DISCLAIMER: all information in these module reviews is taken from our own notes and research so please do not cite this in your work.
Welcome to the fifth instalment of our Module Reviews!
Our current focus now turns to Criminal law, with this Review covering the topics of murder, diminished responsibility and loss of control. This is a brief summary intended to give a basic overview of the topic for those beginning their journey into Criminal law. Throughout this Review, I have cited criminal cases as authority for much of the information given, which you can find italicised throughout.
Background
Murder is what is known as a common law offence, meaning that it has been developed over time by the work of judges as opposed to originating in an Act of Parliament.
On the other hand, diminished responsibility and loss of control are regulated by statute. They are what are known as partial defences to murder – once murder is established, successfully establishing either diminished responsibility and loss of control will reduce the defendant’s conviction to voluntary manslaughter (unlike total defences, such as intoxication and self-defence, which will acquit the defendant completely).
Murder
Murder = the unlawful killing of a human being under the Queen’s peace with malice aforethought (Lord Coke, 1787).
Actus Reus
The actus reus of murder is to unlawfully kill of a human being under the Queen’s peace.
Unlawful – this simply refers to the fact that murder cannot be satisfied if the defendant has a defence (i.e., has acted lawfully).
Killing – the defendant’s act must cause death, applying the normal rules of causation that were outlined in part one of this series (you can read them here).
Human being – not all killings will fit the meaning of ‘human being’ for the purposes of murder. Most notably, the death of a foetus will not constitute murder – a child must have independent circulation from its mother (Enoch). However, death subsequent to birth caused by injuries sustained whilst in the womb can constitute murder (Attorney General’s Reference, No. 3 of 1994).
Queen’s Peace – the killing of enemy aliens during war and under battle conditions will not be considered murder. Somewhat related to this, under s.9 Offences Against the Person Act 1861, English courts have jurisdiction over homicide committed by British citizens anywhere in the world, homicides committed on British ships and aircraft by any citizen, and homicide by British citizens on foreign ships.
Key Debate: should accelerating death (for example, withdrawing treatment) be considered murder?
Mens Rea
The mens rea element of murder is malice aforethought – it must be shown that the defendant had either:
Express malice – intention to kill.
Implied malice – intention to commit GBH.
We will come to the meaning of GBH in later reviews, however for the purposes of murder, this can be defined simply as ‘really serious’ bodily harm (DPP v Smith), for example a broken bone.
Looking at the mens rea of murder, you may wish to look back at intention, covered in part one.
Key Debate: should the ‘GBH rule’ exist? Is it fair to confine those who intended, for example, a broken leg and accidentally killed to the same mandatory life sentence as those who intended to kill?
Voluntary Manslaughter: Diminished Responsibility
As mentioned previously, diminished responsibility is one of two partial defences to murder under the umbrella of voluntary manslaughter. This means that, if established, the defendant will not face the mandatory life sentence handed to those convicted of murder, as the judge is given some discretion over sentencing.
As diminished responsibility is a defence, not an offence, it does not have an actus reus and mens rea element in the same way that murder does. Instead, its requirements are enlisted in s.52 Coroners and Justice Act 2009 (what we will refer to as the 2009 Act).
Abnormality of mental functioning – the defendant must be suffering from an abnormality of mental functioning. Before the 2009 Act, this was defined broadly as a ‘state of mind so different to that of ordinary human beings that the reasonable man would term it abnormal’ (Byrne). However, there is now a greater requirement for expert medical evidence (Brennan, Conroy).
Recognised medical condition – the abnormality of mental functioning must arise from a recognised medical condition (s.2(1)(a) of the 2009 Act). The Diagnostic and Statistical Manual of Mental Disorders lists some 16 kinds of mental disorders that can be applied here, such as schizophrenia, delirium, sleep disorders, anxiety disorders and substance-related disorders. A typical illustration of this requirement is that the defendant could have schizophrenia (a recognised medical condition) that leads to voices in their head telling them to kill (abnormality of mental functioning).
Substantially impaired – the abnormality of mental functioning must impair the defendant’s ability to do one of three things:
Understand the nature of his/her conduct – for example, where the defendant is convinced that they are living in a real-life video game and kill another person.
Form a rational judgement – for example, a mentally subnormal younger brother, not knowing right from wrong, follows the instructions of their older brother.
Exercise self-control – for example, where the defendant has voices in their head that they find difficult to ignore.
Note that the meaning of ‘substantial’ has been debated – in Brown it was defined as less than total but more than minimal, whereas in Golds it was defined as ‘important or weighty’.
Provide an explanation for the defendant’s conduct – the abnormality of mental functioning must provide an explanation for the defendant’s conduct by either causing or being a significant contributory factor in causing the defendant to kill. This means that there must be some kind of connection between the abnormality and the killing – in Conroy, a defendant on the autism spectrum could not establish diminished responsibility as his abnormality of mental functioning was unrelated to his decision to kill.
Loss of Control
In the same way as diminished responsibility, loss of control is also laid out in statute and provides a partial defence to murder. Whilst previously known as ‘provocation’, s.54 Coroners and Justice Act 2009 established loss of control and its requirements.
Loss of self-control – there must be a loss of self-control on the part of the defendant, to be decided by way of a common-sense judgment based on all of the evidence (Clinton). The loss of control need not be sudden following the triggering event (s.54(2) of the 2009 Act). However, if the jury believe that the defendant is acting out of revenge, the defence will fail (s.54(4) of the 2009 Act) – the greater the level of deliberation, the less likely there was a loss of control (Clinton).
Qualifying trigger – the loss of self-control must be caused by either one or both of the qualifying triggers laid out in s.54(3)-(4):
The defendant feared serious violence from the victim against themselves or another identified person.
The defendant’s loss of control was attributable to things said or done which (a) constituted circumstances of an extremely grave character, and (b) caused the defendant to have a justifiable sense of being seriously wronged.
Reacted in the same/a similar way – it must be shown that ‘a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same or similar way’. The objectivity of this test means that mental illnesses that may have affected the defendant’s degree of tolerance and self-restraint will not be taken into account (Camplin).
Thank you for reading this weeks’ Module Review! In part three, we will go on to look at further partial defences to murder under the umbrella of involuntary manslaughter.
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