Murder

Question 1

Introduce murder.

Answer 1

• Common law offence.
• Sir Edward Coke: defined murder: ‘an unlawful killing of a reasonable creature in being, under the King’s peace, with malice aforethought, expressed or implied.’
• Homicide Act 1957: sets out punishment for murder - mandatory life sentence (25 years)

Question 2

Explain the first element of the actus reus for murder, defendant killed.

Answer 2

Act:
* Hill v Baxter: voluntary positive act
Omission:
* Failure to act - normal rule that Omission can’t make person guilty of offence
* Stephen J: explained an omission as: ‘A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned. A has committed no offence.’
6 + 1 Exceptions To Rule That Omission Can’t Make Person Guilty Of Offence:
* S.170 Road Traffic Act 1988: statutory duty
* R v Pitwood: contractual duty
* R v Gibbins + Proctor: duty because of relationship
* R v Evans: duty taken on voluntarily
* R v Dytham: duty through one’s official position
* R v Miller: duty which arises because D set in motion chain of events
* Airedale NHS Trust v Bland: duty of doctors

Question 3

Explain the second element of the actus reus for murder, causation.

Answer 3

Factual:
* R v Pagett: ‘But for’ test
Legal:
* D’s conduct must be more than a minimal cause, but need not be a substantial cause of the end consequence
* R v Kimsey: must be more than a slight or trifling link
* R v Blaue: Thin-skull rule
* Intervening Acts (novus actus interveniens): V’s own act, Act of a Third party, a natural but unpredictable event (must be sufficiently independent + sufficiently serious; breaking chain of causation)

Question 4

Explain the third element of the actus reus for murder, reasonable creature in being.

Answer 4

• R v Malchereck: if ‘braindead’ offence fails.
• AG’s Reference No.3 1994: if foetus offence fails.

Question 5

Explain the fourth element of the actus reus for murder, under King’s peace.

Answer 5

Death during course of war isn’t murder

Question 6

Explain the fifth element of the actus reus for murder, killing was unlawful.

Answer 6

If not in: self-defence, defence of another, or in prevention of crime.

Question 7

Explain the first element of the mens rea for murder, malice aforethought.

Answer 7

• Expressed: intention to kill
• R v Vickers: implied - intention to cause GBH

Question 8

Explain the second element of the mens rea for murder, intention.

Answer 8

• Specific intent offence, options either direct / oblique intent.
  Direct:
• R v Mohan: direct intention
  Oblique:
• D’s main aim wasn’t prohibited consequence but in achieving that aim, D should’ve foresaw he would cause that consequence.
• Moloney: oblique intention isn’t intention - can be used as evidence to find intention.
• Hancock + Shankland: developed Moloney - greater probability of consequence, more likely consequence was foreseen + intended.
• Nedrick: created test.
• Woolin: developed test we still use.
  1) Was death / serious injury virtual certainty?
  2) Did D foresee consequence?
• Mathews + Alleyne: confirmed tests from Woolin.

Question 9

Explain the third element of the mens rea for murder, transferred malice.

Answer 9

• R v Latimer: malice will transfer if offence is of similar nature.
• R v Pembilton: if not similar crime wont transfer.

Question 10

Explain the fourth element of the mens rea for murder, coincidence of AR + MR.

Answer 10

• Thabo-Meli v R: contemporaneity rule - AR + MR coincide.
• Fagan v MPC: AR happens first + then MR starts - when D becomes aware of what he’s doing but continues - still guilty.