Murder Flashcards
Murder Definition
Murder is defined as the unlawful killing of a reasonable person in being and under the King’s Peace with malice aforethought,express,or implied by the lord coke in the 17th Century.
Actus Reus of murder
There are 4 vital elements to the actus reus of murder. The defendant Killed, reasonable creature, under the king’s peace and the killing was unlawful.
Actus reus of murder(the defendant killed)
The defendant killed, the actus reus of killing can be an act or omission due to the fact there is an existing duty of care. But it must cause the death of the victim. As seen in R v Gibbins and Proctor (1918) . There was established duty of care due to the relationship between the defendants and the victim and the failure to act resulted in the death of the victim.
Actus reus of Murder ( reasonable creature)
The second element of the actus reus is a reasonable creature in being for it be murder a person must be killed, however a foetus in the womb does not count as a reasonable creature in being. therefore excludes any baby in a womb, so if death is caused before the child has an existence independent of its mother, there can be no murder. This is now settled law following the House of Lords’ decision in Attorney general’s reference NO. 3 OF 1994 [1998] AC 245. If the victim is brain dead, it is not that they would consider a reasonable creature in being or not, doctors are allowed to switch off life support machine without being held liable. It is possible that the courts may decide if it is not a medical decision but intending to kill the victim, they could be guilty of murder
actus reus of murder (under the king’s peace)
The third element of the actus reus is under the king’s peace. It was deemed that killing an enemy at a time of war does not count as murder, although killing someone who is defenceless A prisoner of war would be sufficient for the actus reus of murder.
actus reus for murder (unlawful)
The final element of the actus reus of murder is that the killing was unlawful. In order for the actus reus to be satisfy there must be an unlawful; killing. A killing can be lawful if it was in self-defence, in defence of another or in the prevention of crime and the defendant used reasonable force in the circumstances. In deciding whether the force used was reasonable the fact the defendant though and instinctively thought was necessary in the moment of unexpected anguish is considered strong evidence
Causation
The actus reus must have caused the death and causation must be established. There are two types of causation. Factual causation and legal causation. For the defendant to be liable for murder and the cause of the death, both elements need to be proved in order for the defendant to be the cause of the death. Factual causation, it must be proved that the defendant is the factual cause of the death. This is tested with the but for test.that but-for the defendant’s conduct, the victim would not have died. The case of R v WHITE (1910) - where the ‘but-for’ cause was the heart attack not the poison. Legal causation is establishing that the defendant is the more than the minimal cause of the death as seen in R v Kimsey. In this we can use the thin skull rule, the courts have always held that a defendant must take a victim subject to his physical state. In short, a defendant must always take a victim as he finds him this is seen in R V Blaue
Mens Rea
The mens rea for murder is malice aforethought. There are two types of malice aforethought,express or implied. There are two different intentions. Express malice aforethought is the intention to kill. This could a desire aim or purpose to bring the death as in R v Mohan as the defendant wanted to scare and cause harm the police officer. Implied malice aforethought is the intention to cause grievous bodily harm as in DPP v Smith. So, a person can be guilty of murder even if they did not intend to kill as seen in R v Vickers, this case pointed out that a where a defendant intends to inflict GBH and the victim dies, this had always been sufficient in the English law to imply malice aforethought. Indirect intention can be sufficient for Mens rea, this means that death or serious harm was a virtual Certainty, and the defendant saw the actions would cause the death as seen in R v Nedrick and was later developed in the case of R v Woolin
Transferred Malice
Transferred malice is the principle that D can be guilty if he or she intended to commit a similar crime but against a different victim. As established in R v Latimer, Latimer was guilty of malicious wounding against the woman, although he had not meant to hit her There however transferred malice so he was found guilty of hitting the woman.
