Homicide I: Murder and the Partial Defences

Criminal Law - Chapter 4

What is the AR of homicide? (homicide umbrella term includes murder AND manslaughter)

unlawfully causes the death of the victim

What is the AR of murder? (attracts a mandatory life sentence)

A person causes the death of a human being

What is the MR of murder?

An intention either to kill or to cause grievous bodily harm - ‘really serious harm’

Specific intent crime - i.e. cannot be committed recklessly

What is direct intent and indirect intent for murder?

DI = death or grievous bodily harm was the defendant’s aim or purpose (the ordinary meaning of ‘intention’)

II = death or serious harm is not the defendant’s primary aim, but is a virtually certain consequence of their actions and the defendant appreciates this

What is the significance of being found guilty of manslaughter compared to murder?

The judge has discretion in sentencing and, thus, can take account of all the relevant circumstances - no mandatory life sentence for manslaughter

What is the pre-requisite for the court to consider voluntary manslaughter?

The AR and MR of murder must be satisfied

What are the two main situations which involve voluntary manslaughter?

(a) diminished responsibility

(b) loss of control

*as still liable for VMS, known as a partial defence -

What is the MR and AR of voluntary manslaughter?

The actus reus and mens rea of voluntary manslaughter are the same as for murder.

What are the four elements of diminished responsibility?

i) an abnormality of mental functioning; which

ii) arose from a recognised medical condition *; and

iii) substantially impaired the defendant’s ability to understand the nature of their conduct, and/or form a rational judgment and/or exercise self-control; and

iv) provides an explanation for the defendant’s act or omission in doing the killing

Who has the evidential burden for diminished responsibility?

THE DEFENDANT - (after CPS proves AR and MR of murder)

on the balance of probabilities (lower standard for the D)

Does intoxication count as diminished responsibility?

For public policy reasons, an offender who voluntarily takes alcohol or drugs and then behaves in a way they would not have done when sober is NOT excused from responsibility

Unless linked

What happens if loss of control applies?

Loss of control is the second partial defence that, if successful, reduces murder to voluntary manslaughter.

What are the three components of loss of control?

(a) the defendant must lose self-control - cannot involve planning

(b) the loss of control must have a qualifying trigger; and

(c) a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way as the defendant did.

What is the evidential burden for loss of control?

Provided the accused can produce some evidence that raises the defence, the burden will revert back to the prosecution to disprove loss of control beyond reasonable doubt.

If the prosecution fail to do so, the jury must assume the defence is satisfied - different to diminished responsibility

Does a loss of control have to be sudden?

NO - not in domestic abuse contexts especially

A loss of control can be a reaction to a culmination of events, such as incidents of abuse, that occur over time/

LoC will NOT apply where the D acted in a considered desire for revenge - e.g. armed themselves, planned it, delay between words/conduct and killing

A delay does not preclude loss of control but may make it LESS LIKELY to succeed.

What are the two triggers for loss of control?

i) ‘fear trigger’ - of serious violence subjectively assessed - must be more than just general fear

ii) ‘anger trigger’ - attributable to things said and/or done - objective standard - amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged.

Does sexual infidelity apply to loss of control?

Statute deliberately excludes this - but may be considered if forms a part of the overall context

Effect: where the sexual infidelity is part of the background or context to other possible triggers, then evidence relating to it may be relevant when assessing the other potential qualifying trigger.

CANNOT BE RELIED ON ON ITS OWN

What is the similar reaction of a person of the same age and sex?

Third element of loss of control - ‘a person of D’s age and sex, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or a similar way to D.’

All of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint - therefore, if particularly aggressive or short tempered, will NOT be able to rely on these characteristics as an excuse for a killing.

When making the assessment - considered to have same history and characteristics as the D.

Does the judge have ultimate say on whether the defence applies?

YES - the defence of loss of control can only be presented to the jury if there is sufficient evidence that: in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply

Judge considers whether enough evidence have been raised relating to the defence