fatal offences - murder

Question 1

What type of offence is murder?

Answer 1

A common law homicide offence which means that the offence is not defined by any Act of Parliament

Question 2

Who gave a definition of murder in the 17th century and what was the definition?

Answer 2

Edward Coke - The unlawful killing of a reasonable person(human being) in being and under the King’s peace with malice aforethought express or implied

Question 3

What three things are needed to establish murder?

Answer 3

Actus reus
Causation
Mens rea

Question 4

What are the 4 elements of the actus reus when it comes to murder?

Answer 4

The defendant killed
The killing was an unlawful killing
Reasonable creature
King’s peace

Question 5

What is meant by ‘the defendant killed’ in terms of an element of the actus reus for murder?

Answer 5

The killing must be a voluntary positive act or an omission.

Question 6

What is meant by ‘the killing was an unlawful killing’ in terms of an element of the actus reus for murder?

Answer 6

is there a defence to apply to the offence? usually not but needs to be mentioned - loss of control, duress, intoxication, diminished responsibility

Question 7

What is meant by ‘reasonable creature’ in terms of an element of the actus reus for murder?

Answer 7

means a human being - for murder a living person must be killed

Question 8

What are the rules for ‘reasonable creature’ for the actus reus for murder surrounding unborn children?

Answer 8

The D can’t be charged with murder in respect of killing a fetus but the Infant Life (Preservation) Act 1929 sets out that the D can’t kill a unborn but viable feotus

Question 9

In terms of unborn children, when would it be seen that the child is a human being?

Answer 9

The child has to have an existence independent of the mother for it to be considered a creature if being. This means it must have been expelled from her body

Question 10

What is meant by ‘king’s peace’ in terms of an element of the actus reus for murder?

Answer 10

The killing of an enemy soldier during a war is not a murder as the king is at war

Question 11

What is meant by causation in relation to murder?

Answer 11

Murder is a result crime therefore the D can’t be found guilty unless his act or omission caused the death

Question 12

What are the two types of causation?

Answer 12

Factual
Legal

Question 13

What is meant by Factual causation and name two cases to support it:

Answer 13

The D can only be guilty of the consequence would not have happened ‘but for’ the defendant’s conduct: R v white & R v Pagett

Question 14

What happened in the case of R v White?

Answer 14

White put potassium sionide in his mothers drink before bed trying to kill her to gain the inheritance money. His mother died of an unrelated heart attack therefore his actions didn’t cause her death and he couldn’t be charged with murder

Question 15

What happened in the case of R v Pagett?

Answer 15

D used his pregnant girlfriend as a human shield when police were trying to arrest him for shooting her father and kidnapping her mother. A police sniper shot and killed D’s gf by accident. It was held that ‘but for’ the actions of the D, his gf would not have died

Question 16

What are the two issues that need to be addressed by legal causation?

Answer 16

-Is the D’s action more than a minimal cause of the death (De minimis rule):Kimsey
-Is D’s conduct a substantial cause of the death. Was the actions of the D the operating cause of the death: R v Smith

Question 17

What happened in the case of R v Smith?

Answer 17

Soldier was in a fight and was stabbed. His colleagues took him to a medic but dropped him several times of the way. The doctor failed to diagnose a punctured lung and the soldier died - it was held that the stab wound was the operating cause of death

Question 18

What is meant by Novus actus Interveniens?

Answer 18

intervening acts - something may happen between the actions of the D and the death of the V and it needs to be established who is the ‘actual’ cause of the V’s death

Question 19

What are the two intervening acts that may be considered in a murder?

Answer 19

medical treatment
Victims own acts

Question 20

How likely is medical treatment to break the chain of causation and why is this?

Answer 20

Suggesting that medical treatment might break the chain of causation is contentious because he the D not harmed the V in the first place, he would not have ended up in hospital. Medical treatment is most unlikely to break the chain of causation

Question 21

When will medical treatment break the chain of causation? Give a case example:

Answer 21

If the medical treatment is so overwhelming/palpably wrong as to make the original wound a mere part of the case history, would it be an novus actus interveniens: R v Jordan

Question 22

What case shows when medical treatment would not break the chain of causation?

Answer 22

R v Cheshire

Question 23

What happened in the case of R v Jordan?

Answer 23

Jordan stabbed a man who died of pneumonia following the abdominal injury sustained. The V was intolerant to the drug which was being given to him at the hospital before the doctors realised this and stopped the treatment. The next day a new doctor started this drug again in abnormal quantities which waterlogged the V’s lungs - the treatment was so independent from the initial wound that it broke the chain of causation

Question 24

What happened in the case R v Cheshire?

Answer 24

A V was being treated after being shot. The doctor inserted a tracheotomy tube to improve the V’s conditions. 4 weeks later it was removed but several days after, the v was having respiratory issues due to the narrowing of his windpipe - the medical care was necessary because of the wound V had due to D’s actions therefore the treatment wasn’t the substantial cause of the V’s death

Question 25

What is meant by 'victims own acts' in terms of causation? What two cases support this?

Answer 25

The V's own acts following an injury may break the chain of causation if the v acted in an unreasonable and unforeseeable way after the injury: R v Roberts & R v Williams and Davis

Question 26

What happened in the case of R v Roberts?

Answer 26

A female hitchhiker was picked up by a male driver who started attempting to touch her and said he was going to rape then kill the girl, the girl jumper out the car at a high speed and died - the driver started the chain of events and was guilty of attempted murder and rape

Question 27

What happened in the case R v Williams and Davis?

Answer 27

A male hitchhiker got picked up by 2 other men who wanted his money, phone, personal belongings etc. The man threw himself out the car and he survived due to the low speed of the car - D was not guilty as the chain of causation was broken

Question 28

What happens when the V's fail to seek medical intervention? Give a case example:

Answer 28

R v Dear: If a V aggravated his wounds sufficiently to cause otherwise avoidable death, the chain of causation is not broken. This would include not seeking medical attention

Question 29

What happened in the case of R v Dear?

Answer 29

The D's daughter accused a man of sexually abusing her. The D went after the man and repeatedly slashed him with a stanley knife. The V received medical treatment but later re-opened his wounds in what was thought to be a suicide and died two days after the initial attack. The D argued the man's actions in opening the wounds amounted to a novus actus interveniens. The D's conviction was upheld. The wound was still an operating and substantial cause of death.

Question 30

What principle did the case of R v Malcherek bring about? What are the case facts?

Answer 30

The switching off a life support machines does not act as a novus actus - d stabbed his wife. She was taken to hospital and put on a life support machine, but suffered two heart failures. After ten days she had suffered irretrievable brain damage and the doctors switched off the machine

Question 31

What is the thin skull rule and what case support this?

Answer 31

The D must take his V as he finds him. This means if the D has a particularly vulnerable V he is fully liable for the consequences even if an ordinary person would not have suffered such severe consequences: R v Blaue

Question 32

What happened in the case of R v Blaue?

Answer 32

Blaue was a Jehovah witness and was shot. she was taken to the hospital but needed a blood transfusion but it was against her religious beliefs and refused it. She then died and D was held liable for starting the chain of events

Question 33

What is the mens rea for murder?

Answer 33

Murder is a crime of specific intent therefore only intention will suffice - 'malice aforethought' express or implied

Question 34

What are the two different intentions for the mens rea of murder?

Answer 34

Express malice aforethought - intention to kill Implied malice aforethought - intention to cause gbh

Question 35

What happened in the case of R v Vickers?

Answer 35

Vickers broke into a sweet shop owned by an elderly woman. When caught by the shop owner he struck her multiple times which resulted in her death. The court held that an intention to cause GBH was sufficient to establish the mens rea for murder

Question 36

What is 'intent' in terms of the mens rea for murder?

Answer 36

The prosecution must show that the D intended to kill the V.

Question 37

What are the two types of intent for the mens rea of murder?

Answer 37

Direct intent Indirect intent

Question 38

What is meant by direct intent? What case shows this?

Answer 38

In the majority of cases the D intends the specific consequences to occur, for example, they decide to kill a person, aim a gun at them and pull the trigger: R v Mohan

Question 39

What is indirect intent? What case shows this?

Answer 39

When the D's aim was not the prohibited consequence but, in achieving their aim, they realised or foresaw that they would cause the consequence: Woollin

Question 40

What two questions will be asked under indirect intent?

Answer 40

-Was death or really serious injury a virtual certainty -Did D appreciate that such was the case?

Question 41

What happened in the case of Woollin?

Answer 41

Woollin was the father of a baby who was very young and started to choke on its food. Woollin was annoyed by this and threw the baby into the cot/pram. He missed and the baby fell to its death. The D didn't mean to kill the child but the consequences of throwing a baby were very clear and therefore the D was guilty of murder

Question 42

What happened in the case of R v Matthews and Alleyne?

Answer 42

This shows the 2 part test: The D's threw the V into the river. The v drowned. The Ds argued that although they knew the V could not swim, they did not intend for him to die. They were convicted of murder and it was held that it was virtually certain that the V was going to die

Question 43

What is transferred malice in relation to murder and what case shows this?

Answer 43

When the mens rea is transferred from the intended V to the unintended V. If D intends to harm victim 1 and, in error, harms victim 2, the D is still guilty of the crime against victim 2: R v Mitchell

Question 44

What happened in the case of R v mitchell?

Answer 44

Mitchell pushed V1 who fell on V2 who died. The court held that Mitchell was guilty of the manslaughter if V2 as the malice intended for V1 was transferred to V2.

Question 45

When will malice not be transferred and what case shows this?

Answer 45

When the D intends to harm a person but damages property instead and vice versa - the crime must be of the same nature for malice to be transferred: R v Pembliton

Question 46

What happened in the case of R v Pembliton?

Answer 46

D threw a pebble at V1 but missed and broke a window. The court held that D was not guilty of criminal damage as the intended crime was one of physical harm from person to person