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Pookeyhead
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You'd find it very hard to prosecute someone for murder without proving it was their intention. You'd be far more likely to get manslaughter or unlawful killing.
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That's not the point. Murder as a crime does not have to be premeditated as you stated. Fact.
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you've been watching too many american crime dramas, murder doesnt have to be premeditated, it just has to be deliberate - so if for example in the heat of an argument i pick up a knife and stab you 47 times that will be murder.
sociopathic serial killers etc are very rare and make up a tiny proportion of those in prison for murder (the more so because those who are clearly unhinged are more likely to be not guilty on grounds of diminised responsiblity but detained indefinitely under the mental health act
strumstrum
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I thought murder was classed as knowingly killing IE premeditated, if that is not the case then what is manslaughter?
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it is but knowingly killing isnt the same thing as premeditated - knowingly killing means you had the intention to kill (or that your actions suggest you did beyond reasonable doubt) e.g if someone picks up a kitchen knife in the heat of a row and stabs someone in the chest, it is likely to be proved beyond reasonable doubt that their intention was to kill.
Premeditated on the other hand means that you came prepared to commit murder - e.g rather than using a kitchen knife in the heat of the moment then calling the an ambulance in tears saying " I didnt mean it" , you use the machete you've brought with you for the purpose then dismember the body and sink it in a lake using the tarps and breeze blocks you brught along specially
both are murder , but evidence of premeditation will likely garner a higher sentence.
Manslaughter is killing without meaning to do so - e.g you punch someone in a ruck outside a pub and he falls over and hits his head on the curb
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No, the definitions of Murder differ north and south of the border. In England it's an intent to kill or seriously injure. So it can be classed as Murder if someone dies even if there was no intent to kill. Moot point maybe but it can be Murder if there is no intent to kill.
Intent to kill doesn't necessarily mean premeditated by definition.
In Scotland (obviously where I am) it covers "A willful act so reckless so as to show utter disregard for the consequences." By this example even if you do something without any intent to kill or even injure but by your reckless actions someone dies, then you can lawfully be charged with Murder.
Hope that explains.
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For murder you don't have to have premeditated it, you just have to have the intent to kill or to deliver injuries that any reasonable person would see as life-threatening.
Manslaughter is when you kill someone without intending to kill them or to cause life threatening injuries.
So, if in the heat of the moment you punch someone in the face and they suffer a cerebral haemorrhage and die, that's probably manslaughter because you don't expect someone to die from a punch to the face.
But if you stab them in the face it's probably murder even if you honestly didn't intend to kill them.
viv1969
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As the chaps above state what you need for a murder conviction is intent. Worth noting also that the time limit in which the victim must die from related injuries or complications associated with them, for the crime to be considered murder (was a year and a day) was done away with a few years ago.
Pookeyhead
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So I'm in the kitchen slicing onions, and a burglar comes in and attacks me... I defend myself with the knife, and stab him in the face. That murder? I think not.
However... if I was carrying a knife in the street for no discernible reason, got into an altercation, and stabbed someone in the face, then it probably would be. There difference? With one of those scenarios, I had considered using the knife as a weapon as there's no reasonable explanation as to why I had a 6 inch kitchen knife about my person, and therefore could be argued that I intended to stick it in someone.
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It might be murder if you stabbed the burglar - for the same reason it would probably be murder in the second scenario: you might reasonably expect stabbing someone in the face would cause a life-threatening injury. With the burglar scenario it would depend on whether you met the legal criteria for self defence.
The criteria are:
1) you have to have been attacked or have been threatened credibly with attack.
2) you have to have been unable to escape; if you can run away from the situation you must do that*
3) the force must be proportionate to the threat.
You must meet all three of these criteria, not just one or two.
Funnily enough, if you were carrying a knife on the street and were attacked, stabbed your attacker, he died and you met all three criteria above and *could prove it*, you could be acquitted of murder. Your possession of a knife would be a separate and unrelated charge (the one and only time I've sat on a jury, it was a case very similar to that described in this paragraph; I won't go into fine detail for obvious reasons).
*in a home invasion situation where you had a family, the law probably wouldn't expect you to abandon them
Pookeyhead
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I think being attacked suddenly in your own kitchen while you actually have a knife in your hand for a perfectly legitimate reason would get you off a murder charge.
I agree that in all likelihood you would walk. It's just technically possible for a murder charge to be brought. How likely the crown would be to bring a charge if there were technical legal grounds for one I don't know, given that a jury are very unlikely to convict unless there was a very clear case of disproportionality (e.g. Tony Martin).
onomatopoeia
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Where do those come from? I'm curious as this is a subject I am interested in.
1) The common law principle of self defence also applies to protecting property (the statutory version says "preventing a crime").
2) Bird [1985] 1 WLR 816 suggests that there is no duty to retreat
3) The test is "reasonable", as in what a reasonable person would do. It is not "proportionate". It is up to the jury to decide whether the actions of the defendant were reasonable.
It comes from the instructions given by a judge when I sat on the jury for a very violent crime for which the defence was one of "self defence".
Although it was when I lived in Scotland about two years ago, so it may be slightly different to English law. I don't imagine it will be hugely dissimilar.
The case rested on the latter two criteria particularly, so I remember them well.
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I would be interested to hear any reasons why there would be a murder charge, if you were attacked in your own house, and then stabbed a burglar in self defence.
Stabbing someone at close quarters is very different to shooting someone, who may or may not have been running away - and I actually think that Tony Martin should never have been sent to prison.
Well, you wouldn't end up on a murder charge for stabbing someone in a situation everyone agreed was self defence. It would depend whether the crown thought it met the criteria for self defence.
If, for example, the burglar startled you, decided he'd bit off more than he could chew, tried to make an escape and you grabbed him and stabbed him to death you might possibly find yourself on a murder charge. Probably rightly, in my opinion.
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Bernie174
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No, it's for the Crown to prove, it is for the Jury to decide on the evidence presented. The Crown does not decide guilt.
Point 1 depends upon the circumstances. The Defence of Self Defence is for the accused to make out, and where it is brought the Crown has to prove that it wasn't self defence.
That is of course in some circumstances easy, Tony Martin for example, who was rightly convicted. However, in R v Clegg, the lines are very much more blurred, and that was in my opinion a wrong conviction.
As a general principle self defence is only valid if a reasonable person would think it was proportionate. In Martin, it wasn't, he shot someone in the back running away, there is no threat and therefore no self defence. In Clegg, a Soldier who fired 3 shots at a Stolen car, 2 of which he fired as the car approached, but one where the car had passed him, killing an 'innocent' female passenger, the first 2 shots were no problem, it was the third which hung him. However, he was a soldier who was dealing with something which was over in 3 or 4 seconds, it is likely he would not have realised , while trying to keep a rifle pointed at a car traveling at around 50mph, that the car was past him. There is a further principle in self defence which is that it is accepted that any reasonable person, acting in the heat of the moment cannot be expected to exactly measure what is a proportionate degree of force to defend themselves. It is that which I think Clegg should have been aquitted on.
All very interesting stuff, and self defence is a big subject, but it is deviating form the subject at hand.
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That's two of us who think that then. Everyone else I know thinks what he did was right. Personally, I think he got off lightly.
Steve.
Yes. But the crown decides to bring the charges if they believe in a likelihood of conviction.
I didn't say the crown decided guilt, I said you wouldn't end up in court for murder if the crown thought it was self defence.
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Three of us.
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Four!
Of course, before the event Tony Martin had been making numerous threats in public and that counted enormously against him. In our internet age all sorts of people seem to threaten all sorts of violence here, there and everywhere with their .22 rifles or other weapons!
I've just heard dear old Billy Bragg talking about prison regimes on TV. He was actually talking about Chris Grayling's restrictions on books and guitars but he made the obvious point about rehabilitation that sooner or later most prisoners are released and they might come and live next door. As he said, surely you'd prefer them to be more balanced and less resentful!
onomatopoeia
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Think we're up to five now, and I'm pretty sure there are a few others around.
I repeat - I have absolutely no problem with what Tony Martin did.
http://en.wikipedia.org/wiki/Tony_Martin_(farmer)
Please read this, the entire piece.
The police tried to cover up on this case, their ineptitude dealing with the previous intrusions and thefts, and they then tried to deny that previous intrusions took place.
In my own experience with the traveller community and burglary/violence, the police simply do not wish to get involved, and will in fact warn off ordinary people from taking action.
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It would depend on how proportionate your action was - if the burglar attacked you and you were fighting in fear of your life, self defence would be no problem - if the burgular was attempting to flee when you stabbed him then that would be a different matter
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But equally if you are slicing onions when you get into a row with your wife and you stab her to death - that will be murder even though there's no premeditation and the knife is a weapon of opportunity
Pookeyhead
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PatrickO
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There's not many of us has NEVER broken the law. Be careful what you wish for.
There are many problems with allowing people just to kill burglars regardless of the physical threat they present (there are, contrary to what some rags like the Daily Mail would have you believe, cases where burglars have been killed or seriously injured and no charges have been brought - so, yes, you are "allowed" to kill burglars under certain circumstances). Some are complex ethical problems. Some are simple ideas.
To go with one of the simple ones: do we want to cultivate a society like that in, for example, Florida, where people have been shot dead for seeking help at a stranger's house during the night?
viv1969
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You'd probably find the CPS would settle for Manslaughter on that one, especially if the accused had a good brief.
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no but the point was that premeditation is not in fact the same as intent - its murder if you intend to kill regardless of where it was premeditated or heat of the moment
you may be right but that's because the CPS are a bunch of guitless pussies - imo if you stab someone in those circumstances its hard to argue that you didn't intend to kill
You can get manslaughter even with intention to kill. It's the distinction between so-called voluntary and involuntary manslaughter.
Voluntary manslaughter basically means you killed someone intentionally but weren't acting in your right mind.
viv1969
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Incorrect
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well he is sort of correct - but thats american law not british
Under british law you can be guilty of voluntary manslaugher by reason of either dimished responsibility or suicide pact (it used to include provocation but that was abolished in '57)
Diminished responsibility has to be as grounds of mental abnormality - it isnt sufficient to say you were angry and acted in a red mist situation
Under british law you can be guilty of voluntary manslaugher by reason of either dimished responsibility or suicide pact (it used to include provocation but that was abolished in '57)
Diminished responsibility has to be as grounds of mental abnormality - it isnt sufficient to say you were angry and acted in a red mist situation
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No it's not.
https://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/#voluntary
Diminished responsibility includes not acting in your right mind.
Also, "she". That's twice now I've been assumed to be male in this thread. Seems common on Internet forums to automatically assume all users with ungendered names are male. Wonder why that is?
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It does , but as i said you have to be not in your right mind as a consequence of mental abnomality caused by one of the conditions listed in the '57 act , being angry is not sufficient, nor is being drunk or impaired by drugs.
The 2009 justice and corroners act also introduced a seperate defence of 'loss of control' but that was intended for circumstances like a battered spouse finally losing it , not for the "well i was a bit angry and i'd been drinking" type defence
Where did I say anything to the contrary? I only said that intent didn't necessarily mean it couldn't be manslaughter.
viv1969
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That was the bit i meant wasn't accurate.
Not everyone (or even close to everyone) found guilty of manslaughter is judged to "not be in their right mind".
Well, I'll accept that it's not the most precise and comprehensive definition.
But I'm not talking about all manslaughter. I was talking about voluntary manslaughter, which, in most cases, requires someone to not be in their right mind in one way or another (diminished responsibility or loss of control).