- Created by: Tannykirms96
- Created on: 27-05-15 14:44
Problems with Murder!!
- The law on murder has developed bit by bit in individual cases and is not a coherent whole- meaning of intention, specifically foresight of conseuqences is largely disputed, in Moloney (1985) foresight was evidence of intention, in Woollin (1998) it was said that intention is found through foresight of consequences. Matthews and Alleyne (2003) little to choose between a rule of evidence and one of substantive law, leaving it more unclear.
- A defendant can be convicted of murder even though he only intended to cause serious harm (Vickers 1959), when the homicide act 1957 was passed, it was never intended that a killing would amount to murder unless the defendant realised that he or she might cause death. it is unfair that someone who intended s18 gbh is guilty of murder even if they did not foresee the risk of death.
Reforms for Murder!!
- 1st and 2nd degree murder- this would allow descretion in sentencing, 1st degree murder would have a mandatory life sentence for people who intended to kill, 2nd degree would be for people who used excessive force, or intended gbh but did not foresee the risk of death, the maximum sentence would be life, but the judge would have discretion as to when he would use this.
- The government rejected the law commissions proposals but did except the problem of no defence for those who used excessive force. They created the partial defence of loss of control to help defendants in this situation.
- Also issue of euthanasia and the law refusing to provide guidelines.
Loss of control!
Loss of control:
- s54 Coroners and Justice Act 2009-
- D must have lost self-control, does not have to be sudden (Ahluwalia 1992),
- There must be a qualifying trigger- D's fear of serious violence from V against D or another identified person; or a thing or things done or said (or both) (Doughty 1986) which a) constituted circumstances of an extremely grave character, and b) caused D to have a justifiable sense of being seriously wronged. It is important to note that sexual infidelity is not a qualifying trigger and the defence is not allowed if D acted in a 'considered desire for revenge' (Ibrams and gregory 1981 and Baillie 1995).
- A person of the same sex and age as D, with a normal degree of tolerance and self-restraint and in the same circumstances of D, might have reacted in the same or a similar way. (Camplin 1978) (Gregson 2006- employment accepted and also epilepsy and depression. Sexual abuse can also be considered. (Hill 2008), Van Dongen (2005) if jury agree reasonable man would have lost self- control, but would not have reacted in same or similar way then defence fails.
Unlawful Act Manslaughter!
Unlawful Act Manslaughter:
- D must do an unlawful act- Unlawful act must be criminal (Lamb 1967- no assault as V wasnt afraid),there must be an act omission not enough (Khan and Khan 1998).
- The act must be dangerous on an objective test- Church (1966)-sober and reasonable people would recognise the risk of some harm being caused to V. The risk need only be of some harm. Larkin (1943)- dangerous act, threatening someone with razor. The act need not be aimed at the victim (Mitchell 1983). It can be aimed at property, providing that the act is still dangerous and would likely subject someone to harm (Goodfellow 1986), the risk of harm includes causing a person to suffer shock, however mere emotional disturbance is not sufficient (Dawson 1985), where reasonable person would be aware of victims fraility and the risk of physical harm to him then they would be liable (Watson 1989).
Unlawful Act Manslaughter! continued!
Unlawful act manslaughter:
The unlawful act must cause the death- if there is an intervening act that breaks the chain, D is not liable for manslaughter, (Cato 1976), Kennedy (2007) act of self administering injection broke the chain of causation.
D must have the mens rea for the unlawful act- it does not matter if D did not realise his act was dangerous, the test is objective, not subjective, it does not matter what D believed. (Newbury and Jones 1976).
Gross negligence Manslaugther!
Gross negligence Manslaughter:
- Adomako (1994)- Gross negligence manslaughter can only be proven when:
- there is an existence of a duty of care towards the victim- duty of doctor to patient (adomako) duty to immigrants (Wacker), Duty where D creates a state of affairs which he knows or ought to know has become life threatening (Evans 2009)
- a breach of that duty of care which causes death- D must breach his duty of care which causes death
- gross negligence which the jury considers to be criminal- Negligence has to be gross (Bateman 1925)- beyond a matter of mere compensation between subjects and shows such a disregard for human life and safety of others as to amount to a crime against the state and conduct worthy of criminal punishment.
- that the gross negligence was a substantial cause of the death of the victim- the death must be substantially caused by the gross negligence, there must be a risk of death, unclear whether risk is to health and welfare (stone and dobinson 1977), or disregard for the life and safety (Bateman 1925) or a risk of death (Adomako 1994).
Insanity- M-naghten rules 1843:
- defect of reason- defect must be more than absentmindedness (Clarke 1972),
- This must be the result of a disease of the mind, (Hennessey 1989- diabetic with high blood sugar),
- This caused D not to know the nature and quality of his act or not knowing that it was wrong, ( Kemp 1956, Sullivan 1983 and Burgess 1991).
- People suffering from certain mental disorders do not come within it such as Byrne 1960,
- Those suffering from physical illnesses such as diabetes are considered legally insane, this is inappropriate, some diabetics are insane some arnt,
- Overlaps with automatism - serious as automatism provides full aquittal whereas insanity does not,
- Social stigma
- Burden of proof lies with the defendant, they must prove they are insane.
Reforms for Insanity!
- proposed reform from Royal commission on capital punishment, where rules should be extended to include situations where D could not stop himself from committing the offence, however government ignored this and created the defence of diminished responsbility ,
- Verdict should be changed to 'not guilty by reason of severe mental disorder or severe mental handicap (Law Commission 1989), none of these proposals have been made law,
- However, judge can now issue a variety of supervision of treatment orders or even give an absolute discharge where it is suitable.
Defined by Bratty v Attorney-general for Northern Ireland (1961),
- Insane automatism- where cause of automatism is a disease of the mind within the M'naghten rules,
- Non-insane automatism- where cause is external- complete defence, D is not guilty.
- self- induced automatism- Bailey (1983) if offence is specific intent then self induced automatism can be a defence,
- If it is a basic intent offence then, prosecutors will have to prove the necessary element of recklessness for the offence, it is open to the jury to find him reckless, where the automatism is induced through drink or illegal drugs the defence is not available (DPP V Majewski (1976)- becoming intoxicated is a reckless course of conduct,
- Where D does not know that his actions are likely to lead to a self-induced automatic state in which he may commit an offence, he has not been reckless and can use the defence of automatism (Hardie 1984).
Reforms for Automatism!
- Law commission proposed to widen defintion to include sleep disorders (Burgess 1991) and epileptics (Sullivan 1984).