• Created by: Hbrandxx
  • Created on: 02-05-19 18:32


Defintion of murder

  • Requires D unlawfully kill another person under the Queen's peace, "with malice aforethought" (Coke)  and to do so intending to kill or cause GBH.

Actus reus of murder

  • ACTS/OMISSIONS: type of conduct is irrelevant so long as it causes result.
  • Must cause V's death: application of factual/legal causation. 'Causing' includes acceleration of death e.g. killing termally ill.

Mens rea of murder

  • Direct intent: conduct carried out to cause result
  • Oblique intent: conduct is virtually certain to cause result, forsees it as a virtual certainty and jury choose to find intention. 
  • Jury subjectively assess the degree of harm intended by D, is it equivalent to legal defintion of GBH= constrictive liability offence.
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Defences to murder

Doctors/terminally ill patients

  • Doctors are aware patient's life expectancy is reduced as side effect: AR is satisfied BUT MR- didn't directly intend to kill/cause GBH but death is a result so elements of murder are satisfied.
  • Adams 1957: charged w/murder, 'eased' passing of several patients w/pain relief: not guilty, Delvin J directed jury that there was no special defence for doctors but is entitled to do all necessary to relieve pain even if incidentally it shortens life.
  • DOCTRINE OF DOUBLE EFFECT^: intentionally causing a harmful result can be morally defensible where it's a side effect of promoting a good end.

Partial defences

  • Loss of self-control: D kills whilst out of control owing to a fear of serious violence/seriously grave circumstances giving her a justifiable sense of being seriously wronged.
  • Diminished responsibility: D's recognised medical condition led to an abnormality of mind + substantially impairing her capacity, causing her to kill.
  • Suicide pact: D kills V in pursuance of an agreement they'll die together.
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Murder reform

Reform of mandatory life sentence 

  • Between 15years and whole-life term: tariff perioid must be served fully before parole board consider release. 
  • Too wide? wide moral spectrum from cold-blooded serial killers to mercy killings.
  • Narrow definition of murder? 
  • Satisfying a partial defence allows D's liability to be mitigated from murder to manslaughter and thereby avoids MDL.

Reforming mens rea of murder

  • Lord Goff: removing liability where D intends GBH and only direct intention to kill, believes those who commit GBH are inappropriately labelled as murderers
  • Law Commission: 1st degree murder (MDL), second degree murder (discretionary life sentence) and manslaughter (discretionary life sentence). 1st degree is to kill or cause serious injury knowing it involved serious death risk and 2nd is intention to cause serious injury or cases of voluntary manslaughter.
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Assessing murder

  • Identify the most serious offence D may have committed; if death is a result always start with murder even if an element won't be satisfied. If murder is satisfied you can discuss defences (full and partial).
  • Actus reus: what does offence require? did D do it?
  • Mens rea: what does offence require? did D possess it? Every element must be satisfied.
  • If direct intention is found there's no need to discuss GBH rule or oblique intention.
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Voluntary manslaughter

Liability for voluntary manslaughter

  • If D satisfies the AR and MR of murder and satisfies the elements of a partial defence, D is liable for manslaughter.
  • Partial defence can reduce D's liability from murder to VM: loss of self-control, diminished responsibility and suicide pact.

Loss of self-control

  • S.54-55 Coroners and Justice Act 2009: D kills with the intention required for murder, D's level of culpability is lower when she does so in circumstances of justified anger or acute fear. 
  • D's role in killing must've resulted from loss of self-control, D's loss of self-control must've been caused by a qualifying trigger (fear of serious violence from V against D or things said/done which constituted circumstances of an extremely grave character and caused D to have  a justifiable sense of being seriously wronged, hypothetical person of D's age/sex may have reacted the same
  • Legal burden on prosecution to prove beyond reasonable doubt that 1 or more element is absent
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Loss of self-control cont

1. D must have lost self-control

  • Subjective: irrelevant here whether a reasonable person in D's position would have.
  • Extreme emotion/loss of rationality- explanation of having mens rea for murder.
  • Some want expansion on this law e.g. abused partner who may not have lacked self-control in sense of manic manner but did so as she saw no alternatives.

2. Must be a qualifying trigger 

  • Fear of serious violence from D: subjective- fear need not be based on facts and D's fear need not be reasonable BUT doesn't apply where D causes conditions of her own defence.
  • Dawes and Ors 2013: murder of wife's affair partner, raised self-defence and judge refused LOC to go to jury because there was no evidence of loss of self-control- did in a angry but controlled manner.
  • Sense of being seriously wronged by things said/done: partly subjective (D must personally feel wronged) + objective (feeling must be objectively justifiable and grave circumstances).
  • Designed to prevent 2009 Act defence being used (provoked by trivial events)
  • BUT D cannot rely on things said/done where she's incited them to use violence in response or things said/done constituting 'sexual infidelity'- controversial, must be objective 
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Loss of self-control cont + Diminished responsibil

3. Person of normal tolerance/self-restraint might have reacted similarly

  • To show D's offence wasn't a reflection of an evil character: objectively understandable
  • Only necessary that someone 'might' have acted in a similar way (lower standard), and must look at the 'way' it is done even if a normal person may have lost self-control.

Diminished Responsibility 

  • D claims a partial excuse on basis that she shouldn't be held to the standard of a 'normal' person because of her medical condition. 
  • Different from insanity (completely undermines ability to understand nature) but this is where D's medical condition causes her abnormality of the mind that substantially impairs her abilites.
  • Abnormality of mental functioning which: arose from recognised medical condition, substantially impaired D's ability to understand: nature of D's conduct, form rational judgement, exercise self-control, provides explanation for killing.
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Diminished responsibility

1. Abnormality of mental functioning 

  • 2009 act changed it to 'mental' from 'abnormality of mind', move to more medicalised elements.

2. Abnormality must've arisen from a recognised medical condition 

  • D can suffer from a 'recognised' condition but it's not sufficient for it to be a defence: courts must be prepared to recognise it in law: Dowds 2012 'extreme drunkenness' didn't qualify.
  • Current law doesn't allow for e.g. abused partners who may have anxiety and also for developmental immaturity: Gov rejected Law Commission recommendation to include it.

3. Abnormality must've substantially impaired D's mental ability to..

  • Must relate to 1 of 3 abilties: question for jury (judge must make evidence clear).
  • Understand nature of D's conduct, form rational judgement and exercise control.

4. Abnormality must provide an explanation/cause of the killing

  • Assessment of the causal effect of an abnormality within the mind of D upon her conduct; for the D to prove, D must prove her condition wasn't merely incidental.
  • Intoxication; acute intoxication isn't a legally recognised condition for DR, intoxication AND a conditon cases try exclude intoxication, conditon causes intoxication can qualify.
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Diminished responsibility

Suicide pact partial defence 

  • D kills V pursuant to an agreement they'll die together, 2 elements must be satisfied to reduce D to VR from murder:
  • 1: D must've agreed with V they'll die together and B: D must intend, at point of killing V, to die herself in line with the agreement 
  • Burden of proof on D to establish the elements on balance of probabilites 
  • CAREFUL: where D assists/encourages V to kill herself, this isn't homicide but rather the offence is assisting/encouraing suicide.
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Involuntary manslaughter

  • Arises where D doesn't satisfy MENS rea for murder, but does commit a lesser manslaughter offence. 
  • Unlawful act (criminal act in dangerous circumstances, causes death of V), gross negligence (D causes V's death via criminal negligence), reckless (D causes V's death, being reckless as to death).

Unlawful act manslaughter

  • D commits criminal (base) offence, base offence carries an objective risk of harm to V, and V dies as a result. (Unlawful act + objectively dangerous + causing death).
  • E.g. D kills V foreseeing that it's likely to kill/cause GBH, but not foreseeing it as virtual certainty(highly blameworthy) OR D commtis minor offence without foreseing risk to V but V dies as 'bad luck', UAM can also apply (less blameworthy).
  • Unlawful act: must have subjective mens rea (intrinsically criminal so not e.g. gross negligence), must be ACT not omission (Lamb 1967- didn't intend/foresee harm to V)
  • Base offence is dangerous to V: sober/reasonable person in D's position would've foreseen her acts carried a risk of harm to V at time D acted. Church test- objective, strict liability element.
  • Base offence causes V's death: no requirement of intent, strict liability. Causation in fact and in law.
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Unlawful act manslaughter causation rules

Fright and flight 

  • If V appears healthy,can be hard to show objectively forseeable risk of harm in flight, must show V's doncut hasn't broken chain of causation between base offence and death, not 'wholly disproportionate' or 'daft' e.g. Lewis- V killed by car to escape ongoing assault from D.

Drug supply

  • V voluntarily takes prohibited drugs supplied by D (base offence) and dies.
  • Kennedy No.2 (2007) clarifies law; HoL quashed D's conviction on appeal- D wasn't guilty beause he wasn't the legal cause of V's death (D only gave syringe)- V's free and voluntary act in self-administration broke chain of causation. 


  • V is distressed by D's base offence (e.g. abuse) so commits suicide.
  • e.g. D's base offence causes physical injury to V and V either fails to reat or makes it worse- D's act remains substantial and operating cause of death. Take V as you find them.
  • D's base offence causes psychiatric harm/D's injuries are healed at point of suicide: hard to show V's suicide wasn't a free/voluntary act to break chain, open to case law to decide.
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Involuntary manslaughter: Gross negligence

Gross negligence manslaughter 

  • Punishable with max of life imprisonment: D's conduct is seriously negligent, causing death. 
  • Adomako 1994: duty of care, breach of duty, D's conduct caused death, conduct was 'gross' in its negligence (HoL est this test).

1. Duty of care

  • Wherever D's conduct carries a foreseeable risk to those around her- civil law BUT criminal law not bound by this e.g. Wacker: D smuggled 60 immigrants, shut air vent- although in civil the joint criminal ventn ure undermines a duty, this wasn't the case in criminal law.
  • Evans: D's supply --V self administered (breaks chain)--D's omission= V's death, by focusing on omission after the self-injection, there's a potential for a causal link between conduct/death

2. Breach of duty

  • Did D's conduct fall below that expected of a reasonable person in that position, action-based- whether a reasonable person would've refrained from the acts or have acted differently?
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Involuntary manslaughter: Gross negligence

3. Causing death

  • D's conduct must be a cause of death in fact (but for) and in law (substantial + operating).
  • Omission-based GNM: what would a reasonable person have done and would it have prevented V dying in that manner.

4. Grossly negligent 

  • Lord Mackay Adomako: "was the conduct of the defendant...so bad in all the circumstances as to amount to a criminal act or omission?" question for the jury.
  • Factors for jury: reasonable person in D's position must've foreseen risk (objective foresight of anything less than death is insufficient), surrounding circumstances (motives/behaviour).
  • Is asking the jury inconsitent: different juries apply test differently.
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Reckless manslaughter

  • Causes V's death by act/omission and is at least reckless as to causing death/GBH.
  • Rarely prosecuted- cases usually satisfy elements of UAM/GNM which don't require mens rea as to death/harm so are easier to prosecute.
  • Mitchell + Mackay have found it's charged usually where it's clear D foresaw a high risk of causing death/GBH, but it's hard to show it was foreseen as a virtual cerainty.
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Reform of voluntary manslaughter

Loss of control

  • Narrows law 'qualifying triggers'- what qualifies? sexual infidelity has been excluded.
  • Ambigious reference in statute to 'circumstances of D'- what characteristics should be taken into account when deciding if reaction qualifies?
  • Gender-bias: female D are less likely to react through a loss of control (removal of 'sudden and termporary')

Diminished responsibility 

  • Developmentally immature defendants without an associated learning disability will fall outside this defence due to the precise defintion- Law Commission recommendation to include it.
  • Having est. first 3 elements, it's arguable that the requirement of a causal link between D's abnormality and killing is medically incapable of being proved and morally unnecessary. 
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Reform of involuntary manslaughter


  • Both offences label/punish D for manslaughter without requiring D to have foreseen the possibility that her acts will cause death- elements of strict liability. 
  • UAM: Law Commission recommended abolition of offence but recently made recommendations to reduce constructive nature by requiring some mens rea as to death/injury.
  • GNM: don't need necessary mens rea just need jury to classify that her behaviour has fallen grossly below level expected.

Reform of manslaughter offences structure

  • Law Commission have recommended a three tier structure/ladder of offences.
  • 1st degree murder: intentional killings + killings with intent to cause serious injury where D was aware their conduct involved serious risk of causing death.
  • 2nd degree murder: killings intended to cause serious injury/or fear or risk of injury where D was aware their conduct involved a serious risk of causing death, killings where they were aware of conduct and risk but successfully pleads provocation, DR or suicide pact. 
  • Manslaughter: gross negligence, commission of a criminal act intended by D to cause injury or via criminal act that D was aware involved a serious risk of injury
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Homicide assessment

  • Identify potential criminal event in facts then the potential offence (begin with most serious offence D may have committed).
  • Did D have mens rea: YES and no complete defence- voluntary manslaughter- if no partial defence then D is liable for murder but if partial defence- manslaughter
  • Did D have mens rea: NO- involuntary manslaughter- if they satisfy elements of involuntary manslaughter they are liable but if NO, D is not liable for manslaughter/murder. 

Where elements of murder are satisfied: discuss potential defences. 

  • Begin with complete defences- lead to complete acquittal. If they don't apply, partial defences.
  • Loss of control first then consider diminished responsibility.
  • Acknowledge uncertainty in partial defences: many questions for jury are led by expert medical evidence, highlight omission of medical details, "on the facts available it seems likely that"
  • Conclude: D is likely to have committed the offence of..

Where elements of murder aren't satisfied:

  • Look for other potential offences beyond homicide, have AR but MR is lacking= Involuntary manslaughter offences.
  • D lacks MR for murder but foresaw risk of death/GBH= reckless manslaughter
  • D lacks MR for murder, unclear if D foresaw risk of death/GBH= apply UAM, if not, apply GNM
  • Consider defences and then conclude.
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