Murder

Question 1

Who was the definition of murder set out by?

Answer 1

Sir Edward Coke (1797)

Question 2

Is Murder defined under a statute?

Answer 2

No, it is a common law offence.

Question 3

What is the actus reus of murder?

Answer 3

Unlawful
Killing
Of a Human Being
Under the Queen's Peace
And Death to Occur

Question 4

Explain in relation to the actus reus of murder, the word: Unlawful.

Answer 4

Killing must be unlawful, certain defences (self-defence) may make the killing lawful.

Question 5

Explain in relation to the actus reus of murder, the word: Killing.

Answer 5

Actus Reus of killing can be an act (shoot/stab) or omission (failed to act under legal duty).

Question 6

Give an example of an Omission in relation to Killing as the actus reus to murder.

Answer 6

R v Gibbins and Proctor (1918) - failed to fulfil duty as parents, daughter died.

Question 7

What two subsections to Human being, being the actus reus to murder are there?

Answer 7

The foetus

The brain dead

Question 8

Explain in relation to the actus reus of murder, the word: The foetus.

Answer 8

baby has to have “an independent existence to the mother to be considered a creature in being”.

Question 9

What two cases are associated with the foetus being part of the actus reus?

Answer 9

R v Poulton (1932)

Attorney General’s Reference (No 3 of 1994)(1997)

Question 10

What happened in R v Pouton (1932)?

Answer 10

Mother tied string around baby’s neck and killed it whilst it was being born.

Question 11

What is the legal principle in R v Pouton (1932)?

Answer 11

Court held for baby to be considered a person, it must be fully expelled from body.

Question 12

What happened in Attorney General’s Reference (No 3 of 1994)(1997)?

Answer 12

D stabbed pregnant girlfriend. Recovered but baby born prematurely, died later from complications of birth.

Question 13

What is the legal principle in Attorney General’s Reference (No 3 of 1994)(1997)?

Answer 13

No liability for murder as foetus was not “a creature in being”. CoA said foetus was part of mother, that intention to cause GBH to her is equivalent to same intent directed towards foetus.

Question 14

Explain in relation to the actus reus of murder, the word: The brain dead.

Answer 14

Not certain whether a person who is brain dead is still a “creature in being”. Doctors allowed to turn off life support.

Question 15

Give a case associated with brain dead in relation to actus reus of murder.

Answer 15

R v Malcherek and Steel (1981)

Question 16

Explain in relation to the actus reus of murder, the word: Queen’s peace.

Answer 16

Killing of enemy during war time is not murder.

Question 17

Explain in relation to the actus reus of murder, the word: Death to occur.

Answer 17

V has to die within a year and a day of last act/omission done by defendant. Rule abolished by Law Reform (Year and a Day Rule) Act 1996. Now no time limit, however where more than three years has passed, the Attorney General’s consent is needed to prosecute.

Question 18

What is the mens rea of murder?

Answer 18

Malice aforethought

Question 19

What does Malice aforethought mean?

Answer 19

The intention to kill or cause GBH, includes situations like assisted suicides.

Question 20

What two types of intention are there?

Answer 20

Direct Intent

Indirect Intent

Question 21

What is Direct Intent?

Answer 21

D wants result to occur, sets out to achieve it.

Question 22

What is Indirect Intent?

Answer 22

Where D did not desire result but in acting as they did, realised it might occur.

Question 23

What six cases are associated with Indirect Intent as the Mens rea to murder?

Answer 23

R v Hyam (1972)
R v Moloney (1985)
R v Hancock and Shankland (1986)
R v Nedrick (1986)
R v Woolin (1999)
R v Matthews and Alleyne (2003)

Question 24

What was the ruling in R v Hyam (1972)?

Answer 24

If D foresaw consequences of actions as highly probable, meant they intended it.

Question 25

What test was formulated in R v Moloney (1985) and by who?

Answer 25

Lord Bridge:
Was death or serious injury a natural consequence of D’s act?
Did D foresee that?
If answer yes, jury could infer intent.

Question 26

What was said in R v Hancock and Shankland (1986) and by who?

Answer 26

Lord Scarman said it should be explained to jury that “greater probability of consequence, more likely consequence was foreseen, if consequence foreseen, greater probability consequence was also intended.”

Question 27

What was created in R v Nedrick (1986)?

Answer 27

Virtual certainty test:
1. How probable was the consequence which resulted from D’s actions?
2. Did D foresee consequence as virtually certain?
If yes, intention can be inferred.

Question 28

What wording was changed in R v Woollin (1999)?

Answer 28

Said substantial risk should have been changed to virtual certainty.

Question 29

What was said in R v Matthews and Alleyne (2003)?

Answer 29

CoA said if jury were sure that D had appreciated virtual certainty of V’s death and had no intention of saving him, it was impossible to see how they could not have inferred intention to kill.

Question 30

What is Transferred Malice?

Answer 30

If D intends to kill or cause serious injury to one but accidently kills another, they can be found guilty of that murder.

Question 31

What case is associated with transferred malice?

Answer 31

Latimer (1886)

Question 32

What happened in Latimer (1886)?

Answer 32

D had argument in pub, swung belt at intended V, missed and hit bystander.

Question 33

What is the legal principle in Latimer (1886)?

Answer 33

Even though it was an accident, still convicted of malicious wounding.

Question 34

Evaluate Murder.

Answer 34

1. Remains unclear, inconsistent verdicts invite prejudice and discrimination.
2. Mandatory life sentences make it difficult to differentiate between types of murder when sentencing.
3. Law Commission recommends degrees of murder, like American system.
4. Juries sometimes reluctant to return murder verdicts due to punishment.
5. Discrepancies in use of partial defences to murder, leads to inconsistencies.
6. Definition of human being is old fashioned.
7. Some situations, D may not realise death could occur, yet s/he is still guilty.
8. No defence of duress.