- Created by: rachel_smith
- Created on: 05-10-17 19:34
1.) The unlawful killing: Gibbons & Proctor - positive act or an omission. Lawful killings: Malcherek - life support machine, Re A - saves one patient and not another, Bland -with drawl of life support. Clegg - unlawful as exceeded permission.
2.) Reasonable creature in being: A human being must be killed. AG Refs - Foetus is not a human being unless dies outside womb or born alive and then dies.
3.) Under the Queens Peace: Killing of the enemy in a war isn't murder. Page - Killed enemy under King's peace so liable.
Factual- But for- White and Legal- O&S- Smith, NAI= Vs own act- Roberts (RF), 3rd Party- Cheshire (so independant)- Jordan (palpably bad)- Pagett (RF), Thin Skull- Blaue.
Malice aforethought expressed (intention to kill) or implied (intention to cause serious harm).- Direct (Mohan) or oblique (Woolin)?- Moloney confirms you can't have reklessness.
D is chared with murder however has raised the defence of either diminsihed responsiblity or loss of control.
If successful in raising defence the D will be charged with 'not guilty of murder but guilty of mancslughter'
The judge does not have to pass a life sentnce like they do in murder.
'Did D do it because they are mentally ill?'
Abnormality of mental functioning: Bryne- abnormality of mind='a state of mind so different from that of an ordinary human being that a responible man would term it abnormal'.
Arising from a recognised medical function: Covers both physical and psychological conditions however there must be medical evidence and the jury must be satisfied that the offence arose because of it. Byrne- sexual psycopath, Seers- chronic depression, Ahluwalia- battered woman syndrome, Tandy- alcoholism.
Substantial impairment of Ds mental responsibilty: 1) To form a rational judgement (BWS or paranoia) 2) to understand the nature of his conduct (automaric state) 3) to excerise self control (Bryne)- don't need to identify all in exam.
Provides explanation for Ds act or omission: Ds mental functioning MUST be the cause for the killing. Doesn't have to be only/ main factor but a significant contributory factor.
Intoxication: If also intoxicated- Jury disregard intoxication- Dowds- not enough to diminish responsiblity on its own, Dietschmann- D drank/took drugs however also had a AMF so ignore intoxication. If alcohlol/drug issue led to RMC- Wood- classed as an AMF.
Loss of Control
Loss of control: Doesn't have to be sudden- Ibrams - however the longer the distance between the trigger and reaction the less likely the partial defence will succeed.
Qualifying Triggers: D fears serious violence from V against D or another identified person - Martinand Ahluwalia. Anger- 1) things done of a seriously brave character 2) that caused D to have a justifiable sense of being seriously wronged.
The Objective Test: Would a person of Ds own sex and age with a normal degree of tolerance and self resistance and in Ds circumstances react in the same or similar way to D?- Chaplain confirmed in Holley. 'Circumstances' applies to all except those that affect Ds capacity for tolerance and self-restrain for example would be relevant if D suffered years of abuse (Hill) but not if just short tempered (Mohammed)