Partial defences to murder

I'd really appreciate any help with this problem question..

Jo is devastated to find out that he is infertile. He has seen even a psychiatrist as he became obsessed with his problem. He approaches in the street a couple he does not know. The girls is pregnant. He is asking questions and congratulates them. But Bob, the husband of the pregnant girl objects to answer the stranger's questions. Jo says that he is infertile. Bob taunts him. He walks away and then turns round and starts pushing and shouting to Bob that he is out of order while crying at the same time. Bob falls on the ground and then Jo starts kicking Bob in his hand. After this Jo runs away. Bob is announced dead.

Need to advise Jo.

Now how I see the case:

With Actus Reas and causation I've got no issues. Mens Rea - a bit problematic. It is clear that Jo does not intention to kill Jo, but does he intend to cause at least GBH?

Assuming that AR and MR satisfied next step is to look at the partial defences.

Loss of self control -

So s54(1)(a) - clearly satisfied here - Bob's death resulted from Jo's loss of self-control.

Need not be sudden s54(2) - met

Cannot be out of revenge s54(4) - here to me it is unlikely however not very sure how to argue. I think he just snapped after being taunted by Bob.

Qualifying triggers -

Here no evidence of fear. Could support with R v Martin?

Something said or done - taunts from Bob, but they need to amount to circumstances to extremely grave nature. Subjectively I would say yes, however objectively unlikely. Would appreciate any suggestion on this point!

Jo must have a justifiable sense of being seriously wronged - objective test (R v Clinton) - as this is obj. test not quite sure if I could consider Jo devastation and obsession with his infertility. Any point of making this argument at this stage? And also the fact that he has seen a psychiatrist could make a strong argument, but at which stage to use it not sure.

the last stage - whether a normal person of Jo's sex and age with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to Jo (defendant). - again objective test - Unfortunately quite struggling with this.

Any advice would be very much appreciated.

(edited 11 years ago)

Reply 1

Khanem

As you can’t intention for mens’ rea, try proving recklessness. Maybe saying that Jo was reckless in causing GBH.

However, murder is a specific intent crime, so recklessness would not satisfy the mens rea.

As you are having an issue in identifying the mens’ rea, mention that it is the lack of mens’ rea that distinguishes murder from manslaughter. Thus, Jo would be liable for manslaughter, rather than murder…..

Something said or done . Stick in R v Camplin.

Personally, I don’t think you should mention revenge, because, do remember, that revenge was a factor that mattered in the OLD law , but now due to the NEW law, revenge does not make it possible to use a partial defence. [R v Ibrams and Gregory]

With the obj. test, you can say that Jo did not have the self-restriant and tolerance of someone of his age, as he was quite emotional with his inferitility issue, therefore making the partial defence a successful plea for him.

Hope, this helps a bit…

Partial defences to murder

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