UNIT3 MURDER

Question 1

Who defined murder and what is the definition?

Answer 1

Lord Coke defined the common law offence of murder as the unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought, either express or implied.

Question 2

What is the first element of the actus reus of murder ?

Answer 2

Unlawful so not in self defence, soldier, by police, doctor turning off life support.

Question 3

What happened in (R v) Martin?

Answer 3

D lived on a farm prone to break-ins and illegally and unreasonably shot V who was an intruder therefore the killing was unlawful.

Question 4

What is the second element of the actus reus of murder?

Answer 4

Killing
- by an act
- by an omission (voluntarily assuming responsibility as in Stone and Robinson, relationship as in Gibbons and Proctor, public office as in Dytham, creating a dangerous situation as in Miller, contractual as in Pittwood)
which must cause V’s death.

Question 5

How is the second element of the actus reus of murder/first element of causation proved?

Answer 5

Factual causation is proven using the but for test (Pagett, V would not have died but for D using her as a shield) (White, V would still have died from a heart attack but for D poisoning her).

Question 6

How is the second element of the actus reus of murder/second element of causation proved?

Answer 6

Legal causation is proven using the operative and substantial cause test (Smith, D stabbing V was the operative and substantial cause of V’s death not the palpably wrong medical treatment).

Question 7

How is the second element of the actus reus of murder/third element of causation proved?

Answer 7

Unforeseeable actions of a third party (Pagett - chain of causation wasn’t broken as D could foresee police would have shot in retaliation) (Jordan - chain of causation was broken as medical treatment was palpably wrong). Victims owns actions (Roberts - V jumping out moving car to escape sexual advances was reasonable and broke the chain) (Williams - V jumping out moving car to escape is unreasonable). Unforeseeable act of God (earthquake, hurricane) (White - heart attack broke the chain).

Question 8

How is the second element of the actus reus of murder/fourth element of causation proved?

Answer 8

Thin skull rule means anything making V more vulnerable will not break the chain (Blaue - V refused a blood transfusion being a Jehovah’s Witness but did not break chain).

Question 9

What is the third element of the actus reus of murder?

Answer 9

“reasonable creature in being”

Question 10

What does not constitute as a “reasonable creature in being”?

Answer 10

An unborn foetus (Attorney General’s Reference (No3 of 1994) and somebody whose brain stem has stopped functioning (Malcherek and Steel).

Question 11

What is the legal principle of Airedale NHS Trust v Bland?

Answer 11

Life sustaining treatment can be withdrawn from a patient in a persistent vegetative state as long as the court has given permission and is in the patient’s best interests to do so. D is a reasonable creature in being.

Question 12

What is the fourth element of the actus reus of murder?

Answer 12

“Under the Queen’s Peace” meaning the country is not at war

Question 13

What case is used for “under the Queen’s peace”?

Answer 13

(DPP v) Clegg

Question 14

What does express malice mean?
… indirect intent?
… direct intent?

Answer 14

Intention to kill
Mohan, D aims to kill
Woollin, D realises death is a virtual certainty

Question 15

What does implied malice mean?
… indirect intent?
… direct intent?

Answer 15

Intention to cause GBH but caused death
Mohan, D aims to kill
Woollin, D realises death is a virtual certainty

Question 16

What does DPP V Smith define grievous bodily harm as?

Answer 16

Really serious harm

Question 17

What is the legal principle of Vickers?

Answer 17

Intention to cause GBH is sufficient mens rea for murder if V dies.

Question 18

What are some advantages of implied malice?

Answer 18

• ensures D is not acquitted because he intended GBH and V died
• justice for V’s family
• could have deterrent value

Question 19

What are some disadvantages of implied malice?

Answer 19

• doesn’t reflect D’s blame
• wrong in principle someone convicted of murder when they may have only intended to break a leg
• one size fits all mandatory life sentence

Question 20

What does direct intention involve?

Answer 20

D aims to bring about prohibited consequence, as in Mohan where D accelerated towards a police officer after being told to stop the car.

Question 21

What does indirect/oblique intention involve?

Answer 21

Death/serious injury was a virtual certainty and D realised this (Woollin where D threw baby at a wall intending for it to land in the pram however was too angry to realise this) (Matthews and Alleyne where D’s threw V into a river at night knowing he couldn’t swim and inevitably died).

Question 22

Regarding consideration of coincidence, what is the single transaction theory?

Answer 22

Where the mens rea is present first and has to be extended to meet the actus reus which comes later, as in

Question 23

Regarding consideration of coincidence, what is a continuing act?

Answer 23

When the actus reus is present first and has to be extended to meet the mens rea which comes later, as in

Question 24

What is transferred malice?

Answer 24

Where D has the mens rea of a crime and performs the actus reus of the same crime but in a different way than intended. D’s mens rea is transferred from his intended V to his actual V. ( where malice was transferred from man to woman). Mens rea cannot be transferred from person to property, as in Pembliton where D had mens rea of battery but actus reus of criminal damage.

Question 25

What is the structure for a murder scenario answer?

Answer 25

Identify offence - likely to be charged with murder
Definition - defined in common law
Explain actus reus - “unlawful killing of a reasonable creature in being under the queen’s peace”
Apply actus reus - “unlawful” not in self defence, Martin
- “killing” causing death, Pagett, Smith
- “reasonable creature in being” not a foetus and not brain dead, Att Gen Ref (No3 of 1994), Malcharek and Steel
- “under Queen’s peace” not at war, Clegg
Explain mens rea - express (direct or indirect) or implied (direct or indirect) malice
Apply mens rea - Express malice (intention to kill)
- Implied malice (intends to cause GBH)
- Direct Mohan
- Indirect Woollin