Criminal Law – 4ed (2024) Chapter 4: Homicide 1

• Chapter covers murder and partial defenses to murder.
• Students should understand the definitions of murder and voluntary manslaughter and how they are applied
• Students should appreciate circumstances in which diminished responsibility and loss of self-control may apply

Homicide Introduction

• Homicide: collective term for unlawful killings
• Includes murder: deliberate taking of a human life
• Includes voluntary manslaughter: mitigating factors excuse the defendant's actions

Homicide

• Unlawful killing of another human being
• Umbrella term when defendant is criminally liable for either murder or manslaughter

Actus Reus of Homicide

• The accused unlawfully causes the death of the victim
• Homicide requires that the death of the victim is unlawfully caused
• If a police officer shoots a terrorist just as they are about to detonate a bomb, this would be a lawful killing and the officer would not be guilty of a criminal offence
• Defendant will only be guilty of murder or manslaughter if the victim is a human being
• As soon as a baby is born and has an existence independent of the mother it is protected by the law of homicide; and it does not matter whether the injury occurred in the womb

Causes Death

• Accused must cause the death of a human being
• Prosecution must prove that the defendant was both the factual and legal cause of the victim's death
• This is a question for the jury to determine

Murder

• Common law offence and one of the most serious in the criminal justice system
• Reflected by the mandatory life sentence imposed on anyone who is convicted
• Although the most dangerous offenders may receive a whole life sentence, the judge will decide the minimum term that a defendant must serve and thereafter, if deemed no longer a threat to society, they will be released

Definition

• Although there are two statutes (the Homicide Act 1957 and the Coroners and Justice Act (CJA) 2009) that deal with the partial defenses to murder, the crime itself is from the common law
• The definition of the offence dates back to the 17th century and is credited to Judge Coke who stated that murder is "the unlawful killing of a reasonable creature in being under the Queen's [or King's] peace with malice aforethought"

Actus Reus

• The actus reus of murder is satisfied when a defendant causes the death of a human being
• Killing must take place in peacetime

Mens rea

• The mens rea for murder is malice aforethought, but this term is rather misleading as no malice is required
• The modern definition of the mens rea for murder is an intention either to kill or to cause grievous bodily harm
• Case law has established that grievous bodily harm means 'really serious harm' so the question is whether the accused intended to really hurt the victim
• Murder cannot be committed recklessly
• Direct intent means that death or grievous bodily harm was the defendant's aim or purpose
• Indirect or oblique intent applies where death or serious harm is not the defendant's primary aim, but is a virtually certain consequence of their actions and the defendant appreciates this

Voluntary Manslaughter

• Voluntary manslaughter is relevant only if actus reus and mens rea of murder have been proved
• Three situations where murder can be reduced to manslaughter:
• diminished responsibility
• loss of control
• suicide pact

Partial Defenses

• These do not provide a true defence because the accused is still liable for voluntary manslaughter
• These are defenses only to murder.

Actus Reus and Mens Rea

• The actus reus and mens rea of voluntary manslaughter are the same as for murder

Diminished Responsibility

• Diminished responsibility, a statutory defense, is set out in s 2 of the Homicide Act 1957, as amended by s 52 of the CJA 2009
• Elements of the defense:
• abnormality of mental functioning
• arose from a recognised medical condition
• substantially impaired the defendant's ability to understand the nature of their conduct, and/or form a rational judgment and/or exercise self-control
• provides an explanation for the defendant's act or omission in doing the killing
• Prosecution are required to prove the actus reus and mens rea of homicide beyond a reasonable doubt
• The legal burden of proving all the elements of diminished responsibility switches to the defendant, standard of proof required from the defendant is only on a balance of probabilities
• Abnormality of mental functioning, no further definition in the Act as to what this actually means, although it tends to be interpreted widely
• The term 'abnormality of mental functioning' was introduced to ensure consistency with the medical profession as it is a phrase commonly used in this context
• Abnormality of mental functioning must arise from a recognized medical condition
• Examples of recognized medical conditions: psychiatric conditions (depression, schizophrenia, post-traumatic stress disorder, battered person's disorder, phobic anxiety) and physical conditions (alcohol dependency syndrome, diabetes, epilepsy)
• It is not unusual for offences to be committed while the defendant is under the influence of alcohol and there have been a number of cases in which the judges have considered the relationship between intoxication (whether from alcohol or any other substance) and the partial defence of diminished responsibility
• Once the defendant has satisfied the court that they have a recognised medical condition, they must also demonstrate that this impaired their ability to do one of the three things set out in s 2(1A) of the Homicide Act 1957, specifically: to understand the nature of their conduct; and/or form a rational judgment; and/or exercise self-control
• Is not sufficient for the abnormality of mental functioning to impair the defendant's ability - it must do so substantially, meaning important or weighty
• Medical condition from which they are suffering provides an explanation for their act of killing
• There is a causal link between the defendant's medical condition and their behaviour

Loss of Control

• Loss of control is the second partial defence that reduces murder to voluntary manslaughter
• Defined by statute in sections 54 and 55 of the CJA 2009
• The rationale behind the defence is an acceptance by the law that everyone has a breaking point and circumstances may arise that push people so far they lose control
• Three components:
• defendant must lose self-control
• the loss of control must have a qualifying trigger
• a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way as the defendant did
• Accused must successfully overcome all three hurdles for conviction for murder to be reduced to manslaughter
• Provided the accused can produce some evidence that raises the defence, the burden will revert back to the prosecution to disprove loss of control beyond reasonable doubt
• Court must be satisfied that the defendant did indeed lose control, there is no requirement for this to be sudden
• Killings that occur in the domestic violence context, where the defendant's reaction builds up over time, are not excluded As a consequence, killings that occur in the domestic violence context, where the defendant's reaction builds up over a period of time, are not excluded
• Must distinguish between a planned attack and the reaction of a victim of abuse, it is important that defendants who take deliberate steps to kill the victim should be distinguished from those who act on impulse or in fear or both
• The historical rationale behind an accused being able to lower their culpability from murder to manslaughter was that there were certain situations regarded as so provocative it was excusable for the defendant to react in anger
• The effect is that, unlike the previous law, a defendant may no longer rely upon the partial defence for killing a baby due to its persistent crying
• There are 'qualifying triggers', the 'fear' and 'anger' triggers. The loss of control must be the result of one of these or a combination of both The 'fear trigger' under s 55(3) will apply where the loss of control 'was attributable to the defendant's fear of serious violence from the victim against the defendant or another identified person'
• The defendant cannot rely on the triggers where they have incited the situation to provide them with an excuse to use violence in response The 'anger trigger' under s 55(4) applies where the defendant's loss of control was attributable to things said and/or done that amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged Whether the defendant's sense of being seriously wronged is justifiable is an objective question to be determined initially by the judge, who must decide whether a properly directed jury could reasonably conclude that it was
• Statute deliberately excludes sexual infidelity as an excuse (s 55(6)(c)) for loss of control
• In R v Clinton, the Court of Appeal confirmed that sexual infidelity is 'not subject to a blanket exclusion' and that where it 'forms an essential part of the context', it may be considered
• It is important to consider if persons of a similar demographic to the defendant would have acted in the same way.
• Sufficient evidence of loss of control is needed for the jury

Explore the core elements of criminal homicide, differentiating between lawful and unlawful killings. Understand legal responsibilities in cases involving life support and pre-natal injuries. Learn about the legal definition of death and accountability for victims with pre-existing conditions.