Student Reference – s4908743

Level – 4

Group – B

Personal Tutor – Dr Max Lowenstein

Unit Leader – Dr Alison Cronin

Title of Brief – Homicide – Carl and Donna

Total Word Count - 1404

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PART 1: Homicide – Carl and Donna

Contents

Introduction – Page 3

Murder – Page 3

Loss of Control – Page 4

Conclusion – Page 5

Part 2 – Page 6

Word Count for Part 1: 1244 words

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Introduction

The scenario as presented in the question surrounds the issue of murder, which is a
common law defence as first defined in by Coke in 1612, which has then gone on to
be defined and simplified further in the case of Maloney as the ‘intention to kill or
cause grievous bodily harm’1. This essay will discuss the murder offence and with
regards to this scenario, whether Donna would be able to raise any partial defences,
such as loss of control or diminished responsibility.

Murder

Murder as we know is the ‘intention to kill or cause grievous bodily harm’ 2, with the
term ‘grievous bodily harm’ first mentioned in statute as far back as sections 18 and
20 of the Offences Against the Person Act 1861 3, with the term set out in section 20
as to ‘unlawfully and maliciously wound or inflict any grievous bodily harm upon any
other person, either with or without any weapon or instrument’ 4. Looking at this
scenario, we must consider Donna’s criminal liability for her actions that resulted in
the death of Carl. Donna mistakenly struck Carl in the forehead after attempting to hit
him on the wrist and smashed his skull, which seemed to be the injury that caused
his death on the way to hospital. This was clearly not the intended outcome as it
mentions in the scenario that Donna was ‘horrified’ at what had happened. However,
while she never intended to strike him in the forehead, she still intended to strike him
and cause harm with that intention being the mens rea for her actions. While the
intention is oblique in some sense, it is still intention and you can be found criminally
liable. This argument of oblique intention was used in the case of Hyam5, where the
defendant poured petrol through a letter box at 2am and set it alight, with the
intention of burning down the house. However, the fire caused the death of two girls
and while she had not planned to kill anyone in her criminal act, the outcome was
highly foreseeable when considering the time of day of which she acted. In this case,
the defendant was convicted of murder and when applying the idea of oblique
intention to this case, it is clear to see why Donna could be charged of murder
1
R v Maloney [1985] AC 905 (HL)
2
Maloney (n 1)
3
Offences Against the Person Act 1861
4
Offences Against the Person Act 1861, s20
5
R v Hyam [1975] AC 55 (HL)

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because her intention to harm Carl resulted in Carl’s death, despite not striking him
in the intended part of the body. A rolling pin can be considered as an ‘instrument’,
because a solid wooden object can cause serious harm and the act of striking him
should have been foreseen as being able to cause serious harm. This could
constitute murder in the same sense as the case of Bedder6, where a man and a
prostitute were engaged in a small fight which resulted in the defendant stabbing the
prostitute twice, ultimately killing her. The defendant’s actions, while being hit first by
the prostitute, were likely going to cause the death of the victim much like how in our
scenario, the strike of the rolling pin to the forehead could be foreseen as causing
considerable lasting damage, or even death as is what happened in this case.

Loss of Control

However, it can be argued in this scenario that a murder conviction is too strong and
that this could be lowered with the partial defence of loss of control. Previously
known as provocation, the loss of control partial defence is set out in s54 Coroners
and Justice Act 2009 where in s54(1), it claims that the defendant ‘is not to be
convicted of murder if – (a) D’s acts and omissions in doing or being a party to the
killing resulted from D’s loss of self-control, (b) the loss of self-control had a
qualifying trigger, and (c) a person of D’s sex and age…in the circumstances of D,
might have reacted in the same or in a similar way to D’ 7. So, the loss of control
partial defence has a 3-stage test to get a murder conviction reduced to a
manslaughter conviction. The first element is where the action or failure to act in
doing or being party to the killing resulted in a loss of self-control, which can be
looked at having happened in the case of Humphries8, where a suicidal 16-year-old
prostitute stabbed her partner to death after sexual remarks and his taunting of how
the defendant couldn’t kill herself properly. This was deemed to be a loss of self-
control as she had been provoked through his constant taunting, her emotional state
and her abusive relationship and when looking at the scenario here, Donna is seen
to have lashed out at Carl and hit him which resulted in his death. The second
element of the loss of control partial defence is whether there is a qualifying trigger
for the act that has occurred. The case of Richens9 highlights an example of a

6
R v Bedder [1954] 1 WLR 1116
7
Coroners and Justice Act 2009, s54
8
R v Humphries [1995] 4 All ER 1008 (CA)
9
R v Richens [1993] 4 All ER 877 (CA)

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qualifying trigger, where the defendant killed a man who had raped his girlfriend. The
defendant had been taunted about the rape when the victim claimed that his
girlfriend wanted to have sex and enjoyed it, with this taunting being deemed as the
qualifying trigger for the defendant to have lost control and killed the rapist. When
looking at the scenario in question, Carl had been increasingly abusive in their 5-
year relationship with Carl attempting to strike Donna whilst intoxicated, so the
question lies as to whether this attempt of striking Donna can be deemed to be a
qualifying trigger. The third stage of the loss of control stage is to look at whether a
person of the same characteristics as the defendant would do the same thing in the
same situation. This area can be looked upon in the case of Camplin10, where a 15-
year-old boy who had been raped and taunted about said rape struck him with a pan,
killing him in the process. Now when looking at the severity of the situation here, it is
easily understandable for a minor who had been the victim of rape to want to
retaliate in some form and to hold something of a personal vendetta against their
perpetrator, and in this scenario, it would then have to be judged as to whether a
woman who had been the subject of a long term, abusive relationship would have hit
her partner back in the same situation.

Conclusion

To conclude, it would be safe to argue that there is a clear answer to part A for the
test on loss of control as Donna is deemed to have lashed out at Carl and hit him,
resulting in his death. It can also be argued that there is a qualifying trigger to the
incident with Carl’s verbal and attempted physical abuse of Donna and that the only
thing that remains to be seen is whether a woman in the same situation would
retaliate in the same way. Given that the idea of battered wives syndrome has been
raised in cases such as Ahluwalia11 in the past, it can be argued that a loss of control
partial defence could be successful here, with the successful loss of control partial
defence allowing for a potential murder case to be reduced to manslaughter.

PART TWO

10
DPP v Camplin [1978] AC 705 (HL)
11
R v Ahluwalia [1992] 96 Cr App R 133

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My participation in the criminal law seminars has helped my learning of the
substantive law because it has allowed me to explore situations in questions in a
more effective way than I have done in the past. For example, I’ve been able to
apply ideas surrounding causation easier when looking at cases for murder.

The seminars have also helped to further develop my legal skills through the practice
of in-class multiple choice questions and establishing a good amount of cases to use
in each essay. For instance, we’ve learned that in most essay questions, we should
aim for around 10 cases to look at an essay equivalent to a first, with at least 7 cases
to look strongly towards a 2:1 classification.

Word Count for PART TWO: 131 words

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