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What is murder?. The Actus Reus for Murder isAn unlawful act which causes the death of a human being in the Queens peace and within a country of the realm.. Unlawful Act. Unlawful Act- an action which causes the death of anotherCan be one of many things including:-Scaring someone to deathSomeone who is killed trying to escape an attacker.
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1. Murder Criminal Law A2
Mrs Howe
3. Unlawful Act Unlawful Act- an action which causes the death of another
Can be one of many things including:-
Scaring someone to death
Someone who is killed trying to escape an attacker
4. Death Death- due to advances in medical science people can be kept alive along time. Courts consider death to be brain stem death. Malcherak 1981
5. What is a Human Being For purposes of legal proceedings the following are not human beings:-
Foetus is not a human being. R v Copeland 1999
A person in a vegetative coma kept alive by life support machine
A person who is in hospital in a brain dead state, kept alive by machines
Brain stem death is taken as the key indicator. Once this occurs no chance of recovery
Seems straight forward but courts have had to deal with some difficult cases
Human Being- a person outside of the womb. Seems straight forward but courts have had to deal with some difficult cases
Human Being- a person outside of the womb.
6. Queens Peace Queens peace- if a soldier kills someone in the line of duty and war has been declared with that country, not murder. R V Clegg 1995
Do you think this is right?
7. Activity Read pg 74
Do you think Sgt Clegg should have been convicted of murder, manslaughter or neither
Give reasons for your answer
10 mins
8. Country of the Realm Country of the Realm- If a British person commits murder they can be brought back to UK to be tried for murder
9. Mens Rea of Murder- The intention to kill another human being.
Two possible elements presence of either is enough to prove murder
Intention to kill (express malice aforethought)
Intention to cause grievous bodily harm (implied malice aforethought) Often referred to as Malice aforethought. This means cruelty thought of before hand.Often referred to as Malice aforethought. This means cruelty thought of before hand.
10. Implied malice for a successful murder conviction prosecution only have to prove GBH was intended and death resulted. DO not have to prove intention to murder
Express malice if intention to kill can be proved then this is known as expressed malice
11. Intention Two types
Direct Intention- D clearly desired the outcome and was happy when it was accomplished. Was D’s aim
Oblique Intention- D kills someone else rather than/as well as the person he intended to kill
This causes a problem for the court as D may not have necessary Mens Rea for murder.
R V Nedrick 1986
R V Woolin 1998 Courts look at facts of case for Virtual Certainty and Substantial Risk
A result forseen as virtual certainty is an intended result. If D pretty sure that the person will be killed by their actions they cannot use it as a defence that they did not mean it.
Courts look at facts of case for Virtual Certainty and Substantial Risk
A result forseen as virtual certainty is an intended result. If D pretty sure that the person will be killed by their actions they cannot use it as a defence that they did not mean it.
12. Nedrick 1986 Defendant poured petrol through the letterbox of a house to frighten the women living there. The result was the death of a child.
2 questions arose with regard to intent
1. was the result a virtual certainty of the action?
2.Did the D realise that the result would be a virtual certainty of his action
Unless jury was happy that the answer to both questions was yes they should not assume the D intention
13. Woollin 1998 A D threw his three month old baby at his pram. The baby missed the pram and crashed into the wall, dying of his injuries. The courts were not happy with the 2 questions used in Nedrick case but still wanted the jury to find intention but only if they thought the result was a virtual certainty from the actions of the D and that they knew this to be the case.
14. Evidence of Intention Can be seen in Foresight of consequences.
Does the D realise that their actions will cause a particular event even if they do not want that to happen.
R V Stephenson 1979
In the absence of Mens Rea the D may still be charged with involuntary manslaughter. Cannot be charged with manslaughter as would need some element of mens rea to be present.
15. Activity What is the difference between “Virtual Certainty” and “Substantial Risk”?
Why did Woolin refer the judges direction of “virtual Certainty”?
10mins
16. Sentencing -Mandatory Sentences Only sentence available for Murder is Life imprisonment.
Life means for the life of the D. However some of that sentence can be carried out on licence.
Judge has some discretion/flexibility on the maximum tariffs.
Sentence will be higher if:
It is a professional killing
Is racially motivated
Is politically motivated
Involve vulnerable people (old people, children etc)
Minimum sentence to be served will be lower if:-
It’s a mercy killing
A borderline manslaughter case
Over reaction due to self defence
There was a mental disorder (falls short of diminished responsibility)
Practice statement also says that it is highly unlikely that D will be released when the minimum term is served
17. Chain Of Causation Often D tries to rely on the fact there has been medical intervention which caused the death of V or broke the Chain of causation.
Courts wary to accept this. Only the most unusual medical treatment would break the chain.
R V Smith 1959
R V Cheshire 1991
R V McKechnie 1991
Courts can choose which test to apply in each case.
D can still be guilty of murder where the V refuses or fails to get medical help. Blaue 1975 Courts will apply But for test
But for D action V wld not have been put into this position.But for D action V wld not have been put into this position.
18. Defences to Murder Provocation- only a defence for murder
Diminished responsibility
Defendant has abnormality of mind
Inherent cause
Abnormality of mind caused by disease
Abnormality of mind caused by injury
Retarded development of the mind
Suicide Pact
19. Provocation “A sudden temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not the master of his mind” R V Duffy 1949
If proven provocation will reduce charge to manslaughter.
Problem where D does not fly into a rage, Favours men
Where there is premeditation/an act which shows consideration of murder there can not be provocation
The longer there is a delay between abuse and action more unlikely provocation would succeed as a defence
R V Ahluwalia 1992-
R V Ibrams and Gregory 1981- planning shows revenge
Duffy has been used successfully in all these cases issue for court to decide.
Jury to decide if provocation, S3 of homicide Act 1957 Jury to decide if the provocation would make a reasonable man do the same act
R V Sara Thornton 1992
Sara Thornton was convicted for murder in 1992. Her husaband Malcolm had physically and mentally abused her for many years and one night she sharpened a knife from the kitchen and the stabbed him to death after he had once more threatened her. She was found guilty of murder because of the absence of sudden loss of control. The premeditated sharpening of the knife was seen as a significant event
R V Ahluwalia 1992. D had been the long term victim of an abusive husband and one night she set her husbands bed alight after covering it with petrol. The man died 6 days later. D was convicted of murder despite arguing that Duffy was an inappropriate test to be used in her case.
In other words Duffy test of rage not applicable as she is female but the abuse she had suffered cld still be considered as provocation. The longer the delay between????
R V Ibrams and Gregory 1981 a couple had been imtimadated by the womans ex boyfriend, John Monk an dthey hatched a plan, along with a friend to deal with him. The plan involved him being persuaded to go to bed with the woman and then to be attacked by Ibrams and Gregory. Monk died during the attack. Ct felt that the planning and time difference between the killing and the last threatening actions by Monk invalidated their defence of provocationJury to decide if the provocation would make a reasonable man do the same act
R V Sara Thornton 1992
Sara Thornton was convicted for murder in 1992. Her husaband Malcolm had physically and mentally abused her for many years and one night she sharpened a knife from the kitchen and the stabbed him to death after he had once more threatened her. She was found guilty of murder because of the absence of sudden loss of control. The premeditated sharpening of the knife was seen as a significant event
R V Ahluwalia 1992. D had been the long term victim of an abusive husband and one night she set her husbands bed alight after covering it with petrol. The man died 6 days later. D was convicted of murder despite arguing that Duffy was an inappropriate test to be used in her case.
In other words Duffy test of rage not applicable as she is female but the abuse she had suffered cld still be considered as provocation. The longer the delay between????
R V Ibrams and Gregory 1981 a couple had been imtimadated by the womans ex boyfriend, John Monk an dthey hatched a plan, along with a friend to deal with him. The plan involved him being persuaded to go to bed with the woman and then to be attacked by Ibrams and Gregory. Monk died during the attack. Ct felt that the planning and time difference between the killing and the last threatening actions by Monk invalidated their defence of provocation
20. Examples of Provocation Crying babies
References to lack of sexual ability
Accusations of homosexuality
Adultery
Physical assaults
Long-term mental abuse
21. Question Why is it important to the D not to be charged with murder?
To reduce the charge to manslaughter
Not to have mandatory sentance
To reduce the charge to manslaughter
Not to have mandatory sentance
22. R V Sara Thornton 1992 D was convicted for murder in 1992. Her husband Malcolm had physically and mentally abused her for many years and one night she sharpened a knife from the kitchen and the stabbed him to death after he had once more threatened her. She was found guilty of murder because of the absence of sudden loss of control. The premeditated sharpening of the knife was seen as a significant event
23. R V Ahluwalia 1992 D had been the long term victim of an abusive husband and one night she set her husbands bed alight after covering it with petrol. The man died 6 days later. D was convicted of murder despite arguing that Duffy was an inappropriate test to be used in her case.
In other words Duffy test of rage not applicable as she is female but the abuse she had suffered cld still be considered as provocation. The longer the delay between????
24. R V Ibrams and Gregory 1981 a couple had been imtimadated by the womans ex boyfriend, John Monk an dthey hatched a plan, along with a friend to deal with him. The plan involved him being persuaded to go to bed with the woman and then to be attacked by the D’s. Monk died during the attack. Ct felt that the planning and time difference between the killing and the last threatening actions by Monk invalidated their defence of provocation
25. Provocation There is a subjective and objective element to defence of provocation
Subjective – what happened to the defendant.
Objective- what would reasonable man have done.
Must be certain that provocation would have made reasonable man act in the same way.
Reasonable can share some are all characteristics of the D
DPP V Camplin 1978 DPP V Camplin 1978
15 year old boy who had been sexually abused by an older man. The older man laughed at D who then hit him over the head with a heavy cooking pan. The man was killed. In this case the House of Lords defined reasonable man as one who shared some of the characteristics of the D, that is gender, age and sexuality.DPP V Camplin 1978
15 year old boy who had been sexually abused by an older man. The older man laughed at D who then hit him over the head with a heavy cooking pan. The man was killed. In this case the House of Lords defined reasonable man as one who shared some of the characteristics of the D, that is gender, age and sexuality.
26. DPP V Camplin 1978 15 year old boy who had been sexually abused by an older man.
The older man laughed at D who then hit him over the head with a heavy cooking pan. The man was killed.
In this case the House of Lords defined reasonable man as one who shared some of the characteristics of the D, that is gender, age and sexuality.
27. Diminished responsibility S2 homicide act 1957
If a person kills while suffering such an abnormality of mind as substantially impaired his mental responsibility for the acts or omissions.
Three Legal Elements:-
The D has abnormality of mind
The abnormality is related to specific causes
The abnormality impairs mental responsibility
Three Characteristics
Can only be used as defence against murder
Only reduces charge to manslaughter
Premeditation does not rule out diminished responsibility
28. Diminished Responsibility If proven judge has discretion with the sentencing. Nothing to life or committal to hospital under Mental Health Act 1983
Jury decide if abnormality of mind
Both sides present medical evidence
Sometimes jury have sympathy with D- not Peter Sutcliffe Peter Sutcliffe found guilty of murder and therefore responsible for his actions. However he has spent most of his sentence in a mental hospitalPeter Sutcliffe found guilty of murder and therefore responsible for his actions. However he has spent most of his sentence in a mental hospital
29. Activity Was the jury right to refuse Sutcliffe's plea of diminished responsibility?
Give reasons for you answer
5 mins
30. Homework Read the handout
Read Pg’s 67-75