db law unit 3
- Created by: djbdom
- Created on: 11-10-16 09:03
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- Law - Unit 3
- Murder
- Defences
- Loss of Control
- s.54 of the Coroners Justice Act 2009
- Three Part Test
- 1. Fear of Serious Violence
- 2. Things said and/or done which would be considered to be of a grave nature, which gives D a justifiable sense of being seriously wronged
- 3. Or a combination of the two
- Qualifying Triggers
- This is the test
- Fear of Serious Violence
- Ahluwalia
- Grave nature
- Doherty
- Or a combination
- Non-Qualifying Triggers
- Revenge
- Ibram’s and Gregory
- Infidelity
- Coroners Justice Act 2009
- Infidelity Plus
- Infidelity plus another factor
- Clinton
- Incitement
- Revenge
- Self Control
- Any delay will damage Ds claim
- The jury will consider planning in their verdict
- No longer a requirement for D to have a sudden loss of control
- Coroners and Justice Act 2009
- Ahluwalia
- Reasonable Man
- Same Sex
- Same Age
- Camplin
- Burden of Proof
- Placed on D
- Diminished Responsibility
-
s.2 Homicide act 1957
- Amended by Coroners and Justice Act 2009
- Test
-
1. D must be suffering from an abnormality of mental functioning
-
2. Caused by a recognised medical condition
- 3. Substantially impaired Ds ability to
- 4. Provides an explanation for Ds conduct
-
It must be shown that D killed because of his
abnormality of mental functioning
- Joanne Hill 2009
-
It must be shown that D killed because of his
abnormality of mental functioning
- Understand the nature of his conduct
- Form a rational judgement
- Or exercise self control
- Gittens
- 4. Provides an explanation for Ds conduct
- physiological
- Or Physical
- Only needs to effect the workings of the mind
- Kemp
- Dietschmann
- 3. Substantially impaired Ds ability to
-
If Ds mind is acting in
such a way that the reasonable man would deem it to be not norma
- Byrne
-
2. Caused by a recognised medical condition
-
1. D must be suffering from an abnormality of mental functioning
- Extras in notes
-
s.2 Homicide act 1957
- If sucessful D will be charged with manslaughter
- Only defences to murder
- Loss of Control
- AR
-
The unlawful
killing of a human being within the Queens peace and within the country
of the realm.
- Unlawful killing – For murder it must be an unlawful killing
- This leads into Causation
- Factual Causation
- Legal Causation
-
Prosecution
- British citizen can be tried in domestic courts for murder committed in UK or in any other country.
- Prosecution for the murder of any victim can be carried out at any time, if its 3 years after the murder the Attorney Generals’ permission is needed.
- Even if D was found guilty of an offence which was connected to the circumstances of the death, and the prosecution wants to try again, AG permission is needed
- Human Being
- ReasonablePerson
- Foetus doesn't count
- Unless deliberatleyinjured
- AGR 1994
- Unless deliberatleyinjured
- Foetus doesn't count
- ReasonablePerson
- Queens Peace
- Killing in war is not murder
- Country of the Realm
-
The unlawful
killing of a human being within the Queens peace and within the country
of the realm.
- MR
- Malice aforethought
-
“Its an intention to kill or intention to cause
grievous bodily harm"
- R v Maloney
- No requirement for revenge
- Gray
- No previous planning needed
- Can be via indirect intent
- R v Woollin
- Take into account
- Transfer of Malice
- Coincidence of AR and MR
-
“Its an intention to kill or intention to cause
grievous bodily harm"
- Malice aforethought
- Reform
- Maloney
- Shankland
- Woollin
- Nedrick
-
Matthew and Alleyne
- can find intention
- Changed find to infer
-
Matthew and Alleyne
- Can find intention
- Nedrick
- Foresight = May mean intention
- Woollin
- Foresight = Intention
- Shankland
- Maloney
- Defences
- Non-Fatal Offences
- Assault
- AR
- An act which causes the victim to apprehend immediate and unlawful personal violence
- Ireland 1997
- Constanza 1997
- Tuberville v Savage 1669
- Apprehend
-
must
be immediate force
- Lamb 1967
-
must
be immediate force
- Causing
- Causation
-
Immediate
- Smith 1983 or Ireland 1997
-
Unlawful
violence
- Unwanted Touch
- MR
- This is the intention, either
direct or oblique, or subjective recklessness
- R v Savage 1991
- This means a defendant has to intend or be reckless as to whether he causes the V to apprehend immediate, unlawful violence
- This is the intention, either
direct or oblique, or subjective recklessness
- s.39 CJA 1988
- AR
- Battery
- AR
- The unlawful application of force on another
- Collins v Wilcock 1984
-
R v Thomas 1985
- Slight force
- DPP v K
- Indirectly applied
- MR
- This is intention, either
direct or oblique, or subjective recklessness to cause the actus reus
- R v Venna 1976
- Transfer of Malic only works if same crime
- Latimer 1886
- This is intention, either
direct or oblique, or subjective recklessness to cause the actus reus
- s.39 CJA 1988
- AR
- Assault Occasioning Actual Bodily Harm
- AR
- Same AR as Assault/Battery
- Ireland 1997
-
Chan Fook 1994
- Injury cannot be so trivial as to be wholly insignificant
- Assault
- Causing (Occasioning)
- Actual Bodily Harm
- Injury cannot be so trivial as to be wholly insignificant
- MR
- The
same as for assault or battery
- R v Savage
- D must intend or be subjectively reckless as to whether the V fears or is subjected to unlawful force
- No need for the D to intend or be reckless as to whether to ABH is caused
- Roberts 1971
- The
same as for assault or battery
- s.47 OAPA 1861
- AR
- Grievous Bodily Harm
- AR
- Wound
- Cut or break in the continuity of the whole skin
- JCC v Eisenhower 1983
- Wood 1830
- GBH
- Serious
harm
- R v Saunders
- Bollom 2004
- Burstow 1997
- Dica 2003
- Serious
harm
- Inflicting GBH
- Before, this use to simply be assault or battery but now has been changed
- Lewis 1974
- Burstow 1997
- Wound
- MR
- Intention or recklessness to cause some harm
- D does not have to intend or be reckless as to causing GBH or wounding
-
This was laid down in R v Mowatt 1968
- And conformed in R v Grimshaw (1984)
- s.20 OAPA 1861
- AR
- Grievous Bodily Harm with Intent
- AR
- Exactly the same as for s.20, wounding or GBH
- MR
-
D
has to intend to cause GBH
- R v Belfon 1976
- Direct or indirect
-
D
has to intend to cause GBH
- s.18 OAPA 1861
- AR
- Assault
- Involuntary Manslaughter
- Unlawful Act Manslaughter
- Did D’s actions lead to V’s death
- AR
- Unlawful Act
- Must be a criminal offence
- Lamb 1967
- What if consent?
- Cato 1976
- Dangerous Act
- Objective Test
- Church 1966
- "it need not be the accused who necessarily foresaw the harm but any sober and reasonable person."
- Church 1966
- Harm doesnt have to be aimed at V
- Mitchell 1983
- Dawson 1985
- Watson 1989
- Objective Test
- D caused the Death
- Substantial cause
- Apply the chain of causation,
think skull rule and any other applicable principles
- Chain Break -
Kennedy 2007
- Cato 1976
- Chain Break -
Kennedy 2007
-
Unlawful
act must not be minor
- Shohid 2003
- If multiple unlawful acts only need one sifficient one
- AGR No.4 1980
- Unlawful Act
- MR
- D had MR for unlawful
-
Must
be a positive act
- Lowe 1973
- Only need MR for the unlawful act
-
Newbury and Jones 1976
- No requirement to see some harm
- Le Brun 1991
- Goodfellow 1986
- Gross Negligence Manslaughter
- Four Part Test
- 4. Gross Negligence was a
substantial cause of death of the V
- 3. Gross Negligence which the
jury considers to be criminal
- 2. Breach of the duty which causes a death
- Wacker
-
Negligence
must be gross
- Bateman
- Approved by Adomako
- Jury has to consider the seriousness of the breach in all circumstances that the D was in
- 2. Breach of the duty which causes a death
- Not clear if this is meant to be a risk of death or a risk of health.
- Stone and Dobinson
- Lord Mackay approved Stone and Dobinson via Bateman test
- R v Misra – Risk of death
- 3. Gross Negligence which the
jury considers to be criminal
- 4. Gross Negligence was a
substantial cause of death of the V
- MR - In many cases, the intention takes the from or recklessness
- Four Part Test
- Unlawful Act Manslaughter
- Defences
- Intoxication
- Voluntary
- Takes drugs at own will
- Basic Intent
- Basic intent – intention or recklessness so V.I is not allowed
- Majewski 1977
- Basic intent requires prosecution to prove D has been reckless
-
VI
can’t be a defence to manslaughter as that is a basic intent crime
- Lipman 1970
-
Dutch
Courage – MR formed before the offence is committed
- Gallagher 1963
- Specific Intent
- Only a defence to crimes of specific intent e.g. Murder or s.18
- Specific intent requires D to show that he did not have intention but he can be guilty of a lesser offence that only requires recklessness
- Some crimes do not have a lesser crime e.g. theft
- Involuntary
- Does not know they have taken the drugs
- Must be shown D cant form MR
- Kingston 1994
- Cant argue that they didn't know the strength of the drugs
- Allen 1988
- Hardie 1985
- Dangerous – common knowledge that the taker may become
- Non-dangerous – e.g. Valium (it was though to be a calming drug but in Hardie it gave him the opposite effect
- Only a defence if MR is not available
- Voluntary
- Insanity
- Criminal Procedure (insanity and unfitness to plead) Act 1991
- Charges
- Hospital
order restricting the D’s discharged indefinitely
- Guardian ship Order
- Supervision and treatment order
- Absolute discharge
- Supervision and treatment order
- Guardian ship Order
- Hospital
order restricting the D’s discharged indefinitely
-
M’Naghten 1843
- 1. Defect of reason
- The inability to use powers
of reason against failing to use powers of reason
- Clarke 1972
- The inability to use powers
of reason against failing to use powers of reason
- 2. Caused by disease of the mind
- Must be physical disease (not external factors such as drugs)
- Permanent or temporary state (if temporary then sentencing can reflect that)
- Kemp 1957
- Bratty 1963
- Sullivan 1984
- Burgess 1991
- 3. So that the D does not know
the nature and quality of his act or does not know that what he was doing was
wrong
- Did not know what he was doing
- He did not appreciate the consequences of his act
- He did not appreciate the circumstances in which he was acting
- He did not appreciate the consequences of his act
- D lacks MR due to his
insanity
- Not acquitted, special verdict is given
- Windle 1952
- Did not know what he was doing
- 1. Defect of reason
- Self-Defence
- s.3(1) Criminal Law Act 1967
- It is there for those who need to protect themselves or others
- Was the use of force necessary? If it
was, then
- Was the force used reasonable in the circumstance?
-
Mistaken use of force in self-defence
- Difficult to assess the necessity of the force
-
Genuine Mistake
-
D
must be judged in the facts as he genuinely believed them to
- Williams 1987
- s.76(3) Criminal Justice and Immigration Act 2008
-
D
must be judged in the facts as he genuinely believed them to
-
Drunken Mistake
- s.76(5) Criminal Justice and Immigration Act 2008
- Cannot use the defence (voluntary)
-
Degree of Force
- s.76(7) Criminal Justice and Immigration Act 2008
- Cannot calculate the exact amount of force which they can use
- Force used after the danger gone? Defence can’t be used
- Consent
-
Consent is not a Defence to Murder
- Euthanasia is unlawful
- Pretty 2002
- Euthanasia is unlawful
-
Consent as a defence to non-fatal offences
- Limited defence
- Brown 1993
- Exceptions
- Normal sports activities
- If consent goes beyond = defence fails
- Barnes 2004
- Normal social intercourse
- Person CAN withdraw their consent
- Must consider the following
- Type of sport
- Level at which it is being played
- Nature of the act
- Degree of force used
- Extent of injury
- State of mind
- Consent either expressly by signing consent form or forms are signed by parent/guardian
- Implied consent
- Can be withdrawn at any time
- Medical procedures will require form to be completed
- Applies to things such as pushing and
shoving between friends and arm wrestling
- Jones 1986
- Brown 1993
- Dica 2004
- Defence is only relevant where AR and MR
is established
- Slingsby 1995
-
Is the Consent Genuine
- Sufficient understanding and intelligence to give consent
- Burrell v Harmer 1967
- Richardson 1998
- Tabassum 2000
-
Consent is not a Defence to Murder
- Automatism
- Must be an invovoluntary act
- AGR state total lack of awareness
- Must show act was
- Involuntary
- D’s mind must not be controlling his own limbs
- Bratty 1963
- Must be total lack of awareness
- AGR No.2 1992
- Due to an external factor
- Can not be a disease
- Cannot be self induced
- Involuntary
- Difference between automatism and insanity
- Insanity
- Criminal Procedure (insanity and unfitness to plead) Act 1991
- Charges
- Hospital
order restricting the D’s discharged indefinitely
- Guardian ship Order
- Supervision and treatment order
- Absolute discharge
- Supervision and treatment order
- Guardian ship Order
- Hospital
order restricting the D’s discharged indefinitely
-
M’Naghten 1843
- 1. Defect of reason
- The inability to use powers
of reason against failing to use powers of reason
- Clarke 1972
- The inability to use powers
of reason against failing to use powers of reason
- 2. Caused by disease of the mind
- Must be physical disease (not external factors such as drugs)
- Permanent or temporary state (if temporary then sentencing can reflect that)
- Kemp 1957
- Bratty 1963
- Sullivan 1984
- Burgess 1991
- 3. So that the D does not know
the nature and quality of his act or does not know that what he was doing was
wrong
- Did not know what he was doing
- He did not appreciate the consequences of his act
- He did not appreciate the circumstances in which he was acting
- He did not appreciate the consequences of his act
- D lacks MR due to his
insanity
- Not acquitted, special verdict is given
- Windle 1952
- Did not know what he was doing
- 1. Defect of reason
- Internal v External factor
- Quick 1973
- Suffered from hypoglycaemia.
D’s condition arose due to insulin
- External factor
- Suffered from hypoglycaemia.
D’s condition arose due to insulin
-
Hennessey 1989
- Didnt take insulin so diabeteas (intenral) was the issue
- Quick 1973
- Insanity
- Intoxication
- Murder
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