Murder Flashcards
Section 9 OAPA or S3 British Nationality Act
A murder or manslaughter committed by a british citizen on land anywhere out of the uK may be tried in England as if it had been committed there.
Who can be the victim of murder
A reasonable create in Rerum natura This is any human being
Is it murder to kill a foetus/child in the womb? Or in the process of leaving the womb?
If the child has ‘an existence independent of its mother’ it is capable of being murdered. Therefore
Poulton
The child must have been wholly expelled from the mother’s body and be alive
When is the baby alive?
When it has an independed existence and it has breathed. But there is some uncertainty at the precise moment the child is protected
A-G’s reference (No3 of 1994)
D stabbed girlfriend, V who was 26 weeks pregnant causing X to be born prematurely and die 120 days later. HOL accepted obiter that as an established rule, violence towards a foetus which results in harm suffered after the baby is born can give rise to criminal liability.
Mens rea problem with foetus murder
COA held that the foetus is an intergral part of the mother, if there was an intention to kill or cause serious harm to the mother, this intention would also be towards the child. HOL disagreed and said that “the mother and foetus were two distinct organisms”. They declined to extend the doctrine of transferred malice to double transfer of intent. However, the HOL then went on to say that it is manslaughter to kill baby not murder.
CP (A child) v First tier Tribunal
A child was born with alcohol syndrome after her mother drank during pregnancy. Lord Dyson held: “it is well established that a foetus is not a “person” rather it is a sui generis organism” and that A-G reference supported this position.
Death and murder
At the moment there is ambiguity as to when someone is death. The law has not evolved a definition but the current medical view is when someone is brain dead.
Dyson
There must be some acceleration of death
Airedale NHS Trust v Bland
There is a special defence for doctors. Where a doctor is caring for a patient lawfully administers painkilling drugs, despite the fact he knows the incidental effect will be death this is a defence.
Lord Sumption in the case of Nicklinson
Medical treatment intended to relieve pain is not unlawful only because it has incidental consequences, however foreseeable.
R v Winchester Crown Court
Doctor acting in good faith purposefully killed in order to terminate pain. Held: guilty.
Inglis
COA confirmed that there is no defence of mercy killing in english law.
The mens rea of murder
Malice aforethought
Malice aforethought
HOL has confirmed that this means intention in Moloney. Manslaughter is an unlawful homicide without malice aforethought. It is: 1) an intention to kill any person or: 2) An intention to cause GBH.
What does GBH mean?
Grievous means “really serious”. In Saunders it was held that it is for the judge to decide in each case whether it is necessary to direct the jury that the harm intended must be”really serious”.
DPP v Smith
HOL laid down an objective test for liability of murder. The test was “not what the defendant contemplated but what the ordinary reasonable man in the circumstances have contemplated as the natural and probably result.
Murder section
S1/2 Homicide act 1957
A murder or manslaughter committed by a british citizen on land anywhere out of the uK may be tried in England as if it had been committed there.
Section 9 OAPA or S3 British Nationality Act
A reasonable create in Rerum natura This is any human being
Who can be the victim of murder
If the child has ‘an existence independent of its mother’ it is capable of being murdered. Therefore
Is it murder to kill a foetus/child in the womb? Or in the process of leaving the womb?
The child must have been wholly expelled from the mother’s body and be alive
Poulton
When it has an independed existence and it has breathed. But there is some uncertainty at the precise moment the child is protected
When is the baby alive?
D stabbed girlfriend, V who was 26 weeks pregnant causing X to be born prematurely and die 120 days later. HOL accepted obiter that as an established rule, violence towards a foetus which results in harm suffered after the baby is born can give rise to criminal liability.
A-G’s reference (No3 of 1994)
COA held that the foetus is an intergral part of the mother, if there was an intention to kill or cause serious harm to the mother, this intention would also be towards the child. HOL disagreed and said that “the mother and foetus were two distinct organisms”. They declined to extend the doctrine of transferred malice to double transfer of intent. However, the HOL then went on to say that it is manslaughter to kill baby not murder.
Mens rea problem with foetus murder
A child was born with alcohol syndrome after her mother drank during pregnancy. Lord Dyson held: “it is well established that a foetus is not a “person” rather it is a sui generis organism” and that A-G reference supported this position.
CP (A child) v First tier Tribunal
At the moment there is ambiguity as to when someone is death. The law has not evolved a definition but the current medical view is when someone is brain dead.
Death and murder
There must be some acceleration of death
Dyson
There is a special defence for doctors. Where a doctor is caring for a patient lawfully administers painkilling drugs, despite the fact he knows the incidental effect will be death this is a defence.
Airedale NHS Trust v Bland
Medical treatment intended to relieve pain is not unlawful only because it has incidental consequences, however foreseeable.
Lord Sumption in the case of Nicklinson
Doctor acting in good faith purposefully killed in order to terminate pain. Held: guilty.
R v Winchester Crown Court
COA confirmed that there is no defence of mercy killing in english law.
Inglis
Malice aforethought
The mens rea of murder
HOL has confirmed that this means intention in Moloney. Manslaughter is an unlawful homicide without malice aforethought. It is: 1) an intention to kill any person or: 2) An intention to cause GBH.
Malice aforethought
Grievous means “really serious”. In Saunders it was held that it is for the judge to decide in each case whether it is necessary to direct the jury that the harm intended must be”really serious”.
What does GBH mean?
HOL laid down an objective test for liability of murder. The test was “not what the defendant contemplated but what the ordinary reasonable man in the circumstances have contemplated as the natural and probably result.
DPP v Smith
S1/2 Homicide act 1957
Murder section
