Murder

Definition:

“Murder is the unlawful killing of a reasonable person in being and under the Queen’s peace with malice aforethought”

Common law offence so it’s not defined by acts of parliament

Its accepted definition comes from decisions of judges through different cases

Can be committed by an act or an omission e.g. Gibbins and Proctor - failed to feed the child 

Factual causation – guilty if the result wouldn't have happened BUT FOR the D’s actions

Pagett was guilty of M/S because although he didn't cause the death, he caused the situation

White was only guilty of attempted murder because she had died before his poison was drunk

Legal causation – guilty if D’s contribution into death was MORE THAN MERELY MINIMAL

Kimsey caused death by dangerous driving as her actions were more than a slight or trifling link

Thin skill rule – must take your victim as you find them.

Blaue was convicted of murder when his victim refused a blood transfusion

Intervening acts are something else that may happen that would break the chain of causation

Jordan's death was caused by negligent medical care, not the original stab wound

Some killings may be classed as lawful e.g. in self-defence and when the death penalty was implanted.

Soldiers are also allowed to kill during their duties but will be liable for murder if they go beyond their duty and use excessive force.

Defence of necessity can be a lawful killing

Re A saw a lawful killing when twins were separated and one died in the process

Reasonable force can decide whether the killing is lawful or not

Beckford saw a police officer’s murder conviction quashed as he genuinely believed his life was in danger

Excessive force will usually show the killing is not lawful

Clegg convicted of murder as he fired shots after the danger had gone so this was not self-defence

Martin Anthony guilty of manslaughter as his paranoid personality disorder should not have stopped him seeing that the force was excessive

The Crime and Courts Act 2013 amends s76 of the Criminal Justice and Immigration Act 2008

Gives a wider defence on house holders after Martin Anthony

Normally, the force must be proportionate

In the House Holders Rule, it will only be unreasonable if the actions are “grossly disproportionate”.

To fulfil the House Holders Rule:

Force was used when they were in or partly in a building that is a dwelling

D was not a trespasser (does not cover squatters)

D must genuinely believe that they are a trespasser

Means a human being

Excludes foetus as it is not as classed as a human being

AG ref no.3 of 1994 decided D had murdered child as it had been born and then died later because of his actions

A foetus will only become a human being once it has a fully independent existence from its mother i.e. its breathing and the cord is cut

Person ceases to be a human being when their brain ceases to be active

Does not matter if they are being kept alive by artificial means

R V Malcherek and Steel shows even when life support machine is turned off, D can still be charged with murder

Person with disability will always be a human being, no matter how extreme disability is

R V Inglis supports this idea when mother was distressed at disability

Doctors may lawfully kill in certain circumstances

Dr Bodkin Adams was acquitted of murder for giving terminally ill patients lethal doses of painkillers because he was relieving suffering 

Bland saw doctors withdraw treatment legally

Used to be a rule that death must have occurred within a year and a day of the accident

This was sensible when medical knowledge could not prove an attack had caused death after a long time but that was in past centuries

Rule was abolished by Law Reform Act so there is no time limit to liability to murder

Killing the enemy in course of war is not murder

Killing a prisoner of war is murder as this is under peace

“Malice a forethought” can be misleading as it suggests there is pre-planning

EXPRESS Malice a Forethought – intention to kill

IMPLIED Malice a Forethought – intention to cause GBH which results in death

Vickers saw that when a boy hit a woman several times and she died as a result, this was enough to fulfill the mens rea of murder as it was implied

Cunningham agreed with this when D attacked V in a pub and was convicted of his murder when he died from his harm

AG Ref (No.3 of 1994) shows it is not possible to be liable for murder if the D had only intent to kill or seriously injure a foetus because it has not yet got separate existence 

Motive is not the same as intention and is not relevant in deciding intention

Mohan decided that intention also is when the D's purpose is to bring about the death/GBH

Direct intent – the consequences of a person’s actions are desired

Oblique intent – consequences are not desired but foreseen as virtually certain and they were done anyway

Moloney - D accidentally shot step-father with a shotgun. D’s murder conviction was quashed on appeal. These guidelines are no longer law as they use “natural” and not “probable”

Nedrick - D poured paraffin through letter box and set it alight. A child died in this fire. Conviction reduced to manslaughter. It was necessary for the event to be virtually certain and foreseeable by the defendant. The jury should infer the intention. 

Woollin - D threw his baby towards pram against wall then suffered head injuries and died. Used the Nedrick guidelines but used “find” not infer when it comes to intention. Convicted of manslaughter. 

The Law Commission proposed that murder should be reformed by dividing it into two separate offences of first degree and second degree murder

In the 2006 report "Murder, Manslaughter and Infanticide"

Mandatory life sentence would apply only for first degree murder when D has intended to kill

Second murder would cover oblique intention and give a discretionary life sentence

The Government rejected the Law Commission’s proposal of reforming murder into a two-tier offence

This means the mandatory life sentence is still a problem in law.

The Government did take on board the Law Commission’s reform idea of a defence for those who use excessive force in self-defence which is where the defence of loss of control came from.

This defence reduces a murder charge to manslaughter which carries a discretionary life sentence.