db law unit 3

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Created on: 11-10-16 09:03

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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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db law unit 3

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