+elements and authority
Fatal offences against the person chapter 7
Murder:
- The unlawful killing of a reasonable person in being under the King’s peace with malice
aforethought, express or implied.
- ‘Killed’- D’s act must cause the death of the victim (R v Gibins and Proctor)
- ‘Reasonable person in being’- the victim must be a human being, but a foetus injured
before being born and dies after being born from those injuries would be regarded as a
reasonable person in being (A-G Ref 1997)
- ‘King’s peace’- killing an enemy in war is not murder
- ‘Unlawful’- killing in self-defence, in defence of another or in the prevention of crime
would not be unlawful.
- MR: express malice aforethought is the intention to kill or implied malice aforethought
which is the intention to cause GBH (R v Vickers)
Voluntary manslaughter:
. Loss of control (partial defence to murder)- Set out in S54 of the Coronas and Justice Act 2009
- D must have lost self-control: a partial loss of control will not be sufficient, and a reaction
out of character is also not enough ( R v Jewell)
- Qualifying trigger: D must either fear serious violence ( R v Ward), D can not rely on the
fear of violence if he induced the violence ( R v Dawes) or there must be a thing said or
done which constitutes circumstances of a grave character and cause D to have a
justifiable sense of being seriously wronged ( R v Zebedee). Sexual infidelity can never
be a qualifying trigger ( R v Clinton)
- Normal standard of self-control: D is expected to show a normal degree of tolerance and
self control. Being hot tempered is not to be taken into account
- Circumstances of the defendant the jury can only consider the sex and age of D. Mental
illnesses could also be considered ( R v Rejmanski)
- Voluntary intoxication- in r v Asmelash the court refused to allow voluntary intoxication to
be considered for either loss of control. However, if the sober person on the defendants
circumstances with normal level of tolerance may have behaved in the same way then D
may apply for the defence of LoC.
- the defence will fail if the hurry considers a sober person to have loss control but
not have reacted in the same way.
.
Diminished responsibility (partial defence to murder)
- This defence was introduced by the Homicide Act 1957
- Abnormality of mental functioning: a state of mind so different that the reasonable man
would term it abnormal (R v Byrne)
- Recognised medical condition: this includes any psychological and physical conditions
e.g. ASD (R v Conroy), paranoid personality disorder (R v Squelch)
, - Substantially impaired: D's abnormality of mental functioning must substantially impair
his mental responsibility. Substantial does not mean total nor does it mean minimal ( R v
Lloyd). Either D’s ability to understand the nature of his conduct, form a rational
judgement or exercise self-control must be substantially impaired.
- Provides an explanation for D’s conduct: there must be a causal connection between D’s
abnormality of mental functioning and the killing.
- Diminished responsibility and intoxication: intoxication alone is not enough for
diminished responsibility ( Rv Dows), if D had an abnormality but was also intoxicated he
could still have the defence ( R v Dietschmann) and ADS could amount to diminished
responsibility ( R v Tandy)
Involuntary manslaughter
. Gross negligence manslaughter
The elements are set out in the case of Adamako
- The existence of a DOC: In R v Singh there was no duty so not GNM whereas in R v
Litchfield there was a duty. In R v Wacher despite the victims being party to a crime they
were still owed a DOC.
- A breach which causes death: the law on causation is used
- Negligence which is so gross it is seen as criminal. There must be a serious and obvious
risk of death. Obvious meaning clear and unambiguous (R v Rose) and serious does not
mean the inability to eliminate a possibility (R v Rudling)
. Unlawful act manslaughter
- Unlawful act: must be a criminal offence (R v Lamb), can’t be an omission (R v Lowe),
examples include arson (R v Goodfellow) and burglary (R v Watson)
- Dangerous act: An objective test from the R v Church is used. It must be proven that the
reasonable man would have foreseen the risk of some harm ( R v JM). There must be
physical harm, the apprehension of harm is not enough R v Dawson.
- Causing death: the law on causation is applied. The consumption of drugs by the victim
breaks the chain of causation R v Kennedy
- MR: D must have the mr for the unlawful act DPP v Newbury
Non fatal offences against the person chapter 8
Assault
- This is governed under s.39 of the criminal justice act 1988
- D must make V apprehend the infliction of immediate unlawful force.
- This must be a positive act. An omission is not sufficient
- An Assault can be verbal or written as seen in the case of constanza, silent phone calls
are also considered (ireland)
Fatal offences against the person chapter 7
Murder:
- The unlawful killing of a reasonable person in being under the King’s peace with malice
aforethought, express or implied.
- ‘Killed’- D’s act must cause the death of the victim (R v Gibins and Proctor)
- ‘Reasonable person in being’- the victim must be a human being, but a foetus injured
before being born and dies after being born from those injuries would be regarded as a
reasonable person in being (A-G Ref 1997)
- ‘King’s peace’- killing an enemy in war is not murder
- ‘Unlawful’- killing in self-defence, in defence of another or in the prevention of crime
would not be unlawful.
- MR: express malice aforethought is the intention to kill or implied malice aforethought
which is the intention to cause GBH (R v Vickers)
Voluntary manslaughter:
. Loss of control (partial defence to murder)- Set out in S54 of the Coronas and Justice Act 2009
- D must have lost self-control: a partial loss of control will not be sufficient, and a reaction
out of character is also not enough ( R v Jewell)
- Qualifying trigger: D must either fear serious violence ( R v Ward), D can not rely on the
fear of violence if he induced the violence ( R v Dawes) or there must be a thing said or
done which constitutes circumstances of a grave character and cause D to have a
justifiable sense of being seriously wronged ( R v Zebedee). Sexual infidelity can never
be a qualifying trigger ( R v Clinton)
- Normal standard of self-control: D is expected to show a normal degree of tolerance and
self control. Being hot tempered is not to be taken into account
- Circumstances of the defendant the jury can only consider the sex and age of D. Mental
illnesses could also be considered ( R v Rejmanski)
- Voluntary intoxication- in r v Asmelash the court refused to allow voluntary intoxication to
be considered for either loss of control. However, if the sober person on the defendants
circumstances with normal level of tolerance may have behaved in the same way then D
may apply for the defence of LoC.
- the defence will fail if the hurry considers a sober person to have loss control but
not have reacted in the same way.
.
Diminished responsibility (partial defence to murder)
- This defence was introduced by the Homicide Act 1957
- Abnormality of mental functioning: a state of mind so different that the reasonable man
would term it abnormal (R v Byrne)
- Recognised medical condition: this includes any psychological and physical conditions
e.g. ASD (R v Conroy), paranoid personality disorder (R v Squelch)
, - Substantially impaired: D's abnormality of mental functioning must substantially impair
his mental responsibility. Substantial does not mean total nor does it mean minimal ( R v
Lloyd). Either D’s ability to understand the nature of his conduct, form a rational
judgement or exercise self-control must be substantially impaired.
- Provides an explanation for D’s conduct: there must be a causal connection between D’s
abnormality of mental functioning and the killing.
- Diminished responsibility and intoxication: intoxication alone is not enough for
diminished responsibility ( Rv Dows), if D had an abnormality but was also intoxicated he
could still have the defence ( R v Dietschmann) and ADS could amount to diminished
responsibility ( R v Tandy)
Involuntary manslaughter
. Gross negligence manslaughter
The elements are set out in the case of Adamako
- The existence of a DOC: In R v Singh there was no duty so not GNM whereas in R v
Litchfield there was a duty. In R v Wacher despite the victims being party to a crime they
were still owed a DOC.
- A breach which causes death: the law on causation is used
- Negligence which is so gross it is seen as criminal. There must be a serious and obvious
risk of death. Obvious meaning clear and unambiguous (R v Rose) and serious does not
mean the inability to eliminate a possibility (R v Rudling)
. Unlawful act manslaughter
- Unlawful act: must be a criminal offence (R v Lamb), can’t be an omission (R v Lowe),
examples include arson (R v Goodfellow) and burglary (R v Watson)
- Dangerous act: An objective test from the R v Church is used. It must be proven that the
reasonable man would have foreseen the risk of some harm ( R v JM). There must be
physical harm, the apprehension of harm is not enough R v Dawson.
- Causing death: the law on causation is applied. The consumption of drugs by the victim
breaks the chain of causation R v Kennedy
- MR: D must have the mr for the unlawful act DPP v Newbury
Non fatal offences against the person chapter 8
Assault
- This is governed under s.39 of the criminal justice act 1988
- D must make V apprehend the infliction of immediate unlawful force.
- This must be a positive act. An omission is not sufficient
- An Assault can be verbal or written as seen in the case of constanza, silent phone calls
are also considered (ireland)
