Murder

Question 1

What is Coke CJ’s definition of murder in 1797?

Answer 1

‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature under the king’s peace, with malice aforethought, either expressed by the party or implied by the law’

Question 2

What is a man of sound memory?

Answer 2

Under M’naughten’s case 1843 it means someone who isn’t insane.

Question 3

What is the age of discretion?

Answer 3

This is the age of criminal liability, which begins at the age of 10. Children And Young Persons Act 1933 S.50
‘it shall be conclusively presumed that no child under the age of ten years old can be guilty of any offence’

Question 4

Give the AR and MR elements of this offence

Answer 4

The:
 - Unlawful
 - Killing
 - Of a reasonable creature
 - under the queen's peace
(AR)
 - Expressed malice aforethought or
 - implied malice aforethought
(MR)

Question 5

Give instances where a killing may not be unlawful

Answer 5

• in time of war killing the enemy
• in self defence
• abortion
• an executioner killing offenders
• Airedale NHS Trust v Bland 1993 - a withdrawal of treatment supporting life would amount to a lawful killing, but an active step in ending the life of a patient, would amount to an unlawful killing, injection

Question 6

Explain the element of causation in relation to the definition of the offence

Answer 6

A killing must take place, and the death must be caused by the defendant.
Factual Causation - R v White 1910 - But for test
Legal causation - R v Kimsey 1996 ‘something more than a slight or trifling link’

Question 7

Who is classed as a creature in being or human?

Answer 7

AG reference (No.3 of 1994) [1998] - life begins at birth, expelled from the womb, capable of independent existence

Question 8

What is ment by ‘under the Queen’s peace’?

Answer 8

‘the killing of the Queen’s enemies in the course of military operations’ will not amount to murder R v Page [1954]

Question 9

What is Malice Aforethought?

Answer 9

This is a malicious planning of the offence. However malice aforethought isn’t always malicious, as someone who kills out of mercy or passion may still be guilty of murder - R v Inglis 1 WLR 1110 killed her seriously ill son to stop his pain, still considered murder

Question 10

What is malice aforethought express and implied?

Answer 10

Express is an intention to kill, and implied is an intention to cause grievous bodily harm or resist lawful apprehension resulting in death

Question 11

Explain the four types of malice:

• Direct Express
• Indirect express
• Direct implied
• Indirect implied

Answer 11

Direct express - ‘aim, objective and purpose to kill’ - R v Moloney 1985
Indirect express - Death was a virtual certainty as a result of the defendants actions and the defendant appreciated that such was the case - R v Woollin 1999
Direct Implied - ‘aim, purpose and objective’ to cause GBH or resist lawful apprehension. - DPP v Smith 1961
Indirect implied - serious bodily harm was a virtual certainty as a result of the defendants actions and the defendant appreciated that such was the case - R v Cunningham 1982