Murder part 1 Flashcards
How did Lord Coke define murder?
The unlawful killing of a reasonable person in being under the Queen’s peace with malice aforethought, express or implied.
Which defence can be used for a charge of murder?
Self-defence.
Which defence cannot be used for a charge of murder?
Duress.
What is the actus reus of murder?
The unlawful killing of a human being under the Queen’s peace.
How can murder be committed?
By an act or omission.
Can any murder by any British citizen be tried in the English courts?
Yes.
Can the victim be a foetus?
No.
Give the facts of Attorney-General’s Reference (No 3 of 1994) (1997).
D stabbed his pregnant girlfriend causing her to give birth prematurely, the baby died. D was not charged with the baby’s murder as it was a foetus.
Can the victim be brain-dead?
No.
What does under the Queen’s peace mean?
Killing enemies in war is not unlawful, however killing a prisoner of war is.
What may be used in self-defence?
Reasonable force.
When might killing be necessary?
To save one of a pair of conjoined twins, as in Re A (conjoined twins) (2000).
What is strong evidence that force used in self-defence is reasonable?
The fact that the defendant had only done what he honestly and instinctively thought was necessary in a moment of unexpected anguish.
On which facts is the defendant judged when considering a defence of self-defence?
On the facts as he believed them to be, even if he was mistaken.
What does the Criminal Justice and Immigration Act 2008 allow for?
The fact that the defendant is under stress and cannot be expected to precisely calculate the exact amount of force necessary.
If excessive force is used, will the defence be successful?
No.
Give the facts of Clegg (1995)
D was a soldier on duty at a checkpoint who shot at a speeding car three times as it approached and once as it drove off, killing a rear passenger. Clegg could not use the defence as there was no threat at the time of the last shot.
What is the mens rea of murder?
Malice aforethought, express or implied.
Which case decided that you do not need to have intention to kill to be convicted of murder?
Vickers (1981)
Does transferred malice apply to murder?
Yes.
What does the defendant have to foresee in order to be convicted of murder?
He has to foresee that his acts would cause death or serious injury.
What are some problems with the law on murder?
- The law developed bit-by-bit and not as a whole.
- The serious harm rule makes the law on murder too wide-ranging.
- No defence when excessive force is used is too harsh.
- No defence of duress is unfair.
- The mandatory life sentence does not distinguish between different levels of murder.
What has the Law Commission suggested to reform murder?
Division of the offence into first and second degree murder, where first degree is intent to kill and second degree is intent to seriously harm.
