db law unit 3

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  • Law - Unit 3
    • Murder
      • Defences
        • Loss of Control
          • s.54 of the Coroners Justice Act 2009
          • Three Part Test
            • 1. Fear of Serious Violence
            • 2. Things said and/or done which would be considered to be of a grave nature, which gives D a justifiable sense of being seriously wronged
            • 3. Or a combination of the two
          • Qualifying Triggers
            • This is the test
            • Fear of Serious Violence
              • Ahluwalia
            • Grave nature
              • Doherty
            • Or a combination
          • Non-Qualifying Triggers
            • Revenge
              • Ibram’s and Gregory
            • Infidelity
              • Coroners Justice Act 2009
              • Infidelity Plus
                • Infidelity plus another factor
                • Clinton
            • Incitement
          • Self Control
            • Any delay will damage Ds claim
            • The jury will consider planning in their verdict
            • No longer a requirement for D to have a sudden loss of control
              • Coroners and Justice Act 2009
              • Ahluwalia
          • Reasonable Man
            • Same Sex
            • Same Age
            • Camplin
          • Burden of Proof
            • Placed on D
        • Diminished Responsibility
          • s.2 Homicide act 1957    
            • Amended by Coroners and Justice Act 2009
          • Test
            • 1. D must be suffering from an abnormality of mental functioning
              • 2. Caused by a recognised medical condition
                • 3. Substantially impaired Ds ability to
                  • 4. Provides an explanation for Ds conduct
                    • It must be shown that D killed because of his abnormality of mental functioning    
                      • Joanne Hill 2009     
                  • Understand the nature of his conduct
                  • Form a rational judgement
                  • Or exercise self control
                  • Gittens
                • physiological    
                • Or Physical
                • Only needs to effect the workings of the mind
                  • Kemp
                • Dietschmann
              • If Ds mind is acting in such a way that the reasonable man would deem it to be not norma    
                • Byrne
          • Extras in notes
        • If sucessful D will be charged with manslaughter
        • Only defences to murder
      • AR
        • The unlawful killing of a human being within the Queens peace and within the country of the realm. 
          • Unlawful killing – For murder it must be an unlawful killing    
          • This leads into Causation
            • Factual Causation
            • Legal Causation
          • Prosecution    
            • British citizen can be tried in domestic courts for murder committed in UK or in any other country. 
            • Prosecution for the murder of any victim can be carried out at any time, if its 3 years after the murder the Attorney Generals’ permission is needed.
              • Even if D was found guilty of an offence which was connected to the circumstances of the death, and the prosecution wants to try again, AG permission is needed
          • Human Being
            • ReasonablePerson
              • Foetus doesn't count
                • Unless deliberatleyinjured
                  • AGR 1994
          • Queens Peace
            • Killing in war is not murder
          • Country of the Realm
      • MR
        • Malice aforethought
          • “Its an intention to kill or intention to cause grievous bodily harm"    
            • R v Maloney
          • No requirement for revenge
            • Gray
          • No previous planning needed
          • Can be via indirect intent
            • R v Woollin
          • Take into account
            • Transfer of Malice
            • Coincidence of AR and MR 
      • Reform
        • Maloney
          • Shankland
            • Woollin
              • Nedrick
                • Matthew and Alleyne    
                  • can find intention
                • Changed find to infer
              • Can find intention
            • Foresight = May mean intention
          • Foresight = Intention
    • Non-Fatal Offences
      • Assault
        • AR
          • An act which causes the victim to apprehend immediate and unlawful personal violence    
          • Ireland 1997
          • Constanza 1997
          • Tuberville v Savage 1669
          • Apprehend
            • must be immediate force
              • Lamb 1967
          • Causing
            • Causation
          • Immediate
            • Smith 1983 or Ireland 1997
          • Unlawful violence
            • Unwanted Touch
        • MR
          • This is the intention, either direct or oblique, or subjective recklessness
            • R v Savage 1991    
          • This means a defendant has to intend or be reckless as to whether he causes the V to apprehend immediate, unlawful violence 
        • s.39 CJA 1988
      • Battery
        • AR
          • The unlawful application of force on another
          • Collins v Wilcock 1984  
          • R v Thomas 1985  
            • Slight force
          • DPP v K
            • Indirectly applied
        • MR
          • This is intention, either direct or oblique, or subjective recklessness to cause the actus reus
            • R v Venna 1976
            • Transfer of Malic only works if same crime
              • Latimer 1886
        • s.39 CJA 1988
      • Assault Occasioning Actual Bodily Harm
        • AR
          • Same AR as Assault/Battery
          • Ireland 1997
          • Chan Fook 1994
            • Injury cannot be so trivial as to be wholly insignificant
          • Assault
          • Causing (Occasioning)
          • Actual Bodily Harm
            • Injury cannot be so trivial as to be wholly insignificant
        • MR
          • The same as for assault or battery     
            • R v Savage
          • D must intend or be subjectively reckless as to whether the V fears or is subjected to unlawful force
          • No need for the D to intend or be reckless as to whether to ABH is caused
          • Roberts 1971
        • s.47 OAPA 1861
      • Grievous Bodily Harm
        • AR
          • Wound
            • Cut or break in the continuity of the whole skin
            • JCC v Eisenhower 1983
            • Wood 1830
          • GBH
            • Serious harm
              • R v Saunders
            • Bollom 2004
            • Burstow 1997
            • Dica 2003
          • Inflicting GBH
            • Before, this use to simply be assault or battery but now has been changed
            • Lewis 1974
            • Burstow 1997
        • MR
          • Intention or recklessness to cause some harm
          • D does not have to intend or be reckless as to causing GBH or wounding    
          • This was laid down in R v Mowatt 1968   
            • And conformed in R v Grimshaw (1984) 
        • s.20 OAPA 1861
      • Grievous Bodily Harm with Intent
        • AR
          • Exactly the same as for s.20, wounding or GBH
        • MR
          • D has to intend to cause GBH
            • R v Belfon 1976
            • Direct or indirect
        • s.18 OAPA 1861
    • Involuntary Manslaughter
      • Unlawful Act Manslaughter
        • Did D’s actions lead to V’s death
        • AR
          • Unlawful Act
            • Must be a criminal offence
            • Lamb 1967
            • What if consent?
              • Cato 1976
          • Dangerous Act
            • Objective Test
              • Church 1966
                • "it need not be the accused who necessarily foresaw the harm but any sober and reasonable person."
            • Harm doesnt have to be aimed at V
              • Mitchell 1983
            • Dawson 1985
            • Watson 1989
          • D caused the Death
            • Substantial cause
            • Apply the chain of causation, think skull rule and any other applicable principles
              • Chain Break -  Kennedy 2007
                • Cato 1976
            • Unlawful act must not be minor     
              • Shohid 2003
            • If multiple unlawful acts only need one sifficient one
              • AGR No.4 1980
        • MR
          • D had MR for unlawful
          • Must be a positive act
            • Lowe 1973
          • Only need MR for the unlawful act
          • Newbury and Jones 1976
            • No requirement to see some harm
          • Le Brun 1991
          • Goodfellow 1986     
      • Gross Negligence Manslaughter
        • Four Part Test
          • 4. Gross Negligence was a substantial cause of death of the V
            • 3. Gross Negligence which the jury considers to be criminal
              • 2. Breach of the duty which causes a death
                • Wacker
              • Negligence must be gross    
                • Bateman
              • Approved by Adomako
              • Jury has to consider the seriousness of the breach in all circumstances that the D was in
            • Not clear if this is meant to be a risk of death or a risk of health.
            • Stone and Dobinson
            • Lord Mackay approved Stone and Dobinson via Bateman test
            • R v Misra – Risk of death
        • MR - In many cases, the intention takes the from or recklessness
    • Defences
      • Intoxication
        • Voluntary
          • Takes drugs at own will
          • Basic Intent
            • Basic intent – intention or recklessness so V.I is not allowed
            • Majewski 1977
            • Basic intent requires prosecution to prove D has been reckless
            • VI can’t be a defence to manslaughter as that is a basic intent crime     
              • Lipman 1970
            • Dutch Courage – MR formed before the offence is committed     
              • Gallagher 1963
          • Specific Intent
            • Only a defence to crimes of specific intent e.g. Murder or s.18 
            • Specific intent requires D to show that he did not have intention but he can be guilty of a lesser offence that only requires recklessness     
          • Some crimes do not have a lesser crime e.g. theft
        • Involuntary
          • Does not know they have taken the drugs
          • Must be shown D cant form MR
            • Kingston 1994
          • Cant argue that they didn't know the strength of the drugs
            • Allen 1988
          • Hardie 1985
          • Dangerous – common knowledge that the taker may become     
          • Non-dangerous – e.g. Valium (it was though to be a calming drug but in Hardie it gave him the opposite effect    
        • Only a defence if MR is not available
      • Insanity
        • Criminal Procedure (insanity and unfitness to plead) Act 1991 
        • Charges
          • Hospital order restricting the D’s discharged indefinitely
            • Guardian ship Order
              • Supervision and treatment order
                • Absolute discharge
        • M’Naghten 1843
          • 1. Defect of reason
            • The inability to use powers of reason against failing to use powers of reason
              • Clarke 1972
          • 2. Caused by disease of the mind
            • Must be physical disease (not external factors such as drugs)
            • Permanent or temporary state (if temporary then sentencing can reflect that)
            • Kemp 1957
            • Bratty 1963
            • Sullivan 1984
            • Burgess 1991
          • 3. So that the D does not know the nature and quality of his act or does not know that what he was doing was wrong
            • Did not know what he was doing
              • He did not appreciate the consequences of his act
                • He did not appreciate the circumstances in which he was acting
            • D lacks MR due to his insanity
              • Not acquitted, special verdict is given
            • Windle 1952
      • Self-Defence
        • s.3(1) Criminal Law Act 1967
        • It is there for those who need to protect themselves or others
        • Was the use of force necessary? If it was, then
          • Was the force used reasonable in the circumstance?
        • Mistaken use of force in self-defence
          • Difficult to assess the necessity of the force
        • Genuine Mistake
          • D must be judged in the facts as he genuinely believed them to     
            • Williams 1987
          • s.76(3) Criminal Justice and Immigration Act 2008     
        • Drunken Mistake
          • s.76(5) Criminal Justice and Immigration Act 2008
          • Cannot use the defence (voluntary)
        • Degree of Force
          • s.76(7) Criminal Justice and Immigration Act 2008
          • Cannot calculate the exact amount of force which they can use    
          • Force used after the danger gone? Defence can’t be used
      • Consent
        • Consent is not a Defence to Murder
          • Euthanasia is unlawful
            • Pretty 2002
        • Consent as a defence to non-fatal offences
          • Limited defence
          • Brown 1993
          • Exceptions
            • Normal sports activities
          • If consent goes beyond = defence fails
            • Barnes 2004
        • Normal social intercourse
        • Person CAN withdraw their consent
        • Must consider the following
          • Type of sport
          • Level at which it is being played
          • Nature of the act
          • Degree of force used
          • Extent of injury
          • State of mind
        • Consent either expressly by signing consent form or forms are signed by parent/guardian
        • Implied consent
        • Can be withdrawn at any time
        • Medical procedures will require form to be completed
        • Applies to things such as pushing and shoving between friends and arm wrestling
          • Jones 1986
          • Brown 1993
          • Dica 2004
        • Defence is only relevant where AR and MR is established
          • Slingsby 1995
        • Is the Consent Genuine
          • Sufficient understanding and intelligence to give consent
          • Burrell v Harmer 1967     
          • Richardson 1998
          • Tabassum 2000
      • Automatism
        • Must be an invovoluntary act
        • AGR state total lack of awareness
        • Must show act was
          • Involuntary
            • D’s mind must not be controlling his own limbs
            • Bratty 1963
            • Must be total lack of awareness
              • AGR No.2 1992
          • Due to an external factor
            • Can not be a disease
            • Cannot be self induced
        • Difference between automatism and insanity
          • Insanity
            • Criminal Procedure (insanity and unfitness to plead) Act 1991 
            • Charges
              • Hospital order restricting the D’s discharged indefinitely
                • Guardian ship Order
                  • Supervision and treatment order
                    • Absolute discharge
            • M’Naghten 1843
              • 1. Defect of reason
                • The inability to use powers of reason against failing to use powers of reason
                  • Clarke 1972
              • 2. Caused by disease of the mind
                • Must be physical disease (not external factors such as drugs)
                • Permanent or temporary state (if temporary then sentencing can reflect that)
                • Kemp 1957
                • Bratty 1963
                • Sullivan 1984
                • Burgess 1991
              • 3. So that the D does not know the nature and quality of his act or does not know that what he was doing was wrong
                • Did not know what he was doing
                  • He did not appreciate the consequences of his act
                    • He did not appreciate the circumstances in which he was acting
                • D lacks MR due to his insanity
                  • Not acquitted, special verdict is given
                • Windle 1952
          • Internal v External factor
            • Quick 1973
              • Suffered from hypoglycaemia. D’s condition arose due to insulin     
                • External factor
            • Hennessey 1989     
              • Didnt take insulin so diabeteas (intenral) was the issue

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