Christopher Swain (C3026178), W203 Law: Public and Criminal Law TMA04

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Diagnosis: autistic spectrum disorder, psoriatic arthritis, depression and sensory dysfunction.

Q1.Pt1 In this question we are to establish possible charges of Kim our defendant and advise her of the
potential outcome, after the unlawful killing of Tanya the victim at her hands.
Issue: Whether Ds actions, in relation to the unlawful killing of V constitutes murder, commensurate with
intent defined within Woollin1 and within the confines of the Homicide Act [1957]2, else due to cerebral
arteriosclerosis (CE), D would be guilty of involuntary manslaughter, however found ‘not guilty’ by virtue
of ‘insanity’ and discharged under Domestic Violence, Crime and Victims Act [2004] (DVCV)3 or Mental
Health Act [1983] (MHA)4.

Rule 1: Criminal law in England states that a person can be held liable for the death if they caused it through
intentional or reckless acts.
Rule 2: The defence of automatism arises where the accused person has no control over their actions at the
time of the offence (not self-induced). The Crown Prosecution Service (CPS) defines automatism as “Insane
automatism, the result of an internal cause or disease of the mind”. In K. Rix’s paper ‘The common law

1
R v Woollin [1999] AC 82.
2
Homicide Act [1957] c.11
3
Domestic Violence, Crime and Victims Act. [2004] c.28

4
Mental Health Act [1983] c.20.
Christopher Swain (C3026178), W203 Law: Public and Criminal Law TMA04

defence of automatism’ we can see that CE is grouped with insane automatism and the defence is a technical
insanity, this is also reiterated in Keating@4-271.

Application: Murder, in Ds case, we already have actus rea (the act) in the unlawful killing of V, we now
need to establish any causation factors, and the mens rea. the causation as per Douglas-Williams5, in this
instance Ds actions were the direct result in Vs death, now we are left with establishing either the mens rea
or by virtue of the dissociative episode, a lawful exception to murder, utilising the CPS guidelines to
establish if Ds dissociative episode was genuine or equates to Hill v Baxter6 whereas ‘Automatism’ being
utilised in the perpetration of a fraud, Ds prior state plus subsequent actions after her dissociative episode,
would suggest that no intent to cause either harm or injury to V, proposing manslaughter not murder due to
the lack of mens rea (intent).

Application: Manslaughter, With D not having the mens rea for murder, this still does not diminish the
unlawful death of V, we have established the actus rea and causation of the unlawful killing, plus Ds state
prior, during and after the dissociative episode, that D is guilty of manslaughter, however unlike Caldwell7
there is no evidence to suggest, abuses in medication or other reckless intent, this being so would suggest
that the ’Automatism’ is genuine and not one of reckless intent giving D a lawful defence for manslaughter.

Application: Assault Sullivan8, keating@4-235 LSD induced or Charlson9 GBH conviction outcome
Defendant has similar brain injury keating@ 4-270

Application: Acquittal / not guilty ‘insane automatism’ Under the Criminal Procedure (Insanity and
Unfitness to Plead) Act [1991]10 or ‘not guilty’ by virtue of ‘insanity’ and discharged under Domestic
Violence, Crime and Victims Act [2004]11 .

Conclusion: The advice that would be relevant for Kim is that; she would unlikely face charges of murder as
the intent of causing harm or injury was not there, either during her actions and subsequent reaction to the
initial assault upon D. The charge of involuntary manslaughter with a defence of ‘insane automatism’, that
‘insane’ is due to CE rather her being clinically insane, and that D would be ‘not guilty’ and the courts
would discharge the case.

5
R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344
6
Hill v Baxter (1958) 1 QB 277
7
R v Caldwell [1982] AC 341
8
R. v Sullivan [1984] A.C. 156
9
R. v Charlson [1955] 29 Cr App R 37
10
Criminal Procedure (Insanity and Unfitness to Plead) Act [1991] c.25.
11
Domestic Violence, Crime and Victims Act [2004] c.28.
Christopher Swain (C3026178), W203 Law: Public and Criminal Law TMA04

The courts have various options in the discharge of Ds case; either under s.5(1)(a) and (2) Criminal
Procedure (Insanity) Act [1964]12. In the magistrates' court it may be raised as a defence and if established,
the defendant is entitled to be acquitted as a result of such a verdict however order pursuant to s.37(3)
Mental Health Act 1983 may be made. Pursuant to s.3 of the MHA a community treatment order to ensure
that D is no further risk; MHA s.2 may be used to detain if a viable risk to others; MHA s.17a if medication
is required for the protection of others, with the recall to hospital under s.17e.
Q1.Pt2 In this question we are to establish possible charges of Harry (D) our defendant and advise her of
the potential outcome, after the unlawful killing of Ewan (V) the victim at his hands.

Rule 1: is the same as per Pt1.

Rule 2: Partial defence for loss of control is defined under s.54 & s.55 Coroners and Justice act [2009]
(CJA)13, this rule applies for defendants who are charged with murder, and that the death of a victim is the
result of omissions or acts of the defendant, this statutory defence is self-contained under s.54, s.54.1 defines
the elements together with the components of the offence, that being ‘the actual loss of control’ , ‘a
qualifying trigger’ and ‘the objective test’, a judge has to look at these components sequentially and they
involves a single point of failure.
Application: Manslaughter ‘loss of control defence’

The loss of control defence has three components in section 54(1)(a)(b) and (c) of the CJA 2009:

 Loss of control (the first component),

 A qualifying trigger (the second component), and
 An objective test (the third component) - A person of D'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 D.

The test for loss of Control should be consider sequentially.

Loss of Control, Qualifying trigger, D and V Initially the pair had a friendly relationship, V refused to
support D’s bid to join the housing estate’s litter-collecting taskforce. V was offended, began to play music
very loud at night in order provoke D and annoy him. He also threw litter into D’s garden and regularly park
blocking his driveway. Vs behaviour was making life very difficult for D, who described it as a ‘campaign
of abuse’. On this point we have a lawful reason for a valid defence of for ‘loss of control’

Objective test, under s.51(1)(c) of CJA 2009, we need to establish, if a ‘reasonable person’ of the same sex
and age would react the same way, however nowhere in the question are we given the age of D and it would

12
Criminal Procedure (Insanity) Act [1964] c.84.
13
Coroners and Justice Act [2009] c.25
Christopher Swain (C3026178), W203 Law: Public and Criminal Law TMA04

be unreasonable to assume age, as the outcome would be volatile due to the range of students in age,
therefore the defendant fails on this point, and only a charge of murder may be brought forth.

Conclusion, in conclusion for the defendant Ewan, it can be only surmised without a clear indication of age
that the defendant will be charged with murder, rather than manslaughter by a ‘loss of control’.

Q2 I think understanding who I am writing the essay for is the biggest challenge and this was reiterated in
the last TMA, I did not understand that I was supposed to be writing for the layman and I find this
confusing, I have on this TMA attempted to include lay terms for legal descriptions in the TMA in hoping to
cover all audiences that this could be relevant for, in the IRAC method, I used legal writing for the first half
whilst defining the issue, and in the conclusion wrote this for the layman as I assume this is the bit the client
would see, in doing so, I would hope this would correctly apply the feedback given.

NOTE for Marker I have found this TMA difficult as a key indicator that changes the entire outcome for this
was missing age, and I cannot assume this key factor.

Reference List

Cases

R v Woollin [1999] AC 82
R v HM Coroner for Inner London ex p Douglas-Williams [1999] 1 All ER 344
Christopher Swain (C3026178), W203 Law: Public and Criminal Law TMA04

Hill v Baxter (1958) 1 QB 277

R v Caldwell [1982] AC 341
R. v Sullivan [1984] A.C. 156
R. v Charlson [1955] 29 Cr App R 37

Legislation

Homicide Act [1957] c.11.

Domestic Violence, Crime and Victims Act. [2004] c.28.
Mental Health Act [1983] c.20.
Coroners and Justice Act [2009] c.25.

Books

Loveland, (2021). “Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction”:
Oxford University Press

Rix, K. J. B. (2015) “The common law defence of automatism: a quagmire for the psychiatrist,” BJPsych
Advances. Cambridge University Press, 21(4), pp. 242–250. doi: 10.1192/apt.bp.113.012146.

Automatism definition

Mental Health: Suspects and Defendants with Mental Health Conditions or Disorders | The Crown
Prosecution Service (cps.gov.uk)