Murder

Question 1

What is the definition of

Answer 1

MURDER is the UNLAWFUL killing of a REASONABLE person in BEING

and under the KING’S (or QUEEN’s) PEACE with MALICE AFORETHOUGHT, express or implied

Question 2

What is the Jurisdiction for murder?

In other words to proecsute a British citizen in England or Wales

does he need to have killed someone in England or Wales?

Answer 2

Nope!

A British Citizen be be prosecuted in Engand or Wales even if they killed someone in anoter country

Question 3

Please breakdown what is required for the ACTUS REUS of MURDER

Answer 3

1. The Defendant KILLED
2. a REASONABLE PERSON in BEING
3. under the QUEEN’S PEACE and
4. the killing was UNLAWFUL

Question 4

Does “killing” for the purpose of Murder have to be an ACT as opposed to an OMISSION (failure to act) ?

Please quote a case to support your answer

Answer 4

KILLING can be either an act or an omission (failure to act).

R V Gibbins and Proctor (1918)

Failure to feed a kid

Question 5

Explain the facts in R v Gibbins and Proctor (1918) and what it goes to prove?

Answer 5

ACTUS REUS OF MURDER CAN BE AN ACT OR AN OMISSION

Father of 7 year old girl and his mistress kept the girl separate

from the father’s other children and deliberately starved her to death.

Father had duty to feed his girl because he was her parent - Mistress undertook to look after the girl so she had a duty to feed her as well - failure to feed girl was deliberate with intention of killing her or causing serious harm

Question 6

What is meant by CAUSATION in murder?

Answer 6

Murder is a RESULT CRIME so defendant cannot be guilty unless his ACT or OMISSION caused the death

Question 7

In MURDER what is meant by REASONABLE CREATURE in BEING?

Answer 7

This means a HUMAN BEING so for murder a HUMAN BEING must be killed.

Question 8

Could a Foetus in a womb classed as a REASONABLE CREATURE IN BEING?

Answer 8

A child has to have an EXISTENCE INDEPENDENT of the MOTHER to be a creature in being

so a FOETUS is not independent of the mother

Question 9

Could a BRAIN DEAD human being be considered a REASONABLE CREATURE IN BEING?

Answer 9

Well if doctors switch off a life machine this is not considreed to be murder which suggests

that “brain-dead” is the recognised test for death.

However, NO CASES on this point and if a person (not a doctor) switches off a life support machine

ntending to kill the person then this may mean the person committed MURDER

Question 10

Is there a time limit on when someone has to die from an unlawful act in order for it to be MURDER?

Answer 10

No, thanks to the LAW REFORM (YEAR AND A DAY RULE) ACT 1996

there is no time limit on when a death may occur after an unlawful act

BUT

where the death is more than 3 years from the unlawful act

the consent of the Attorney-General is needed before any prosecution can start

Question 11

In the definition of MURDER what is meant by the word UNLAWFUL killing?

Answer 11

DUHHHH it has to be unlawful!!!!

So killing someone through s_elf-defence_ or the defence of another

or the prevention of a crime is not unlawful PROVIDED that:

the person used REASONABLE FORCE

Question 12

What is the MENS REA for MURDER?

Answer 12

It is Malice aforethought, express of implied.

Question 13

What is meant by Malice Aforethought, express or implied?

Answer 13

This means there are two types of MALICE:

EXPRESS MALICE AFORETHOUGHT - which is the intention to KILL

IMPLIED MALICE AFORETHOUGHT - which is the intention to cause grievous bodily harm

Question 14

What case shows that a person can be guilty of murder even when they don’t have the intention to kill?

Answer 14

R v VICKERS (1957)

Man - cellar of sweet shop - deaf old lady - hit her several times and kickdher once in the head

Intention to cause GBH + victim dies = MURDER

Question 15

Explain the facts in R v Vickers (1957) and what does it go to prove?

Answer 15

Vickers - cellar of sweet shop - deaf old lady - punched her several times and kicked her in the head

old lady died - intention to cause GBH sufficient to prove murder

Shows Implied Malice Aforethought - MENS REA OF MURDER

Question 16

What is meant by Grevious Bodily Harm ?

Name the case that explains the meaning of GBH?

Answer 16

DPP v Smith (1961)

the House of Lords decided that GBH has the natural meaning of

REALLY SERIOUS HARM

Question 17

Can you have the mens rea to kill or seriously injure a foetus?

Answer 17

OF COURSE NOT because the Foetus does not have a separate existence from the mother

Question 18

What is meant by OBLIQUE INTENT in terms of murder?

Answer 18

Oblique intent means that the defendant’s main aim was something quite different

from causing the death or serious injury to te victim

Question 19

What is meant by FORESIGHT OF CONSEQUENCES in terms of murder?

Answer 19

This means that the defendant needs to have had the foresight

that his conduct would also cause death or serious injury

Question 20

Name three cases regarding FORESIGHT OF CONSEQUENCES

Answer 20

R v Moloney (1985)

Defendent shot step father - drunken challenge to see who was quickest on the draw

R v Nedrick (1986)

Defendent poured parafin through the letter box to frighten the women and child died

R v Woollin (1998)

Approved direction of Nedrick provided the word “find” was used instead of “infer”

Question 21

What is the name of the case regarding a son shooting his step father

where foresight of consequences was considered?

Answer 21

R V Moloney (1985)

The Defendant shot and killed his steofather 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 may be inferred

Question 22

What is the case regarding foresight of consequences involving

a woman pouring parafin through the letter box of another women

and what two questions did the Judge say the Jury needed to ask themselves?

Answer 22

R v Nedrick (1986)

This case stablished the “virtual certainty test” becoming the key test on indirect (oblique) intention

In summary, intent may be inferred if the following conditions are jointly satisfied:

1. The result was a virtual certain consequence of the defendant’s conduct, and
2. The defendant knew that it was a virtually certain consequence

Question 23

What case approved of the direction in R v Nedrick (1986) but what did it change?

Answer 23

R v Woolin (1998)

The House of Lords approved the vitualcertainty test in R v Nedrick but changed the word “infer” to “find” so that the Jury should be directed that they are not entitled to find the necessary intention UNLESS

1. they feel sure that death or serious injury was a virtual certainty as a result of the defendant’s actions and
2. the defendant appreciated that this was the case

Question 24

Explain Transferred Malice for the purposes of Murder

Answer 24

If D fires a gun at V1 but misses and kills V2 then D is still guilty of murder

even though he did not intend to kill V2

Question 25

What is the flowchart on homocide?

Answer 25

Check out the image sent to you

Question 26

ESSAY QUESTION ON MURDER

In 2006 the Law Comission published a report “Murder, Manslaughter and Infanticide”.

Please set out the issues identified within this report on the law of murder

Answer 26

1. The law of murder has developed over time bit by bit as opposed to a proper full review and update
2. D can be convicted of murder even if the intention was just serious harm (as opposed to murder)
3. No defence available if excessive force is used in self-defence
4. No defence of duress to murder charge
5. Mandatory life sentence that doesn’t take into account individual circumstances of each case

Question 27

What is the argument against D being convicted of murder

where the only intention was to cause GBH?

Answer 27

You punch an idiot hard in the face in NBs coz he’s direspected your lady he falls to the ground and hits his head

on the floor and dies. Ieuan is doing time if the jury think he intended to cause GBH (likely if he punched

the guy hard in the face). How can this be the same as the guy who stabs the idiot 14 times for the same

disrespect?

LAW COMMISSION SAID IN THEIR 2006 REPORT that this was not right and even in the case of

R v Cunningham (1981) Lord Edmund Davies said mens rea for murder should be limited to the intention to kill

Question 28

Does the mandatory life sentence for murder work?

Answer 28

So offenders of 10 to 17 who are found guilty of murder have to be detained at HER majesty’s pleasure.

Offenders of 18+ have to get a MANDATORY (no choice) life sentence and the Judge

will then decide the MINIMUM time the D has to serve (see other card).

So no flexibility for judge regardless of facts of the murder. To get around this problem there has been the introduction of s_pecial defences_ of diminished responsibility and loss of control which reduces murder to mansalughter so the Judge is not stuck with MANDATORY LIFE SENTENCE

Question 29

Yo dud - talk to me about minimum sentencing in Murder.

What will a waste man get as a “life sentence”?

Answer 29

The minimum sentences are laid down in the Criminal Justice Act 2003

There are three starting points:

1. A whole life term for serious premeditated killings of two or more people, sexual or sadistic child murders or politically motivated murders - Ian Huntley got 40 years
2. 30 years minimum for serious murders of police, prison officers, murders involving firearms or sexual/sadistic killings or racialy motivated killings
3. 15 years minimum of rmurdersnot falling within the other categories above

So in R v Martin 2002 - Anthony Martin would have got 30 years - same as a sadistic child murder - is that fair?

Question 30

MURDER

What is the Law Commission’s proposal for reform?

Answer 30

Commission suggest there should be 2 offences for Murder

• First degree murder = intention to kill or GBH (and D was aware of risk of death)
• Second degree murder = intention to cause GBH (D not aware of risk of death)

Life sentence would only apply to First Degree murder

Judge would have more flexibility with sentencing in Second degree murders

GOVERNMENT REJECTED PROPOSALS but introduced LOSS OF CONTROL defence for fear of serious violence