Murder and MR

Question 1

What is the AR of murder and manslaughter

Answer 1

In addition to proving that D has voluntarily done a culpable act or is responsible for a culpable omission that caused V’s death the prosection must prove that V was a reasonable creature in the queen’s peace.

Question 2

What is meant by reasonable creature

Answer 2

• V must be a live human

Question 3

In which case was it held an unborn baby, or a baby in the process of being born is not protected

Answer 3

Poluton

Question 4

What happened in Ag Ref np 3

Answer 4

D stabbed his pregnant girlfriend, she went into labour and the baby was born prematurely and later died in circumstances that could be linked back to the stabbing, so the stabbing caused it to die after its birth. The HoL clear that AR did not require child to be born at the time of the stabbing, whether the D MR was sufficient was another issue.

Question 5

What was held in Re A (A children)(conjoined)

Answer 5

• conjoined twin girls so that the separation would cause the death of one of the girls. Cannot argue that the weaker of the twins is not a person- she as much entitled to the protection of the criminal law as much as any other person.

Question 6

There is issues at the end of life- is is possible to argue that because someone is on life support they are not alive

Answer 6

no- The law draws a distinction between finishing treatment of a person who cannot be restored to health.

Question 7

What was it said about ending life on life support in Aireldale NHS trust

Answer 7

to allow this would be to cross the rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law.

Question 8

Mercy killing has survived attempts to change the law example

Answer 8

Assisted Dying Bill 2015

Question 9

What does it mean to be acting under the queen’s peace

Answer 9

• The protection of the Queen’s Peace will be lost in times of war where V is an enemy.

Question 10

In which case was it argued D was acting under the Quee’s Peace

Answer 10

• Aebolajo, tried a defence to effect that Queen’s peace did not apply because in their eyes they were at war with the queen and did not recognise her jurisdiction, this is rejected because the idea of under QP applies not to the D but the status of the V, and has nothing to do with the status of D.
  This Queen’s Peace only goes to the status of the V

Question 11

What did Page hold

Answer 11

Soldiers/police in non-war situations are government by ordinary rules of law

Question 12

What is the approach that has been taken if D does 2 acts- act 1 is intended to cause V’s death and the second is intended to perhaps dispose of the body

Answer 12

the two acts are seen as part of the same course of conduct, the enabling the MR to apply to the later act- Thabo Meli v R

Question 13

What is the sentence for murder

Answer 13

• The mandatory penalty for an adult aged 21+ convicted of murder is imprisonment for life (Murder (Abolition of Death Penalty) Act 1965).
• ‘Life’ does generally not mean life: the CJA 2003 lays down criteria for a defined minimum term depending on the seriousness of the offence, after which D may be released on licence.

Question 14

What is the MR of murder

Answer 14

• Murder traditionally regarded as ‘Sir Edward Coke; when a person, of sound memory and discretion, unlawfully killeth, any reasonable creature in being and under the King’s peace, with malice aforethought, either express or implied.”
  MALICE AFORETHOUGHT

Question 15

What did Lord Hailsham argue in Hyam about the MR of murder

Answer 15

Argued that we needed to abolish ‘malice aforethought’- “I would myself think that the sooner the phrase is consigned to the limbo of legal history the better for precision and lucidity in the interpretation of our criminal law.”

Question 16

What did S/1 Homicide Act do

Answer 16

s.1, abolished constructive malice. This was one of Parliaments rare interventions in the law of murder, but it was regarded as necessary in order to abolish this form of murder, which was thought to be too harsh. However, malice aforethought, express or implied remained.

Question 17

What is constructive malice and example?

Answer 17

Constructive malice arose where D killed someone even accidently in the course of a criminal offence.
- Beard, D accidently suffocated a girl in the course of rape. The rule worked that his intention ro rape the girl was sufficient to make out the offence of murder, without any need to further prove intention.

Question 18

Murder can be either…

Answer 18

express which means an intention to kill OR implied which means do do GBH (vickers) with previous meaning really serious (DPP v Smith)

Question 19

IN which case was the decision in Vickers approved

Answer 19

Cunningham- - the concept of implied malice in the form of intention to do grevious bodily harm is separate from and pre-dates the felony-murder rule, and therefore survives. The moral basis for this rule is that ‘the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little cause for complaint if, where death results, he is convicted and punished as severely as one who intends to kill’ per Lord Edmund-Davies.

Question 20

Where was the fairness of implied intent questioned

Answer 20

• Lord Edmund doubted the fairness of this: why should intentionally breaking V’s arm be murder if death results? But he thought this was a change only Parliament could make.

Question 21

What did the Draft Criminal code recommend in terms of express intent

Answer 21

• The Law Commission’s Draft Criminal Code (Law Com 177) recommended a significant change (never enacted): A person is guilty of murder if he caused the death of another:
  (a) Intending to cause death or
  (b) Intending to cause serious harm and being aware that he might cause death

Question 22

What does the GBH rule breach

Answer 22

the principle of correspondence - the fault element does not correspond with the conduct element which is causing death, and so a person is liable for conviction for a higher crime than contemplated- ash worth

Question 23

where was the GBH rule further criticised by Lord Mustil

Answer 23

• A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936, where Lord Mustill said (at 946): “the grievous harm rule is an outcropping of old law from which the surrounding strata of rationalisations have weathered away. It survives, but exemplifies no principle which can be applied to a new situation.

Question 24

What are the three proposed offences by the Law Com

Answer 24

First degree and second degree murder

Question 25

What is first degree murder

Answer 25

murder with intention to kill or to cause serious injury with awareness of serious risk that death might result (mandatory life sentence)

Question 26

What is second degree murder

Answer 26

murder with intent to cause serious injury or intent to cause some injury/fear/risk of injury and aware of serious risk of causing death or with partial defence such as LOSC/DR (discretionary life sentence)

Question 27

There has been favour for the enactment of first degree murder where

Answer 27

MPs including Alex Chalk have shown favour to the offence of first degree murder that would encompass intentionally killing only. This is bevause a person who intedned GBH did not intend to kill, the offene should not be in the highest category.

Question 28

to whom does d need to have intention towards

Answer 28

D intended to kill such a human being an not e.g. kill an animal or damage a dummy or a corpse. qW

Question 29

What does the doctrine of transferred malice allow for

Answer 29

allows D to be convicted on the strength of his intention to kill/cause gbh to A where he misses A, and strikes B instead (even if injury to B is not contemplated or, it seems, foreseeable

Question 30

What happened in the case of Gore

Answer 30

D killed her husband, took medicine that had been prepared for her husband by a chemist B. Husband tried some of the medicine which made him feel ill so did not take anymore, he called B, B took the medicine and gave a stir and took it to prove it was fine, and he died from the poison that D has out in. D was convicted of murder of B, even though she could not have intended to kill B.

Question 31

what happened in Latimer

Answer 31

D in a crowded pub lashed out at A with a belt with a buckle. He missed and hit B, a woman who was walking towards A causing her serious facial injuries. It was held that D had maliciously wounded B. (In the crime of malicious wounding, would it be enough if D was reckless as to injuring B, this would be another way to justify). Recklessness is sufficient MR for malicious wounding. This would be alternative way to justify convicting. Advantage of transferred malice is that do not have to prove that D foresaw any injury to B as long as intended injury to A.

Question 32

What does Pemilton indicate

Answer 32

the offences must be the same - threw stone at A intending to hit A, but hit a window of B. Held there could be no transferred malice as different AR.

Question 33

What was decided in Ag reg no 3 regarding transferred malice

Answer 33

cannot have a double transfer of intent from mother to foetus to child born alive so as to make D guilty or murder- this would strain the idea of transferred malice.

Question 34

Where was there a strained interpretation of transferred malice

Answer 34

• However, in Gnango, G was liable where P, in the course of a duel with G, missed G and hit V. Clearly, V was murdered by P, nut why is G also guilty when he was the intended V? Is this not a strained interpretation?

Question 35

What is direct intent

Answer 35

• Direct intent is where the intention is clear from the circumstances. The D wanted something to happen.

Question 36

Intent has been said to be a common word thus what rule is used

Answer 36

Golden rule- when directing a jury upon intent it is that it is best to avoid any elongation or paraphrase of what is meant by intent, it is an ordinary English word, Moloney- applies to the vast majority of cases

Question 37

What is oblique intent

Answer 37

• Oblique intent is dependent on probability unlike direct intent. D may be held to intend something he knows will happen, though he does not act in order to bring about.

Question 38

What 3 cases did Nedrick consolidate

Answer 38

Hyam, Moloney and Hancock

Question 39

what happened in Nedrick

Answer 39

The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night poured paraffin through her letter box and set light to it. A child died in the fire.

Question 40

What is the legal principle from Hedrick

Answer 40

The correct direction was that “the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.”

Question 41

What were the Moloney guidelines

Answer 41

D the jury think that death was a natural consequence; and if so were they satisfied that the d foresaw death or GBH as a natural consequence of his act? If both questions are answered yes, then the jury may find intent

Question 42

what was held in Hancock

Answer 42

changed natural consequence to a probable one

Question 43

what happened in Nedrick

Answer 43

Lord lane attempted to clarify the guidelines- The correct direction was that “the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.”

Question 44

Where has nedrick been confirmed

Answer 44

Woollin

Question 45

What happened in Woolin

Answer 45

• he appellant threw his 3 month old baby son on to a hard surface. It was accepted that he did not act in order to kill or cause gbh. Nedrick was confirmed, with a minor change: ‘where the chatge of murder and in the rare cases where the simple direction… is not enough, the jury should be directed that they are not entitled to find (rather than infer) the necessary intention, unless they feel sure that the death or serious bodily harm was virtually certain as a result of the `D’s actions and that the D appreciated that such was the case’.

Question 46

What further question was considered in Woollin

Answer 46

if the jury find that D acted with direct intend then that must equal intention, but if they find that he appreciated that the result will occur as a virtual certainty then under the Nedrick/Woollin trhen that is evidence from which they may find intention

Question 47

Which case has been considered the Woollin loophole

Answer 47

• Re A, surgeons had to decide whether to separate conjoined twins, and consequence would be that one might live while the other would certainty die. But leaving the joined would mean both would die. Civil case asking for permission. LJ Walker, case can be seen as one where the surgeons do not intend to kill the weaker of the two twins. Appeal as an outcome, but can only get to this result using ‘Woollin loophole’.

Question 48

What happened in stringer

Answer 48

• D set fire to family home. No one was injured. 6 people escaped but one brother wearing headphones and he died. D convicted using the Woollin test, CoA approved this saying it was unrealistic to think that everyone would escape without serious injury. Was this actually VC? What if some sets fire to a hostel not knowing there is a fire escape, so D thinks no one has a chance, this would not be VC that anyone would die. But someone does in fact die. D believes he is going to cause death. LC recognise that actual VC should be removed if it is a matter of MR.

Question 49

problems of woollen

Answer 49

• In the civil case of Re A the court belived that Wooollin had made it law that foresight of consquences was intention.
• Whereas in R v Matthews & Allyene the court decided that Woolllin meant that forsight is not intention. It is just a rule of evidence allowing the jury to find intention if it wishes although it does not have to.
• So has Woollin only created more uncertainty?

Question 50

terrorist problem and Wollin?

Answer 50

This Woolin/Nedrick test may be problematic in that it may exclude the conviction of murder in the often citied terrorist example where a member of the bomb disposal team is killed. In such a case it may realistically be said that the terrorist did not foresee the killing of that person as a virtual certainity.
Should the terrorist be convicted of manslaughter or murder? NB the Scottish Law option of wicked recklessness as sufficient for murder.