Murder

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  • Murder
    • Definition
      • Lord Coke - 17th century
        • the unlawful killing of a reasonable creature in being and under the Queen's Peace with malice aforethought express or implied
    • Actus reus
      • killing must be unlawful
      • can be an act or an omission
        • Gibbins and Proctor (1918)
      • murder is a result crime so chain of causation must be intact
      • what is a reasonable creature in being ?
        • homicide offence cannot be charged in respect of killing a foetus
          • child has to have an 'existence independent of the mother' for it to be considered a creature in being
            • umbilical chord does not need to be cut
        • Attorney-General Reference (No of 3 of 1994) (1997)
          • HL - where foetus is injured and the child is born alive but dies afterwards due to injuries
            • can be actus reus of murder
        • it is not certain whether a person who is 'brain-dead- would be considered as a 'reasonable creature in being'
          • Malcherek (1981) - doctors were allowed to turn off life support machine
        • Year and a day rule - death must occur within a year and one day of attack
          • abolished by Law Reform (Year and a Day Rule) Act 1996
            • if person in coma and died year and a day later D could not be charged
        • Re A (conjoined twins) (2000)
          • CA held separation of twins was lawful even though one would die
      • Unlawful force
        • Beckford (1988) - D must be judged on facts he genuinely believed them to be even if D was mistaken about true facts
        • Criminal Justice + Immigration Act 2008
          • difficult to weigh up exactly how much force needed in pressure situation, so assessed on what D honesty and instinctively thought was reasonable
        • Clegg (1995) - evidence showed car had gone past Clegg at time of last shot
          • self-defence could not be used as he was no longer in danger - force was excessive
    • Mens rea
      • D must have specific intent to kill or cause GBH and death results
        • decided by Vickers (1957) and confirmed by Cunningham (1981)
        • DPP v Smith (1961) - HL held that GBH meant 'really serious harm'
      • problems created when D has oblique intent
        • D does not have mens rea unless he foresaw that he would also cause death or serious injury
          • foresight of consequence
            • Moloney (1985) - shot and killed step father in drunken challenge
              • foresight of consequence is only evidence from which intention may be inferred
            • Nedrick (1986) - D poured paraffin through letter box
              • CA said jury should ask themselves:
                • a) how probable was the consequence which resulted from D's voluntary act?
                • b) Did D foresee the consequence?
              • Jury should also be directed
                • not entitled to infer necessary intention unless they feel virtually certain death or serious injury would have resulted and D appreciated this
            • Woollin (1998)
              • approved of direction in Nedrick
              • disproved of the use of the two questions
              • Law lords said that 'substantial risk' was not correct test
              • Law lords said word 'find' should be used rather than 'infer'

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