A murder is committed if a person of sound mind unlawfully kills another, with the intention to kill or cause the victim grievous bodily harm (i.e. GBH or really serious harm). The defendant’s act must contribute substantially to the death.
Other than being wrongly accused there is normally only one ‘complete defence’ to murder and that is self-defence. There are a number of ‘partial defences’ to murder, the most well-known being Loss of Control and Diminished Responsibility. They are called ‘partial’ defences because they ‘reduce’ murder to the offence of voluntary manslaughter, which is discussed below.
There is also the special verdict of “Not Guilty by reason of insanity”. This leads to different consequences for the defendant, who is likely to be made the subject of a Hospital Order with restricted liberty under the Mental Health Act 1983.
In very rare circumstances, the defence of “non-insane automatism” may apply, resulting in a complete acquittal.
Defences
- Self-defence
Everybody has the right to use reasonable force to defend themselves and/or others. Should this result in the assailant dying, the defence of self-defence may still be open to someone accused of murder. For this defence to succeed, the court must find that his or her actions were reasonable in all the circumstances. - Loss of control
Under the Coroners and Justice Act 2009, the partial defence of loss of control replaced the common law defence of provocation. The key elements are:- The defendant lost control.
- The loss of control was triggered by a qualifying factor, such as fear of serious violence or a reaction to extremely grave circumstances.
- A person with the defendant’s personal characteristics, and in the defendant’s circumstances might have reacted in the same or similar circumstances.
The defence must raise sufficient evidence of loss of control for the trial judge to leave the issue to the jury. It is then for the prosecution to prove beyond reasonable doubt that “loss of control” does not apply.
- Diminished Responsibility
Diminished responsibility is another partial defence. It is governed by the Homicide Act 1957 and applies when the offender was suffering from an abnormality of mental functioning which arose from a recognised mental condition that substantially impaired their ability to:- Understand the nature of their conduct.
- Form a rational judgment.
- Exercise self-control.
And that this provides an explanation for how they acted and what they did.
It is for the defendant to prove that this partial defence applies, on a balance of probabilities (that is: “it is more likely than not that diminished responsibility reduces the verdict to guilty of manslaughter”). - Insanity
This is a defence resulting in a special verdict, which reflects that the defence has successfully contended that the defendant should be found not guilty by reason of their insanity. In law, insanity means that the defendant suffers from a physical or mental malfunction with an internal cause, and at the time of committing the act, was operating under such a defect of reason, because of disease of the mind, that they did not know what they were doing, or if they knew what they were doing, did not know that it was wrong. To establish this defence, expert medical evidence from at least 2 suitably qualified psychiatrists is required. - Automatism (non-insane)
If the defendant’s actions were involuntary due to an external factor (e.g., a blow to the head, or taking drugs as prescribed by a doctor), they may claim automatism. If successful, this results in an acquittal. The defence must raise evidence that such a factor operated on the defendant’s at the time of his acts. The prosecution must then prove that it did not, and that the defendant’s acts were voluntary.
Attempted Murder
For a prosecution to succeed, the Crown must show that the accused did an act that they intended would kill their victim (i.e. not just to cause GBH). Because the prosecution must specifically prove an intent to kill, attempted murder is a very difficult offence to prove and the prosecution will often charge an offence of GBH or may be willing to accept a plea to GBH instead.
Manslaughter
Voluntary manslaughter requires an intention to kill but means that one of the partial defences discussed above applies. Involuntary manslaughter covers those situations in which a person does not intend to kill or cause GBH but nevertheless their actions have caused the death of someone. There are usually two ways this can occur, this may be because their actions were unlawful and dangerous or because their actions were grossly negligent.
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