murder

Question 1

Question: What is the definition of murder in common law?

Answer 1

Answer: Murder is the unlawful killing of a reasonable creature in being under the King’s Peace with malice aforethought.

Question 2

Question: What is the definition of the actus reus of murder?

Answer 2

Answer: The unlawful killing of a reasonable person, with causation, whether by an act or omission.

Question 3

Question: When might killing be lawful in the context of murder?

Answer 3

Answer: Killing can be lawful in war, by methods of pain relief that shorten life, turning off life support for brain-dead patients (Bland), or protecting a more viable life (Re A – conjoined twins case).

Question 3

Question: What tests are used to establish causation in murder cases?

Answer 3

Answer: Causation is established through the factual “but for” test (Pagett) and legal causation, which requires more than a minimal contribution to death (Kimsey), and the act must be the operative and substantial cause (Smith, Cheshire).

Question 4

Question: Can murder be committed through omission?

Answer 4

Answer: Yes, murder can be committed through omission, as in Gibbins and Proctor.

Question 5

Question: What is the thin skull rule in murder cases?

Answer 5

Answer: The defendant must take the victim as they find them, even if the victim has an unexpected weakness or condition (Blaue).

Question 6

Question: Is a foetus considered a reasonable person for the purposes of murder?

Answer 6

Answer: No, a foetus is not a reasonable creature in being until it is capable of independent existence outside the womb (Attorney-General’s Reference No.3 of 1994).

Question 7

Question: How is the end of life defined in murder cases?

Answer 7

Answer: The legal definition of death is brain stem death, and turning off a life support machine for a brain-dead patient is not murder (R v Malcherek, R v Inglis).

Question 8

Question: What is the mens rea of murder?

Answer 8

Answer: The mens rea of murder is “malice aforethought,” which can be either an intent to kill (express malice) or intent to cause grievous bodily harm (implied malice).

Question 9

Question: What is grievous bodily harm (GBH) in the context of murder?

Answer 9

Answer: Grievous bodily harm is defined as “really serious harm” (DPP v Smith), or simply “serious harm” (Saunders).

Question 9

Question: What is direct intent in murder cases?

Answer 9

Answer: Direct intent is where the defendant’s aim or purpose is to bring about the prohibited consequence (Mohan).

Question 10

Question: What is indirect or oblique intent in murder cases?

Answer 10

Answer: Indirect intent is where the defendant foresees the result as a virtual certainty of their actions, even if it wasn’t their primary aim (Nedrick, Woollin, Matthews & Alleyne).

Question 11

Question: What is transferred malice in murder cases?

Answer 11

Answer: Transferred malice allows the mens rea to transfer from the intended victim to an unintended victim if the actus reus also transfers (Latimer, Mitchell).

Question 12

Question: Can mens rea be transferred if the actus reus of a different crime is committed?

Answer 12

Answer: No, if the defendant commits the actus reus of a different crime, the mens rea does not transfer (Pembliton, Grant).

Question 13

Question: Can malice intended toward a mother be transferred to a foetus in the context of murder?

Answer 13

Answer: No, malice aimed at the mother cannot be transferred to the foetus (Attorney-General’s Reference No.3 of 1994 – Lord Mustill).