I dentify the appropriate offencedefence D efine the offencedefence E xplain the legal rules using authorities cases and statutes to support your answer A pply these rules to the facts of the ID: 630529
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Slide1
Exam Technique
As
you work through each offence use the following structure:
I
dentify
– the appropriate offence/defence
D
efine
– the offence/defence
E
xplain
– the legal
rules using authorities (cases and statutes) to support your
answer
A
pply
– these rules to the facts of the
questionSlide2
Murder
Actus
Reus
:
Unlawful killing
Of a reasonable person in being
Under the Queen’s peace
Causation
:
Factual
Causation (“But for” test)
Legal
Causation (Substantial and Operating cause
Any
Novus
Actus
Interveniens
? (by 3
rd
party or victim)
Mens
Rea
:
Express
or Implied
malice?
Direct
or Indirect
Intent – if indirect consider
foresight
of consequences
Transferred
Malice? Slide3
Loss
of Control
Did D actually
lose self-control
?
Was there a
delay between the incident causing the loss of control and the killing
? Is this relevant?
Did D lose control because of
one of the qualifying triggers
?
Fear of serious violence
from V
(subjective test)
Things done and/or said which constituted circumstances of a grave character
and also
caused D to have a justifiable sense of being seriously
wronged (objective test)
Do one of the
restrictions
apply?
Did D
incite
the victim?
Did D lose control because of
sexual infidelity
? If so, are there any other factors that could be considered
(Clinton)?
Was D acting out of a considered desire for
revenge
?
Objective test
– Might a
person of
D’s age and sex
, with a
normal degree of tolerance and self-restraint
and in the
circumstances of D
have
reacted in the same or a similar
way
Must discount any characteristics or conditions that would make D more likely to lose self-controlSlide4
Diminished
Responsibility
Is there an abnormality
of mental
f
unctioning
arising from a
r
ecognised
m
edical
c
ondition
Does this s
ubstantially impair
D’s ability
to either:
Understand
the nature of his conduct; or
Form a
rational judgement
; or
Exercise
self-control
Does the a
bnormality
of
mental functioning provide
an
e
xplanation for the killing (causal link)
Abnormality
of mental functioning
must
cause
D’s conduct
or at least be a significant contributory factor in causing it
Consider
effects of
intoxication –
disregard
the effects of
voluntary
intoxication
If
Alcohol Dependency Syndrome –
jury to only consider effects of
involuntary intoxication
and disregard voluntary intoxicationSlide5
Gross Negligence Manslaughter
Did D owe V a
duty of care
?
Was
there a
breach
in
duty?
Objective - Did D
act as a
"reasonable person would do in their position".
Did the breach directly result
in V’s
death (
causation
)?
Was
there a
risk of death
?
Was
the negligence serious enough to give rise to
criminal
liability (“gross negligence”)?Slide6
Unlawful Act Manslaughter
Was there an unlawful act?
Was
it a dangerous act?
Church
–
objective test -
all
sober and reasonable
people would recognise it would subject the other person to the
risk of some harm
, not necessarily serious harm
Did
the act cause the death?
Normal rules of causation and thin skull rule apply
Did
D have the
mens
rea
for the unlawful act (not the killing)?
Need
intention for the unlawful act
– will either be
intent
or
subjective recklessness
depending on the unlawful
actSlide7
Assault
Was there an
act
? What was it?
Did the act:
Cause
(normal causation rules)
V to
apprehend
Immediate
Violence/force?
Was there
intention
or
recklessness
to cause V to apprehend unlawful and immediate violenceSlide8
Battery
Was there
force
? What was it?
Was the force
unlawful
?
Would not be unlawful if V consented, if police preventing a crime, or if everyday contact
I
ndirect battery?
O
mission?
– if so only if duty to act
Did D
intend
or was he
subjectively reckless
to apply
force?
T
ransferred
malice
?Slide9
S.47
Assault Occasioning Actual Bodily Harm
Was there an
assault
(assault or battery)?
Is there
causation
? The
assault or battery must
occasion
the
harm
Is there
actual bodily harm
?
Look at nature of injuries
Is there
mens
rea
for either assault or battery
?:
Does not need to be any intent or recklessness as to any harmSlide10
S.20 Grievous Bodily Harm
Is there either:
An
unlawful wounding
; or
An
unlawful
infliction of
Grievous Bodily Harm
?
Look at level of injuries
Is victim vulnerable? If so, ABH injuries could amount to GBH
Is there a series of ABH injuries? If so, together could amount to GBH
Did D
intend
to inflict
some harm
or was he
subjectively reckless
as to whether such harm would occur?Slide11
S.18 Grievous Bodily Harm
with Intent
Is there either:
An
unlawful wounding
; or
An
unlawful
infliction of
Grievous Bodily Harm
?
Look at level of injuries
Is victim vulnerable? If so, ABH injuries could amount to GBH
Is there a series of ABH injuries? If so, together could amount to GBH
Did
D either intend to
either:
C
ause
GBH (intend serious harm)
Recklessness not enough
Includes
oblique/indirect
intent
Resist
or prevent an
arrest AND intended
or
was reckless as
to cause some harm Slide12
Self-Defence
Was
there a
necessity
for the force?
In the circumstances as they actually exist? or
In the circumstances as they are genuinely believed to be by D?
But remember if D is voluntarily intoxicated, he cannot rely on his mistaken belief
There can still be necessity even if an attack hasn’t occurred yet provided it was imminent
Was the force used by D
reasonable
in the circumstances as D perceived them?
Was the force excessive? Was the threat still present or had it passed? Was the amount of force unreasonable?Slide13
Intoxication
Voluntary or Involuntary Intoxication?
Involuntary
V
oluntary
Did intoxication remove MR?
YES = defence of Intoxication - Acquittal
NO – no defence of Intoxication
Was crime Basic or Specific Intent?
Basic Intent (recklessness) – No defence
Specific Intent (Intent only) – has intoxication removed intention?
YES = defence of Intoxication – but D convicted of lesser basic intent crime
NO – no defence of IntoxicationSlide14
Consent
Is
it
an offence that D can consent to
?
Fatal offence – no
Non-fatal offence – usually
cannot consent to
more than battery
But “recognised exceptions”:
Normal sports activities
Normal social intercourse
Medical etc.
Horseplay
Lawful correction
Sexual Activities – not normally a recognised exception if more than battery (but inconsistent case law
Is the consent
genuine
?
Consider age and mental capability
FraudSlide15
Insanity
Is there a
defect of reason
?
Was
D intoxicated? If so no defence if it caused the defect of
reason
Is it
caused by a disease of the mind
? (remember it must be an
internal factor
for insanity)
Does
one
of the following apply?
D does not know the nature and quality of his
act
He did not know what he was doing; or
He did not appreciate the consequences of his act; or
He did not appreciate the circumstances in which he was
acting
OR D
does not know that what he was doing was
wrong
Explain consequence of the defence
Potential unlimited hospital order (mandatory if murder)Slide16
Automatism
Is D’s act
involuntary
?
Is D’s act caused by an
external factor
? (if it is internal consider insanity)
Is the automatism
self-induced
? (If so, no defence)