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Murder Short Notes

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? 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: life begins at birth --- foetuses cannot be victims. However, a person can be born in the womb, then die after being born alive. Foetuses are protected by the offences of 'procuring a miscarriage' and 'child destruction' under the OAPA 1861. Life ends at brain death. Issue 2: unlawfully: if D is able to rely on self-defence, then he has not killed unlawfully. Issue 3: killed: must be shown that D caused the death of V. 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
? Cunningham [1982]: D killed V by repeatedly hitting him over the head with a chair. D denied intent to kill, but the jury found there was intent to cause GBH. D is convicted of murder. HL: uphold conviction. o Lord Hailsham (majority): upholds rule that MR is intention to kill or cause GBH. "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." o Lord Edmund-Davies (dissent): "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." Finds it strange that intending to break an arm (counting as "really serious harm") could be convicted of murder, even though that action is unlikely to kill. Debate over abandoning the 'correspondence principle': correspondence principle is that the only appropriate MR for murder is intent to kill.
? Lord Steyn in Powell: it should be an "intention to kill or an intention to cause really serious harm coupled with awareness of the risk of death."
? Counter: intention to cause serious harm is: "crossing a moral threshold, at which point the defendant is responsible for creating his own bad luck." NB: constructive malice was abolished: s.1 Homicide Act 1957: same MR applies even where the murder was committed in the "course or furtherance of some other offence."

MANSLAUGHTER QUICK NOTES There are two main kinds of manslaughter:

1. Voluntary manslaughter: killings which would be murder but for defined extenuating circumstances. Although there is the AR and MR for murder, D does not deserve the label. Includes: (i) loss of control; (ii) diminished responsibility; (iii) suicide pact.

2. Involuntary manslaughter: killings where D does not intend to kill / cause GBH. Includes: (i) reckless manslaughter; (ii) gross negligence manslaughter; (iii) constructive manslaughter. VOLUNTARY MANSLAUGHTER 1: LOSS OF CONTROL Definition: s.54 Coroners and Justice Act 2009. Only a defence to murder. 54(1) D must show: (i) he lost self-control; (ii) as the result of a 'qualifying trigger'; (iii) a person of D's age / sex with a normal degree of self-restraint would have acted in the same way. 54(2) does not matter whether the loss of control was sudden. 54(3) D's circumstances refer 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." 54(4) D cannot use this defence if the attack is planned / calculated / out of revenge. 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. For LC D knows what he is doing, but has severely impaired powers to restrain himself from acting. Loss of self-control Prior to 2009 the requirement was for the loss of control to be sudden and temporary. This is no longer the case (s.54(2)). This is illustrated by: Dawes [2013]: D went to his estranged wife's house and found her asleep on the sofa with a lover. He attacked the V with a bottle. After a fight, D fatally stabbed V in the neck with a kitchen knife. D's defence of self-defence was rejected and he tried loss of control, but it was held at trail that this could not be put to the jury under s.55(6)(a) because D had incited the violence. CA: the judge had been right to withhold the defence as there was insufficient evidence that D lost control.
? On the inciting violence point: the mere fact that D was behaving badly and looking for and provoking trouble does not of itself lead to the disapplication of the qualifying triggers under s.55, 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. "Different individuals in different situations do not react identically, nor respond immediately." The focus of analysis is whether D acted because he 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 the result of a QT, to be a QT the thing said / done must fall within one of the categories listed in s.55 Coroner's and Justice Act 2009: 55(3) Category one: a loss of control as the result of a "fear of serious violence" from V against D or another identified person. 55(4) Category two: things said / done: (a) "constituted circs. of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged. 55(5) Category three: a combination of category one and two. 55(6) In determining whether something was a QT:
? D's "fear of serious violence / sense of being seriously wronged is to be disregarded to the extent that it was caused by a thing which D incited for the purpose of providing an excuse to use violence.
? "The fact that a thing done or said / done constituted sexual infidelity is to be disregarded. Fear of serious violence:
??? ?Only need to show a fear, not that there was actual violence. An incorrect fear will still count.
??? ?Fear must be of serious violence, against a person --- can be D, or someone else (e.g. a child).
??? ?Seems that V must be the one inciting the fear of serious violence. E.g. B cannot make D afraid, resulting in D killing V. Although if D tries to kill B (who incited fear), misses, and kills V, the defence would transfer under the transferred malice doctrine.
??? ?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). Difference is that for SD, the killing must have been reasonable in the circs. Being seriously wronged
??? ?Not much guidance about circumstances of an 'extremely grave character'. In Dawes the court says it can't be the "ordinary trials of life."
??? ?D must have a "justifiable sense of being seriously wronged." Objective test. Not relevant that the D felt wronged, if it was not objectively justifiable. The government guidance is that minor insults / upsets will be insufficient.
??? ?Act must be a serious wrong to the D. Insults directed at a third party (e.g. a friend) wouldn't count. Act must also be something said or done, e.g. a drop in share price wouldn't count.
??? ?The fact that sexual infidelity doesn't count as a QT has been problematic: o R v Clinton [2012]: D and V were married, but had financial difficulties and V had developed a relationship with another man online. V left the family home for a trail separation. V visited the family home and taunted D about her numerous affairs in detail and about D's intention to commit suicide. D lost control and stabbed V. CA (Lord Bingham): 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). Feels that to "compartmentalize sexual infidelity and exclude it ... is unrealistic and carries with it the potential for injustice ... Where sexual infidelity is integral to and

forms an essential part of the context in which to make a just evaluation [about a QT] ...
55(6)(c) does not operate to exclude it."
??? ?Herring: rare that a case will be 'pure' sexual infidelity and so rare for the s.55(6)(c) block to be raised. Barristers will point to another legitimate QT, letting infidelity become part of the circs. Would a person with normal tolerance and self-restraint have acted as D did?
The test here is whether a person of D's sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D might1 have reacted in the same way. This is an objective question for the jury. The objective limb of the test proved highly problematic for the old law on provocation and a number of issues need to be addressed:
? The normal degree of tolerance and self-restraint: even if the D has lower levels of tolerance and self-restraint through no fault of their own, e.g. due to mental illness, they cannot rely on the defence. The test here operates in a strict way --- only age and sex can vary the standard. The provision is designed to stop D relying on his own unreasonable beliefs etc. (so a homophobe can't rely on his beliefs). This reflects the position that the law expects people to behave with a degree of self-restraint.
? The reference to D's circumstances: jury can account for D's circs. The nature of the trigger is seen in light of D's history (D's history is part of circs.). Thus, a minor wrong can be considered major in the circumstances (a small provocation from a previously abusive partner). In Clinton the court recognized that although sexual infidelity cannot be seen as a trigger, it can be considered as part of the D's circumstances. E.g. make another provocation more severe. o NB: circs. do not affect the level of self-control required. Just go to provocation. o Intoxication cannot form part of D's circs. --- D is judged as a sober person in same circs: Asmelash [2013]: D and V were drinking together. D claimed V had been verbally abusive towards him and tried to sexually assault him when they returned to a hostel they were staying in. D drew a knife, intending to scare V, but swing the knife at V when he began to advance towards him. V died. CA: D's voluntary intoxication was not one of his circs (i.e. normal intoxication rules apply). "It does not mean that the defendant who has been drinking is deprived of any possible loss of control defence: it simply means ... that the loss of control defence must be approached without reference to the defendant's voluntary intoxication." DIMINISHED RESPONSIBILITY Definition: DR is a defence only to murder --- if successful it reduces the charge to manslaughter. s.52 Coroners and Justice Act 2009: 52(1) D will not be convicted of murder "if D was suffering from an abnormality of mental functioning," which: (a) "arose from a recognized medical condition" and (b) impaired D's ability to do the thing's listed in s.2; (c) forms an explanation for D's actions.

1 This favours D. The jury doesn't have to be sure that a normal person would have reacted the same way, just that they might.

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