1B.2.1 Murder

Question 1

What is homicide?

Answer 1

Homicide is the unlawful killing of a human being.

There are different offences of homicide, depending on the mens rea and whether there is a special defence available to the defendant.

Question 2

Homicide offences include

Answer 2

Murder

Voluntary Manslaughter
- Diminished Responsibility
- Loss of Control

Involuntary Manslaughter
- Gross Negligence Manslaughter
- Unlawful Dangerous Act Manslaughter

Question 3

Murder

Answer 3

Murder is the most serious of the fatal offences. This is reflected in the sentence for a conviction for murder being mandatory life imprisonment.

Murder is a common law offence – it is not defined by any Act of Parliament. It has been defined by the decisions of judges in different cases, and the accepted definition is based on one given by a seventeenth century judge, Lord Coke

Question 4

Lord Coke’s definition of Murder

Answer 4

• “The unlawful killing of a reasonable person in being and under the King’s Peace with malice aforethought, express or implied.”

Question 5

What does the jurisdiction of murder cover?

Answer 5

• Any murder committed by a British citizen in England and Wales
• Any murder in any country by a British citizen

Therefore, if the defendant is a British citizen, they may be tried in an English court for a murder they are alleged to have committed in another country.

Question 6

Actus Reus for murder

Answer 6

Key components to satisfy the Actus Reus:

• The defendant killed,
• The victim was a reasonable creature in being,
• Under the Queen’s Peace,
• The killing was unlawful.

Question 7

Actus Reus: ‘Killed’

Answer 7

The AR can be fulfilled by an act or omission (failure to act) but this must cause the death of the victim.

The defendant cannot be guilty of murder unless their act or omission caused the death. In most cases there is no problem with this. For example, the defendant shoots the victim in the head and the victim is killed instantly.

However, there might be other causes contributing to the death, such as poor medical treatment. This type of situation raises questions of causation, which can be seen in the cases of R v Smith (1959) and R v Jordan (1956) – which relate to the offence of murder.

Question 8

Example of an omission for the AR of murder.

Answer 8

R v Gibbins and Proctor: Father & mistress of a 7-year-old girl deliberately starved her to death. The omission/failure to feed her was deliberate with the intention of killing or causing serious harm to her. Held: The failure to feed (omission) was enough for the actus reus of Murder.

Question 9

Causing the death

Answer 9

• The ‘unlawful act’ must cause the death.

To be liable:
1) The defendant’s conduct was the factual cause of that consequence;
2) It was the legal cause of that consequence; and
3) There was no intervening act which broke the chain of causation

Question 10

Factual cause

Answer 10

• The defendant can only be found guilty if the consequence would not have happened “but for” the defendant’s conduct.
• “but for” test – R v Pagett (1983)

Question 11

Legal cause

Answer 11

• The defendant can only be found guilty if their conduct was more than a “minimal” cause of the consequence. But the defendant’s conduct need not be a substantial cause.
• “more than a slight or trifling link”– R v Kimsey (1996)
• Thin Skull Rule: The defendant must take the victim as he finds him (R v Blaue (1975))
• Multiple causes: The defendant can still be guilty even if his conduct was not the only cause of the death. (Kimsey)

Question 12

Intervening act which breaks the chain of causation

(Novus acus interveniens)

Answer 12

• This point has caused problems in cases where the defendant has supplied the victim with an illegal drug.
• However, if the defendant also injects the drug into the victim, then there is no break in the chain of causation.

The chain of causation can be broken by:
- An act of a third party
- The victim’s own act, or
- a natural but unpredictable event

• Intervening act must be sufficiently independent of the defendant’s conduct and sufficiently serious.

Question 13

Actus Reus: ‘Reasonable creature in being’

Answer 13

The phrase means ‘a human being’. So, for murder, a person must be killed.

In Attorney-General’s Reference (No 3 of 1994)(1997), it was stated by the House of Lords that a foetus is not a reasonable creature in being, because it is not independent of its mother.

It is not certain whether a person who is ‘brain dead’ would be considered as a ‘reasonable creature in being’ or not. However, doctors are allowed to switch off life-support machines without being liable for murder or manslaughter.

Question 14

Actus Reus: ‘Under the King’s Peace’

Answer 14

‘Under the King’s Peace’ means that killing an enemy in the course of war is not murder. However, killing a prisoner of war would be sufficient for the actus reus of murder.

Question 15

Actus Reus: ‘Unlawful’

Answer 15

The killing must be unlawful.

The killing is not unlawful if it is:
- in self-defence
- in defence of another
- in the line of duty

Question 16

Mens rea for murder

Answer 16

• Express malice aforethought – the intention to kill

or

• Implied malice aforethought – the intention to cause GBH

Question 17

Indirect intent (implied malice aforethought)

Answer 17

A defendant has the mens rea for murder if they have either of these intentions. This means that a person can be guilty of murder even though they did not intend to kill. This was decided in R v Vickers (1957).

The idea that intent to commit GBH was enough for the mens rea of murder was confirmed by the House of Lords in R v Cunningham (1981).

Question 18

R v Vickers (1957)

Answer 18

D broke into the cellar of a sweet shop. He knew that the old lady who ran the shop was deaf. However, the old lady came into the cellar and saw Vickers. He then hit her several times with his fists and kicked her once in the head. She died as a result of her injuries. The Court of Appeal upheld Vickers’ conviction for murder. It pointed out that where a D intends to inflict GBH and the victim dies, that has been sufficient to imply malice aforethought.

Question 19

Meaning of Grevious Bodily Harm

Answer 19

Really serious harm - DPP v Smith (1961)

Question 20

R v Mohan (1994)

Answer 20

D refused to stop when a policeman signalled for him to do so and instead drove into the officer. This shows a direct intention to scare/injure the police officer. Defines inflation as “a decision to bring about, in so far as it lies within the accused’s power [the prohibited consequence] no matter whether the accused desired that consequence of his act or not”.

Question 21

Direct intent

Answer 21

The general rules on intention apply to murder.

Question 22

Woollin (1998)

Answer 22

The defendant thew his 3-month-old baby against a wall. The baby suffered head injuries and died. Held: the consequence must have been a virtual certainty and the defendant must have realised this.

Question 23

Oblique intent

Answer 23

Oblique intent is where the defendant’s main aim was different from causing the death/serious injury, where death was the end result.

A jury may use foresight of consequences as evidence to find that the defendant had intention, but only where harm caused as a result of their actions was a virtual certainty and the defendant realised this. This was explained in Woollin (1998).

Question 24

Rule of foresight of consequences

Answer 24

The main rule is that foresight of consequences is not intention - however, it can be used as evidence of intention.

Question 25

Cases where oblique intent has been used.

Answer 25

Hancock and Shankland (1986)
Matthews and Alleyne (2003)

Question 26

Hancock and Shankland (1986)

Answer 26

A miner dropped lumps of concrete onto the road, with the aim of stopping people from getting to work. One of these lumps of concrete fell onto a car, killing the driver. D intended to frighten someone to stop him going to work but did not intend to kill or seriously injure him. Held: Ds guilty due to oblique intent.

Question 27

Cases for foresight of consequences

Answer 27

• Nedrick (1986)
• Moloney
• Re A (2000)

Question 28

Transferred malice

Answer 28

The principle that the defendant can be guilty if they intended to commit a similar crime against a different victim.
An example is aiming a blow at one person with the necessary mens rea for an assault occasioning actual bodily harm, but actually hitting another person. This occurred in Latimer (1886) and Pembliton (1874)
Malice cannot be transferred to another offence.

Question 29

Transaction theory

Answer 29

R v Le Brun: D knocked his wife unconscious in the course of an argument in the street. While he was trying to drag her body along the street to get her home and avoid detection, he lost his grip. Her head hit the pavement, fracturing her skull and causing her death.

Held by Lord Lane (CJ): “If the unlawful application of force and the eventual act causing death are parts of the same sequence of events the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability.”