- There must be an unlawful act: R v Lamb - Two boys played with a revolver, believing that it wouldn't fire, this meant that there was no unlawful act.
- R v Lowe - The defendents child died through neglect. There was no unlawful act, as this couldn't be committed by an omission.
- A-G Ref. No.3 1994: Defendent stabbed his pregnant girlfriend, which caused her to go into premature labour, and her baby died 121 days later. There is no requirement that the unlawful act is aimed at the actual victim or that the unlawful act be directed at a human being.
- The unlawful act must be dangerous: R v Church - "the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm."
- R v Watson - Defendent broke into the house of an old man, who died of a heart attack. It was held that a sober and reasonable person would regard the act as dangerous as they would have known the age and frail condition of the victim.
Unlawful Manslaughter 2
- The unlawful act must be dangerous: R v Kennedy - Defendent prepared heroin and gave it to a fellow resident. Convicted of unlawful manslaughter, the injection was the cause of death which the defendent assisted with.
- R v Carey - Three defendents came across a group of friends, who they started making fun of and became violent towards. Aimee was punched and then tried to run away, but collapsed and died. She had a diseased heart, and the cause of death was running, but a sober and reasonable person would not suggest that what the defendent did caused the death.
- Apply the 'but for' test to make sure nothing has broken the chain of causation.
- The mens rea of unlawful manslaughter is simply that of an unlawful act which may be intention or recklessness depending on the crime that has been committed that has caused the death.
- DPP v Newbury - Two 15 year olds threw a paving slab off a railway bridge as a train approached, it struck a guard and killed him. There was no requirement that the defendent foresees that some harm will result from his action, so they were convicted of manslaughter.
Gross Negligence Manslaughter
- Gross negligence manslaughter can be said to apply where the defendant commits a lawful act in such a way as to render the actions criminal.
- Gross negligence manslaughter also differs from constructive manslaughter in that it can be committed by omission.
- Actus Reus: The common element of homicide offences needs to be proved, but in this case caused by unlawful omission. To show this the prosecution must prove: 1) A duty of care is owed by D to the victim. 2) There is a risk of death to the victim in the breach. 3) Breach of duty caused or contributed to the victim's death. 4) The jury decide the breach of duty is so serious as to be criminal.
- R v Goodfellow: Defendent had been harassed by 2 men and wished to move from his council accomidation, so he set fire to his house, making it look like it was petrol bombed. His wife, son and son's girlfriend died in the fire - convicted of manslaughter.
Gross Negligence Manslaughter 2
- R v Adamako: Defendent was an anaesthetist who was in charge of a patient during an operation on their eye. An oxygen pipe became disconnected, which they failed to notice, which killed the patient. They didn't notice the obvious signs and were convicted.
- Is there any break in the chain of causation?
- R v Wacker - Defendent was the driver of a lorry who had 60 illegal immigrants in the back in a concealed compartment. He closed the door so they wouldn't be heard, but 58 suffocated. Gross negligence manslaughter convicted.
- R v Willoughby - Defendent owned an old disused pub and was unable to sell it. He engaged Mr Dury into helping him set fire to it, so he could claim insurane, but the fire caused an explosion., killing Mr Dury. Defendent convicted of gross negligence manslaughter.
- R v Pittwood - Defendent was the employee of a railway company to man the gate of a level crossing. He lifted the gate for a cart and then went to which, forgetting to put it back down. A train collided with a horse and cart, killing the train driver. Also convicted.
- Rowley v DPP - Victim had severe disabilities suffering from quadriplegia, microcephaly and epilepsy. He was in residential care when he drowned in an unattended bath tub.
- Is regarded as a complete defence to a charge of assault or battery, if there is no injury caused or intended. It will not be a defence to the more serious assault charges. It will not be a defence to a homicide charge.
- The consent of the victim must be freely given and not obtained by fraud, deceit or influence. The victim must be deemed able to consent e.g. children aren't able to consent.
- R v Richardson - A dentist carried out work on patients after being suspended. She wasn't liable as no fraud of identity, so the patients had consented to the treatment.
- R v Tabassum - Defendent carried out phsyical examinations, pretending that it was for a breast cancer database. There was no true consent, as they consented to the nature of the consent but not the quality as he was a fraud.
- Burrel v Harmer - Defendent tattooed two boys aged 12 and 13. They had consented, but their consent was ineffective since they couldn't comprehend the nature of the act.
- Sexual Sado-masochistic practices that result in ABH or GBH remain prohibited.
- R v Brown - Five defendents were convicted of ABH. The injuries were inflicted during consensual homosexual sadomasochist activities.
- R v Emmett - Defendent poured lighter fluid over his partner's breasts and set them alight. These were not acts to which she could give lawful consent, and the conviction was upheld.
- R v Wilson - Defendent branded his wife's buttocks with a hot knife. Her skin became infected, and her doctor informed the police. The wife’s consent was valid. The branding was more akin to tattooing, and consensual activity between husband and wife in the privacy of their own home was not a matter for the courts.
- Rough horseplay: R v Coney - Defendent were engaged in prize fighting. It was held that fighting in public was unlawful because they are disorderly, notwithstanding the consent of the individuals involved.
- R v Johnson - A rugby player bit off another player's earlobe. You can only consent to injuries in sport if its part of the game.
- R v Jones - Defendent's were playing a game of throwing each other in the air, as a joke, not thinking it would result in harm. Consent to rough and undisciplined horseplay is a defence and even if there was no actual consent, if the appellants had a genuine belief in consent they should be allowed the defence.
- Actus Reus: Is when the victim fears or apprehends the infliction of immediate physical violence
- No physical contact is needed e.g raising fist as though to strike the victim.
- Mens Rea: Defendent intentionally or recklessly commits the actus reus.
- The maximum penalty is 6 months imprisonment.
- Smith v Chief of Woking Police Station - The defendent peered through the window of a young woman's bedroom late at night. Convicton upheld, as it was clear she was scared.
- R v Wilson - Defendent shouted 'get the knives out' in a fight. The words themselves amounted to assault.
- R v Ireland - The defendent made a series of silent phone calls over 3 months to 3 different women. Silence can amount to assault and psychiatric harm can amount to bodily harm.
- R v Burstow - Defendent made silent phone calls, took photos of her and sent hate mail. As a result she suffered severe depression. Psychiatric harm can amount to bodily harm.
- R v Constanza - Defendent sent 800 threatening letters, drove past her house, and stole items from her washing lines. She suffered clinical depression because of this, conviction upheld.
- Actus Reus: Is the application of unlawful physical force.
- Mens Rea: The actus reus has to be intentional or reckless.
- The maximum penalty is 6 months imprisonment.
- Fagan v MPC - Defendent accidently drove onto a policeman's foot. At first, he didn't realise this, when the policeman told him to move, he refused. The driving on to the foot and remaining there was part of a continuing act.
- DPP v K - A 15 year old took some acid from a lesson and placed it in a hot air drier. Another student used it and it squirted acid into his face. Application didn't have to be directly applied.
- Haystead v Chief Constable of Derbyshire - Defendent punched a woman, which caused her to drop her baby. Application of force doesnt need to be direct.
- R v Thomas - Defendent was a school caretaker, took hold of the hem of a 12 year old's skirt. It was held that the act was not inherently indecent and there was no evidence in the circumstances making it so.
Actual Bodily Harm
- Actus Reus: There has to be an assault or battery which caused actual bodily harm.
- Mens Rea: The actus reus has to be done intentionally or recklessly, with no foresight of harm.
- Maximum sentence is 5 years imprisonment.
- DPP v Smith 2006 - Defendent cut off his ex-girlfriend's pony tail. The cutting of hair does amount to bodily harm, as it is seen as part of the body.
- R v Chan Fook - Defendent was locked up and threatened with later violence. To amount to bodily harm, the injury need not be permanent but should not be so trival as to be wholly insignificant. Feelings of fear and panic are emotions rather than injury, couldn't amount to ABH
- R v Spratt - Defendent fired airgun pellets out of his flat window. He stated that he didn't think anyone was in the vicinity and didn't foresee how far the pellets would go. The conviction was quashed, recklessness required the defendent to have an appreciation for the risk.
- R v Ireland - Defendent made a series of silent phone calls to 3 women over 3 months. Silence can amount to assault and psychiatric harm can amount to bodily harm.
Grevious Bodily Harm
- GBH S.20: Actus Reus - To unlawfully inflict GBH which means 'really serious' or 'serious harm' or to wound, which is to pierce two continous layers of skin.
- Mens Rea: The defendent must intentionally or recklessly cause the actus reus with foresight of some harm.
- GBH S.18: Mens Rea - The defendent must have specific intent to cause the actus reus. They must intend to kill the defendent or intend to cause GBH.
- JCC v Eisenhower - Defendent shot an air pellet into the victim's eye, which caused fluid to rise up in it. However, it wasn't GBH because it didn't pierce two continous layers of skin.
- DPP v Smith 1961 - Policeman jumped on car bonnet to stop defendent from getting away, the D zigzagged in order to get him off the car. He was hit by another car and killed. It was clear that this defendent intended to cause GBH, and so he was convicted.
- R v Bollom - Defendent inflicted injuries on his 17 month old baby. Conviction was substituted for ABH, as it couldn't be proved that they came from that one assault.
- R v Brown and Stratton - Two defendents attacked a person who was undergoing gender reassignement. They sustained a broken nose, lost 3 teeth, lacerations to their face and concussion. This was clearly really serious harm, and they were convicted as such.
- The defence covers two possibilities: 1) That defendent is not mentally fit to plead at the trial. Medical evidence will have to be produced to the court and it will be fore the jury to decide as a preliminary issue, or up until the opening of the defence case, whether defendent can stand trial. If defendent is found unfit to plead and the jury conclude that defendent did the act then the court can make any appropriate order including an indefinite detention of defendent. 2) Insanity may be used as a defence by defendent to show that he didn't possess the mental capacity to satisfy the mens rea element of he crime.
- M'Naghten - Defendent tried to kill the Prime Minister and was suffering from insane delusions.
- Defendent has to prove (with medical evidence): That he was suffering from a defect of reason; caused by a disease of the mind and that the defendent doesn't know the nature and quality of the act, or if he does know it, he doesn't know that it was wrong.
- The defence is supposed to be due to the defendent suffering from a internal (mental) problem.
- The effect of the defence is to say that defendent is unable to form mens rea due to his disease of the mind. Therefore defence is not avaliable as a defence to a crime of strict liability.
- If defendent is successful in showing this defence, it is a complete defence to the crime but as the result that the defendent is insane, in a serious case, the court may order him to be detained indefinitely in a hospital.
- R v Clarke - An elderly woman absent-mindedly placed some food in her bag and forgot about them. Short periods of absent-mindness fell far short of amounting to defect of reason.
- R Kemp - Husbund violently attacked his wife with a hammer. He suffered with hardening of the arteries which lead to congestion in the brain. This caused temporary lack of consciousness, so he wasn't conscious at the time of the attack. He tried to use the defence of automatism, however he was suffering from a disease of the mind, so he couldn't use this.
- R v Hennessy - Defendent stole a car, he had not been taking his insulin. This caused hyperglycaemic state which was caused by diabetes itself and not the outside factor of insulin.
- R v Quick - Nurse violently attacked their patient because they had taken too much insulin. Their conviction was quashed because the hypoglycaemia wasn't caused by diabetes but by the external force of insulin.
- R v Windle - Defendent killed his wife with an overdose of asprin as she was suicidal. When arrested he said "I suppose I'll hang for this" indicating that he knew what he was doing.
- This means that defendent has no control over their actions. The defendent will have committed the actus reus but will have little or no recollection of the offence and therefore has no mens rea.
- Automatism is an "act done by the muscles without any control by the mind such as a spasm, a reflex action or convulsion, or an act done when the person is unconscious e.g. sleepwalking".
- The courts developed two different aspects of the defence:
- Insane Automatism: Occurs where defendent has acted in a state of automatism due to a disease of the mind. Whether a condition amounts to insane automatism is a question of law for the judge to decide and if so a verdict of not guilty by reason of insanity will be recorded. Defendent will then be detained as if they were insane.
- Non-insane Automatism: The accused argues that at the time of committing the actus reus he had no conscious, voluntary control over his actions; he was acting as an automaton. This is a defence to a crime requiring mens rea because a person cannot be held at fault regarding conduct over which they can not control.
- The main difference is with non-insane automatism must be external (e.g. medication) while with insane automatism the cause must be internal (e.g. illness).
- Re: T 1990 - She took part in a robbery after suffering PTSD from ****. It was an external factor and therefore she could claim automatism.
- R v Whoolley - Had a sneezing fit which caused a 7 car pile up. He was able to claim automatism because the sneezing fit was involuntary and he had no control over it.
- Automatism is a complete defence to crimes requiring mens rea as defendent is unable to form the mens rea due to the loss of voluntary control. Loss of control must be total.
- A-G Ref. No.2 1992 - A lorry driver killed two people in a raod accident. He claimed he was suffering from a condition as 'driving without awareness'. The defence requires total loss of control, he was driving relatively well, so he couldn't claim automatism.
- R v Burgess - The defendent attacked a girl by hitting her with a bottle when she was asleep, then hit her with a video recorder and finally started grasping her around the throat. She suffered a severe laceration to the head. He was found not guility but the reason of insanity and was to be detained in a mental hospital.
- Hill v Baxter - Defendent didn't stop at a stop sign and collided with a car. He pleaded automatism. He clearly had some control, so he couldn't use this.
- This is not a defence as such, but will show that the defendent didn't possess the necessary mens rea for the crime due to intoxication.
- Crimes of murder and wounding with intent (s.18) are said to be crimes of specific intent. These crimes are said to be specific because they require the mens rea of intent only. If the defendent can show he was intoxicated to the degree that he was incapable of forming the mens rea for the crime, then this will be a complete defence to that charge.
- Crimes of basic intent are manslaughter, unlawful wounding (s.20), ABH, battery and assault. The reason that these crimes are said to be of basic intent is that recklessness can be part of the mens rea. Defendent will be liable to be convicted even if he doesn't know what he is doing because of the intoxication, as the law considers that the consumption of drink or drugs can amount to reckless behaviour, and this is therefore against public policy.
- R v Lipman - Defendent and victim were on LSD, he killed her by suffocation with a sheet. He insisted that he didn't want to kill her and didn't realise what he was doing. He was found not guilty of murder, but was guilty of manslaughter as he didn't expect to kill her, but intoxicated intent is still intent.
- DPP v Majewski - Two men got into a fight and one assaulted the landlord of a pub and police officers. He was charged with ABH and tried to use intoxication. However, he couldn't becase he voluntarily took the drugs and this was a case of basic intent.
- Intoxication is not a defence where defendent has become drunk (or consumed drugs) in order to require the neccessary courage to commit the crime e.g. dutch courage.
- A-G for N. Ireland v Gallagher - Husbund was abusive to his wife, went to a mental hospital, then came out and got very drunk, brought a knife and then stabbed his wife to death. He had told neighbours that he had been planning to kill her for 3 weeks, so he couldn't use the defence of intoxication, because he already had the mens rea before he got drunk.
- Involuntary Intoxication - This is where the defendent is forced to consume the intoxicating substance against their will or where the substance is consumed in ignorance. It is not involntary when they are mistaken on the strength of the substance.
- R v Kingston - He involuntarily took drugs and then indecently assaulted a 15 yr old boy and was taken pictures of. An intoxicated intent is still intent, so he was found guilty.
- R v Hardie - He took lots of valium, set light to a wardrobe. He was found not guilty even though it was voluntary because he took a non-dangerous drug.
- Public defence: "A person may use such force as is reasonable in all the circumstances on the prevention of crime, or in effecting the lawful arrest of offenders or of persons unlawfully at large".
- Private defence: "Where the defendent can use such force as is reasonable to defend himself, his family or his property. If the defence is successful it will be a complete defence for defendent when he is charged with a defence against the person".
- The jury will have to decide whether the defendent's action (objectively) was reasonable in the circumstances of the case as defendent believed (subjectively) them to be be and whether the force that was used was reasonable (and not excessive).
- Self defence will either let the defendent walk free, or will fail and they will be convicted.
- Certain factors will be considered by the jury: Whether the attacker had a weapon; if the attacker gave a warning; how scared the defendent felt; was the defendent able to retreat or avoid the situation; did the defendent use no more force than absolutely necessary; what time did the defendent have avaliable to him to consider what to do; whether the defendent had the opportunity to call for help; whether the defendent struck first expecting an attack or whether the defendent struck the victim as they were leaving.
Self Defence 2
- R v Clegg - Defendent was a soldier on patrol when a stolen car started to drive past. He pleaded self defence because he thought his fellow soldiers were in danger. Evidence later showed he fired the fourth bullet when the car was driving away and this was the bullet that caused the death of the passenger, as they were retreating.
- R v Martin - Defendent shot an intruder on his land. He pleaded self defence, but this didn't work. He did have a personality disorder which did amount to an abnormality of the brain which substantially impaired his mental responsibility for the killing.
- R v Bird - Defendent was slapped and pinned against the wall, she punched him in the face, claiming she forgot she had a glass in her hand, which caused the victim to lose an eye. At first she wasn't allowed self defence as she had proved an unwilligness to retreat, however her conviction was quashed as there was no absoulte obligation to prove this.
- R v Gladstone v Williams - Defendent saw a man attacking a youth, and attacked the man, he later found out the youth was mugging him. The appeal was allowed and the ABH conviction was quashed because it was a 'honest mistake' but doesn't have to be reasonable.
Murder - Human Being
- Murder is the unlawful killing of a person in being within the Queen's Peace with malice aforethought".
- A foetus is not a person in being until it is born and has independent existence, thus this means a foetus is not a person, so a person who kills a foetus cannot be charged with murder.
- A-G Ref. No.3 1994 - Defendent stabbed a pregnant woman, who went into premature labour and who's baby died 121 days later. However, at the time of the stabbing the baby wasn't classed as a human being, so the man couldn't be charged with murder, it was manslaughter.
- A person ceases to be a human being once their brain stem ceases activity.
- R v Malcherek and Steel - In both cases, the victims no longer had any brain stem acitivity, so the doctor's turned off their life support machines. The victims were already dead when the life support was turned off, so it was the defendents who were the cause of death.
- R v Inglis - Victim suffered serious head injuries after falling from an ambulance. He was in a vegetative state, but doctors were hopeful he would make a recovery. His mother injected him with a lethal dose of heroin, thinking she was ending his suffering.
Murder - Unlawful Killing
- Unlawful killing can be done by act or omission. Some killings are classified as lawful e.g. killing in self defence. State ordered executions are also defined as lawful. Soldiers and the police may kill in the course of their duties but they will be liable if they use excessive force.
- R v Clegg - Previously wrriten about. Solider.
- Doctors may kill lawfully in limited circumstances.
- R v Dr. Bodkins Adams - Doctor had adminstered a lethal dose of painkillers to a terminally ill patient. "a doctor is entitled to do all that is proper and necessary to relieve pain and suffering even if such measures may incidentally shorten life". Accquited of murder.
- Airedale NHS Trust v Bland - Patient had been in a vegetative state for 3 years, but his brain stem was still functioning. However, he wasn't conscious and had no hope of recovery. The doctors were granted permission to stop the life support machines.
- It is also lawful in the case of necessity.
- Re A - Two conjoined twins, one was weaker than the other, and if they weren't seperated, keeping her alive would prove to much of a strain for the other twin. It was decided that it was in the best interest of them both to seperate them, even though this would kill one of the twins. The operation could be lawfully carried out by doctors.
Murder - Mens Rea
- The mens rea of murder is malice aforethought. However this term is misleading in that it suggests some sort of ill will and pre-planning. Malice aforethought has been interpreted in the courts as meaning intention to kill and intention to cause GBH.
- Direct intent is where the defendent wants the result to occur and sets out to achieve it e.g. pointing a gun at someone and then pulling the trigger.
- Indirect/Oblique Intent which happens when the defendent did not desire a certain result, but the result is a consequence of their actions.
- R v Cunningham - Defendent knocked man to the ground with a bar stool, who suffered a subdural haemorrage from which he died from 7 days later. He was convicted of murder as even though he didn't mean to kill him, he did intend to cause GBH.
- R v Woolin - Defendent through his 3 month old baby onto a hard surface, which it died from. The judge stated it was a substantial risk that this would have happened. Convicted of manslaughter, as the judge should have referred to a virtual certainty.
- R v Nedrick - Defendent poured paraffin through woman's letterbox and set it on fire. A child died in the fire. He was found guilty of manslaughter, as they couldn't prove there was a virtual certainty of someone being seriously injured.
Murder - Omission
- Where the offence is committed by an omission, it can only be committed by a person who was under a duty to act.
- R v Stone and Dobinson - They agreed to look after his sick sister, who had mental health problems. She was found dead in appaling conditions. They had taken on that duty, and so they were liable for her death.
- A contract may give rise to a duty to act.
- R v Pittwood - Defendent had a job to open/close a railway level crossing. He forgot to close the gate, which caused a train to collide with a horse and cart, killing the train driver.
- Causation: The normal rules apply. The prosecution has to show the defendents actions or omissions caused the victims death by showing that: the death wouldn't have occured 'but for' the defendents actions; the defendents actions must be the substaintial and operative cause of death and there must be no novus actus interveniens which breaks the chain of causation.
- R v Pagett - Used a pregnant woman as a human shield. Started firing at police, who had no choice but to fire back, and this killed the woman. 'But for' the defendents actions this wouldn't have happened.
Murder - Cases
- R v Blaue - Defendent stabbed a girl four times when she refused to have sex with him. She was a Jehovah's Witness, and refused to have a blood transfusion. Defendent was convicted of murder as the stab wound was the operating cause of death.
- R v Smith - Defendent, a soldier, stabbed another soldier. He was dropped twice by medics, and the treatment he was given was palpably wrong. The soldier died. The stab wound was still the operating cause of death, so the conviction was upheld.
- R v Jordan - The defendent stabbed the victim who was taken to hospital and given anti-biotics that they were allergic to. They were also given excessive intravenous liquids, causing the victim to die from pneumonia. At the time of death, his wounds were starting to heal. The victim died from medical treatment, not the stab wound, so they weren't liable.
- R v Cheshire - Defendent shot a man in the stomach and thigh. Several weeks later they were starting to heal from the wounds, but had gotten breathing problems from a trachetomy, and died from this. Conviction was upheld despite the fact that the wounds were not the operative cause of death. Intervening medical treatment could only be regarded as excluding the responsibility of the defendant if it was so independent of the defendant's act and so potent in causing the death, that the jury regard the defendant's acts as insignificant. Since the defendant had shot the victim this could not be regarded as insignificantis.
- Part defences introduced by the Homicide Act 1957 (as amended by Coroners and Justice Act 2009). Will result in the judge having discretion in the sentencing of defendent and this can be any term from life improvement to a discharge (absolute or conditional).
- It occurs when the defendent has the necessary mens rea for murder and commits the actus reus of murder, but there are factors which allow a partial defence and reduce the liability from murder to manslaughter. Defendent must be charged with murder and then put forward a defence which has the effect of the reduction.
- Diminished Responsibility: 1) A person who kills another is not to be convicted of murder if defendent was suffering from an abnormality of mental functioning which 2) arose from a recognised medical condition; substantially impaired defendent's ability to a) understand the nature of D's conduct b) form a rational judgement c) to exercise self-control. 3) Provides an explanation for D's acts and omissions in doing or being a party to the killing.
- Psychopathy is an example of abnormal mental functioning: R v Byrne - Defendent murdered a young girl and mutilated her body. He said he was suffering from irrestiable impulses which he was unable to control. Convicted of manslaughter.
- Battered Woman's Syndrome: R v Aluwahlia - Defendent poured petrol onto her sleeping husbund an set him on fire. He died 6 days later from his injuries. The husbund had been violent/abusive throughout the marriage. He had told her that night he would beat her in the morning. Allowed to use the defence of diminished responsibility.
- Personality Disorder: R v Martin - Farmer shot at intruders and killed a man. Personality disorder amounted to abnormality of the mind which meant diminished responsibility.
- PTSD: Kerrie Gray - Stabbed a pedestrian to death who stepped into the path of their car, they had previously been in a railway crash.
- Burden of Proof: The burden of proving diminished responsibility is on the defendent. Unless they can show they were suffering from such abnormality, on the balance of probabilities, they will be convicted of murder.
Loss of Control
- Sections 54 and 55 of the CJA 2009 provide: 1) Where a person kills or is a party to the killing of another, defendent is not convicted of murder if a) Defendent's acts and omissions in doing or being a party to the killing resulted from D's loss of self 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 a smiliar way to defendent.
- It doesn't matter whether or not the loss of control was sudden. In other words, a 'slow burn' reaction will suffice as well as an immediate loss of self control.
- Subjective Test: 1) Firstly, the jury must look at the defendent and identify whether they did in fact lose control. 2) Secondly, the jury must decide that the loss of control was caused by a qualifying trigger.
- A fear of serious violence to defendent, or another identified person, from the victim.
- Anger trigger: Defendent's loss of self control was attributable to things said or done which consisted of circumstances of an extremely grave character and caused the defendent to have a justifiable sense of being wronged.
- Neither trigger will come into play if the victim was incited by the defendent as an excuse for himself to use violence.
- Sexual infidelity is to be disregarded. This means won't be a defence.
- R v Ibrams & Gregory - The defendents had been harrassed by the victim for a long time, and had hatched a plan to beat up the victim. They said once they started beating him, they lost control. The judge didn't allow the defence of provocation as the planning indicated that there was no sudden and temporary loss of self control.
- R v Davies - The defendent killed his wife after seeing her lover walk towards her place of work. It was held that the act of the lover walking to her work place could amount to a provocative act and the issue of provocation should have been put before the jury.
- R v Clinton - Killed his wife, and texted pictures of her dead body to her lover. He said he lost control because: she had told him about her sexual infidelity; had taunted him about looking at a suicide website and she had told him that she no longer wanted their children. Sexual infidelity couldn't be used as a trigger but he had other qualifying triggers that could be used.
Loss of Control Cases
- Attorney General for Jersey v Holley - D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. Defendents alcoholism shouldn't have been taken into account. Not guility of murder due to lack of self control due to other reasons - personality traits.
- DPP v Camplin - Defendent was a 15 year old boy, who killed a man by hitting him over the head with a pan. At his murder trial the defendant raised the defence of provocation stating that the deceased had ***** him and then laughed at him at which point he lost his control and hit him. The trial judge directed the jury on provocation that they should consider whether a reasonable adult would have done as the defendant did and told them that they should not take acount of the defendant's actual age, this was wrong and the defendent wasn't convicted of murder.
Non-Fatal Offences: 1
The first main problem of the law on non-fatal offences is the structural issues such as complexity. It contains a confusing mixture of common law and statute and a large volume of cases to explain their decisions which could confuse the courts. It can be argued that the act tried to bring too many offences together into a single statute without using common terminology or an attempt to rationalise the law which is bad because they could get jumbled up. They tend to focus more on what violence is used rather than focusing on the degree of harm caused which is bad because we should be more interested in what the harm was.
Another problem is that the act uses a lot of confusing and uncertain language which often results in a large amount of appeals being put through which is bad because it takes up more of the courts time. The language is too old fashioned for some members of the jury to understand which can result in a miscarriage of justice. It is left to the courts to interpret words such as ‘actual harm’ and ‘grievous bodily harm’ which different people could feel could mean different things which once again could result in a miscarriage of justice.
Non-Fatal Offences: 2
- In DPP v Smith and R v Saunders GBH was interpreted as meaning either ‘really serious harm’ or ‘serious harm’ which gives an uncertainty as to the precise meaning of the term. In R v Ireland and R v Burstow it was shown that psychiatric injury could be put under either ABH or GBH but there have been many arguments to what the difference is between minor and serious injury which is a problem because someone could be charged with the wrong defence. In R v Dica it was shown that the transmission of HIV could be recognized as GBH and later on in R v Golding it was shown that the transmission of herpes could also be recognized as this. This is a problem because herpes is much less serious than HIV, so it is argued that it should be recognized as ABH instead.
- Another problem is that wounding is such a broad term that it can include anything from minor cuts to being shot or stabbed. This is bad because it means that many wounding’s have to be charged as ABH to differentiate between serious and less serious injuries. A further issue is that ‘maliciously’ is used in both s.18 and s.20 of this offence but in s.20 it can mean with intent or recklessly as to whether some harm might occur but in s.18 the term is completely redundant because the mens rea is provided by the words ‘with intent’ which makes no sense because this means different definitions of ‘malicious’.
Non-Fatal Offences: 3
- The next problem is that there is a lack of clarity as to what will suffice to be ABH. In DPP v Smith, it was ruled that cutting off a woman’s ponytail would be seen as ABH. This is a problem because this could lead to a person being convicted of ABH, when they should be convicted of assault/battery of vice versa.
- One of the strongest criticisms of this law is that it focuses on the type of injury rather than the seriousness of the injury which is a problem because it could result in defendants being convicted of more serious offences than the extent of the injuries caused and vice versa. An example of this is for s.20 GBH it only has to be shown that the defendant intended to cause some harm or is reckless which could mean they are convicted for an injury that they didn’t intend to cause or realise could occur. Another problem is the fact that the actus reus and mens rea don’t work well together, which is shown by the fact that someone can be convicted of ABH for just having the mens rea for assault/battery. This is a problem because the defendant didn’t mean to cause the harm, so some would argue they should only be punished for what they intended to do. This is the “correspondence” rule which it is said makes the law fairer by matching what is intended to what occurs and only punishing someone for intended harm.
Non-Fatal Offences: 4
- A further problem is sentencing which is a problem because for example, s.18 GBH can give a mandatory life sentence whereas s.20 GBH can only give a maximum of 5 years. Another example of a problem is that many s.47 and s.20 offences are charged in the Magistrates Court where the maximum sentence is only 6 months which isn’t fair on the victims of these offences sometimes.
- In 1993 it was proposed that the sections 18, 20 and 47 should be replaced by new offences with more simple language and a clearer hierarchy. In 1998 a draft bill followed the proposals of the Law Commission and in 2014 a new paper was set out and on 3/11/2015 the Law Commission paper 261 produced revised recommendations which suggests that s.18 should become ‘intentionally causing serious injury’ whereas s.20 would become ‘recklessly causing serious injury’ and s.47 would become ‘intentionally or recklessly causing injury’. This is good because the two methods of injury are no longer separate and only a wound that causes serious injury is included in s.20 and s.18.
Non-Fatal Offences: 5
- As well as this, assault and battery would be reworded and become a single offence known as assault or only given a section number. However, an additional offence of aggravated assault similar to ABH was added. But its sentence is only 12 months which is fairer and in keeping with the correspondence rule. This would solve the uncertainty we have at the moment because the written language would be easier for normal people to understand and provide a better hierarchy. The terms GBH and wounding would be replaced with ‘serious injury’ like ABH would be replaced with ‘injury’. Confusing terms such as maliciously and inflicting would disappear and assault and battery would no longer be required. The word malicious is replaced with statutory definitions of intention and recklessness. However it is still likely that the law would continue to develop these terms so some confusion may remain.
- Also, the terms immediate and apprehend would disappear from the offences of battery and assault. However, even with these new proposals there is an uncertainty as to the meaning of ‘injury’, the distinction between injury and really serious injury and the fact that there is only one offence dealing with injury, but two that are dealing with serious injury.
Non-Fatal Offences: 6
The new proposals do not see any need for a separate offence of infection with disease as it seems sensible that the normal offences of causing injury should suffice. The seriousness of crimes would be more represented by the sentences if these new proposals came through. However, the offences of assault still seem overly complicated and aggravated assault may end up overlapping with other offences.
Murder Evaluation: 1
- The problems for actus reus are the question of when life begins and ends, as it is not always a clear. This is usually due to the fact that a foetus is not a person in being, so it cannot be murdered. In law, a baby is not alive until it takes its first breath. A good example of this A.G Ref No.3 1994 where the defendant stabbed his pregnant girlfriend in the stomach when she was 24 weeks pregnant, and 121 days after being born it died. The trial judge held that he could not be convicted of murder or manslaughter since at the time of the attack the foetus was not in law classed as a human being and thus the mens rea aimed at the mother could not be transferred to the foetus as it would constitute a different offence. Another important case is R v Malcherek where the defendant stabbed his wife who was put on a life support machine. The doctors later switched these off because they were not showing an activity in the brain stem. The test of death is where the brain stem has died. Thus at the time of switching off the machine, the victims were already dead. The doctors could not therefore be the cause of death. Another case is that of Tony Bland’s who was in a permanent vegetative state after being injured, and even though his brain stem was still functioning, he was not conscious nor had any hope of recovery, so his life support was switched off by the hospital.
Murder Evaluation: 2
- The problems for mens rea are whether you should be guilty for murder if you only meant to harm the person, such as in R v Vickers where the defendant was robbing the victims shop, and when they found him, the defendant hit the victim with several blows, killing them. He was found guilty of murder because he had malice aforethought and intended to commit GBH.
- It is suggested that there should be a correspondence between the act and the punishment given. Sentencing has also been problematic because all murder offences have a mandatory life sentence even in cases of euthanasia. An example of this is R v Inglis where a mother injected her son with a lethal dose of heroin. He was in a vegetative state, but doctors were hopeful that he could have made a recovery. She was convicted of murder, because there was hope that he could have got better.
- However, the tariff system is helpful as it makes the sentencing longer for those whose crimes were more severe such as serial killers.
Murder Evaluation: 3
- There are many reforms that are recommended from the Law Commission in November 2006. They suggested that murder should be changed to a two tier law system: first and second degree murder. First degree murder would be the intent to kill or those who intend to do GBH knowing that it may lead to death. This would solve many cases, such as R v Vickers. Second degree murder would be those who kill who intend to do GBH or those suffering from diminished responsibility or loss of control. Manslaughter would merge into this offence. However, this does not solve the euthanasia problem as they all have the intent to kill. It could be argued that this would be a backward step as those with mental illness who kill would then be classed as murderers.
- Diminished responsibility overlaps with the insanity offence, so it would be a good idea to merge these two offences together. It could be argued that psychopaths cannot empathise so they can’t use the insanity defence but they can use diminished responsibility as you can know what you’re doing. This is bad as it means that people who shouldn’t get away with murder, can do by using this defence.
Murder Evaluation: 4
- Another problem is why should you be able to use diminished responsibility as a defence if you have an underdeveloped brain when you can’t use it when you’re a young person with the same underdeveloped brain who commits murder.
- Possible reforms are that the insanity defence could be gotten rid of and it could be recognized that the teenage brain is not totally developed compared to adults, but this could be very difficult to prove.
- Problems with loss of control are centred on the anger trigger, as it can be seen as wrong that people are allowed to get away with murder just because they lost their temper and killed someone. This seems to reward people for getting angry, when there are things people can do to stop themselves from being so aggressive when they are angry. In some countries they have abolished the anger trigger, because they believe it is wrong. Loss of control seems to stand by men who lose their temper and kill their wives, which is very wrong. In law it was decided that sexual infidelity would exclude you from using this defence, but Judges have decided to make decisions to go against this, when they have not been elected to do so.
Murder Evaluation: 5
- An example of this is R v Clinton where the defendant killed his wife, and then texted photos of her body to her lover. He argued he did this because she had told him that she had had sexual relations with five men and was describing in graphic detail the acts they had performed; she had laughed and taunted him about a suicide website that he had been looking at on his computer; she had told him she no longer wanted the children. Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.
- However, the fear trigger is generally considered as being good and has solved the problems of self-defence where you have to argue if the force was reasonable in the circumstances. Some people argue that it is unfair that some get away with excessive force by using the fear trigger as their defence.
General Defences: 1
- Insanity is set out in the M’Naghten Rules by the House of Lords in 1843. It is generally accepted that there are major problems with the defence of insanity and there is only about 30 Crown Court cases per year who use insanity as a defence successfully. To establish the defence of insanity, it must be proved that, at the time of the committing of the act, the party had a defect of reason, from disease of the mind, as not to know what they were doing, or he did not know that what he was doing was wrong. It has led to case law that distinguishes internal and external factors. Case studies: Henneney (Not taken enough insulin) Quick (taken too much insulin).
- There are about 600,000 people in the UK with epilepsy and more than 2.7 million people in the UK have diabetes, so it would not be good to label these people as being insane when it is a physical illness. Some conditions (such as schizophrenia) are clearly going to be regarded as diseases of the mind. However, one consequence of the courts’ broad interpretation of “disease of the mind” is that people with conditions that would not generally be described as mental disorders have been held to come within the M’Naghten understanding of insanity. These include, for example, sleepwalkers, and people with epilepsy or diabetes.
General Defences: 2
- M’Naghten has adopted a distinction between whether the cause of the accused’s lack of control was due to an “internal factor” (ie some malfunctioning of the person’s body) or an “external factor” (such as a blow to the head). Involuntary conduct caused by an “internal factor” is classed as insanity and that leads to the special verdict.
- It must be ensured that individuals are managed in such a way as to address the risk of harm, including the possibility of detention in prison or hospital. States have duties to prevent breaches of a person’s right to life. The right not to be subjected to inhuman and degrading treatment and the right to a private life. Supervision or detention in hospital could make it less likely that the individual will reoffend: reoffending rates are seemingly lower for those released from secure hospital than from prison. It seems that the defence does not fairly identify those who ought not to be held criminally responsible as a result of their mental condition, and so some of those vulnerable people remain in the penal system. In consequence, they are at greater risk of suicide and self-harm in prison. Experienced defence solicitors commented that “prison healthcare facilities are still wholly inadequate” for those with mental illnesses.
General Defences: 3
- This can affect a large number of people because the proportion of people in custody with learning difficulties is higher than the proportion of people in the general population with learning difficulties. Children and young people who come into contact with the criminal justice system may have impaired mental faculties of knowledge and understanding, but they will often not have been diagnosed with a condition which falls within the M’Naghten test. Even if they have been, the ability of the youth court to deal with them appropriately is limited.
- The very name of the defence is off-putting to many people. Legal representatives sometimes do not want to suggest to their clients that the insanity defence might be relevant to their case. Even worse, as we explain above, the broad interpretation of the term “disease of the mind” results in people with epilepsy, diabetes, and others with conditions that would not be generally described as mental disorders being classified as “insane”. Those people might understandably be reluctant to plead the defence. However, there is an argument that with mental illness, whatever label is chosen, stigma will persist.
General Defences: 4
- Terms like “insanity” and “disease of the mind” are not medical terms, but outdated legal terms. There have been calls for the M’Naghten Rules to be brought into line with modern medical knowledge for at least 60 years. Many other jurisdictions have met these concerns by recently reforming their insanity test by legislation.
- The burden of proof lies on the defence. This means that the accused has to prove all the elements of the defence on the balance of probabilities. The result is that where a jury believes that it is more likely than not, on the balance of probabilities, that the defendant is sane, the defence of insanity will fail and the accused will be convicted. This means that somebody may be convicted of an offence where the jury finds that it is 51% likely that he or she is sane. In such a case, the jury has more than a reasonable doubt that the defendant is sane. It is questionable whether a person should be found criminally responsible on this basis.
- A new defence of “not criminally responsible by reason of recognised medical condition”. We therefore provisionally propose that the common law defence of insanity should be abolished. We propose that where, as a result of a recognised medical condition, he or she should not be held criminally responsible for his or her actions.
General Defences: 5
- This would lead to a new special verdict and new sentencing powers. To be able to use the defence the D must lack the relevant criminal capacities including: The first is the lack of capacity rationally to form a judgment about the relevant conduct or circumstances. The second relates to the ability to understand that what one is doing is “wrong”. If a person could not understand that they ought not to do what they are doing, then that person should not be held criminally responsible. The third relevant capacity relates to bodily control. A criticism of the rules were it doesn’t encompass mental disorders which affect a person’s ability to control him or herself. This issue is not about abnormal desires; it is about a genuine loss of capacity for physical control arising out of a recognised medical condition. We accept it can be difficult, to tell when a person has genuinely lost the power to control his or her physical acts (such as may be the case for a person with a sleep disorder). We nevertheless think that in some cases it is possible for a medical condition to deprive a person of the power to control his or her actions, and that it is right in principle for the law to allow a defence in such cases.
General Defences: 6
- It would entirely remove the problems associated with the use of ‘disease of the mind’ and all the internal/external cause distinctions, meaning that most physical conditions that might be categorised as (sane) automatism such as PTSD would be pleaded under this defence instead. It does not ‘pick out’ mental illness by use of the stigmatising word ‘insanity’ as both physical and mental recognised conditions are included. It allows the law to reflect modern clinical definitions of illness. It allows for lack of ability to control oneself as opposed to merely depending on the D knowing what they are doing is wrong. It still leaves in place diminished responsibility overlapping with this proposed defence. The Law commission suggests that ‘total loss of physical control’ will provide a defence if caused by a physical condition, but this may be less likely to be successful for mental conditions where some control is retained and it is difficult to judge how much control an individual had. Not all recognised medical conditions will be included. Acute intoxication will be excluded and so will ‘anti social personality disorders’ on policy grounds because it might be argued that the very commission of crimes might indicate this disorder, yet it would not be in the public interest to allow this defence, so perhaps this would still produce discriminatory outcomes for people who are genuinely suffering from a disorder but who will be unable to use the defence.
General Defences: 7
- Tony Martin used ‘lethal force’ – his conviction was subsequently reduced to manslaughter on the grounds of diminished responsibility – Old law was criticised as an ‘all or nothing’ defence’ and this was particularly diffciult for those who killed by using excessive force in self defence but since the Coroners and Justice Act 2009 – loss of control has a fear trigger that can reduce murder to manslaughter – unlike a ‘failed’ self defence plea which would result in conviction for murder. This is an improvement. Munir Hussain did not ‘kill’ so it would not have helped in his circumstances at all. He was sent to jail for 30 months for GBH for beating a burglar who had tied him and his family up, the force he used was too excessive.
- Homeoweners and self defence: In addition to the Martin and Hussain cases which are now quite old, there have been a number of high profile NON prosecutions which seem to indicate a greater level of CPS sensitivity and awareness of these issues. Eg case of Vincent Cooke - In Sept 2011 he stabbed to death a burglar who held him at knifepoint in his house and did not face prosecution.
General Defences: 8
- Nevertheless the government amended s.76 of the 2008 act by s43 of the Crime and Courts Act 2013 : “In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances”. Problem with this will be to decide what is grossly disproportionate as opposed to just disproportionate. It would not have made any difference to Vincent Cooke who was not prosecuted before this law came in even though he did and up killing the burglar in his house. And it is arguable that some people would say that Tony Martin’s use of a shotgun was still grossly disproportionate in all the circumstances. It is hard to see in practice how it does so without making life much harder for juries.
General Defences: 9
- The effect of s76(5A) does not apply to squatters in a property who would be guilty if they used disproportionate force to protect themselves – but the use of disproportionate force by householders only applies to defending themselves or other people not their property so why should householders be given additional rights of self-protection if this is not related to their property. This seems to create an unfair law that protects people if they own property but not if they do not, even if they are being attacked in the place they are living. So self-defence and defence of property have become detached from each other but whole some people can use disproportionate force to protect themselves – others cannot. Property owners can only protect their property using force that is reasonable in all the circumstances so the jury might find themselves having to distinguish between how much force a householder used to defend themselves and how much to defend their property.