Murder

Murder

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Murder
DEFINITION
The modern and simple definition of murder, derived from that of Sir Edward Coke who was Chief Justice
from 1613-16 (Institutes of the Laws of England, 1797), is: the unlawful killing of a living human being, under
the Queen's peace, with malice aforethought, express or implied.
ACTUS REUS
There must be an unlawful killing and not one, for instance, in self defence. The killing must be of a living
human being and not, for instance, an unborn child. The killing must not be of an enemy at a time of war.
The Law Reform (Year and a Day Rule) Act 1996 abolished the common law rule that the victim must die
within a year and a day of the injury. However, consent of the Attorney General is required before
prosecuting a person where (a) more than three years have lapsed, or (b) the person has already been
convicted of another offence in circumstances connected to the death (eg, maliciously wounding or
inflicting GBH).
CAUSATION
As murder is a result crime, the prosecution must establish causation. There are two types. First of all,
factual causation for which the "but for" test from White is used. If there is a possible novus actus
interveniens (new intervening act) then a test for legal causation is used. There are various tests for this,
eg:
The defendant was the "operating and substantial cause" test from Smith;
The defendant's act or omission "contributed significantly" from Pagett; and
There was "more than a slight or trifling link" from Kimsey. (check these cases)
Note that there are other tests but one is no more important than another.
MALICE AFORETHOUGHT
The mens rea for murder is malice aforethought. The House of Lords in Moloney held that this meant an
intention to kill or cause grievous bodily harm (GBH). This intent can be direct or oblique.
DIRECT AND OBLIQUE INTENTION
Direct intent was defined in Mohan as "a decision to bring about, in so far as it lies within the accused's
power, the commission of the offence ..." Oblique intention is where a person foresees a consequence of
his actions but does not desire it for its own sake. An example was given by Lord Bridge in Moloney:
"A man, who, at London airport, boards a plane which he knows to be bound for Manchester, clearly
intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive
for boarding the plane is simply to escape pursuit. The possibility that the plane may have engine trouble
and be diverted to Luton does not affect the matter. By boarding the Manchester plane, the man
conclusively demonstrates his intention to go there, because it is a moral certainty that that is where he
will arrive."
The "virtual certainty" test from Nedrick is used to decide if there is evidence of oblique intention.
This test was endorsed by the House of Lords in Woollin.
A recent case example of oblique intent is Matthews and Alleyne. (Check this case)
INTENTION TO CAUSE G.B.H. (IMPLIED MALICE)
In R v Vickers, the Court of Appeal held that a defendant could be convicted of murder if it was established
that he had intended to kill, or had intended grievous bodily harm. The latter was accepted as sufficient
mens rea for murder because if a defendant was willing to inflict GBH, how was he to know that the victim
might not die? An intention to cause GBH at least evidenced a willingness to accept a substantial risk that
the victim might die.
In R v Cunningham (1981), the defendant repeatedly struck the victim around the head with a chair
resulting in his death. The prosecution contended that while there was no intention to kill, there had
been an intent to do really serious bodily harm. The defendant's plea of manslaughter was rejected and
he was convicted of murder. The House of Lords stated that an intention to cause "really serious injury"
was sufficient to amount to the mens rea for murder.
SENTENCE
Murder carries a mandatory life sentence. However, the trial judge will set the minimum term to be served
(tariff) before the Parole Board decides if a prisoner should be released.

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