For this answer plan we will be looking at Question 1 in Chapter 3.

Tim and Karen had been married for six years. Recently Karen had made a new set of friends and had become withdrawn from Tim and their relationship. She regularly went out to nightclubs without him and was drinking heavily. As a result, Tim was receiving treatment from his doctor for clinical depression. One night he decided to follow Karen to the nightclub and found her dancing and kissing another man. At home, Karen told Tim that she had found a much better lover and that Tim bored her. Tim, furious and humiliated, reached for the poker next to the fire and hit Karen several times on the head with it. She collapsed. When Tim realized what he had done, he called the police and Karen was taken to hospital. When she regained consciousness, she took an overdose of painkillers which had been accidentally left next to her bed by an absent-minded nurse, and she died. Tim says that he did not want to kill Karen but was confused and angry.

Discuss Tim’s criminal liability for murder, including the effect of any defences he may have.

This is a pretty typical exam style question on murder and the partial defences. You need to identify the offence and its components and then work out if any of the defences change the outcome for Tim. So, what you need to do first of all is draw on the definition of murder and break this down in terms of actus reus and mens rea. Although Coke’s definition of murder contains a number of elements, here you need to establish, firstly that Tim has caused Karen’s death in fact and in law; and secondly that he intended to do so.

Tim may argue that the chain of causation is broken here by the negligent medical treatment. Unfortunately for him, the decided case law will work against him, and the court is likely to follow R v Smith and R v Cheshire.

Did Tim intend to kill Karen? The jury will be directed to consider this in its ordinary meaning, but if this ‘simple’ direction does not suffice, then the judge will direct the jury using the Nedrick direction. Both parts need to be applied.

The next part of your answer should concentrate on a detailed statutory analysis of the partial defences to murder. Each element of the statutory provisions in sections 54 and 55 must be dealt with in turn and applied to the facts of the case. For the defence of loss of control, deal with the qualifying trigger and the objective test. The Coroners and Justice Act 2009 excludes sexual infidelity from the defence, but the decision in R v Clinton does cast some doubt on this rule and holds that it may not apply in every case.

For the defence of diminished responsibility, the four factors must be considered. On balance this is the better defence for Tim. Don’t forget to advise overall at the end and apply all the legal rules to the facts of the problem. This demonstrates your skills of legal analysis and raises the bar of your answer.