Murder [+ intention] Flashcards
Definition
Coke’s institute definition =
AR: The unlawful killing of a human being under the King’s peace
+ MR: with intent to kill or cause grievous bodily harm
AR for murder = killing + act
- Unlawful killing = No defence or lawful excuse
An act or culpable omission - Any act is killing
- Culpable Omission = not doing something that is your legal duty to do = R v Gibbins & Proctor: [stepmother abused stepchild]
vs. not culpable in Airdale NHS Trust v Bland: [victim of Hillsborough disaster]
AR for murder = causes and death
- ordinary rules of causation = e.g. Paggett [used 16-year-old pregnant girlfriend as shield]
- The death = No longer within a year and a day = abolished
+ R v Young = if convicted of another offence, you can still be prosecuted later on for murder, it is not double jeopardy - Of another human being = A foetus inside the womb will not constitute a human being for the purposes of murder [AG’s Reference (No. 3 of 1994) = D stabbed girlfriend whose baby later died]
+ The child must be born alive and have an independent existence from mother for the purpose of murder = R v Poulton - Under the King’s peace = Not in a time of war
MR for murder
With intent to kill or cause GBH
- R v Vickers = confirmed that constructive malice was abolished in statute but implied malice, where D was the intention to cause GBH was not
– this was reinforced by DPP v Smith
- Constructive liability = where you have the MR for one crime, but commit another
Intention - the golden rule
The Golden Rule = R v Moloney – avoid elaboration or paraphrase what is meant by intent, instead leave it to the jury
Intention - types of intention:
- Direct Intent = R v Mohan: directly intend your purpose, includes a means to an end, and motive and desire doesn’t have to match intention
- Indirect/Oblique intent = not D’s purpose but it is highly probable that death will occur
Intention - tests for indirect/oblique intention
- DPP v Smith = officer clings on to car accelerating, D drives to try and get him off, he dies, court upholds objective test
- s.8 Criminal Justice Act 1967 changes it to a subjective test
- Hyam v DPP = arson results in death, D claims only to scare, no intention to kill, subjective test confirmed: 1. foreseeable serious risk, 2. deliberate act where GBH resulted, 3. probable risk
- Confirmed in Maloney = 1. really serious, natural consequence + 2. foreseeable consequence
Intention - current test for indirect/oblique intention
R v Woolin = CURRENT TEST –
(i) was death or serious bodily injury a virtual certainty (objective test)
(ii) did D appreciate that it was a virtual certainty (subjective test)
= the jury may find intention but do not have to = discretion
= it is a certain consequence and D found it to be so
= the judge doesn’t have to use the words virtually certain, but pitched at the same level
= it is not a legal definition, but can be used to help the jury if they need it
Transferred malice
Transferred malice = must be for the crime of the same MR
[R v Pemliton: malice transfers if you intend to hit A but hit B, not if B is actually a window, as a different crime, with different MR]
+ double transfers not possible [AG’s Reference (No. 3 of 1994) - so not from mother to foetus to then the foetus once born]
Essay Questions
Advanatges and disavanatges of murder and intention
- unfair labelling: D is labelled as a murderer and sentences so despite intending GBH
- Constructive liability = where you have the MR for one crime, but commit another
- no legal defintion for intention [vs. not needed, only guidance is necessary as jury use the ordinary meaning]
