#3091 - Murder - GDL Criminal Law

- Definition (common law): unlawful homicide with malice aforethought.

AR: unlawful killing of RPIB under the Queen’s peace (Coke).

- Unlawful: not self-defence, lawful execution, war.

- Killing.

• 1. factual causation: ‘but for’ test (White).

• 2. legal causation: operating + substantial cause (Pagett: enough that ‘contributed significantly’; Smith).

  • substantial: more than de minimis (Cato; Kimsey: ‘more than slight or trifling link’).

    • must be caused by d’s culpable act (Dalloway; Marchant).

    • need not be sole cause (Benge).

  • operating: novus actus interveniens? (Malcherek & Steel)

    • medical negligence: v. rarely breaks chain

      • Smith: only if 2^nd wound so important that original wound ‘merely part of history’;

      • Cheshire: negligence ‘so independent’ + ‘in itself so potent’ as to cause death.

    • intervention by victim.

      • thin skull rule: physical/psychological abnormalities NOT break chain (Hayward: fear + exertion; Blaue: Jehovah’s witness refuses transfusion)

      • refusing medical treatment: NOT break chain if original wound still operating + substantial cause (Holland).

      • fright + flight: foreseeable acts WILL break chain; reasonable acts will NOT.

        • Mackie: child fleeing from abuse foreseeable.

        • Roberts: WILL break chain if ‘so daft/unexpected’ as to be unforeseeable (jumping from car to escape sexual advances).

        • test: Williams & Davis:

          • 1. reasonably foreseeable that some harm would result from d’s action?

          • 2. v’s reaction in range that might be expected in situation (taking into a/c characteristics + ‘agony of the moment’)?

            • application unclear: just d’s state of knowledge or all v’s chars?

      • suicide: WILL break chain if done for reason other than attack on v; will NOT if original wound caused death, e.g. reopened (Dear: if injuries by d. operating + significant cause of death).

      • N.B. Kennedy [2007, HoL]: voluntary + informed act of v. WILL break chain (injecting drugs supplied by d.)

    • intervention by 3^rd party: WILL break chain if 3^rd party act ‘free, deliberate + informed’ (Pagett: police firing in self-defence not voluntary).

• - Reasonable person in being (RPIB): must be live human being (Poulton: not unborn child).

  - Under the Queen’s peace: not in course of war.

  MR: intention to kill or cause GBH (R v Vickers).

  - Intention.

  • 1. direct intent:

    • no elaboration needed: ordinary meaning – subjective aim/purpose (Maloney).

    • motive irrelevant (Chandler v DPP): immediate intent relevant, not overall end.

  • 2. oblique intent: (N.B. possible only in specific intent crimes: i.e. not where recklessness alternative MR).

    • test (Nedrick; Woollin):

      • 1. outcome virtual certainty (objective) ([Ld Steyn]: barring any unforeseen circs).

      • 2. if so, d. appreciates/foresees this (subjective).

        - Kill or cause GBH.

  • kill: ordinary meaning.

  • GBH: really serious harm (Smith); serious harm (Saunders).

  [Other issues:

  - Coincidence of AR + MR: but can occur in continuum of acts leading up to consequence (Thabo-Meli; Church: even when acts unplanned).

  - Transferred malice (Latimer): but MR must be the same (Pembilton)].

  - Consider intoxication: may negate MR (once raised: burden on prosecution to disprove).

  • principle: prosecution must prove AR + MR beyond reasonable doubt (Woolmington v DPP)

  • Bennett: jury direction – ev. of intoxication reasonable possibility d. did not form MR

  • test: did d. form requisite MR (Pordage)? – capacity irrelevant.

    • if d. formed MR no defence: drunken intent still intent (Kingston).

  • involuntary intoxication: d. forced/deceived – defence to any offence (Kingston).

    • NOT mistake as to strength (Allen); NOT merely lowered inhibitions (Kingston)

    • prescription: involuntary intoxication unless dose exceeded.

  • voluntary intoxication by non-dangerous drugs (i.e. no common knowledge that liable to cause user to become aggressive/act dangerously/unpredictably – Hardie) – defence to any offence (Hardie).

  • voluntary intoxication by dangerous drug (inc. alcohol) (i.e. common knowledge that liable to cause user to become aggressive/act dangerously/unpredictably – Hardie) – defence to specific intent crimes (DPP v Majewski).

  • but: NOT Dutch courage (Att-Gen NI v Gallagher).

  Defences

  Loss of Control (s54(1) Coroners and Justice Act 2009 (CJA)).

  • partial defence: reduces conviction to voluntary manslaughter (s54(7)).

  • judge decides whether goes before jury (s54(6))

  • burden: on prosecution to disprove once raised; standard: beyond reasonable doubt (s54(5)).

    • but: prosecution must only disprove one element to defeat (Clinton & Others)

  - 3-stage test (s54(1) CJA 2009).

  • (a): d’s act/omission result from loss of self-control.

  • (b): qualifying trigger for loss of control (s55).

  • (c): reasonable man test: person of d’s sex and age, with normal degree of tolerance + self-restraint + in the circs might have reacted similarly.

  - 1. Loss of self-control.

  • not defined in Act: no current cases -

  • subjective test: old CL irrelevant: look for ev. on facts (Clinton & Others)

    • but position prob. similar to old law: d. must be unable to restrain self, but need not be complete loss of control (but > loss of temper) (Richens).

  • does not need to be sudden (s54(2); Ahluwalia)

  - 2. Qualifying triggers (s55 CJA).

  • 1. s55(3): fear of serious violence cs. d. or another person (narrows previous law: e.g. Doughty: baby crying; Davies: watching adultery).

    • (N.B. consider if self defence not available: d. justified in using force but level of force disproportionate).

  • 2. s55(4): things said or done (or both) which (a) constitute circs. of extremely grave nature + (b) cause justifiable sense of being seriously wronged.

    • (i) things said or done: not defined in Act.

      • [Ormerod]: things actually said/done must be relied upon (even if mistaken).

      • circs. alone not enough (Acott).

    • (ii) circs. of extremely grave nature:

      • not defined in Act dictionary meaning: giving cause for exceptional alarm – REALLY BAD.

      • objective test (Clinton & Others): i.e. jury decide – reasonable man test.

    • (iii) causes d. to have justifiable sense of being wronged:

      • not defined in Act dictionary.

      • objective test (explanatory notes; Clinton & Others).

      • old cases that would prob. pass: Ahluwalia: victim of domestic abuse threatened with beating; Thornton (No.1); victim of domestic abuse called whore; Humphreys: victim of domestic abuse threatened with rape; Baille: d’s son threatened by drug dealer.

      • old cases that would prob. fail: Doughty: baby crying; Davies: witnessing adultery.

  • LIMITATIONS:

    • not considered revenge (s54(4)): e.g. Ibrams & Gregory: week lapsed between provocation + planned.

    • not when d. creates trigger as excuse to use violence (s55(6)(a)-(b)).

      • dep. on facts (Johnson: d. instigated struggle with threats defence allowed).

    • not sexual infidelity as trigger (s55(6)(c)) – but only if SOLE trigger (Clinton & Others).

  - 3. Reasonable man test (s54(1)(c) + s54(3))

  • s54(1)(c): person of d’s sex + age, with a normal degree of tolerance + self-restraint, + in circs. of d., might have reacted in similar/same way.

  • s54(3): relevant circs – all circumstances except those only relevant to d’s capacity for tolerance + self-restraint (e.g. general bad temper).

    • (more favourable than previous law: DPP v Camplin: cannot consider d’s personal characteristics affecting gravity of situation).

    • can inc. sexual infidelity (Clinton & Others).

  • objective test: response must be proportional – must assume ordinary self-control (NOT bad tempered).

  - Intoxication: position unclear.

  • old law: reasonable man always sober (AG Jersey v Holley).

    • BUT: ALCOHOLISM may be relevant to gravity of circumstances (i.e. d = sober alcoholic) (Morhall).

  • s54(3): intoxication may be considered (all circumstances)?

  - Attempted murder: Act silent, but had not been allowed under old law (R v Campbell).

  Diminished Responsibility (s2(1) Homicide Act 1957 as amended by s52 Coroners and Justice Act 2009).

  • partial defence: reduces conviction to manslaughter (s2(3)).

  • burden of proof: defence; standard: balance of probabilities (s2(2) HA; Dunbar).

  - s2(1) HA: abnormality of mental functioning, which:

  • (a) arose from a recognised medical condition

  • (b) substantially impaired d’s ability to do 1 or more of things mentioned in subsection (1A).

    • (1A): (a) understand nature of d’s conduct; (b) form rational judgment; (c) exercise self-control.

  • (c) causation: provides an explanation for D’s acts and omissions.

    • (1B): ‘provides an explanation’: ‘causes or is a significant contributory factor’.

  - 1. s2(1): Abnormality of mental functioning.

  • undefined in Act + untested: cf. old law ‘abnormality of mind’ – Byrne: ‘state of mind so different from that of ordinary human being that reasonable man would term it abnormal’.

  - 2. s2(1)(a): Arising from a recognised medical condition.

  • undefined, but broad: could be stretched to cover almost anything – need medical evidence.

  • Reynolds [1988]: post-natal depression + pre-menstrual syndrome.

  • Ahluwalia; Thornton: battered woman syndrome/PTSD.

  • Tandy [1989]: alcoholism.

  • Fenton [1975]: NOT hate, jealousy, bad temper.

  - 3. s2(1)(b): Substantial impairment of d’s ability to do one of the things in s2(1A).

  • substantial: undefined, cf. old law – LOW BAR: more than trivial or minimal (Simcox; Lloyd).

  • Law Comm Report 304 examples:

    • understand nature of conduct: e.g. video games make boy unable to understand killing.

    • form rational judgment: e.g. woman suffering from PTSD who believes only burning husband will rid world of his sins; mentally handicapped boy who believes must follow brother’s instructions; depressed man who...