Aqa Law 03 - Offences against the person

Actus Reus:

• Unlawful killing of another human being under the queen's peace.
  • Unlawful killing - Death
  • Of another human being - someone else

Mens Rea:

• Malice aforethought, either expressed or implied.
  • Expressed malice - intention to kill.
  • Implied malice - intention was to cause GBH (Vickers)

Causation:

• Must prove D was the Factual & Legal cause of V's Death.
  • Factual-But for test (White/Pagett)
  • Legal - More than a minimal cause (Smith,Cheshire) 'thin skull' will not break the chain (Blaue). 
  • Novus actus intervenniens(Jordan.Robets,Williams)

Intention:

• Direct intetion 
  • Main aim or purpose to kill or to cause GBH 

• Indirect intention
  • Main aim is something different but death results
  • Virtual Certainty test (Nedrick, Woolin, Matthwes Alleyne)

The lack of a precise legal defention:

• It sometimes creates uncertainty. 
• Most countries have a legal definition of death which is 'when the brain stem is dead and the victim's brain cannot function spontaneously'.
• Criminal Law Revision Committee rejected defining death in a statute in 1980.

Problems with the intention to cause GBH:

• A defendant may be convicted of murder without intending it. 
• They intended GBH and didn't foresee the consequence of death or specifically did not want the victim to die. 
• They will receive a life sentence in the same manner as if they had premeditated murder.

Shortened Definition:

• A person who kills is not to be convicted of murder if he is suffering from an abnormality of mental functioning, 
• which arose from a recognised medical condition and;
  • substantially impaired D's ability to form a rational judgement
  • or understand the nature of his conduct.
  • or exercise self control 
• And provides an explanation for D's acts.

Section 52 of the coroners and justice act 2009

Abnormality of mental functioning: 

• A state of mind so different from that of an ordinary human being that a reasonable man would term as abnormal.(Byrne)

Causes of the abnormality: 

• From a recognised medical condition, psychological and physical conditions will be taken into account. 
• There must be medical evidence of an abnormality arising out of a recognised medical condition. Such as:
  •  Depressive Illness
  • Paranoia
  • PMT
  • Battered Wives Syndrome
  • Post-traumatic Stress Disorder
  • Epilepsy

Substantially Impairs: 

• Question of degree for the jury to decide. (Lloyd) Not substantial, nor trivial, nor minimal but just somewhere in between.

What must be substantially impaired?: 

• Nature of conduct.
  • Defendant does not know what he is doing, or is suffering from delusions or is a person with a low mental age.

• Ability to form a rational Judgement.
  • They know what they are doing but are unable to rationally think about it. Paranoia, Schizophrenia, Battered wives syndrome.

• Ability to exercise self control.
  • Someone who physically cannot control their desire such as sexual psychopaths.

Provides an explanation for D's conduct: 

• There must be a causal link, between the abnormality of mental functioning and the killing. It does not need to be the only factor, but it must be a significant factor.

Diminished responsibility and Intoxication: 

• Intoxication only:
  • Diminished responsibly not available (Dica)

• Intoxication and a pre existing abnormality of the mind:
  • Had he been sober would there still be an abnormality of the mind 
  • If satisfied found not guilty of murder but of manslaughter (Dietschmann)

• Intoxication which has caused brain damage:
  • If the brain has been damaged through alcoholism, then the injury can support a finding of diminished responsibility.

• Intoxication due to addiction:
  • Direction established (Tandy) It is a disease if Defendant cannot resist first drink of the day.

Shortened Definition

• For a person to be allowed the defence of Loss of control, three things must be established. 
  • A Loss of self-control 
  • That there was a Qualifying Trigger
  • And that a person of the same age and sex would have re-acted in the same way that D did in the same circumstances.

Section 54 of the coroners and Justice act 2009

Subjective Test - Qualifying Trigger (Section 55)

• Was D Provoked to loose their self control? 
  • The Requirement for this to be sudden and Temporary has been removed (Ahluwalia)
• Was there a fear of violence from V against D or another identified person
• And or things said or done(or both) which:
  • Constituted circumstances of an extremely grave character and
  • Caused D to have a justifiable sense of being seriously wronged.
• Excluded Matters:
  • Sexual Infidelity
  • Revenge
  • Where D has in sighted the violence

Objective test:

• Would the reasonable person have been provoked to act in this way?
• The test has since been broken down into two further questions:
  • Would a normal person have been provoked (Affected) to respond?(Response) 
  • Would such provocation have made a normal person react in the way the defendant had? (Control)
• These questions were established in the case of DPP v. Camplin which also established the difference between response and control characteristics.
• When determining the response tot he act, the jury must consider the seriousness or gravity of the provocation. Taking into account any characteristics which are the target of the provocation itself or that would increase the gravity of the provocation.
  • Height
  • Looks
• When Deciding if the normal person would have lost control only age and sex are relevant (Van Dongen)

Establishing Gross Negligence:

• Establish Duty of care through omission principles:
  • Contract (Pitwood)
  • Relationship (Gibbons & Procter)
  • Voluntary assumption of care (Stone & Dobinson)
  • Creation of a dangerous situation (Miller)
• Establish a breach
  • Contract - Not fulfilling terms of contract / not doing job.
  • Relationship - Not looking after V
  • Voluntary assumption of care - Not caring for V
  • Dangerous Situation - Failing to remedy/fix the situation
• Causation 
  • Must prove that it was the breach that caused the death 
  • Not always their actions as such.
• D had to be Grossly Negligent - meaning they need to:
  • depart from the proper standard of care and show a disregard for the life and safety of others (Edwards)

Establishing Unlawful & Dangerous Act:

• Establish if there was an unlawful act (M.R for UDA is that of the offence):
  • Must be evidence of a criminal offence.
  • Must be a positve act
  • Must have commited the Actus Reus of the criminal act
  • Must have no defence to the unlawful act.
• Establish if the act was dangerous:
  • Was the crime likely to cause some physical harm to someone
  • Would a reasonable person have foreseen the risk of harm
  • 'Thin Skull' issues are not relevant to dangerousness unless:
    • Are known, or
    • Become Apparent
  • Shock/Fear is only relevant if frailty etc.. is obvious
• The Unlawful act must be the Factual & Legal cause of the death.
• The 'Thin skull' rule can be applied in establishing causation.

Assault:

• Actus Reus: To cause someone to fear immediate unlawful personal violence
• Mens Rea: Intentionally or Recklessly
• Smith - Man in the garden, Victim didn't know what would happen next.

Battery:

• Actus Reus: Inflict unlawful force (remember slightest touch is enough)
• Mens Rea: Intentionally or Recklessly
• Bermudez - through omission,  Fagan - through continuing act

ABH Section 47 Offences against the person act 1861

• Actus Reus: That of an Assault of Battery.
• Mens Rea: Intentionally or Recklessly
• Savage

GBH Section 20 of the offences against the person act 1861:

• Actus Reus: Wounding(Breaking both layers of the skin) of Inflicting really serious harm.
• Mens Rea: Intentionally or Recklessly causing some harm
• Saunders

GBH Section 18 of the offences against the person act 1861:

• Actus Reus: Wounding(Breaking both layers of the skin) of Inflicting really serious harm.
• Mens Rea: Intentionally causing serious harm
• Nedrik : Woolin