Fatal Offences- murder- CRIMINAL LAW (1) Flashcards
what is the definition of murder
murder is the unlawful killing of a reasonable person in being under the king’s peace with malice aforethought, express or implied.
what case was murder defined in
Lord Coke in a 17th century case
what is the actus reus of a murder
this is the unlawful killing of a reasonable creature in being and under the kings peace
what 3 things must prove the actus reus of a murder
- the D has unlawfully killed
- a reasonable creature in being
- under the kings peace
define unlawful killing
Killing someone on purpose, without legal reason.
The D must kill either through a positive act or omission. An omission is a failure to act and will only lead to liability if a duty of care is owed.
what is the case for unlawful killing
Gibbons and Proctor.
they had a duty to act due to a relationship and not feeding her to cause starvation meant the D was convicted.
what does causation mean
D can only be guilty if their act or omission cause the Vs death
what does fatel cause mean
’ but for’ the Ds actions the V wouldnt have died.
what is the case for fatel cause
pagett and white
what does the legal cause mean
the D was more than a minimal cause of the Vs death
what is the case for legal cause
Kimsey
What does intervening acts mean
There must be no intervening acts effecting the Ds liability as it would break the chain of causation for the D
for example medical treatment, self negelct, Vs own actions and the actions of a third party
what does reasonable creature of being mean
this means a human being.
For murder, a person must be killed.
what 2 things are not considered as a reasonable creature of being
foetus
brain dead person
what is the case example for a foetus and the legal principle
A-G Ref (No 3 of 1994) (1997)
legal principle: if a baby sustains injuries whilst in the womb and later dies from these injuries once born, then this could amount to murder.
the child must have a.. for it to be considered a ‘creature in being’ and class as a murder
an existing independent for the mother
what is the case example and legal principle for brain-death
R v Malcherek
legal principle= doctors are allowed to switch off life- support machines without breaking the chain of causation and being liable for murder.
why are judges unsure weather if someone who is brain dead would be considered a reasonable creature in being
because there hasn’t been a case to decide that
what does under the king’s peace mean
the D killed at a time of peace and not at war
enemy at war= not murder
prisoner of war= murder as they are not a threat at the time. Enough for the actus reus of a murder.
what does mens rea mean
its the direct intention to commit the full offence
what is the mens rea of murder
The D must have the malice, aforethought, express or implied.
what are the 2 types of intention that the prosecution must prove the D has either of
express malice aforethought
implied malice aforethought
what does express malice aforethought mean
direct or oblique intention to kill
what does implied malice aforethought mean
direct or oblique intention to cause GBH
what does direct intention mean
100% aim and desire to kill or cause GBH
what does oblique intention mean
D foresaw that their actions were virtually certain to cause death or serious injury
what is the case study and principle for implied malice aforethought
cunningham
legal principle=
HofL dismissed appeal and stated it was firmly established that a intent to cause GBH was enough mens rea for murder
what is the other case example for implied malice aforethought
DPP v Smith
what is the case and legal principle for oblique intention
Woolin
legal principle= D was found guility of murder as the actual result (baby dying from their injuries) was a virtually certain result of his actions (throwing it at its cot)
what is transfered malice and when is it applied
applies to murder if the D intends to kill one victim and the actual victim is another, the mens rea will transfer
what is the case for transferred malice and the legal principle?
R v Saunders
legal principle= the D was charged with murder of his daughter on the grounds that his intention to kill his wife could be transferred to the death of his daughter
What sentence will the D get if they are guilty of murder
must receive a mandatory life sentence
the judge will set a minimum number of years that the D will serve behind bars before they may be released on parole.
what is the A02 for murder
(actus reus, mens rea and conclusion)
ACTUS REUS
- who died/ the killing
- was it unlawful or self defence. self defence(was it reasonable or excessive)
- was it a reasonable creature in being or foetus or brain dead
- causation (legal or factual cause)
- was it under the kings peace
MENS REA
- was intention GBH or to kill
- state which type of malice aforethought the D has.
intention to kill= express malice aforethought
intention to cause GBH= implied malice aforethought
- did D have direct or oblique intention to kill or cause GBH
direct intention= 100% aim and desire to kill or cause GBH
oblique intention= it was a virtual certain result the V would die/suffer GBH, and the D knew this.
CONCLUSION
will D be guilty of murder. explain why and who the V is.
