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    D has schizophrenia. V is a child who has hiccups. D has been awake several hours the last few weeks comforting V and has developed delusions that V (her child) is possessed by the devil. D believes it is the devil who is causing the hiccups.

    D researches how to cure hiccups and subsequently holds a cushion over V’s face. When questioned D states they knew holding a cushion over v’s face might suffocate then. D further states she could not bear to see V possessed by the devil and thought that the devil would be driven away if the cushion was held firmly over V’s face.

    Please can I have your thoughts on this scenario. It’s my first one of this kind.

    I’m struggling with the MR element here... would D initially be charged with murder? Then if the defence can evidence insanity/demonised responsibility D be found guilty of manslaughter?

    With R v woollin - D’s actions must be virtually certain to have caused the consequence and D must also appreciate that to be the case. Is the idea that ‘they knew they might’ suffocate be enough?
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    (Original post by Alipali44)
    D has schizophrenia. V is a child who has hiccups. D has been awake several hours the last few weeks comforting V and has developed delusions that V (her child) is possessed by the devil. D believes it is the devil who is causing the hiccups.

    D researches how to cure hiccups and subsequently holds a cushion over V’s face. When questioned D states they knew holding a cushion over v’s face might suffocate then. D further states she could not bear to see V possessed by the devil and thought that the devil would be driven away if the cushion was held firmly over V’s face.

    Please can I have your thoughts on this scenario. It’s my first one of this kind.

    I’m struggling with the MR element here... would D initially be charged with murder? Then if the defence can evidence insanity/demonised responsibility D be found guilty of manslaughter?

    With R v woollin - D’s actions must be virtually certain to have caused the consequence and D must also appreciate that to be the case. Is the idea that ‘they knew they might’ suffocate be enough?
    I personally would say manslaughter due to diminished responsibility regarding their mental health. They would initially be charged with murder and they would have to have evidence of their mental health to reduce to manslaughter. D thought there may be a possibility that V would die, but not a certainty and in their mind, removing the devil was more important.
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    Start from the beginning.

    What is the AR and MR of murder? Did D cause the death and did D intend to cause death or really serious harm? You're quite right that there is no direct intent to murder; only potentially indirect intent. You apply R v Woollin, "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case."

    This is a question of fact. You have to make a factual argument about what you think a jury should decide, but ultimately acknowledge that factual questions are determined by the jury.

    Then if the offence is made out consider diminished responsibility or insanity. You methodically apply its rules to the situation.

    If it's not murder, potentially reduced to involuntary manslaughter, then could it be voluntary manslaughter? Constructive refers to unlawful act that is dangerous and causes death, only mens rea is of the primary unlawful act (battery, ABH); gross is a lawful act which is so negligent as to be criminal, with no mens rea element.

    You will want to say, if the jury does not find that there was virtual certainty, and involuntary manslaughter is not made out, that voluntary manslaughter should be considered. This will give you the opportunity to show off to the marker -- even if you think that the jury would find this murder and invol.
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    Voluntary culpable homicide
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    (Original post by Notoriety)
    Start from the beginning.

    What is the AR and MR of murder? Did D cause the death and did D intend to cause death or really serious harm? You're quite right that there is no direct intent to murder; only potentially indirect intent. You apply R v Woollin, "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case."

    This is a question of fact. You have to make a factual argument about what you think a jury should decide, but ultimately acknowledge that factual questions are determined by the jury.

    Then if the offence is made out consider diminished responsibility or insanity. You methodically apply its rules to the situation.

    If it's not murder, potentially reduced to involuntary manslaughter, then could it be voluntary manslaughter? Constructive refers to unlawful act that is dangerous and causes death, only mens rea is of the primary unlawful act (battery, ABH); gross is a lawful act which is so negligent as to be criminal, with no mens rea element.

    You will want to say, if the jury does not find that there was virtual certainty, and involuntary manslaughter is not made out, that voluntary manslaughter should be considered. This will give you the opportunity to show off to the marker -- even if you think that the jury would find this murder and invol.
    Thank you. When I initially consider AR & MR element of murder, I can appreciate that the AR element is met. With the MR element, I am confused. It was not D’s intent to kill or to cause GBH, even when considering Saunders case where GBH can include ‘serious harm’ D did not intend to cause serious harm, their intent was to stop hiccups & drive out the devil. D was aware however that the there was a risk of suffocation and proceeded with the act anyway. As such is this oblique intent or recklessness? My understanding is that for oblique intent the outcome must be virtually certain & D must know the outcome was virtually certain. Therefore although D was aware suffocation was a possible outcome - is this strong enough to show virtual certainty to evidence the MR element? At the very least D was reckless in forseeing the risk but continuing anyway so the MR element is met.

    Considering the mental illness then diminished responsibility can be submitted as a partial defence, possibly even insanity. The jury would be directed as in Woollin when considering intent, if the jury does not find a direct intent to murder but believes death was a virtual certainty & D was aware of this then there would be a conviction of manslaughter not murder.

    This is my understanding of it but I keep going around in circles.
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    (Original post by Alipali44)
    My understanding is that for oblique intent the outcome must be virtually certain & D must know the outcome was virtually certain. Therefore although D was aware suffocation was a possible outcome - is this strong enough to show virtual certainty to evidence the MR element? At the very least D was reckless in forseeing the risk but continuing anyway so the MR element is met.

    This is my understanding of it but I keep going around in circles.
    I don't quite understand why you are going around in circles and why you haven't simply answered your own question.

    "A possible outcome" is not the same as (and is less than) a "virtual certainty". If I place a bet on a roulette wheel, it is 'a possible outcome' that I will win. Sadly, it is not a virtual certainty.

    If you read (any) of the cases on oblique intention you will see that D foreseeing that something is possible is not enough. That is the main distinction between oblique intention and reckless.

    I don't understand your last sentence. You can't recklessly murder someone. D's recklessness is, of course, relevant to whether he has committed unlawful act manslaughter (perhaps this is what you were getting at?)
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    (Original post by Alipali44)
    D has schizophrenia. V is a child who has hiccups. D has been awake several hours the last few weeks comforting V and has developed delusions that V (her child) is possessed by the devil. D believes it is the devil who is causing the hiccups.

    D researches how to cure hiccups and subsequently holds a cushion over V’s face. When questioned D states they knew holding a cushion over v’s face might suffocate then. D further states she could not bear to see V possessed by the devil and thought that the devil would be driven away if the cushion was held firmly over V’s face.

    Please can I have your thoughts on this scenario. It’s my first one of this kind.

    I’m struggling with the MR element here... would D initially be charged with murder? Then if the defence can evidence insanity/demonised responsibility D be found guilty of manslaughter?

    With R v woollin - D’s actions must be virtually certain to have caused the consequence and D must also appreciate that to be the case. Is the idea that ‘they knew they might’ suffocate be enough?
    I think you will have trouble finding an intention to kill or cause serious harm - as above, foreseeing something might happen is not the same as appreciating that it is a virtual certainty (R v Woollin). Furthermore, even if D did appreciate this, they are only entitled to find intention - not bound (R v Matthews and Alleyne).

    If intention is present, if D was suffering from an abnormality of mental functioning arising from a recognised medical condition which provides an explanation for his conduct in killing, and substantially impaired his ability to form a rational judgment, understand the nature of his conduct or exercise self-control, you may make out diminished responsibility. The problem makes no mention of a recognised medical condition, so maybe just moot and dismiss this one.

    See M'Naghten for the rules on insanity.

    If intention is not made out, try UDA manslaughter with assault or battery as the base offence - then, D need only have intention or recklessness as to the apprehension/application of unlawful force (London v DPP) to be liable for manslaughter if the sober and reasonable person (R v Church) would consider his act dangerous. They almost certainly would. Again, if insanity is proved here by the application of M'Naghten, it results in a special verdict of not guilty by reason of insanity.

    So first, moot partial defences and insanity if the AR and MR for murder are found. Then, consider involuntary manslaughter by an unlawful act. You may wish to refer to criticism of the constructive liability in this offence when you discuss it.
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    (Original post by shoethetabs)
    I think you will have trouble finding an intention to kill or cause serious harm - as above, foreseeing something might happen is not the same as appreciating that it is a virtual certainty (R v Woollin). Furthermore, even if D did appreciate this, they are only entitled to find intention - not bound (R v Matthews and Alleyne).

    If intention is present, if D was suffering from an abnormality of mental functioning arising from a recognised medical condition which provides an explanation for his conduct in killing, and substantially impaired his ability to form a rational judgment, understand the nature of his conduct or exercise self-control, you may make out diminished responsibility. The problem makes no mention of a recognised medical condition, so maybe just moot and dismiss this one.

    See M'Naghten for the rules on insanity.

    If intention is not made out, try UDA manslaughter with assault or battery as the base offence - then, D need only have intention or recklessness as to the apprehension/application of unlawful force (London v DPP) to be liable for manslaughter if the sober and reasonable person (R v Church) would consider his act dangerous. They almost certainly would. Again, if insanity is proved here by the application of M'Naghten, it results in a special verdict of not guilty by reason of insanity.

    So first, moot partial defences and insanity if the AR and MR for murder are found. Then, consider involuntary manslaughter by an unlawful act. You may wish to refer to criticism of the constructive liability in this offence when you discuss it.
    Looool I just noticed how old this thread is - ignore me OP, imma go bury my head in the sand now. Hope you worked it out!
 
 
 
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