Actus Reus of Murder Flashcards
What type of offence is murder?
a common law offence
What does it mean that murder is a common law offence?
that it is not defined by any Act of Parliament and has instead been defined by decisions of judges in different cases
What is the accepted definition of murder which is based on the definition given by 17th century judge, Lord Coke ?
“Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.”
Which 17th century judge created the accepted definition of murder that
“Murder is the unlawful killing of a reasonable person in being and under the Queen’s Peace with malice aforethought, express or implied”
Lord Coke
What is the jurisdiction over murder?
the jurisdiction includes any murder in any country by a British citizen
What does it mean that murder is unusual in that jurisdiction over it also includes any murder in any country by a British citizen?
this means that if the defendant is a British citizen he may be tried in an English court for a murder he is alleged to have committed in another country
What is the actus reus of murder?
it is the unlawful killing of a reasonable creature in being and under the Queen’s Peace
Under the actus reus for murder what has to be proved?? (4)
- D killed
- a reasonable creature in being
- under the Queen’s Peace
- and the killing is unlawful
How can the actus reus of killing be committed?
can be by an act or omission but it must cause the death of the victim
In murder cases, the actus reus is usually what?
an act
Although it is usual for the actus reus in murder cases to be committed by an act, what else can make a person liable?
an omission
Which case reflects how an omission can lead to a defendant being liable for murder?
Gibbons and Proctor 1918
What happened in the case of Gibbons and Proctor 1918?
D is father of a 7 year old girl whom himself and his mistress deliberately starved to death. V died and D was convicted of murder as a result of failure to feed daughter, as was the mistress as she undertook a duty to feed the child
D is father of a 7 year old girl whom himself and his mistress deliberately starved to death. V died and D was convicted of murder as a result of failure to feed daughter, as was the mistress as she undertook a duty to feed the child
What case is this?
Gibbons and Proctor 1918
What type of crime is murder?
murder is a result crime
What does it mean that murder is a result crime?
this means that the defendant cannot be guilty unless his act or omission caused the death
In what type of cases may there be other causes contributing to the death, making it harder to see that the defendant’s actions or omission caused the death?
poor medical treatment cases
Why may cases involving poor medical treatment raise questions about the guilty of the defendant?
as it raises questions of causation
What does a ‘reasonable creature in being’ mean?
a human being
What are the only two problem areas within the ‘reasonable creature in being’?
- Is a foetus in a womb a reasonable creature in being?
- Is a victim still considered to be alive if they are brain dead by kept alive by a machine?
When can a homicide offence not be charged?
in respect to the killing of a foetus
Why can a homicide offence not be charged in respect to killing a foetus?
as the child has to have an ‘existence independent of the mother’ for it to be considered a ‘creature in being’
What does it mean that the child must have an ‘existence independent of the mother’ for the homicide offence not to be charged for the killing of a foetus?
this means that it must have been expelled from the body and have independent circulation
What is the exception for the child having to exist independently of the womb for a homicide offence to be charged for killing a foetus?
the umbilical cord need not have been cut
What was stated by the HOL in the case of Attorney General’s Reference 1997?
that where the foetus is injured and the child is born alive but dies afterwards as a result of the injuries, this can be the actus reus for murder or manslaughter
What happened in the case of Attorney General Reference 1997?
D stabbed V who was 23 weeks pregnant. V recovered from the stab wound but gave birth prematurely as a result. Baby was born and died after 4 months. D was charged with the murder. The trial judge acquitted D as a foetus was not a reasonable creature in being and could not in law be guilty. HOL said that this was correct where the foetus died before birth by stated obiter that where the baby was born alive and suffered as a result, D would have criminal responsibility. In these circumstances the offence was manslaughter as there was no mens rea
What is not certain under who would count as being a ‘reasonable creature in being’?
someone who is ‘brain dead’
What are doctors allowed to do without being liable for homicide?
turn off life support machines
Doctors are allowed to turn off life support machines without being liable for homicide, what do this suggest?
this suggests that brain dead is the recognised test for death
Under what circumstance could it be possible that someone could be liable for murder for switching off a life support machine when the person is brain dead?
if D switched off the machine, not as a medical decision, but intending to kill the victim
What was the “year and a day” rule?
this was when the death must have occurred within a year and a day of the attack
Why was the year and a day rule sensible in past centuries?
as medical knowledge was not sufficient to prove that an attack had caused the death after such a long time
Why did the year and a day rule become out of date?
because of improvements in medical skill
What was the Year and a Day rule abolished by in 1996?
the Law Reform Act 1996
Under current rules after how many years after an attack must the Attorney-General’s consent be needed for the prosecution of a defendant for the murder of a victim?
after 3 years consent is needed for the prosecution
What does “under the Queen’s Peace” mean?
this means that the killing of na enemy in the course of war is not murder
What would suffice for murder “under the Queen’s Peace”?
the killing of a prisoner of war
When is killing not unlawful? (3)
when it is in self defence or defence of another or in the prevention of crime using reasonable force
What type of defences are self defence and defence of another?
common law defences
Under what section and Act is there a statutory defence of prevention of crime?
s.3 of the Criminal Law Act 1967
What does s.3 of the Criminal Law Act 1967 do?
this gives a statutory defence for the prevention of crime
What case is an example of when a killing was thought to be justified?
Re A 2000 (conjoined twins)
What happened in the case of Re A 2000?
2 girls born conjoined. One was capable of a separate existence, the other was not. If not separated, both would die, if they were only one would. Parents refused permission so hospital went to court to separate them. COA held it would be lawful from the defence of necessity
2 girls born conjoined. One was capable of a separate existence, the other was not. If not separated, both would die, if they were only one would. Parents refused permission so hospital went to court to separate them. COA held it would be lawful from the defence of necessity
What case is this?
Re A 2000
How must the defendant be judged when evaluating whether reasonable force was taken?
the defendant must be judged on the facts as he genuinely believed them to be, even if the defendant was mistaken about the true facts
What case illustrates the decision as to whether force used was reasonable force?
Beckford 1988
What happened in the case of Beckford 1988?
D was a police officer in Jamaica who went to a house to investigate a repot that there was a man with a gun terrorising his family. D approached the house and shot the man he saw running from the house, the man died. D claimed that he believed his own life was at risk as he thought the man still had the gun. The man did not have the gun. D was convicted of murder and appealed to the Privy Council who quashed his conviction as the jury should have been allowed to consider whether D genuinely believed his own life was in danger
D was a police officer in Jamaica who went to a house to investigate a repot that there was a man with a gun terrorising his family. D approached the house and shot the man he saw running from the house, the man died. D claimed that he believed his own life was at risk as he thought the man still had the gun. The man did not have the gun. D was convicted of murder and appealed to the Privy Council who quashed his conviction as the jury should have been allowed to consider whether D genuinely believed his own life was in danger
What case is this?
Beckford 1988
What is the important fact when evaluating reasonable force?
what the defendant genuinely believed
Where is the amount of force which can be used in self-defence, defence of another or in the prevention of crime now explained?
in the Criminal Justice and Immigration Act 2008
What does the Criminal Justice and Immigration Act 2008 explain?
the amount of force which can be used in self defence, the defence of another and in the prevention of crime
Under the Criminal Justice and Immigration Act 2008 which explains the amount of force which can be used in self defence, the defence of another and in the prevention of crime, what fact does this allow for?
that a person who is facing an attack by another is under stress and cannot be expected to calculate the exact amount of force which needs to be used in the circumstance.
What must there be evidence of, for the force of someones actions to be seen as reasonable?
that the person ‘honestly and instinctively’ thought the level of force he used to protect himself or another or to prevent crime was reasonable
What Act amended s.76 of the Criminal Justice and Immigration Act 2008 which gave a wider defence to householders where an intruder enters their property?
Crime and Courts Act 2013
What does the Crime and Courts Act 2013 do which amended s.76 of the Criminal Justice and Immigration Act 2008?
it gave a wider defence to householders where an intruder enters their property
What is the normal rule for the degree of force used in cases which aren’t householder cases?
the normal rule is that the degree of force will not be regarded as reasonable if it was ‘disproportionate’
In a householder case what degree of force will not be regarded as reasonable?
if it was ‘grossly dissproportionate’
What are the 3 requirements for a householder case
- force must be used by D while in or party in a building that is a dwelling
- D must not be a trespasser
- D must have believed V to be a trespasser
What situations does the criteria of a house holder case intend to cover?
- force must be used by D while in or party in a building that is a dwelling
- D must not be a trespasser
- D must have believed V to be a trespasser
situations where a burglar or other intruder enters D’s dwelling place.
What happened in the case of Flanagan
Flanagan, a householder stabbed V, a burglar, after trying to break into his house. He was confronted by intruders, one of whom was armed with a machete. Flanagan was said to have had used reasonable force
What is the consequence of excessive force?
the defence will fail
Which cases shows that if excessive force is used then the defence will fail?
Clegg 1995
Martin 2002
What happened in the case of Clagg 1995?
D was a soldier on duty, a car came towards the checkpoint at speed. Clegg fired 3 shots as the car passed him, the final shot hit the passenger in the back. It was held that he could not use self defence as there was no danger when he fired the shot. Force was excessive in the circumstance, conviction for murder=upheld
D was a soldier on duty, a car came towards the checkpoint at speed. Clegg fired 3 shots as the car passed him, the final shot hit the passenger in the back. It was held that he could not use self defence as there was no danger when he fired the shot. Force was excessive in the circumstance, conviction for murder=upheld
What case is this?
Clegg 1995
What happened with the case of Clegg when it was referred back to the COA in 1999 by the Criminal Case Review Commission?
D’s conviction was pushed because new forensic evidence cast doubt on whether the fatal shot had actually been fired by Clegg
What happened in the case of Martin 2002, a case which decided that the level of force was not reasonable
D shot two burglars as they were leaving his farmhouse, one died from being shot in the back. D appealed that it was self defence as he was suffering from a paranoid personality disorder. COA rejected appeal as personalty disorders could not be taken into account. Conviction was reduced to manslaughter as D was suffering from diminished responsibility.
What Act has now created a partial defence to murder of ‘loss of control’?
Coroners and Justice Act 2009
What has the Coroners and Justice Act 2009 done?
this Act has created a partial defence to murder of ‘loss of control’
When may the defence to murder of ‘loss of control’ be used ? (implemented by Coroners and Justice Act 2009)
this may be used where D kills having lost control due to fear of serious violence
Under the partial defence to murder of ‘loss of control’ under the Coroners and Justice Act 2009, in which 2 cases would the defendants have now been able to use this defence with the proof that they lost control?
Clegg 1995 and Martin 2002
What are the 5 rules when use of force can justify D’s actions
- defences (self defence, defence of another, prevention of crime) are held that D did not act unlawfully
- force used must be reasonable in circumstance
- Circumstances include what D genuinely believed to be the situation
- personality disorders will not be taken into account
- amount of force must not be excessive
