MURDER

Question 1

What does homicide mean? (1)

Answer 1

is the general term used to describe the unlawful killing of a human being

Question 2

what offence is murder? (1)

Answer 2

murder is a common law offence

Question 3

what is a common law offence? (1)

Answer 3

it is not defined by any act of parliament but has been defined by decisions of judges in different cases.

Question 4

which judge defined murder in common law? (1)

Answer 4

Lord Coke in the seventeenth century

Question 5

define murder. (1)

Answer 5

‘the unlawful killing of a reasonable person in being and under the kings (or queens) peace with malice aforethought, express or implied’

Question 6

what is the actus reus of murder? (1)

Answer 6

the actus reus of murder is the unlawful killing of a reasonable creature in being and under the queens peace.

Question 7

what must be proved for the actus reus of murder to occur? (4)

Answer 7

-the defendant killed
-a reasonable creature in being
-under the queens peace
-the killing was unlawful

Question 8

what is meant by ‘killed’ in terms of the actus reus for murder? (3)

Answer 8

-can be either act or omission
-the actus reus is usually a positive act such as hitting or stabbing the victim
- an omission or failure to act can make a person liable for an offence of murder

Question 9

what case supports an omission for murder? (1)

Answer 9

R v Gibbins and Proctor (1918)

Question 10

what causation must be provided for murder to be charged? (1)

Answer 10

as murder is a result crime the defendant cannot be guilty unless his or her act or omission caused the death but in some cases there may be other causes which led to the death of the victim.

Question 11

what is meant by ‘reasonable creature in being’? (1)

Answer 11

the phrase means ‘a human being’ so a person must be killed.

Question 12

what are the two issues that arise from the definition a ‘reasonable creature in being’? (2)

Answer 12

-is a foetus a creature?
-the validity of a brain dead victim

Question 13

how did the courts solve the problem arise from unborn children in terms of the definition of a ‘reasonable creature in being’? (2)

Answer 13

a homicide offence cannot be charged in respect of the killing of a foetus, a child has to have an ‘existence independent of the mother’ for it to be considered of a ‘creature of being’

Question 14

how did the courts solve the problem arise from brain dead victims in terms of the definition of a ‘reasonable creature in being’? (2)

Answer 14

doctors are allowed to switch off a life support machine without being criminally liable, this suggests that ‘brain-death’ is the recognised test for death. seen in the case of R v Malcherek (1981)

Question 15

what is the ‘year and a day’ rule? (1)

Answer 15

there used to be a rule that death must have occurred within a year and a day. this rule was sensible when medical knowledge was not sufficient to prove that an attack had caused death after such a long time.

Question 16

why is the ‘year and a day’ rule no longer valid? (1)

Answer 16

the rule was abolished by the law reform act 1996 and there is no time limit on when the death may occur after an unlawful act. However, where death occurs more than three years after an attack the consent of three attorney-general is needed for a prosecution.

Question 17

what is meant by ‘queens peace’ in terms of the actus reus for murder? (1)

Answer 17

under the queens peace means that killing of an enemy in the course of war is not murder.

Question 18

what is meant by ‘unlawful’ in terms of the actus reus for murder? (1)

Answer 18

the killing must be unlawful, if the killing is in self-defence or defence of another or in the prevention of crime and the defendant used reasonable force in the circumstances then the killing is not unlawful.

Question 19

what are the defences for murder listed under? (1)

Answer 19

the coroners and justice act 2009

Question 20

what is the mens rea for murder? (1)

Answer 20

the mens rea for murder is ‘malice aforethought, express or implied’

Question 21

what are the two different kinds of intention for the mens rea of murder? (2)

Answer 21

-express malice aforethought, which is an intention to kill
-implied malice aforethought, which is intention to cause grievous bodily harm

Question 22

what case covers intention to harm but not kill? (1)

Answer 22

R v Vickers (1957)

Question 23

what case decided that intention to cause grievous bodily harm was sufficient for the mens rea of murder? (1)

Answer 23

R v Cunningham (1981)

Question 24

what case did the house of lords decide the meaning of grievous bodily harm? (1)

Answer 24

DPP v Smith (1961)

Question 25

what did the house of lords decided in the case of DPP v Smith and when was it? (2)

Answer 25

the house or lords decided that grievous bodily harm’ has the natural meaning of ‘really serious harm’. however, even if the judge directed the jury leaving out the word ‘really’ and just said ‘serious harm’ this is not a misdirection.

Question 26

what are the two main forms of intention? (2)

Answer 26

-Direct intention
-oblique or indirect intention

Question 27

what is direct intention? (1)

Answer 27

where the defendant intends the consequence (in the case of murder the death of the victim (a deliberate killing)

Question 28

what is oblique or in direct intention? (1)

Answer 28

where the defendants aim or purpose was not to bring about the consequence (the death) the defendant does not have the mens rea for murder unless he or she foresaw that he or she would also cause death or serious injury as a result of their actions.

Question 29

what is meant by foresight of consequences in terms of the mens rea for murder? (1)

Answer 29

the main rule is that foresight of consequences is not intention. this is seen in s8 of the criminal justice act 1967

Question 30

what must the jury consider under the criminal justice act 1967 in determining whether a person has committed an offence? (1) (a)

Answer 30

shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probably consequence of those actions

Question 31

what must the jury consider under the criminal justice act 1967 in determining whether a person has committed an offence? (1) (b)

Answer 31

shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

Question 32

in what cases did the house of lords attempt to explain foresight of consequences? (3)

Answer 32

R v Moloney (1985)
R v Nedrick (1986)
R v Woolin (1998)

Question 33

what did the house of lords decided in the case of R v Nedrick? (2)

Answer 33

how probable was the consequence which resulted from the defendants voluntary act?
did the defendant foresee that consequence?

Question 34

what occurred in the case of R v Moloney and when was it? (2)

Answer 34

where the defendant shot and killed his step-father in a drunken challenge to see who was quicker on the draw, it was held that foresight of consequences is only evidence from which intention can be inferred. (1985)

Question 35

what occurred in the case of R v Nedrick and when was it? (2)

Answer 35

the defendant poured paraffin through the letter box of a house in order to frighten the women who lived there. a child died in the fire. (1986)

Question 36

in what report did the law identify problems with foresight of consequences? (1)

Answer 36

a report in 206 called ‘murder, manslaughter and infanticide)

Question 37

what must the judge order if the defendant is over the age of 18? (1)

Answer 37

the judge has to pass a life sentence of life imprisonment

Question 38

what must the judge order if the defendant if between the ages of 10-17? (1)

Answer 38

the judge has to order that they be detained at his majesties pleasure

Question 39

what act laid down guidelines for sentencing of murder? (1)

Answer 39

the criminal justice act 2003

Question 40

what are the guidelines for sentencing of this act? (3)

Answer 40

-a whole life term for exceptionally serious cases so the offender will never be released from prison
-thirty years minimum for murders of police or prison officers, murder involving firearms, sexual or sadistic killings or killings aggravated by racial or sexual orientation
-fifteen years minimum for murders not falling within the other two categories