful act manslaughter. LOSS OF CONTROL Definition:
? This is a defence only to murder, and if successful will lead to a manslaughter conviction. The D must show:
1. He lost self control
2. This was caused by a 'qualifying trigger'
3. A person of the D's age / sex with a normal degree of tolerance / self-restraint would have acted in the same way. FOR PQs: don't consider this defence if there hasn't been a killing; it does not apply to other offences. s.54 Coroners and Justice Act 2009 (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.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. (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. NB: if the D has lost control so completely that he was not aware of what he was doing then the defence does not apply --- this would just be a simple case of lacking the MR for murder. The courts are therefore looking for a D who knows what he is doing, but has severely impaired powers to restrain themselves from acting. s.54(4) explicitly states that the D will be unable to avail themselves of the defence if the attack is planned / calculated or out of revenge. Loss of self-control Prior to 2009 the law was that the loss of control had to be sudden and temporary
--- this is no longer the case (s.54(2)). This is clear from the following case: Dawes 
Facts: D went to his estranged wife's house and found her asleep on the sofa with a lover, V. He awoke V and started punching him in the face and hitting him with a bottle. According to D, V took the bottle off him and attacked him. D then grabbed a knife from the kitchen and fatally stabbed him in the neck. His plea of self-defence was not accepted by the jury and D tried loss of control; but it was held at trial that this could not be put to the jury under s.55(6) (a) as he had incited the violence. He was convicted of murder, but appealed on the grounds that the loss of self-control should have been put to the jury. Court of Appeal: rejected D's appeal --- the judge had been right to withhold the defence from consideration by the jury as there had been insufficient evidence that he had lost his control:
? On the inciting violence point: the mere fact that in some general way the defendant was behaving badly and looking for and provoking trouble does not of itself lead to the disapplication of the qualifying triggers based on s.55(3)(4) and (5) unless his actions were intended to provide him with the excuse or opportunity to use violence.
? On the sudden and temporary point: It does not matter whether a loss of control has been sudden or not, provided there has in fact been a loss of control. "Provided there was a loss of control, it does not matter whether the loss was sudden or not. A reaction the circumstances of extreme gravity may be delayed. Different individuals in different situations do not react identically, nor respond immediately." It would seem that the focus of analysis must be whether the accused acted because he or she lost control, as distinct from a considered desire for revenge (s.54(4)).
Herring: the requirement that the individual must lose control (new under the Act) will not change much; it will most often be inferred once it is shown that the D was acting in response to a qualifying trigger. Qualifying trigger D must show that he lost control as a result of a qualifying trigger. To be a qualifying trigger, the thing said / done must fall within one of the categories identified in s.55. These are:
1. Fear of serious violence
2. An extremely provocative act
3. A combination of a fear of serious violence and an extremely provocative act s.55 Coroners and Justice Act 2009 (1) ...
(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---
(a) 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; (b) 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; (c) the fact that a thing done or said constituted sexual infidelity is to be disregarded. Fear of serious violence:
??? ?Only need to show a fear, not that there was actual violence. This means that it can be grounded in an incorrect belief.
??? ?The fear must be of serious violence --- so it seems damage to property, or fear of minor violence is not enough.
??? ?The threat of violence can be to D or to another person. So if V is threatening D's child that is enough.
??? ?Seems from the construction of the statute that V has to be the person causing the qualifying trigger --- i.e. B cannot cause fear in D that causes D to kill V. Although, under the transferred malice doctrine, if D tries to kill B, misses, and hits V the defence should transfer.
??? ?55(6): D cannot rely on the defence where he has 'incited' the fear of violence or tried to give himself an excuse to act. NB: this exception only applies where D has intentionally incited the trigger, not, e.g. where D was insulting V for fun, V attacks, and D reacts.
??? ?EVEN IF THERE WAS FEAR OF VIOLENCE IT STILL MUST LEAD TO A LOSS OF SELF-CONTROL. NB: in most cases where D faces a fear of serious violence, he will be able to avail himself to the defence of self-defence (a complete answer to murder). The difference is that in order for self-defence to be applicable, the killing must have been reasonable in the circumstances of the case. So, if there was a way of escaping the violence that would have involved the use of reasonable force (hitting V once) and a way that D took that was not reasonable (hitting V a few times) then D would want to plead self-defence. Being seriously wronged
??? ?D must have been in circumstances of an 'extremely grave character'. There is not much guidance given about this requirement --- it can't be part of the ordinary trials of life, so in Dawes the CA said that the ending of a relationship would not be enough.
??? ?The D must have a justifiable sense of being seriously wronged. This is an objective test
--- not relevant that the D felt wronged if this was not justifiable. The government's guidance is that minor insults / upsets will be insufficient --- they gave the example of a rape victim attacking her attacker as an example. Suggests that the trigger will only be available in limited circumstances.
??? ?The act must be a serious wrong to the defendant --- if therefore, the D came across someone insulting her friend, she could not argue that they were a grave wrong to her.
??? ?Trigger can only be something said or done --- i.e. a plummet in the value of shares wouldn't qualify.
??? ?s.55(6)(b): D cannot rely on something said / done if he incited it as an excuse.
??? ?s.55(6)(c): sexual infidelity does not qualify. This provision has proved problematic and was considered in the CA in the following case: R v Clinton 
Facts: D and V had been married for a number of years, but had developed financial difficulties. In addition, V had developed a relationship with another man she had met on a social networking site. V left the family home for a period of trial separation before being murdered by D. V visited the family home and (according to D) taunted him about her numerous relationships with other men in graphic detail, and taunted D about his intention to commit suicide. V threatened that she would leave D to care for their children alone. D lost control and stabbed V. Court of Appeal: the totality of the matters relied on as a qualifying trigger were of sufficient weight to have been left to the jury (the defence had been withheld by the judge at trial).
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