Murder Short Notes

MURDER QUICK NOTES

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: 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.

  • 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."

  • 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.

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.

2. does not matter whether the loss of control was sudden.

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.”

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:

3. Category one: a loss of control as the result of a “fear of serious violence” from V against D or another identified person.

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.

5. Category three: a combination of category one and two.

6. In determining whether something was a QT:

   • D’s “fear of serious...

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