Law - Paper 1 Section B Crime (excludes all defences except SD)

The general rule for criminal law - for someone to be guilty of an offence they must have the…

AR + MR (Actus Reus + Mens Rea)

What does Mens Rea mean?

‘guilty mind’ aka the thinking element

What does Actus Reus mean?

‘guilty act’ aka the doing element

What must the AR of D’s conduct be generally, to be found guilty of a crime?

Generally, the AR must be voluntary

Case example where the AR must generally be voluntary do establish AR

Hill v Baxter - A swarm of bees flew into D’s car whilst they were driving, causing them to lose control of the car

POL: she was no longer ‘driving’ therefore there would be no AR of dangerous driving.

3 categories of crimes + cases for consequence crimes and state of affairs crimes (circumstances)

Conduct crimes (doing)

Consequence crimes (result) - Marchant v Muntz - A farmer owned a tractor fitted with spikes, it was driven onto the road and a motorcyclist crashed into it and died. It was argued that the spikes should’ve been covered by a guard

State of affairs crimes (circumstances) can be committed without voluntary control - Larsonneur - D was forcibly deported to the UK where she was charged with being an illegal alien once arriving in the UK

What are omissions?

A failure to act when legally obliged to

Duties created by Parliament/judges are known as?

Duties created by Parliament = Statutory duties

Duties created by judges = Common law duties

Examples of statutory duties + Statute law that goes with each duty

Failing to wear a seatbelt or give a breath specimen under the Road Traffic Act 1988

Failing to muzzle a dangerous dog in public under the Dangerous Dogs Act 1991

Neglecting a child Domestic Violence, Crime and Victims Act 2004

5 Examples of other statutory duties + Cases

Contractual duties (contract of employment) - Pittwood - A railway crossing keeper had a duty to close the gates his omission formed the AR for manslaughter

Official position - Dytham - a police officer stood by while V was beaten up. The officer was guilty for failing to perform his duty while in a public position.

Special relationship - Gibbins & Proctor - Father starved his 7-year-old daughter to death. He had a duty to feed her and the omission formed the AR

Duty undertaken voluntarily - Stone & Dobinson - The defendants took in an elderly relative and failed to look after her. They were liable for her death.

Creating a dangerous situation - Miller - D failed to take reasonable steps to deal with the fire he had started. He had created a dangerous situation and owed a duty to call the fire brigade. So he was liable as he failed to do so.

Case example where there is no omission which led to no liability

Airedale NHS Trust v Bland - discontinuing the patients treatment was in the best interest of the patient so there was no omission and therefore no AR formed so no liability.

Causation - what is it used to establish in consequence crimes and what does the prosecution have to show to prove D is guilty beyond reasonable doubt?

Causation is an essential element to establish the Actus Reus in consequence crimes. There must be evidence to show that D caused the consequence so the prosecution has to show that: D was BOTH the legal and factual causation of the consequence and that there was no intervening act which broke the ‘chain of causation’

The prosecution must establishes that… D’s actions —> Consequence e.g. V’s death

Factual Causation - Test for it?

Test - ‘But for’ D’s conduct would the consequence have happened?

Cases for Factual causation (one where it was established, another where it wasn’t)

White - D wasn’t the factual cause of his Mother’s death as the poison D put in her drink didn’t kill her, a heart attack did

POL: D’s mother would’ve died ‘but for’ his actions

Pagett - D was the factual cause of the death of V here when he used his girlfriend as a shield and fired at the police

POL: She would not have died ‘but for’ his actions

What case is an example of why legal causation is necessary? Why?

(This case has factual causation)

Hughes - D was charged with causing death by driving while uninsured but for D driving on the road, V would not have collided with him. However, the collision was entirely V’s fault, who was on drugs and on the wrong side of the road. So the SC saw a need for there to be a ‘legally effective cause of the consequence’

Explain legal causation + Test for it

There may be more than one act contributing to the consequence. Some of these acts may be made by people other than D.

Key rule: D’s conduct does not need to be the only cause of the consequence but D’s contribution must more than minimal.

Was D’s actions a more than minimal contribution to the cause of the consequence? Or was it the only cause?

Cases for legal causation

Kimsey - D and V engaged in a high speed car chase. V lost control of the car and died. The trial judge directed the jury that D’s driving did not have to be ‘the principal, or a substantial cause of death, as long as you are sure that it was a cause and that there was something more than a slight or trifling ink.’ (more than minimal cause)

Benge - D was a foreman during work on a train track. He failed to give adequate warning to an approaching train driver and a fatal accident occurred. It is irrelevant that the accident might have been avoided if others had not also been negligent. D SUBSTANTIALLY caused the death through his negligence.

The Thin Skull Rule, what is it? When is it applied? + Case

If V has a special characteristic or vulnerability which makes an injury more serious, then D is liable for the more serious injury, even if D was unaware of that possibility. D must take V as they find them.

Blaue - D was held responsible for V’s death when the Jehovah’s Witness he stabbed refused a blood transfusion, despite the fact that she would have survived if she had accepted the treatment.

Intervening acts - 3 ways the chain of causation can be broken

An unforeseeable act of nature e.g. being struck by lightning

The unforeseeable act of a third party

V’s own subsequent conduct

Cases where the chain of causation may or may not have been broken via the victim’s own conduct + cases (1 broken, 1 not)

The chain of causation will not be broken by V’s conduct as long as D causes V to act in a foreseeable way, then V’s own act will not break the chain

Roberts - V’s reaction to jump from a moving car was reasonable foreseeable when D made sexual advances towards her. The chain of causation was not broken.

Williams - V died after jumping from a moving car, allegedly to avoid having his wallet stolen. This reaction was dfsproportionate to the threat so it broke the chain of causation.

Medical treatment & causation - does it break the chain ever? + Case examples where it did not break the chain (negligence)

Medical treatment even if negligent is unlikely to break the chain of causation unless it is so independent of D’s conduct and in itself so potent that D’s acts are insignificant

Smith - After being stabbed in a fight by D, V was dropped twice on the way to the treatment centre and then left untreated some time.

POL: The stab wound was still ‘operating’ (not healed) and it was a substantial cause of V’s deaths

Cheshire - D shot V in the stomach and thigh. V needed an operation to insert a tube into his throat to help him breathe. 2 months after the shooting. V died from rare complications following the tracheotomy. Although V’s wounds at the time were no longer life-threatening. D was still held liable for the death as his actions (shooting V) had contributed ‘significantly’ to the death

Medical treatment breaking the chain of causation + Case

Medical treatment will only break the chain of causation if it is exceptionally bad or that it makes D’s original acts insignificant

Jordan - V was stabbed by D and admitted to hospital. V’s wounds were healing when Doctors gave him a large amount of antibiotics which he was allergic to and he died. The COC was broken as the medical treatment was ‘palpably wrong’ and it was the overwhelming cause of death as the original wounds had virtually healed.

Medical treatment - If the victim is brain-dead does it break the COC? + Case

A decision by a doctor to switch of a life-support machine when the victim is brain-dead will not break the COC.

Malcharek & Steel

What is the Mens Rea?

The state of D’s mind at the time of committing the offence.

Describe and Explain the Mens Rea Ladder

(Direct) Intention - Result is D’s aim or purpose

(Indirect) Intention - Result wasn’t D’s aim but they realise that the outcome was virtually certain to occur as a result of their actions

Recklessness - Consequence foreseen by D as probable or possible

Negligence - Consequence not foreseen by D, but a reasonable person would have foreseen it

Strict Liability - Consequence even a reasonable person would not foresee

Intention - How is it judged? Example of offence where only intention suffices? 2 types of intention + In which cases are they defined?

Intention is the highest form of MR and is judged subjectively. Murder is an example of an offence where only intention suffices. So if you didn’t intend to kill/GBH you wouldn’t be guilty of murder but instead a lesser crime.

Direct Intention - Mohan - The result is D’s aim or purpose. ‘A decision to bring about the prohibited consequence’

Indirect (oblique) Intention - Woolin - The result isn’t D’s aim, yet he or she realises it is ‘virtually certain’ to occur as a result. A jury is entitled to find Indirect Intent if there was a virtually certainty as a result of D’s actions and that D appreciated that it was

Recklessness - What is needed to prove it? Is it subjective or objective? + Case

To prove that D is reckless, it must be shown that D is aware of a risk of the consequence happening, but deliberately goes ahead and takes it anyway.

Recklessness is subjective, i.e. it is based on what was in D’s mind. If D did not appreciate the risk, he can’t be reckless.

Cunningham - D tore a gas meter from a wall in order to steal the money in the meter, the gas escaped and seeped through to an adjoining property, poisoning the neighbour. Since D didn’t realise there was a possibility of this happening, they were not liable.

When is someone negligent + Case

A person is negligent if he or she fails to meet the standard of the reasonable person. It is objective because D doesn’t have to realise this.

Adomoako - An anaesthetist was liable for gross negligence manslaughter when he took several minutes to notice a breathing tube had become disconnected during an operation. A reasonable anaesthetist would’ve noticed within a couple of seconds

The main difference with strict liability compared to other offences?

No MR is required

How do you know what offences are strict liability offences?

• Usually an AOP will make it clear if MR is needed e.g. use words like intention/reckless (no intention/recklessness required for strict liability offences)

• If an Act makes it clear that MR is not required the offence will be one of strict liability e.g. driving without a license

• If there is no AOP or the words of the statute don’t make it clear, the judge presumes that MR is required

When will the presumption of MR made by judges be displaced? (strict liability) This encourages businesses to be more vigilant…+ Case

In the absence of words explaining that an MR is excluded for an offence, the presumption will only be displaced, if the crime is a matter of social concern or public safety. This encourages businesses to be more vigilant.

Alphacell v Woodward - A factory was fined for polluting a river when its pumps got blocked. The court said it was in the public interest to protect the environment.

Can you be liable for a crime with involuntary AR? + Case

Yes, although it is rare, a person will be liable for a crime of ‘absolute liability’. This means they may be guilty even though the AR was involuntary e.g. Larsonneur - Where D was taken against her will to England

Describe and explain Strict liability - ‘no fault’ offences + Case

Strict liability offences are sometimes described as ‘no fault’ offences. D can be convicted if his voluntary act caused a prohibited consequence, even though D was totally blameless in respect of that consequence.

Callow v Tillstone - Abutcher was convicted of selling contaminated meat even though it had been certified as fit for human consumption by a vet. Because it was a strict liability offence, D was guilty, even though he had taken reasonable care not to commit the offence. The butcher was not at fault in any way.

Does taking precautions affect strict liability offences? + Case

D will still be guilty even if he or she has taken all reasonable precautions to avoid committing the offence. There is no defence of due diligence or even honest mistake.

Cundy v Le Cocq - D was charged with selling alcohol to a drunk person. It did not matter that D did not know the person was drunk. The offence was complete when the sale took place and the person served was drunk.

Callow v Tillstone - Butcher was charged with selling unfit meat, even though he had the meat certified as safe by a vet before the sale.

Explain The principle of Transferred malice + Case (one with one without)

Can D’s MR be transferred if the eventual crime committed is different to the one intended? + Case

D can be guilty if he or she intended to commit a crime against A but actually commits the same offence against B

Latimer - D aimed a blow with a belt at a man in a pub. The belt bounced off the man and struck a woman in the face. D was guilty of an assault against the woman, even though he had not meant to hit her. Applying the principle of TM. The MR directed at the intended victim (man) was transferred to the unintended victim of the crime (woman)

Note: D’s MR can’t be transferred if the eventual crime committed is different to the one intended

Pembliton - D threw a stone at V but missed and smashed a window instead. D was not liable for the damage to the window because MR can’t be transferred from a crime against a person (intending assault) to a crime against property (criminal damage)

Explain the coincidence of AR and MR and why its important? And how do judges get around this?

In order for an offence to take place, both the AR and MR must be present at the same time.

There are situations where this requirement of ‘coincidence’ has caused problems because, in reality the AR and MR don’t always coincide. So judges have found ways around this…

The Continuing act & Series of connected acts

Continuing act explained + case

This is where there is an initial AR. Provided at some point while the AR is still going on, D forms the MR, then the AR and MR are said to coincide.

Fagan - D drove onto a police officer’s foot by mistake (AR - battery). When D realized what he had done and refused to move the car, he formed the MR. The AR was treated as a continuing act and therefore it didn’t matter if the MR was formed a little afterwards.

Series of connected acts explained + case

This is where there is an initial MR. D then perform a series of acts which connected together form the AR. The AR and MR are still said to coincide.

Thabo Meli - Ds attacked V, intending to kill him. They then rolled what they thought was his dead body off a cliff to make it look like an accident. V was unconscious at this point, died hours later from exposure.

Murder v Manslaughter (voluntary and involuntary), what are they?

Murder - Intention to kill or cause GBH

Voluntary manslaughter - Intention to kill or cause GBH but:

• Loss of control OR

• Diminished Responsibility

Involuntary manslaughter - No intention to kill or cause GBH but:

• It was Unlawful act manslaughter OR

• D was so grossly negligent they’re liable for GNM

Murder is a … offence with a mandatory sentence of … imprisonment

Murder is a common law offence with a mandatory sentence of life imprisonment

Lord Coke’s definition of murder in the 17th Century

The unlawful killing of a reasonable creature in being under the King’s Peace with malice aforethought, express or implied

(Translation: Unlawfully causing the death of a human being with intention to either kill or cause GBH)

AR - Unlawful killing of a human being under the King’s Peace (within any country of the realm)

MR - Intention to either kill or to cause GBH (malice aforethought)

AR of murder - Unlawful killing

The killing can be by an act or an omission

It must be shown that D’s acts or omissions were the factual and legal cause of the death

Test for Factual causation - but for D’s conduct, would V have died?

Test for Legal causation - Were D’s acts or omissions were a more than minimal cause of V’s death?

Sometimes lawful to kill in self defence (Bland)

AR of murder - Human being + Cases

Foetus/brain dead people don’t count as human beings

A-G’s Reference - Decided a foetus killed in the womb can’t be the victim of the specific offence of murder. A child must have an existence independent of the mother to be considered a ‘human being’ (so TM can’t be used where the MR of murder is directed at a pregnant mother and the unborn baby dies

Malcherek - Doctors switched off life support machines as both victims were not showing any activity in their brain stem. The Court decided that doctors can switch off a life support machine when D is brain dead as the person is no longer a reasonable creature in being.

AR of murder - Queen’s/King’s Peace + case

Essentially, the person killed must not be an enemy in battle when the country is at war (for the act to qualify as murder). However, enemy soldiers who have been taken prisoner or have surrendered are protected by the law on murder.

Blackman - D killed an enemy combatant after they were seriously injured and no longer a threat, this was killing under the Queen’s/King’s Peace.

AR of murder - Within any country of the realm

Killing a person anywhere in the UK. Exceptionally, a British citizen can be tried in the English courts for a murder committed overseas.

MR of murder - Malice aforethought (express or implied)

Express malice aforethought means intention to kill

Implied malice aforethought means intention to cause serious harm (GBH)

[aforethought doesn’t mean premeditation or previous planning/thinking about beforehand, it just means intention]

Intention to cause GBH is enough for murder? + case

Vickers - D struck V with several blows during a burglary of V’s shop. V died. The Court decided that where D intends to inflict GBH and V dies, this is enough of an MR for murder.

Is the test for intention subjective? + cases for intention

YES

Mohan - Direct intent - D’s aim, purpose or objective.

Woolin - Indirect intent - D realized the consequence was virtually certain.

Note: Bar for intention is high, the Jury are not entitled to find Indirect intention unless they feel sure that death or GBH was: A virtual certainty as a result of D’s actions and that D appreciated that it was.

A jury may not always find intention even if they are satisfied that D foresaw the virtual certainty of death or GBH, because intention and foresight of consequences are NOT the same thing, case?

Matthews & Alleyne - Ds pushed V from a bridge into a fast-flowing river, knowing that he couldn’t swim. He fell 25 feet and drowned.

POL: Foresight of a consequence as a virtual certainty is only evidence from which a jury may find intention.

Murder checklist (basic)

AR

KE1 Unlawful killing

KE2 Of a living human being

KE3 Within the King’s/Queen’s peace

KE4 In any Country of the realm

MR

KE5 With malice aforethought

Voluntary manslaughter

This is when murder is reduced to manslaughter due to one of two special defences: Loss of Control or Diminished Responsibility

Partial Defences

No longer need to be given a mandatory life sentence

Loss of Control - Where is the law of LOC set out in + 3 elements required for LOC to be shown

s.54 coroners and Justice Act 2009

A person who kills maybe convicted of manslaughter rather than murder where there exists…

A loss of self-control

The loss of control had a ‘qualifying trigger’

A person of D’s sex and age, with a normal degree of tolerance and self-restraint in the circumstances of D, might have reacted in the same or similar way to D (Normal person test)

What is a loss of self-control defined as? + case example of LOC

‘A loss of ability to act in accordance with considered judgement or a loss of normal powers of reasoning’

Jewell - D shot V after getting outside of his van outside V’s house, claimed loss of self-control as he said his head was messed up and couldn’t think straight.

Court decided that there was insufficient evidence of D having lost his self-control but there was ‘overwhelming’ evidence that this was a planned execution

Is LOC judged objectively or subjectively? Must it be sudden? + Case, What about revenge?

Loss of Control is judged subjectively

Loss of Control need not be sudden s.54(2) Ahluwalin, it may be a slow burning effect that causes the LoC

If D acted in a considered desire for revenge there is no loss of control s.54(4)

Note: A time delay may indicate no current loss of self-control or the facts may suggest a ‘considered desire for revenge’ but refer to any evidence that D was not in control when they killed

LOC - Qualifying Trigger, what section are they set out in

D’s LOC must be caused by a ‘qualifying trigger’

These QTs are set out in s.55 Coroners and Justice Act 2009

Either trigger is sufficient - Anger or Fear

LOC - The ‘fear’ trigger + case

s.55(3)

D fears serious violence from V against D or another identified person. Decided subjectively.

Ward - D killed V after V attacked D’s brother. D did not fear serious violence towards himself however s.55(3) applied as D feared V would use serious violence towards his brother (an identifiable person)

LOC - The ‘anger’ trigger + cases

s.55(4)

Things said or done which are…

of an extremely grave character AND caused D to have a justifiable sense of being seriously wronged

This is decided objectively

Zebedee - D lost control when his 94 year old father who had Alzheimer’s repeatedly soiled himself. (Neither of the 2 conditions in s.55(4) were satisfied)

Hatter - Break up of a relationship occurred. (Neither of the 2 conditions in s.55(4) were satisfied)

Limitations on qualifying triggers

Sexual infidelity - Cheating (unless it forms part of another QT)

Incitement - A person may not raise a QT if they incited the thing done/said or the violence (action of provoking unlawful behaviour or urging someone to behave unlawfully)

Revenge - s.55(4) excludes situations where D has acted ‘in a considered desire for revenge’ - consider the slow burn effect (simmer then snap)

Limitations on QT - Sexual infidelity case

Clinton - V told D she was having an affair and taunted him saying that she had slept with 5 men whilst giving graphic detail, and she ‘sniggered’ after discovering he had been looking at suicide websites.

POL: Sexual infidelity on it’s own can’t qualify as a trigger, BUT it would be wrong to exclude it where sexual infidelity forms an essential part of another possible trigger - in this case V’s taunting of D

Limitations on QT - Incitement case

Dawes - D found his wife and V asleep on the sofa with their legs entwined. D claimed that V then attacked him with a bottle and that’s why he fatally stabbed V

D couldn’t rely on sexual infidelity as the QT or rely on fear of serious violence where he had induced that violence

Limitations on QTs - Revenge + Section

s.55(4) Coroners and Justice Act 2009 excludes situations where D has acted ‘in a considered desire for revenge’

LOC - Normal Person Test - Section - What is needed to ‘pass’ it

s.54(1)(c) requires that 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 similar way

LOC - Normal Person Test - Degree of tolerance and self-restraint

This is for the Jury to decide. It is an objective test as D is expected to show a normal degree of self-control.

Apart from sex and age, the Jury can’t consider any circumstance of D that might have made them have less self-control

LOC - Normal Person Test - Circumstances of the Defendant + Section

The Jury must look at all of D’s circumstances apart from those whose only relevance is to bear on D’s general capacity for tolerance and self-restraint s.54(3)

So a short temper, tendency to ‘fly off the handle’ or prejudices such as racism or homophobia are not circumstances as they would only serve to lower D’s capacity for tolerance below the ‘normal’ level expected

LOC - Normal Person Test - Describe relevant possible circumstances of D

• History of sexual abuse

• Sexual infidelity (Remember: Excluded as QT)

• Mental illness - BUT it can’t be relevant to the question of the normal degree of tolerance and self-restraint exercised

LOC - Normal Person Test - Relevant circumstances of D case

Rejmanski - D was a former soldier who served in Afghanistan. He flew into a rage, ‘lost it’ and killed V, who made negative comments to him about his military service. COA decided that in this case PTSD had to be excluded from the description of a ‘normal person’ and there was insufficient evidence that it was relevant to D’s conduct. However, the Court suggested, obiter (Judge’s comments), an example where a mental disorder could be relevant as one of D’s circumstances: “if a personality disorder had caused D to attempt suicide and he had been taunted by V that he should have killed himself.”

What else is not considered a circumstance in LOC? + Case

Voluntary intoxication

Asmelash - D claimed V was abusive which made D so angry he lost control and killed V. Court decided - D being drunk was not a circumstance that had to be considered as it only related to D’s general capacity to exercise tolerance and self-restraint

Note: If D had a severe drinking problem and was mercilessly taunted about this, to the extent that it constituted to a QT: The alcohol or drug problem would then form a circumstance

Circumstances - Might have reacted in a similar way to D - LOC + Case

The defence will fail if the Jury considers that the normal person might have ‘lost control’ but wouldn’t have reacted in the same or similar way

Christian - D stabbed 2 Vs to death during an altercation in their shared living accommodation about the temp of the water in the communal shower. Despite their being an evidence of a loss of control, the judge ruled that the defence should not be left to the Jury as D’s reaction was so extreme and so protracted that no Jury can conclude that a normal person might have reacted or behaved in the same or similar way.

In Van Dongen D repeatedly kicked V in the head and body will V was lying on the ground. While a normal person may have lost control, they would not have reacted in this way.

Burden of Proof is on who? + Section - LOC defence

The Prosecution - If sufficient evidence is provided, the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. s.54(5)

Loss of Control Checklist

KE 1: Did D lose self-control?

KE 2: Was the loss of self-control attributable (caused by) to a QT? s.55

KE 3: ‘Normal person’ test

Conclusion: Will the defence succeed?

Diminished Responsibility is defined by what section of what AOP and amended by what section of what AOP?

Defined by s.2 Homicide Act 1957 and amended by s.52 Coroners and Justice Act 2009

A person who kills and successfully used the Diminished Responsibility is convicted of what instead of murder?

What does the defendant need to successfully use this defence

A person who kills may be convicted of manslaughter rather than murder if they were suffering from an abnormality of mental functioning (AMF) which…

a.) arose from a RMC (recognized medical condition)

b.) substantially impaired D’s ability to:

i.) Understand the nature of his conduct or

ii.) Form a rational judgement or

iii.) Exercise self-control and

c.) This provides an explanation for Ds acts and omissions in killing

Diminished Responsibility - AMF, what is it & test for it?+ case

In Byrne D was a sexual psychopath who strangled and mutilated a woman. Medical evidence showed his abnormality of mind he was unable to control his perverted desires

Abnormality of Mental Functioning means ‘a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’

To test this they determine whether D did have a state of mind…

It must arise from a RMC & is a subjective test (evaluating Ds state of mind)

Diminished Responsibility - Recognized medical condition, what qualifies for an RMC? + cases

This includes psychological and physical conditions according to established medical classification, including…

Psychotic condition - Golds

Post-natal depression - Boots

Mental disorder - Brennan

Alcohol dependency syndrome - Wood

Depressive illness - Dietschmann

Asperger’s syndrome - Jama

Battered Spouses’ Syndrome - Hobson

Severe learning difficulties may also be included but ‘normal immaturity’ on the part of the child should not qualify for a defence of DR

For this to be proved, evidence from expert witness is vital at the trial e.g. doctor to prove RMC

Diminished Responsibility - Substantial impairment, how do you prove it? + Case, for what amounts to ‘substantial’

The AMF must substantially impair D’s ability to do 1/3 things:

Understand the nature of his conduct s.52(1A)(a)

Form a rational judgement s.52(1A)(b)

Exercise self-control s.52(1A)(C)

Golds - What amounts to a ‘substantial’ impairment is a matter of degree for the jury in each case i.e. a matter of common sense for the jury based on the medical evidence they hear. The impairment must be beyond merely trivial, but D’s mental functioning need not be totally impaired

Diminished Responsibility - Does the AMF provide an explanation for D’s conduct? + Section

How much of a factor must the AMF be as a cause of the killing? + Section

D has to prove that the AMF provided an explanation for his acts (or omissions) s.52(1)(C)

An AMF will provide an explanation for D’s conduct if it causes, or is a significant contributory factor in causing D to carry out the conduct. s.52(1B)

Explain the rules on DR & Intoxication (3)

(Voluntary intoxication) If D was drunk at the time of the killing and tries to claim DR the defence would fail as the temporary effect of drink or drugs on the brain is not a RMC

If D is intoxicated due to addiction or dependency (Alcohol Dependency Syndrome, a RMC) it doesn’t mean they can immediately rely on DR but it may be the cause of an AMF

If D was intoxicated and has a pre-existing AMF then the defence will be available if D can satisfy the jury that, despite the drink, their AMF was a substantial impairment which explained the killing.

3 Key cases for DR & Intoxication

Voluntary intoxication - Dowds - D killed his partner, while heavily intoxicated. He could exercise choice over when he drank. It was irrelevant that once he started drinking, he was unable to stop. The key thing is the

POL: First drink was voluntary, NO DEFENCE

Intoxication due to ADS or addiction - Wood - Showed us that If alcohol has caused damage to the brain or become a disease, then DR may be relevant. (was convicted).

POL: If consumption is not due to the addiction, it is classed as voluntary drinking.

D was intoxicated and has a pre-existing AMF - Dietschmann - D had voluntarily taken alcohol and was also suffering from an AMF; a depressed grief reaction to the death of his aunt.

POL: Even though D had been drinking, he could use DR provided that the pre-existing AMF substantially impaired his mental responsibility for his fatal acts (the killing).

For DR who is the burden of proof on?

Defence, who will need to prove this on the balance of probabilities.

Diminished Responsibility checklist

KE 1: AMF - Abnormality of mental functioning

KE 2: RMC - Recognized medical condition

KE 3: Substantial impairment - Did the AMF substantially impair D’s mental ability?

KE 4: Does it explain the killing?

Also consider DR & intoxication (if necessary)

Involuntary manslaughter - What is it? & What are the 2 main ways to commit it?

The unlawful killing without the intention to kill or cause GBH. It is a common law offence

(with a maximum sentence of life imprisonment)

UAM - Unlawful Act Manslaughter

GNM - Gross Negligence Manslaughter

What is UAM?

Unlawful Act Manslaughter is where D causes death through doing an unlawful or dangerous act, with the necessary MR for the initial unlawful act.

What is GNM?

Where D causes death by breaching a DOC towards V in a grossly negligent way.

Key elements of UAM

D must do an unlawful act (crime)

That act must be dangerous on an objective test

The act must cause the death (causation)

D must have the MR for the initial unlawful act

UAM - Unlawful act + Cases

There must be an act (an omission is insufficient), seen in the case of Lowe. The unlawful act must be a ‘criminal offence’ seen in…

Lamb - Friends were fooling around with a gun, no unlawful act here as the D didn’t understand the mechanism of a loaded revolver and had not expected it to fire. V was therefore not in fear of being shot.

Unlawful act can be against person or property e.g. Criminal damage, seen in Newbury & Jones or burglary seen in Watson

UAM - what is the test for what is considered dangerous? + Case

The unlawful act must be considered ‘dangerous’ on an objective test

The test for it is established in the case of Church - All sober and reasonable people would inevitably recognize that D’s actions must subject the other person to at least the risk of some harm, not serious harm

UAM - Dangerous - Does D need to realise that there was a risk of a type of harm to others and must the unlawful act be directed at D? + Cases

JM & SM - Following a fight, V died from a ruptured artery that was a rare injury to have occurred. Here a reasonable and sober person would’ve seen the risk of some harm. It doesn’t matter that D wouldn’t have foreseen the particular type of harm that occurred.

Goodfellow - D’s arson wasn’t directed at anyone but it ended up killing people and so they were convicted of UAM.

UAM - There must be a risk of some physical harm, more than a mere emotional disturbance + Cases

Dawson - V died from a heart attack when D’s held up a petrol station

To satisfy the danger test, the risk of harm must be a risk of physical harm. A risk of emotional disturbance is NOT enough by itself.

Watson - V died of a heart attack 90 minutes after being burgled

However, here the burglary became dangerous as soon as the old man’s frailty would have been apparent to the reasonable person

UAM - Point of Law in - Danger + Case

A reasonable and sober person would foresee the risk of some harm in D’s circumstances.

Bristow, Dunn and Delay - V was hit by vehicles used by Ds to commit a burglary of a workshop that was located down a long lane. There was a risk that someone might try to intervene to prevent escape.

The circumstances of the burglary meant that a sober and reasonable person would foresee the risk of some harm

UAM - Causation + Cases

The UA must cause death in fact and law. This means that the usual laws on causation apply.

In Kennedy, D prepared an injection of heroin and water for V to inject himself. V self-injected and died.

V’s voluntary act of injecting himself broke the chain of causation between D’s supplying and V’s death

(Remember Factual and Legal causation cases)

UAM - MR for the initial unlawful act + Case

D only required the mens rea for the initial unlawful act. For this there is no need to prove that D realised that the act was dangerous or unlawful or even that D foresees a risk of harm.

In Newbury & Jones - People threw paving slabs off a bridge onto a passing train and killed the guard.

UAM checklist

KE 1: Did D perform an unlawful act?

KE 2: Was it objectively dangerous?

KE 3: Did the dangerous and unlawful act cause the death?

KE 4: Did D have the MR for the initial unlawful act?

Conclusion

GNM - Gross Negligence Manslaughter

This is where D causes V’s death by breaching a duty of care towards V in a grossly negligent way. D’s acts or omissions must fall so far below the required standard of care that it goes beyond mere compensation and amounts to a crime.

GNM - Key elements

D owing V a DOC (remember D can owe a duty from an omission)

A BOD which causes death (breach involves a serious an obvious risk of death)

Gross negligence, which the jury considers to be so bad, making it criminal

GNM - Cases for the DOC

Adomako - An anaesthetist failed to notice a breathing tube had become disconnected during an operation, for multiple minutes. V had a heart attack and died.

The neighbour principle, which is seen in Donoghue v Stevenson was applied here, a DOC is owed to anyone it is reasonably foreseeable that may be harmed by D’s acts or omissions.

GNM - Other cases where a duty is recognised

Singh - Landlord had a duty to maintain the property

Litchfield - The captain owed a DOC to the crew

Winter - D owed a DOC to inform firefighters attending a fire at their premises that they were storing unlicensed fireworks. As a result, two firefighters died from an explosion.

GNM - Duty of Care - Omissions + Cases

A duty of care can include situations that involve omissions.

Gibbins & Proctor - Special relationship

Miller - D had a duty to take reasonable steps to remedy a dangerous situation he created.

(Note: There are other omission situations in other flashcards)

In Evans V self-injected with heroin supplied by V’s half-sister and collapsed. She and her mother did not seek medical help as they feared getting into trouble.

POL: Mother owed DOC to her daughter due to ‘special relationship’ and half-sister owed DOC under ‘Miller’ principle.

GNM - Duty of Care - Can a duty of care be owed to someone involved in an unlawful activity in the civil OR criminal law of negligence? + Case

ONLY in criminal law

Wacker - Illegal immigrants died in a lorry as the driver had closed the air vents to keep the noise down and avoid detection when crossing the channel.

Here the driver had voluntarily undertaken a DOC when he closed the vents, and was in breach of that duty when he did not open it.

(It was irrelevant that the deceased had entered this arrangement, knowing it was unlawful and knowing that they were accepting a degree of risk.)

GNM - How to breach a duty in GNM + Example

If D falls below the standard of the reasonable person performing the duty in question, they will be in breach of the duty.

e.g. If D is performing medical duties as a doctor then they are judged against the standard of a reasonably competent doctor.

GNM - Breach of Duty - Causation + Case

The Normal rules on causation apply

Except: When the breach is via an omission e.g. failing to get help. The Prosecution must prove that V would’ve survived if D fulfilled that act. Seen in the case of Broughton.