#15535 - Homicide 1 Murder - GDL Criminal Law

Criminal Law : Homicide 1, Murder

• Homicide not a specific crim in itself, covers 2 crimes. Plan of lectures:

  • (1) Murder (AR and MR)

    • Has two special defences: first special defence—Loss of Control & Diminished Responsibility.

  • (2) Involuntary Manslaughter: where cannot prove MR for murder.

AR for Murder

• Unlawful killing of another human being under the Queen’s Peace: Coke (3 Inst 47).

• ‘Unlawful’: Killing is always unlawful unless:

  • (1) killing an enemy soldier in battle.

  • (2) ‘advancement of justice’ (i.e. the death penalty)—but of course we no longer have death penalty, so unlikely this would apply.

  • (3) Self defence [[probably best to deal with as part of ‘defences’, although can mention it in AR].

• ‘Killing’: see causation—need to show D’s actions caused the death.

  • Causation always an issue—at very least deal with basics of factual and legal causation whenever you have homicide.

• Kill ‘a reasonable person’

  • A person born alive and capable of independent life:

  • R v Poulton

  • AG’s Reference (No 3 of 1994)

  • R v Reeves

  • Point made: if the person dying is a foetus in the womb, that is not homicide.

• ‘Under the Queen’s Peace’

  • Doesn’t add very much.

  • It’s a matter of jurisdiction—murder is one crime which has long been a crime that can be prosecution wherever it takes place—if it happens overseas, can be prosecuted if the defendant or victim is a British citizen.

MR for Murder

• Intention to kill OR cause GBH (R v Vickers)

• Can get tricky issues of oblique intent—but not always, if nothing on the facts that gives rise to oblique intent, no need to discuss it.

• When D’s purpose or objective = death or GBH or victim, necessary direct intent will be found.

• Where purpose in acting is to achieve something other than death/GBH, a Woollin direction (on oblique intent) can be given to the jury, from which they may find the necessary intent [[remember judges have said the need for this direction will rarely arise]].

Summary—AR & MR for murder

• A/R: Unlawful killing of another human being under the Queen’s Peace

• M/R: Intention to kill/cause GBH (R v Vickers)

• These tend to be fairly straightforward, apart from causation in AR.

• The complexities often come in the defences.

Sentence

• Murder carries a mandatory life sentence—Murder (Abolition of Death Penalty) Act 1965.

• Judge has no discretion in sentencing—other than to recommend a minimum term before a prisoner can be released on licence.

• The mandatory life sentence has been crucial in shaping the developing of law re homicide

DEFENCES to murder

• Full defence:

  • self-defence

• Partial defences:

  • (1) Loss of control

  • (2) Diminished responsibility

  • [[both these defences apply ONLY to murder]].

Special Defence 1: Loss of Control

• ‘Loss of control’ is a relatively new defence, it replaces previous defence of ‘Provocation’, abolished 4 Oct 2010

  • Calls for reform.

• Need for reform:

  • eg comments in AG for Jersey v Holley (2005).

  • Law Commission report 2006.

• Coroners and Justice Act (CJA) 2009: abolished defence of Provocation, introduced new defence of Loss of Control (ss54-56 CJA 2009).

  • Came into force 4 Oct 2010.

  • Abolishes defence of provocation—new one of ‘loss of control’.

• Preliminary points:

• NOTE THAT, from the explanatory notes of the Act, we know that the aim of the act is to limit/narrow the availability of this defence (acknowledge in Clinton).

• Effect of Defence, partial defence—not acquitted completely, not a full defence.

  • A partial defence—if it works, D is acquitted of murder, and convicted of voluntary manslaughter instead (so will avoid the mandatory life sentence): s54(7) (has the MR for murder, but factors to be taken into account). Because murder has a mandatory life sentence. And under voluntary manslaughter, life sentence is the maximum penalty, rather than voluntary. Gives discretion to judges, some flexibility.

• Burden of Proof s54(5) and (6)

  • S54(5): once the issue is raised, burden of proof is on prosecution.

  • Burden of proof is on the prosecution—although only if facts give rise to the defence, in which case the prosecution must disprove it.

  • Prosecution only needs to show that 1 of the 3 components is absent for the defence to fail (R v Clinton Parker & Evans (2012), CA)).

  • S54(6), for judge to decide whether defence can be put before the jury: if a trial judge considers that no defence of loss of control will ever work, the judge can direct the jury not to take it in account.

  • R v Jewell (2014), CA: dicta from CA seems that the power of the judge to remove the issue of loss of control from the jury may prove to be a significant change from the old law of provocation.

• Relevance of previous law:

  • R v Clinton, Parker & Evans, CA:

  • Makes clear that loss of self-control replaced the old law on provocation—and that application of this defence should be made with reference to the CJA 2009.

  • Stressed that the old common law is now largely irrelevant—it can be referred to, but any use of old common law must be justified.

  • CA gave an overview of how the defence works—read the judgement of LJ Judge. Points made:

  • (1) Lord Justice Judge: Emphasised that the new statutory defence, from the 2009 Act—its common law heritage is irrelevant. [lecturer not sure he agrees, says case law can be relevant. Wording of new law is in some places similar to old law. Most importantly, if using old cases from before 2009 Act, you have to justify why you think it’s relevant.

• SO NOTE: due to Lord Judge’s comments in Clinton, any use of old common law cases must be explained/justified within an answer. Eg: This area of law is not defined within the Act however we may secure some guidance on what the courts will be looking for with reference to R v Richens where it was held that……’

Elements of the Defence--s54(1)—3 issues the jury needs to consider:

• s54(1): where a person (D) kills or is a party to the killing of another (V), D is not to be convicted of murder if:

  • (a) Did D kill another person as a result of losing control? S54(1)(a)

  • (b) Did the loss of control have a qualifying trigger? S54(1)(b).

  • (c) Might ‘another person’ of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, have reacted in the same or similar way? S54(1)(c)

• All three 3 elements need to be analysed sequentially and in detail (R v Clinton).

• Note that, although burden of proof is on prosecution, prosecution need disprove only one of the 3 elements (emphasised by Lord Judge in Clinton).

• So they are 3 hurdles which Defendant has to get over—burden of proof remains on prosecution, but only have to trip up D on one of the three hurdles.

Element (1)—Did D lose control [ s54(1)(a) ]

• D’s act or omission in killing must have resulted from a loss of self-control.

• It’s essentially a factual issue.

• Clinton: element of loss of self-control can be assessed by looking at its literal meaning (old case law largely irrelevant).

• But, the element of loss of control was also part of the old law, so can look at it:

• Loss of control need not be complete: R v Richens (1993): this is a case from the old law, which had similar wording, so still valid

  • There need not be a complete loss of control (so that D does not know what he is doing); but D must be unable to restrain himself at that point.

  • Mere loss of temper is not enough.

• Is a question for the jury whether D actually loss control, considering all evidence.

• Note the loss of control need not be sudden s54(2): ‘it does not matter that the loss of control was not sudden’.

  • To understand this, need to consider old defence of ‘Provocation’—where there was, sort of, a requirement that the loss of control must be sudden.

  • Although that was relaxed over time.

  • Before changes to law, good eg of: R v Ahluwalia (2002) (under old law of Provocation)—long-term abusive relationship. Victim told wife their marriage was over, he wanted her to leave the house; he threatened to beat her; he threatened to burn her. Argument petered out, victim went to bed. Ahluwalia, in middle of night, poured petrol over victim and set fire to him and killed him. Pleaded defence of ‘provocation’. Prosecution said there was a long period (several hours) between the argument and the act, so there was no sudden loss of control.

  • CA: the possibility of D having lost control was not negative by the lapse of time—although jury should consider any evidence of delay, and of sufficient planning, are relevant factors the jury might consider in deciding whether there was loss of control. i.e. if there’s delay, the defence may still work, but ‘the longer the delay, the more likely it is that the prosecution will negative provocation’.

  • In this case, the appeal failed, not so much f delay, but because there was clear evidence of planning—which didn’t suggest loss of self control.

  • Although s54(2) says doesn’t have to be sudden, the reasoning in Ahluwalia is still relevant to defence of ‘loss of control’.

• Note also s54(4): no defence if D ‘acted in a considered desire for revenge’.

  • So evidence of planning (like in Ahluwalia)—might be evidence of ‘considered desire for revenge’.

  • Clinton: directed that if D acting out of ‘considered desire for revenge’ should be considered in this element (see section below).

  • And you could also argue that a long delay and planning might show no ‘loss of control’ at all.

  • But the mere fact of delay does not in itself take away the defence.

  • R v Jewell: trial judge gives useful direction on how this element may be assessed.

• Remember burden of proof on prosecution—if there’s doubt, favour the defendant.

Element (2)...