Murder

Question 1

define murder

Answer 1

Murder has never been defined in statue in UK law, it remains a common law defence.
Best defined by Sir Edward Coke:
‘’ the unlawful killing, of a reasonable person in being and under the Kings peace with malice aforethought, express’’

Question 2

Actus reas - key elements of murder

Answer 2

-unlawful killing
-a reasonable person in being
-under the kings peace

Question 3

AR - unlawful killing

Answer 3

The first key element of the actus reas of murder is the killing must be unlawful, this means it cannot be done under; self defence, the death penalty or war. If it is not one of these scenarios, the killing is as unlawful and is the first element of AR.

Question 4

AR- a reasonable person in being

Answer 4

The second element of the Actus reas needed for murder is it must be a reasonable person in being, a foetus in the womb is not a reasonable until ‘fully expelled’, this can be seen in the Attorney Generals Ref (NO.3 of 1994), a person who is brain dead is also not a reasonable being, as seen in Malcherek and Steel.

Question 5

Malcherek and Steel (1981)

Answer 5

legal principle: brain dead victims are not reasonable beings.

Two separate appeals were heard together.
In Malcharek the defendent stabbed his wife. In steel the defendant was accused of sexually assaulting and beating a women over the head with a stone.
In both cases victims were placed on life support, the doctors later switched life supports off when both victims were showing no activity in their brain stem, the Ds sought to argue the doctors actions constituted a intervening act which broke the chain of causation.
The victims were already dead so could not be the cause of death.

Question 6

Attornet Generals Ref (No.3 of 1994)

Answer 6

legal principle: a foetus is not a reasonable being.

D stabbed his pregnant girlfriend who then prematurely gave birth to S, S was wounded in the stabbing and died 121 days after. D was charged with the murder of S, but was aqquited as it was held that he could not be convicted of murder as a result of harm done in utero, and there could be no transferred malice of the intent to harm the mother to the foetus.

Question 7

AR- under the Kings peace

Answer 7

wartime- killing the enemy in war, this would be classified as under the kings peace, and so to kill a POW, the AR would be present

Question 8

Omission in murder:

Answer 8

Death can result from an omission, if the D has a duty to act and fails to the AR may still exist as seen in
Stone v Dobinson - duty from a relationship
R v Miller

Question 9

Break down malice aforethought, express and implied

Answer 9

‘malice’ does not have to be present, it just means an intent to kill
‘aforethought’, no previous planning needed either, just intention is not after the fact

Question 10

MR of murder

Answer 10

intention to kill or cause GBH
- express malice aforethought, which is an intention to kill
- implied malice aforethought, which is intention to cause GBH

Question 11

Direct intent to kill of cause GBH case

Answer 11

Vickers

Question 12

Vickers

Answer 12

D broke into Vs sweet shop cellar, he knew that the owner who was deaf, the owner came into the cellar and saw D. He attacked V by punching her and kicking her in the head when she discovered him, she died from the injury,
This was enough to imply the necessary intention

Question 13

Indirect intention

Answer 13

D did not intend a particular result, but in acting the way they did, realised that it might occur

Question 14

Moloney (1985)

Answer 14

D was drinking with V, they had a contest to see who could load his gun and be ready to fire first. D was quicker and pointed the gun at his head killing him instantly. Serious harm should be the Mr for murder.
Foresight of consequences was not in itself intention- instead, foresight could be evidence from which a jury may infer intention

Question 15

Hancock and Shankland (1986)

Answer 15

Ds were striking miners who knew a taxi carrying men breaking the strike to work would pass along the road, the waited on a bridge above and dropped a concrete block which hit the taxi, killing the driver. Ds claimed they intended to block the road not kill or injure anyone.
HoL held that the degree of probability of death / injury is of paramount importance. Greater the probability of a consequence the more likely it is that the consequence was foreseen, if it was foreseen the greater the probability it was intended

Question 16

Nedrick

Answer 16

D poured paraffin through the letterbox of a house with the intention of frightening the women who lived there, a child died as a result.
Virtual certainty test:

Question 17

Virtual certainty test:

Answer 17

do the jury feel that death or serious injury was the virtually certain result of the Ds voluntary action
did the D foresee that death or serious injury was the virtual certain result of his act
if both parts yes the jury can infer that the D intended the consequences of his act