Murder Flashcards
- D may be liable for murder…
D may be liable for murder, defined by Lord Coke as:
“The Unlawful Killing of a reasonable creature in being under the King’s or Queen’s Peace with Malice Aforethought”.
- The Actus Reus of Murder is…
The Actus Reus of Murder is the Unlawful Killing of a reasonable creature in being, under the King or Queen’s Peace.
- Unlawful Means…
Under the King or Queens Peace Means…
A Reasonable Creature in Being Means…
‘Unlawful’ means that the killing must not be justified, for example in Self Defence.
‘Under the King or Queen’s Peace’ means that killing in the course of war is not Murder.
‘A Reasonable Creature in Being’ means 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). **
- Here [eg. there is clearly the death of a human being, who has been killed under the King or Queen’s Peace as it was not in war, and the killing appears to be unlawful].
- ONLY IF RELEVANT, EXPLAIN AND APPLY:
Usually the Actus Reus is an act, but it can be An Omission. An Omission is…
- ONLY IF RELEVANT, EXPLAIN AND APPLY:
Usually the Actus Reus is an act, but 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).
- The Act or Omission must be the Factual and Legal Cause of the death.
A Novus Actus Interveniens (Intervening act) can break the chain of causation if it was not
The Act or Omission must be the** Factual and Legal Cause** of the death.
- Here [eg. D was the factual cause of V’s death as but for D hitting V, V would not have died (White, Pagett)].
- Here [eg. D hitting V was probably the legal cause of death as it was the operating and substantial cause as it was the significant, more than minimal cause of death (Smith, Pagett)].
- ONLY IF RELEVANT, EXPLAIN AND APPLY :
A Novus Actus Interveniens (Intervening act) can break the chain of causation if it was not reasonably foreseeable, as in Corbett and in Roberts which concerned the victim’s own act, and in Pagett which concerned a third party act.
Medical Negligence is an intervening act that usually will not break the chain of causation, as in Cheshire, unless it is considered very serious (“palpably wrong”) as in Jordan.
Also, if V has a hidden weakness, then D is expected to ‘take his victim as he finds them’, under the thin skull rule, as in Blaue.
To Conclude, the Actus Reus of Murder is satisfied.
- The Mens Rea of Murder is Malice Aforethought express or implied…
The Mens Rea of Murder is Malice Aforethought Express or Implied, which means either an intention to kill (Express) OR an intention to cause Grievous Bodily Harm (Implied).
Intention can be specific (Direct), defined in Mohan as:
‘Deciding to bring about a particular consequence’.
Intention can be oblique (Indirect), defined in Woollin as:
’The Consequence was a virtual certainty of the defendant’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.
- Here D may have had specific (direct) intention to at least cause GBH (serious or really serious harm: Smith, Saunders)
- AND/OR
- Here D may have had specific (direct) intention to kill V, because he punched him very hard many times in the head, so decided to bring about GBH or death (Mohan).
- AND/OR
- Here D may have had oblique (indirect) intention to at least cause GBH (serious or really serious harm: Smith, Saunders)
- AND/OR
- Here D may have oblique (indirect) intention to kill V, because he set fire to the room when V was trapped in it, so GBH or death was a virtual certainty and D appreciated it (Woollin).
This is evidence of intention for the jury (Matthews and Alleyne).
- Under The Transferred Malice Principle…
Under The Transferred Malice Principle, as in Latimer and in Mitchell, the Mens Rea is ‘transferred’ as D shot at X but he ducked and the bullet killed V.
- Under the coincidence rule, the Actus Reus and Mens Rea must coincide at least once…
Under the coincidence rule, the Actus Reus and Mens Rea must coincide at least once, as in Fagan v MPC (continuing event) and in Thabo Meli (series of events).
Here D had the mens rea of murder when he first stabbed V, but when D actually committed the actus reus when burying V alive in the garden, D did not have the mens rea because he thought V was dead. D will still be liable for murder.
- To Conclude…
To Conclude, the Actus Reus and Mens Rea are satisfied, so D will be liable for murder.
