Murder Flashcards
What is the definition of ‘Murder’?
• Common law offence.
• “Murder is the unlawful killing of a reasonable person in being and under the King’s (Queen’s) Peace with malice aforethought, express or implied” – Lord Coke, 17th C.
What is the ‘Actus Reus of Murder’?
- Attorney-General’s Reference (No 3 of 1994) (1997)
• The defendant must have killed a reasonable creature (person), in peace time, in an unlawful manner.
• ‘Killed’ can either be by act or omission and must cause the death of the victim - Gibbins and Proctor (1918)
- Must be direct cause of death
What is the law on foetus’?
• It is not possible to have the mens rea to kill a foetus. The child must have been expelled from the mother’s body before this can happen. Attorney-General’s Reference (No 3 of 1994) (1997).
- However, where the foetus is injured and the child is born alive but then dies as a result of the injuries, this CAN be actus reus for murder or manslaughter. Attorney-General’s Reference (No 3 of 1994) (1997).
When is a killing lawful?
• If the killing is done in self defence or defence of another, then it is not unlawful.
• This is statutory in s 3(1) of the Criminal Law Act 1967 – ‘a person may use such force as is reasonable in the circumstances in the prevention of crime’.
What is the mens rea for ‘Murder’?
• Two different intentions:
1. Express malice aforethought (intention to kill).
2. Implied malice aforethought (intention to cause grievous bodily harm).
• Both can be used to prove murder even if in the second, the intention is not to kill. Vickers (1957), Cunningham (1981).
What is the law on ‘Intention’ and ‘Foresight of Consequences’?
• Moloney (1985) – Foresight of consequence is only evidence from which intention can be inferred.
• Nedrick (1986) – Court of Appeal suggested juries ask themselves two questions: 1. How probable was the consequence which resulted from the defendant’s voluntary act? 2. Did they foresee the consequence? The jury are not entitled to infer the necessary intention unless they feel that death or serious injury was a virtual certainty as a result of the act.
• Woollin (1998) – The House of Lords disapproved of the 2 questions, but approved the direction in Nedrick. They suggested switching the word ‘infer’ to ‘find’. In other words, the defendant needed to appreciate that death or serious injury was a virtual certainty for the jury to FIND the necessary intention.
What is ‘Transferred Malice’?
• General rule here also applies to murder.
• If D fires a shot at Victim 1 (V1) and kills V2, they are guilty of murder.
• The intention may have been to kill V1, but it is transferred to V2.
Sentences:
• If aged 18+ and found guilty of murder, the judge will impose a life sentence but will then state the minimum number of years the offender must serve before release.
• The Criminal Justice Act 2003 states:
- Whole life term for serious, premeditated cases, child murders……
- 30 years minimum for murders of police, prison officers, sexual or sadistic killings….
- 15 years minimum for murders not falling into the above categories.
• Offenders aged 10-17 are detained at Her Majesty’s Pleasure.
Law Commission Proposals:
• The Law Commission have suggested that murder should be reformed by dividing it into two offences – first degree murder and second degree murder. First degree would be intention to kill, second would be intention to seriously injure but death resulted.
• Mandatory life sentence and guidelines on minimum sentences should only apply to first degree murder.
Government response to Law Commission
proposals
• July 2008 – government consultation paper, Murder, Manslaughter and Infanticide:
Proposals for reform of the Law.
- Rejected the idea of two levels of murder offence.
- Accepted the need for a ‘loss of control’ defence in cases of self- defence which was eventually included in the Coroners and Justice Act 2009.
• Problems remain however with difficulties in the meaning of intention, lack of a defence of duress and mandatory life sentences.
What is the law on ‘Euthanasia’?
• Euthanasia or ‘mercy killing’ is illegal in the UK.
• If D kills V, even if V begged them to do so, they are guilty of murder.
• Inglis (2010).
• Whilst doctors can withdraw treatment from patients in a persistent vegetative state, they are not allowed to do anything positive to kill the patient. Airedale NHS Trust v Bland (1993).
What is the law on ‘Assisting Suicide’?
• Assisted suicide is illegal under the terms of the Suicide Act (1961) and is punishable by up to 14 years’ imprisonment. Trying to kill yourself is no longer a criminal act however.
• R (on the application of Purdy) v DPP (2009). Mrs Purdy wanted the DPP to issue guidance to Crown Prosecutors on whether or not to pursue prosecutions in certain cases.
• The DPP responded in a Policy Guidance Statement. It stated:
1. Is it in the public interest to prosecute?
2. Each case would have to be considered subjectively.
3. A list of factors favouring prosecution and against prosecution must also be included.
• R (on the application of Nicklinson and Lamb) v Ministry of Justice and R (on the application of M) v DPP (2013).
• The Court of Appeal sought further clarification from the DPP as to situations where the helper is not a family member and has no emotional ties to the person committing suicide.
