Law 03

Actus Reus:

1.) The unlawful killing: Gibbons & Proctor - positive act or an omission. Lawful killings: Malcherek - life support machine, Re A - saves one patient and not another, Bland -with drawl of life support. Clegg - unlawful as exceeded permission.

2.) Reasonable creature in being: A human being must be killed. AG Refs - Foetus is not a human being unless dies outside womb or born alive and then dies.

3.) Under the Queens Peace: Killing of the enemy in a war isn't murder. Page - Killed enemy under King's peace so liable.

Causation:

Factual- But for- White and Legal- O&S- Smith, NAI= Vs own act- Roberts (RF), 3rd Party- Cheshire (so independant)- Jordan (palpably bad)- Pagett (RF), Thin Skull- Blaue. 

Mens Rea:

Malice aforethought expressed (intention to kill) or implied (intention to cause serious harm).- Direct (Mohan) or oblique (Woolin)?- Moloney confirms you can't have reklessness. 

D is chared with murder however has raised the defence of either diminsihed responsiblity or loss of control.                                                                                                                                           

If successful in raising defence the D will be charged with 'not guilty of murder but guilty of mancslughter'

The judge does not have to pass a life sentnce like they do in murder.

'Did D do it because they are mentally ill?'

Abnormality of mental functioning: Bryne- abnormality of mind='a state of mind so different from that of an ordinary human being that a responible man would term it abnormal'.

Arising from a recognised medical function: Covers both physical and psychological conditions however there must be medical evidence and the jury must be satisfied that the offence arose because of it. Byrne- sexual psycopath, Seers- chronic depression, Ahluwalia- battered woman syndrome, Tandy- alcoholism. 

Substantial impairment of Ds mental responsibilty: 1) To form a rational judgement (BWS or paranoia) 2) to understand the nature of his conduct (automaric state) 3) to excerise self control (Bryne)- don't need to identify all in exam. 

Provides explanation for Ds act or omission:  Ds mental functioning MUST be the cause for the killing. Doesn't have to be only/ main factor but a significant contributory factor.

Intoxication: If also intoxicated- Jury disregard intoxication- Dowds- not enough to diminish responsiblity on its own, Dietschmann- D drank/took drugs however also had a AMF so ignore intoxication.  If alcohlol/drug issue led to RMC- Wood- classed as an AMF. 

Loss of control: Doesn't have to be sudden- Ibrams - however the longer the distance between the trigger and reaction the less likely the partial defence will succeed. 

Qualifying Triggers: D fears serious violence from V against D or another identified person - Martinand Ahluwalia. Anger- 1) things done of a seriously brave character 2) that caused D to have a justifiable sense of being seriously wronged. 

The Objective Test: Would a person of Ds own sex and age with a normal degree of tolerance and self resistance and in Ds circumstances react in the same or similar way to D?- Chaplain confirmed in Holley. 'Circumstances' applies to all except those that affect Ds capacity for tolerance and self-restrain for example would be relevant if D suffered years of abuse (Hill) but not if just short tempered (Mohammed)