criminal homocide 1 - voluntar
TRANSCRIPT
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7/28/2019 Criminal Homocide 1 - Voluntar
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1.Actus Reus for
Murder
Unlawful killing of another human being
under the Queen's peace with malice
aforethought.
2. Coroners and
Justice Act
2009 ss 54-56
Loss of Control.
Loss of control is a new defence for murder.
Replaces defence of provocation.
If defence operates, D is guilty of
manslaughter not murder s54(7).
Burden of proof: s54(5)&(6) on prosecution.
Judge: "common law heritage is irrelevant".
Have to explain why using other cases.
R v Clinton, Parker & Evans.
3. Diminished
Responsibility
Factors
s2(1)(a) Substantial impairment of D's
ability:
-to understand the nature of his conduct
-to form a rational judgement
-to exercise self-control.
4. DiminishedResponsibility.
CJA 2009 s52Amended the Homicide Act 1957 s2.
As for loss of control if established, D guilty
of voluntary manslaughter.
D to prove defence on balance of
probabilities HA s2(2)
5. Elements of
Diminished
Responsibility
HA s2(1)
-Was D suffering from an abnormality of
mental functioning (R v Byrne)
-Arising from a recognised medical
condition
Which substantially impairs the defendant's
ability to do certain things?-And which provides an explanation for Ds
acts and omissions in killing?
note: could be physical or psychological
condition.
6. Elements
required for
loss of control
Did the defendant kill another person as a
result of losing control? S54(1)(a)
Did the loss of control have a qualifying
trigger? S54(1)(b)
Might "another person" have acted in the
same or similar way? S54 (1)(c)
7. Events that
CANNOT be aqualifying
trigger
Fear of violence caused by something D
incited to be done: s55(6)(a) (but note R vJohnson - it might be ok so long as it wasn't
intended to incite an excuse to commit
murder.)
A sense of being seriously wronged caused by
something D incited to be done: s55(6)(b)
Sexual infidelity: s55(6)(c)
Clinton: usually sexual infidelity will be
impossible to isolate from other
circumstances in which case it may be
considered as contributing.
8. Law
Commission
report no.
304
Gives examples of when the factors in s2(1)(a)
might apply.
-boy who plays too many video games kills
another.
-woman kills husband to rid world of his sins.
-mentally sub-normal boy follows brothers
instructions.-man gives in to killing wife after much
begging.
-a man thinks the devil takes control over him.
9. Mens Rea
for Murer
Intention to kill/cause GBH (R v Vickers)
10. Qualifying
Trigger 1
R v Martin [shot burglar running away]
Fear of subjective violence s55(3)
Did D subjectively fear serious violence from
the victim aimed at him or another?
11. Qualifying
trigger 2 forLoss Of
Control
S55(4)(a): Things said or done that "constitute
circumstances of an extremely grave character"AND
S55(4)(b) : Which "caused D to have a
justifiable sense of being seriously wronged."
Objectively judged: Clinton (i.e. an honour
killing is not ok)
12. R v
Ahluwalia
[battered
wife]
Husband told her their marriage was over and
wanted her out so his gf could move in . He
demanded 200 for a hone bill, threatened to
beat and brandish her. She put petrol (that she
had bought recently) on his bed and set it
alight. He died. First trial this showed
planning so was guilty but appealed.s54(2) "it does not matter that the loss of
control was not sudden" (but the longer the
delay the weaker the defence.
s54(4): There is no defence if D "acted in a
considered desire for revenge".
13. R v Byrne
[strangled
girl in a
YMCA]
Abnormal state of mind.
Court of Appeal: "state of mind so different
from that of ordinary human beings that the
reasonable man would term it abnormal"
14. R v Clinton
[killed wife]
Clinton was going through a hard time with
his wife. They had a trial separation. He went
on Facebook and saw her posting things toanother man and on a different site saw
pictures of her and the other man naked. He
confronted her and she denied it. When he
produced the evidence she admitted everything
including several a ffairs she had had. She
went into graphic detail. He hit her with a bat
and strangled her with a string, using the bat
as a tourniquet.
Criminal Homocide 1 - Voluntary ManslaughterStudy online at quizlet.com/_9tnok
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7/28/2019 Criminal Homocide 1 - Voluntar
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15. R v Cocker [killed
wife with pillow]
Wife was very ill and kept asking to be killed. He grabbed a pillow to kill her but thought she had changed mind
stopped. Then she pulled the pillow back over her face and he finished killing her. Because he paused to think he
showed control.
16. R v Deitchmann
[killed man when
drunk]
[Deitchmann very sad about death of his aunt and savagely killed a man when drunk]
"It is impossible for the jury to ignore the effect of alcohol and decide whether the defendant, sober, would still
have killed as a result of a mental abnormality."
17. R v Fenton [shot
people, stole policecar]
Hate, jealousy or bad temper do not come within s2 Homicide Act.
18. R v Morhall "normal degree of tolerance and self restraint" in S54(1)(c) should be a sober person. However, if is drunk and
there are other circumstances it might be ok.
19. R v Richens [Dover
college kid]
Loss of control need not be complete
20. R v Simcox impairment must be more than trivial or minimal.
21. R v Stewart Jury to Consider:
-Extent/Seriousness of the defendant's dependency
-Extent to which ability to control drinking reduced
-Whether he was capable of abstinence
-If so, for how long-Whether he was choosing for some particular reason to get drunk or to drink more than usual.
22. R v Tandy
[alcoholic killed
daughter]
[Killed 11 year old daughter after she said her stepfather had abused her]
Decided that because she could stop drinking (at 9/10th of the bottle) her alcoholism had not injured her brain
and her drinking was not involuntary.
23. S55 CJA 2009 Two qualifying triggers identified. The facts of a particular case may mean that both qualifying triggers apply:
s55(5)
24. The reaction of
"another person"
Might a hypothetical person have acted in the same or similar way? S54(1)(c)
"A person of D's age and sex"
"in the circumstances of D"
"with a normal degree of tolerance and self restraint"
(Contrast with DPP v Camplin - these cases said only characteristics related to the provocation can be taken intoaccount.)