Criminal Law

Question 1

No liability for ‘evil thoughts’ alone

Answer 1

The law does not punish a person for simply having evil thoughts. A person may think about committing a criminal offence. They may even decide or intend to do so. However, the law will not punish an individual unless they act upon these thoughts

Question 2

The Elements of Actus Reus

Answer 2

.An act of omission (conduct)
.The occurrence of a result (consequences)
.The existence of surrounding circumstances (state of affairs) which means that someone has created a situation where they owe a duty of care

Question 3

The Voluntariness Requirement

Answer 3

The Actus Reus of an offence must be voluntarily performed. This means that the defendant must have control of his movements at the time he performed the conduct element of the actus reus

Question 4

Hill v Baxter

Answer 4

Held that a defendant will not be guilty of an offence if there was an external factor at play e.g. muscle spasms, a rock thrown or a swarm of bees

Question 5

Involuntary Act

Answer 5

Where the conduct is involuntary the defendant is deemed to be an automaton and will have the defence of automatism. There are three types of automatism, insane, non-insane and self-induced

Question 6

Omission

Answer 6

This is known as a failure to act and the general rule is that there is no liability for an omission to act. Conduct offences require a positive act such as if someone was drowning, holding their head down would be the positive act, however simply leaving someone to drown is no grounds for criminal liability.

Question 7

Exceptions to omission

Answer 7

These are situations where the law imposes a duty on an individual to act, if there is such a duty on the defendant to act and fails to do so, they will be guilty of a criminal offence by omission.

Question 8

Special Relationship

Answer 8

The common law imposes a duty on an individual to act where there is a special relationship between the parties. The closer the relationship, the more likely it is the law will impose a duty on an individual to act e.g. Gibbins and Proctor

Question 9

Gibbins and Proctor (1918)

Answer 9

Gibbins was liable for the death of his child and Proctor was held liable for the murder as she had voluntarily assumed responsibility for the daughter by taking money from Gibbins

Question 10

Voluntary Assumption of Responsibility

Answer 10

A duty to act may be imposed on a defendant where the defendant has voluntarily assumed responsibility for another person e.g. Stone and Dobinson

Question 11

Stone and Dobinson (1977)

Answer 11

This was a case concerning the death of an anorexic girl which led to her parents being liable for manslaughter as they owed a duty of care to her when she became bedbound

Question 12

Duty to avert danger created

Answer 12

The common law imposes a duty on a defendant to act to avert a danger that he has created. Where the defendant innocently does an act which creates a risk of personal injury or damage to property and the defendant becomes aware of that risk, the law imposes a duty on the defendant to avert and minimise the danger e.g. Miller, DPP v Santa-Bermudez and Fagan v Metropolitan Police

Question 13

Contractual/Public Duty

Answer 13

A contract may give rise to a duty to act, which then may lead to criminal liability if the defendant fails to meet his contractual obligations, and this leads to a fatality or serious harm being caused to a person e.g. an electrician leaving cabling uncovered or a lifeguard failing to save an individual because they were on their phone

Question 14

Pittwood (1902)

Answer 14

This was a case concerning a defendant who was a railway gatekeeper who was employed at a level crossing. His job involved ensuring that the gate was shut whenever the train was passing along the line. One day when he went to have lunch, he left the gate open where as a result a cart crossed the railway line and was hit by a train killing him. The defendant was convicted of Gross Negligence Manslaughter as a result of his failure to his contractual obligation

Question 15

Dytham (1979)

Answer 15

This was a case concerning a police officer who, while on duty in uniform saw a man being ejected from a nightclub and beaten to death by a ‘bouncer’. The defendant did not intervene; he drove away without calling any assistance or summoning an ambulance. He was convicted of the common law offence of misconduct of an officer of justice and fined £150

Question 16

Statutory Duty

Answer 16

The law may impose a statutory duty on a defendant to act in a particular way. Failure to act in accordance with the statute will render a defendant liable for a criminal offence e.g. Children and Young Persons Act 1933

Question 17

Causation

Answer 17

There are 2 main rules of causation: the prosecution must prove that the defendant was the factual cause of the result and that he was the legal cause of the result

Question 18

Factual Causation

Answer 18

This consists of the ‘but for’ test which was set out in White (1910), this test essentially asks the question whether the consequence would have occurred despite the actions of the defendant

Question 19

Legal Causation

Answer 19

There are three main tests for the legal causation: ‘Significant Contribution’ as set in the case of Pagette (1983), De minimus Principle that the act was more than minimal as set in the case of Cato and ‘Substantial and Operating’ as in Smith v Hughes

Question 20

Novus Actus Interviences

Answer 20

This is where the defendant’s conduct is more than minimal or ‘operating and substantial’ cause of the result, the defendant will be a legal cause unless there is an intervening act breaking the chain of causation. Examples of this are
-Escape Cases
-Thin Skull Rule
-Victim’s Self Neglect or Assisted Suicide
-The Drugs Cases
-Third Party Intervention
-Negligent Medical Treatment

Question 21

Escape Cases

Answer 21

These are cases where the defendant will not be held liable for any injuries that the victim sustains as a result of his escape from the defendant if the escape was unforeseeable and voluntary e.g. Roberts

Question 22

Roberts (1971)

Answer 22

This was a case concerning a defendant who had made sexual advances towards a woman in the passenger seat, as a result of Ds actions the woman had jumped out of the car which was running at 30 mph. The defendant was held liable as the escape of the victim was ‘reasonable’

Question 23

Thin Skull Rule

Answer 23

‘You take the victim as you find them’. This means that where a victim suffers a pre-existing physical condition which renders him unusually susceptible to injury, the defendant remains liable for the consequences of their conduct no matter how unusually serious they are e.g. Hayward, Blaue

Question 24

Hayward (1908)

Answer 24

This was a case concerning a man who had chased after his wife who had a thyroid conditions, fear could kill her and the husband chased her threatening to kill her. The courts held the husband criminally liable

Question 25

Blaue (1975)

Answer 25

This was the case of a woman who was a devout Christian had rejected a blood transfusion and as a result died. The legal point is that the thin skull rule goes beyond merely the physical conditions but rather encompasses religious beliefs into that too

Question 26

Victims’ Self Neglect or Assisted Suicide

Answer 26

This deals with instances in which the defendant inflicts harm on the victim, who subsequently neglects themselves, such as by refusing medical treatment, or choosing to commit suicide via voluntary euthanasia e.g. Dear

Question 27

Dear (1996)

Answer 27

D had been told that the victim had sexually abused his 12-year-old daughter. The defendant slashed the victim repeatedly with a Stanley knife and the victim died two days later from loss of blood. There was evidence to suggest that the bleeding had stopped at some point, and it was not clear how or why the wounds had begun to bleed again. The defendant appealed against his conviction for murder, arguing that the victim had attempted to commit suicide by re-opening the healing wounds or by failing to stem the blood flow if the wounds reopened naturally.

Question 28

The Drugs Cases

Answer 28

These are cases where a free and voluntary act of self-injection by the victim is a Novus Actus Intervienes e.g. Kennedy No. 2

Question 29

Kennedy No. 2 (2007)

Answer 29

This was a case which the defendant prepared a syringe of heroin and handed it to the victim. The victim injected himself with the drugs and later died. The defendant appealed his conviction of voluntary manslaughter on the grounds that the victim’s act of injecting the drugs was free and deliberate

Question 30

Third Party Intervention

Answer 30

An act by a third party might break the chain of causation if that act is a voluntary one (free, deliberate and informed) which contributes to the result. If the act of the third party does break the chain of causation, then the original defendant is absolved of liability e.g. Pagette

Question 31

Pagette (1983)

Answer 31

This was a case concerning a man who had taken his pregnant girlfriend as hostage and as a result of the intervention of the police in a shootout, the pregnant girlfriend was struck and died

Question 32

Negligent Medical Treatment

Answer 32

A subset of intervention by a third party is negligent medical treatment provided to a victim who requires medical treatment as a result of the defendant’s conduct e.g. Cheshire, Jordan and Smith

Question 33

Smith (1959)

Answer 33

This is the current approach of the courts. n this case, the defendant was a soldier who stabbed another soldier during a fight in their barracks. The victim sustained two stab wounds. The victim was carried to the medical station by another soldier, but he dropped the victim twice on the way. The medics failed to realise how severe the victim’s injuries were and that a stab wound to his back had pierced a lung and caused a haemorrhage. The victim was given inappropriate medical treatment and died. Medical evidence showed that had he received adequate treatment, he might not have died.

Question 34

Cheshire (1991)

Answer 34

In this case a victim was stabbed. He was taken to hospital for medical treatment however the placement of the tube was faulty therefore the victim died. However it was held that he would have died anyway therefore the defendant was held accountable for the death of the victim and the medical negligence was not an intervening act. “Medical negligence has to be so potent to make the original act insignificant”

Question 35

Jordan (1956)

Answer 35

This case involved a victim who was stabbed by the defendant and died after medical treatment. At the time of death, the wound had mainly healed, but negligent medical treatment had contributed to the death of the victim. The victim had been given an antibiotic to which he had previously shown intolerance and he was intravenously given large quantities of liquid which led to his lungs becoming waterlogged. He ultimately died from broncho-pneumonia. The defendant’s conviction for murder was quashed on appeal because the medical treatment had been ‘palpably wrong’ and had broken the chain of causation between the defendant’s original act of stabbing the victim and the victim’s death.

Question 36

Act of Nature/Act of God

Answer 36

Is a natural event that takes place which if was unforeseeable is an novus actus intervienes

Question 37

Mens Rea

Answer 37

The mens rea is the mental element of a crime. There are subjective and objective elements involved and it usually referring to the intent of the individual while they are committing a particular act. There are different forms of mens rea such as;
-Intention
-Recklessness
-Negligence
-Knowledge and Belief
-Transferred Malice

Question 38

Subjective Approach

Answer 38

.A subjective approach examines what the defendant himself saw or perceived as the consequences of his actions e.g. Intention and Recklessness

Question 39

Objective Approach

Answer 39

.An objective approach compares the defendant’s actions with a hypothetical reasonable person

Question 40

Motive

Answer 40

Motive is different from intention. It is the reason behind an individual’s actions that leads to committing the crime e.g. Steane

Question 41

Steane (1947)

Answer 41

The Court of Appeal quashed the conviction of intent to assist the enemy as he had acted to save his family from concentration camps. It is argued that the Court of Appeal confused intention with motive to be sympathetic to the defendant

Question 42

Intention

Answer 42

.There are 2 main types of intention, direct intent and oblique intent
-Direct Intent: is ones aim or purpose
-Oblique Intent: it is not the defendant’s aim or purpose however the consequences are virtually certain e.g. Woollin and Nedrick

Question 43

Woollin (1999)

Answer 43

The courts held that the defendant must foresee the consequences as virtually certain to occur. Test for indirect intent

Question 44

Nedrick (1986)

Answer 44

Oblique intent is derived from this case. Held that the jury should be directed that they are not entitled to infer intention unless they are satisfied that they felt sure that death or serious bodily injury was a virtual certainty of the defendant’s actions and that the defendant was aware of this
-Was it D’s aim or purpose
-Did D believe that the consequences were virtually certain to occur

Question 45

Development in the law regarding intention

Answer 45

.DPP v Smith: removed the defendant’s state of mind as a way of determining intention. Consideration was given to what a reasonable person would have foreseen as the natural and probable consequences of his actions

.Hyam v DPP: coined the ‘probability’ test

.Moloney: the courts retreated from the ‘probability’ test relied upon in Hyam. Instead there should be two questions asked; was death or serious injury a natural consequence of the defendant’s voluntary action and did the defendant foresee the consequence as being a natural consequence of his act.

.Hancock v Shankland: it was held that the Moloney rules were defective and misleading

.Nedrick: the ‘virtual certainty’ test was created

.Woollin: confirmed the Nedrick direction

Question 46

Reform of intention

Answer 46

.The Law Commission report ‘Murder, Manslaughter and Infanticide’ 2006. This proposed that the meaning of intention should be put on statutory footing as follows
1. A person should be taken to intend a result if he or she acts to bring it about
2. In cases where the judge believes justice may not be done unless an expanded understanding of intention is given, the jury should be directed

Question 47

Intoxication and Intention

Answer 47

For voluntary intoxication there exists 2 types of offences, specific intent and basic intent. Specific intent are offences which require intention as the mens rea eg murder. Basic intent is an offences which can be committed with a lesser form of mens rea than intention such as recklessness eg manslaughter, maliciously wounding, S47 etc. A voluntarily intoxicated defendant will have no defence to basic intent however if specific intent then the defence may be available to prove that they could not possibly have been able to form the intention and thus not liable eg DPP v. Majewski

Question 48

Recklessness

Answer 48

.Involves the taking of an unjustified risk or unreasonable risk. It is a less culpable form of mens rea

Question 49

Current Law on Recklessness

Answer 49

Currently, there is one subjective standard of recklessness, which is foreseeing the risk of consequence occurring as a result of one’s action and going ahead and taking that risk. This is illustrated in the case of R v G and another and Cunnigham

Question 50

R v G and Another (2003)

Answer 50

.This case reverted from being a two part test to just the subjective test which was set in the case of Cunnigham

Question 51

Cunnigham (1957)

Answer 51

Set out the subjective test of recklessness

Question 52

History of Recklessness

Answer 52

.Previously there had been a two part test of recklessness. The first limb coming from the subjective test set in Cunnigham and the second limb being the objective test set in Caldwell.

Question 53

Problems with Caldwell

Answer 53

The law underCaldwellfailed to provide any protection to a defendant who, due to his age, lack of maturity, or limited intellect, was incapable of appreciating a risk that would be obvious to the reasonable person. This harsh and unsatisfactory result was heavily criticised by proponents of a subjective approach tomens rea. An example of the harsh operation of Caldwell was Elliot v C.

Question 54

Negligence

Answer 54

A person is negligent when; he fails to foresee a risk that a reasonable person would foreseen or he does foresee the risk but either does not take steps to avoid the risk or does not take adequate steps

Question 55

Coincidence of actus reus and mens rea

Answer 55

This is a principle that states that in order for there to be liability for a criminal offence, no matter the order the actus reus and mens rea must both be present. As long as they are a ‘single transaction’ e.g. R v Thabo Meli

Question 56

Continuing Act

Answer 56

This is where an action is not a crime however an event that follows turns that initial action into a crime e.g. Fagan v Metropolitan Police

Question 57

Fagan v Metropolitan Police (1969)

Answer 57

This was the case concerning a man who had stepped on the foot of a police officer with his car. When he was asked to kindly remove the vehicle off the police officer’s foot he declined and therefore this had escalated the original action into a crime

Question 58

Attorney General’s Reference (No. 4 of 1980)

Answer 58

This was a case in which a difficulty arose as the courts and the prosecution could not identify the death of the victim. In this case, it was either a rope around the neck, the slit to the throat or the cutting into pieces

Question 59

Transferred Malice

Answer 59

.This is where you X intend to hit Y however ends up hitting Z. There is no criminal liability as X did not intend to hit Z e.g. Latimer and Gnago v Bandana Man

Question 60

Gnango (2011)

Answer 60

This was a case where there was a shootout between Gnango and Bandana Man however one of the bullets had hit a passerby and killed her. In relation to the liability of Gnango, the Supreme Court held that by agreeing to the gunfight, he had aided and abetted X in committing attempted murder; thus he was a secondary party to the attempted murder. The Court took this further and held that the doctrine of transferred malice could be applied in respect of Gnango, so that he was also guilty of the murder

Question 61

Classification of non-fatal offences

Answer 61

Summary: Assault and Battery
Triable either way: s47 assault occasioning in ABH and s20 malicious wounding or inflicting GBH
Indictable: s18 wounding or causing GBH with intent

Question 62

Assault

Answer 62

Assault is a common law offence which is defined as ‘any act which intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence’ e.g. Fagan v Metropolitan Police

Question 63

Actus reus of assault

Answer 63

The causing of another person to apprehend immediate and unlawful personal violence. This can be committed in various ways such as pointing a knife at the victim, raising an arm to hit them etc.

Question 64

Apprehension

Answer 64

The victim must believe that they are in some form of danger to his person. If a victim does not perceive this then there is no assault e.g. R v Lamb, Logdon v DPP

Question 65

R v Lamb (1967)

Answer 65

In this case, the defendant pointed a loaded revolver at the victim participating in a game of Russian roulette. The victim who was a willing participant in the practical joke did not think any harm would come to him therefore it was held there could be no assault

Question 66

Logdon v DPP (1976)

Answer 66

In this case, the defendant had opened a drawer to show the victim a replica pistol, the victim asked if it was loaded to which he responded with a yes, Then the defendant threatened to kidnap the victim. Courts held that there was assault present as the victim had the belief that he was in danger of immediate personal violence.

Question 67

Unlawful

Answer 67

The anticipated personal violence must be ‘unlawful’ e.g. not force inflicted in an arrest.
-Collins v Wilcock

Question 68

Assault by words or silence

Answer 68

R v Ireland: the repeated silent phone calls to three women over the period of three months were held as assault as it resulted in the woman having a psychiatric injury over the telephone calls was held as assault

R v Burstow: the silent phone calls and offensive letters as well as stalking amounted to assault as they had also caused the woman depressive illness

Tuberville v Savage: it was held that just as words may amount to assault, words can negate an assault e.g. “if it wasn’t for the policemen around I would’ve hit you”

R v Constanza: words and letters can amount to assault

Question 69

Immediate

Answer 69

The apprehension must be one of immediate personal violence e.g.

-Smith v Chief Superintendent of Woking Police: the defendant looked through the windows of the victim’s bedroom at night. The victim who was in her nightclothes at the time was scared. The Courts held that although the window was closed, there was sufficient apprehension of immediate and unlawful violence as she did not know what the defendant was going to do next

Question 70

Mens Rea of Assault

Answer 70

The mens rea of assault is intention or recklessness as defined in Cunnigham

Question 71

Venna (1976)

Answer 71

It was held in this case that assault can be committed recklessly. In this case a youth was resisting arrest and fell to the ground. He kicked the police officer who was trying to pick him up and fractured his hand. He was convicted of s47 ABH on the grounds that recklessness was sufficient mental element to form the necessary intent

Question 72

Battery

Answer 72

Battery is also described as ‘assault by beating’. A person commits battery if he intentionally or recklessly inflicts unlawful force to another person

Question 73

Actus reus of battery

Answer 73

The actus reus of battery is the infliction of unlawful force on another person

Question 74

Force

Answer 74

A battery requires the application of physical force to the victim no matter how slight

-Cole v Turner: the least of touching of another in anger is sufficient grounds for battery
-Faulkner v Talbot: held that battery need not be hostile or rude or aggressive

Question 75

Unlawful (battery)

Answer 75

Infliction is deemed lawful where a police officer lawfully arrests a person e.g. Collins v Wilcock

Question 76

Collins v Wilcock (1984)

Answer 76

This was a case that introduced the theory of implied consent also known as the exigencies of everyday life e.g. going to the supermarket and bumping into somebody. This was coined as it would be absurd to assumer every form of touching is battery

Question 77

Thomas (1985)

Answer 77

In this case the defendant touched the bottom of a girl’s skirt and rubbed it. The courts took the approach that if you touch a person’s clothes then you touch them. Therefore this was sufficient for battery

Question 78

DPP v K (a minor)

Answer 78

This case was a more indirect form of battery. The defendant was a schoolboy who took come sulphuric acid into the toilet to test its reaction with toilet paper. When the defendant heard footsteps he panicked and threw the acid into the hand drier. When a pupil came to use the hand drier, it blew in his face.

Question 79

Haystead v Chief Constable of Derbyshire (2000)

Answer 79

A more immediate approach where the defendant had punched a woman holding a 12 month old baby. The baby fell and hit his head on the floor. It was held that contact through a medium controlling the victim was sufficient for battery.

Question 80

Consent

Answer 80

Consent is a defence to assault and battery however;
-Tabbasum (2002): D asked several woman to take part in a survey which required him to touch their breasts. He pretended to have the qualification which he did not. The Court dismissed his appeal that he had obtained consent and that the women believed they consented to being touched for medical purposes

Question 81

Sentencing for Assault and Battery

Answer 81

Level 5 Standard Fine or maximum 6 months imprisonment

Question 82

S47 Assault Occasioning ABH

Answer 82

ABH is a statutory offence which is charged in contrary to the s.47 of the Offences Against the Persons Act 1861. This offence is an aggravated from of assault or battery which requires proof that an assault or battery has been committed

Question 83

Actus reus of S47 ABH

Answer 83

This offence has 2 elements: the first element being the actus reus or a battery and the second element being causation both factual and legal e.g. Roberts (1971)

Question 84

What amounts as ABH

Answer 84

.Includes any hurt or injury calculated to interfere with health or comfort. Can be both physical and psychiatric.

-R v Miller: in this case the husband had sexual intercourse with his wife against her will through assault occasioning ABH. It was held that although he was not guilty of rape but he was guilty of s47 ABH and causing the victim mental distress

-R v Chan Fook: held that any physical or psychiatric injury need not be permanent in nature.

-DPP v Smith: in this case it was held that cutting a substantial part of a person’s hair without their consent amounted to s47 ABH

Question 85

Mens Rea of S47 ABH

Answer 85

The only mens rea element which needs to be established is that of the assault or battery which resulted in the ABH e.g. the intention or recklessness to apprehend immediate unlawful violence or to inflict unlawful force
-Parmenter

Question 86

Sentencing for S47 ABH

Answer 86

Imprisonment of maximum 5 years

Question 87

S20 Maliciously Wounding or Inflicting GBH

Answer 87

GBH is a statutory offence which is charged contrary to s20 of the OAPA 1861

Question 88

Actus reus of S20 GBH

Answer 88

The actus reus of the offence under s20 of the OAPA is the unlawfully wounding or inflicting GBH on another person.

Question 89

Horwood (2012)

Answer 89

The harm inflicted was no in self-defence or the defence of another

Question 90

Wounding

Answer 90

A wound under s20 requires the continuity of the skin to be broken

Question 91

Moriarty v Brookes (1834)

Answer 91

In this case a publican had argued with a customer over a disputed payment and as a result struck him causing a cut under his eye

Question 92

R v McLoughin

Answer 92

A scratch which does not break the inner skin is not a wound

Question 93

R v Wood

Answer 93

There is no wound if the bone is broken however the skin is intact

Question 94

JCC v Eisenhower

Answer 94

It was held that bruising or internal rupturing of blood vessels is not sufficient

Question 95

Inflicting GBH (S20)

Answer 95

GBH amounted to really serious injury which does not have to be permanent or life threatening e.g. DPP v Smith

Question 96

Clarence (1889)

Answer 96

it was held that the defendant could not be guilty of inflicting GBH if he knowingly gave his wife gonorrhoea

Question 97

R v Dica

Answer 97

Clarence was overruled by this case where the defendant intentionally spread HIV to multiple partners. He was guilty of inflicting GBH

Question 98

Mens Rea of S20 GBH

Answer 98

Intentionally of Recklessly causing grievous bodily harm

Question 99

Sentencing for S20 GBH

Answer 99

Imprisonment of maximum 5 years

Question 100

S18 Wounding or causing GBH with intent

Answer 100

GBH with intent is a statutory offence which is charged contrary to s18 of the OAPA 1861

Question 101

Actus reus of S18 GBH with intent

Answer 101

Theactus reusof this offence is unlawfully wounding or causing GBH to a person.

Question 102

Mens Rea of S18 GBH with intent

Answer 102

More complicated than merely ‘intention’. There several types of mens rea which can be charged. The later part of s18 provides alternate intentions:

-intention to resist arrest; or

-intention to prevent the lawful apprehension of a person; or

-intention to prevent the lawful detainer of a person.

Question 103

Belfon (1976)

Answer 103

The defendant has slashed the victim with a razor causing sever wounds to his face and chest. The Court of Appeal held that in order to establish the offence under s18 it was essential to prove specific intent

Question 104

Exceptions to consent not being a defence

Answer 104

Attorney General’s Reference (No. 6 of 1980): Lord Lane CJ stated that there were a number of exceptions to the general rule that consent is no defence to harm amounting to ABH or GBH, including injuries sustained during properly conducted sports, lawful chastisement or correction, reasonable surgical interference, and dangerous exhibitions

Question 105

Sexual Gratification

Answer 105

the law does not permit a person to consent to serious harm being caused to them for the purpose of sexual gratification e.g. Brown

Question 106

Brown (1994)

Answer 106

In this case there were a group of sadomasochist homosexual men engaging in sex play using fishhooks. The courts held that consent to this sort of thing is unacceptable and a danger to society

Question 107

The General Rule of Consent

Answer 107

The general rule is that consent is only a defence to assault and batter. Consent is no defence to any injury amounting to ABH

Question 108

Murder

Answer 108

The definition of Murder according to Lord Coke is “the unlawful killing of a reasonable individual not under the Queen’s Peace with malice aforethought expressed or implied.

Question 109

Actus Reus of Murder

Answer 109

The actus reus of murder is unlawfully causing the death of a human being under the Queen’s Peace. The actus reus is common to all forms of Homicide

Question 110

Unlawfully (Murder)

Answer 110

The offence of murder requires that the death of the victim be unlawfully caused. If the lawful death of a person is caused he will not be guilty of the criminal offence e.g. Re A (Conjoined Twins)

Question 111

An example of lawful killing

Answer 111

This is where the defendant kills another person whilst acting in self-defence or the defence of another of the prevention of a crime. The defence of self-defence negates the unlawfulness of killing

Question 112

Causes death

Answer 112

The prosecution must prove the defendant caused the death of the victim. The usual rules of factual and legal causation must be proven in order to hold the defendant liable for murder unless there is a novus actus intevienes which breaks the chain of causation.

Question 113

Factual Causation

Answer 113

This is the ‘but for’ test put forward in the case of White

Question 114

Legal Causation

Answer 114

The tests for legal causation are; the ‘de minimus’ as in Cato, ‘Significant Contribution’ as in Pagette and the ‘substantial’ and ‘operating’ factor e.g. Smith

Question 115

Reasonable creature in being

Answer 115

The defendant will only be guilty if the victim is a reasonable creature e.g. a human rerum natura. The killing of an animal would not pass under the offence of murder but rather Criminal Damage

Question 116

Poulton (1832)

Answer 116

a baby is a reasonable creature in being when the whole body of the child is brought alive into the world. If it is still in the womb then this cannot amount to murder

Question 117

Attorney General’s Reference (no. 3 of 1994) (1997)

Answer 117

Supported the view that a foetus is not a reasonable creature and could not be killed in the mother’s womb. It has to be expelled from the woman’s body

Question 118

Positive Act

Answer 118

A positive act is required for murder, an omission to act cannot amount to murder

Question 119

Airedale NHS Trust v Bland

Answer 119

The House of Lords held that switching off the life-support machine amounted to an omission rather than a positive act, so the doctor would not be criminally liable for the patient’s death by withdrawing treatment. However if the doctor commits a positive act such as administering a lethal drug to the patient, then he can be held liable for murder.

Question 120

Under the Queen’s Peace

Answer 120

The killing must take place under the Queen’s Peace in order for the offence of the murder to be satisfied. Where the defendant kills an enemy combatant during times of war, he has a defence to a charge of murder