murder

Created by: lauren_scott1
Created on: 04-04-16 13:49

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Murder
- Actus Reus
  - The Killing of a human being under the Queen's peace.
    - A human being does not include a foetus. It may only be murder if the foetus is injured and dies from the injury after being born. AG Reference No3 - 1994
  - Murder is a result crime.
  - The defendant's actions must cause the death of the victim.
  - 2 types of causation:
    - Factual causation - 'but for' d's actions the consequence wouldn't have happened. - White - case where d put cyanide in mother's tea but she died from heart attack so he was found not guilty
    - Legal causation - 3 things need to be considered
      - De Minimis rule: The defendants act does not have to be the sole cause but must be more than a minimal cause - Cheshire 1991 - Poor medical treatment generally will not break the chain if the d's act was significant in causing the death.
      - The thin skull rule - D must take v as he finds them (Blaue)
      - The chain of causation is where the defendant will be liable for the consequences if the chain of causation is not broken
        The chain of causation will only be broken by three things: a natural but unpredicatable event, an independant third party and a victims own act
        An act of a third party will generally break the chain of causation unless it was foreseeable
        
        A victims own act will only break the chain of causation if the victims actions were unreasonable in the circumstances (Roberts) D started to make sexual advances against the victim whilst driving so the victim jumped out of the moving car (considered reasonable and d was found guilty) In williams the d was found not guilty as the victims own act (jumping out the car) was unreasonable because the d was only trying to steal his wallet
        
        A natural but unpredictable event will generally not break the chain of causation
        
        Generally , medical intervention won't break the chain of causation .
- Mens Rea
  - The unlawful killing of a human being under the Queens peace with malice aforethought
    - 'Malice aforethought' means the intention to kill or cause grievous bodily harm (Vickers 1957) and was confirmed in (DPP V Smith 1960)
      - Intent may be direct OR indirect
        Direct Intention - It's the D's decsision to cause death or serious harm (Mohan)
        
        Indirect Intention - where the death or serious injury caused is a virtual certainty and the D knows this (Nedrick/Woollin)
  - Transferred Malice - Mens rea can be transferred from the intended victim to the actual victim (Latimer) but only if the d has similar mens rea for the crime. (Pembliton) shows that the mens rea could not be transferred from a person to a object so the mens rea couldn't be transferred
  - The mens rea and actus reus must coincide but can be a series of acts (Thabo Meli) or a continuing act (Fagan)
- Special Defences to Murder which result in the charge of VOLUNTARY MANSLAUGHTER
  - Loss of control - S54 and S55 of the Coroners Justice Act 2009
    - Replaces the previous defence of provocation
    - Loss of control - S54
      - 3 Elements where D will not be convicted of murder: 1. D lost self-control. 2. the loss of self-control was triggered by something specified in S55. 3. That a normal person of D's sex and age would have reacted in the same way in D's circumstances
        (A) D's acts and omissions in doing or being a party to the killing resulted from D's loss of control
        
        (B) the loss of self-control had a qualifying trigger
        
        (C) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same or in a similar way to D
        It is an objective test.
        
        Other characteristics of the defendant may only be considered when considering the effect of things said or done to the Defendant.
        Wood - D was unemployed and suffering from depression and epilepsy which could have been taken into account in the circumstances.
      - Under S54(2) the loss of control no longer has to be sudden
      - S54 (4) States that loss of control will not be considered a defence if D acted in a 'considered desire for revenge'
    - The 3 Qualifying triggers - S55
      - (A) D's fear of serious violence from V against D or another identified person
      - (B) A thing or things done or said (or both) which: (i) constituted circumstances of an extremely grave character, and (ii) caused D to have a justifiable sense of being seriously wronged
        The "things done or said" must be 'extremely grave' and 'justifiably' cause D to feel seriously wronged. - This is more strict compared to the old law
        Daughty (1986) - The crying of a baby was said to amount to provocation. However, under the new law it would be unlikely to succeed as the crying of a baby would not be seen as 'extremely' grave nor would it have caused D to have a justifiable sense of being seriously wronged.
      - (C) or a combination of both
      - Excluding triggers - S55 (6)
        Under S55 (6) if the thing 'said or done' consisted sexual infidelity. The defence of loss of control will be disregarded.
        
        Another thing that is excluded would be situations where the D has incited either the fear of violence or the thing being done or said, in order to have the excuse to use violence
  - Diminished Responsibility (Where there is evidence of mental illness etc) S52 of Coroners and Justice Act 2009
    - There must be 4 elements proven by the defendant to be able to use the defence of diminished responsibility
      - (1) D must provide evidence that he was suffering from an abnormality of mental functioning. (Byrne) - this was described as 'a state of mind so different from an ordinary person that a reasonable man would think it abnormal'
      - (2) the abnormality must be caused by a recognised medical condition. This would include untreatable personality disorders.
      - (3) D must prove the abnormality substantially impaired his mental responsibility bso that he did not understand what he was doing, or was unable to form a rational judgement or exercise self control.
        Case in support (Lloyd) - The impairment need not be total but nor can it be trival
        
        Application in scenario:
        If D suffers from delusions or has low mental age - they don't understand the nature of what they are doing
        
        If the D is paranoid or suffers from schizophrenia or battered wives syndrome - they are unable to form a rational judgement
        
        If unable to control their impulses e.g. Byrne - they lack the ability to exercise self-control
      - (4) The abnormality must provide an explanation for what D did. This need not be the only factor, providing that it was significant (S1B Homicide Act)
    - If there is evidence of alcohol/drug use in the scenario
      - If the D was just intoxicated he cannot rely on the 'mere transient effect' of drink or drugs if there was no other medical condition affecting mental functioning (Dica)
      - D will not be prevented from relying on the defence if they have a mental disorder and it was a significant factor in doing what he did. But it does not have to be the sole cause.
        Dietschmann - HOL allowed the appeal of D where he killed when suffering from an adjustment order despite being intoxicated.
      - Providing D can prove other elements of DR and the abnormality was a significant factor in the killing the intoxication will not prevent the defence
      - If the D id an alcoholic or suffers from alcohol dependency syndrome then as long as D can prove an abnormality caused by the ADS which substantially impairs the mental responsibility then it will be allowed in the defence.

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