Murder

Question 1

D may be liable for murder,

Answer 1

defined by Lord Coke as the “the unlawful killing of a reasonable creature in being under the King’s or Queen’s Peace with malice aforethought”.

Question 2

The ACTUS REUS

Answer 2

of murder is the unlawful killing of a reasonable creature in being, under the King or Queen’s Peace.

Question 3

‘Under the King or Queen’s Peace’ means

Answer 3

that killing in the course of war is not murder.

Question 4

‘A reasonable creature in being’ means

Answer 4

the death of a human being. This means brain stem death as in Malcherek. Killing a foetus is not murder as it does not have an existence independent of the mother, as in Attorney-General’s Reference(no 3 of 1994).

Question 5

Usually the actus reus is an act, but

Answer 5

it can be an omission. An omission is a failure to act when there was a duty to act. Examples are a duty to care for someone assumed voluntarily (Stone and Dobinson), Gibbons and Proctor), the duty to deal with a dangerous situation created (Miller), and a contractual duty (Pittwood).

Question 6

The act or omission must be the

Answer 6

factual and legal cause of the death.

Question 7

Here D was the factual cause of V’s death as but for D eg

Answer 7

V would not have died (White, Pagget)].

Question 8

Here [eg. D hitting V was probably the legal cause of death

Answer 8

as it was the operating and substantial cause as it was the significant, more than minimal cause of death (Smith, Pagett)].

Question 9

intervening act can be break the chain causation if it was

Answer 9

not reasonably foreseeable, as in Corbett and Roberts which concerned the victims’s own act, and in Pagett which concerned a third party act.

Question 10

Medical negligence is an intervening act that

Answer 10

will not break the chain of causation, as in Cheshire, unless it is considered “palpably wrong” as in Jordan.

Question 11

if V has a hidden weakness,

Answer 11

then D is expected to ‘take his victim as he finds them’ , under the thin skull rule, as in Blaue.

Question 12

To conclude, the actus reus of murder

Answer 12

is satisfied

Question 13

The MENS REA of murder

Answer 13

is malice aforethought express or implied, which means either an intention to kill (express) OR an intention to cause grievous bodily harm (implied).

Question 14

Intention can be specific (direct),

Answer 14

defined in Mohan as ‘deciding to bring about a particular consequence’.

Question 15

Intention can oblique (indirect), defined in

Answer 15

Woolin as ‘the consequence was a virtual certainty of the defendants’s actions and the defendant appreciated it’. This is not intention in itself, but it is evidence from which the jury may find intention as set out in Matthews and Alleyne.

Question 16

D may have had specific (direct) intention to at least cause

Answer 16

GBH (serious or really serious harm: Smiths, Saunders), and perhaps even kill V, because, so decided to bring about GBH or death (Mohan).

Question 17

D may have had oblique (indirect) intention to at least cause

Answer 17

GBH (serious or really serious harm: Smith, Saunders), and perhaps even kill V, because, so GBH or death was a virtual certainty and D appreciated it (Woolin). This is evidence of intention for the jury (Matthews and Allyne).

Question 18

Under the transferred malice principle,

Answer 18

as in Latimer and Mitchell, the mens rea is ‘transferred’ as D eg

Question 19

Under the coincidence rule, the actus reus and mens rea must coincide at least once,

Answer 19

as in Fagan v MPC (continuing event) and in Thabo Meli (series of events). Here

Question 20

to conclude, the actus reus and mens rea

Answer 20

are satisfied, so d will be liable for murder.