Murder

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  • Created by: Hbrandxx
  • Created on: 01-01-19 12:53

Defining murder

  • Offence of murder requires D unlawfully to kill another person under the Queen's peace, and to do so intending to kill or cause GBH.
  • Conduct element: any conduct causing result (AR), voluntary (MR)
  • Circumstance element: V must be a person, under Queen's peace, unlawful (AR), knolwedge (MR)
  • Result element: death of V (AR), intention to kill/cause GBH (MR)

Actus reus of murder

  • Type of conduct is irrelevant (can be omission) but requires necessary circumstances

Under Queen's peace

  • Exception is where soldiers kill alien enemies in 'heat of war, an in actual exercise thereof'

Unlawful killing

  • Must satisfy all actus reus and mens rea elements, and be done without lawful defence.
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Defining murder 2

V must be a person 

  • An unborn foetus isn't a person within criminal law. Only when she's 'fully expelled from the womb' and alive. 
  • There's no authoratative definition of death, courts often refer to medical definitions to assist them. BUT V is medically dead when 'brain dead' e.g. accepted by HoL in Bland.
  • It's still considered as murder even if D accelerates the death of V (e.g. terminally ill patient)
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Mens rea of murder

Definition

  • Coke's definition murder mens rea is 'malice aforethought' is still used. Current law requires D to have an intention to kill or cause GBH.
  • D intends to kill where her conduct is carried out to bring that result (direct intent) & or where her conduct is virtually certain to cause that result, she foresees it as a virtual certainty, and jury choose to find intention (oblique intent)
  • Courts allow liability for murder where D acts with intention to cause merely GBH- murder is therefore a constructive liability offence.
  • The possibility for constructive liability in murder, where D intends to cause merely GBH has attracted severe criticism: D doesn't choose to kill/risk killing so thus lacks culpability to deserve liability for murder.
  • Under the current law, D satisfies the mens rea for murder even if she has no anticipation that her conduct risks killing V, as long as D intends a certain level of harm that the jury interepret as GBH.
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Defences to murder

General defences

  • Mental abnormality (internally/externally caused), self-defence, necessity: D contends that her actions were justified or should be excused because she lacked a viable choice not to offend.

Doctors and the treatment of terminally ill patients

  • E.g. prescription of pain-relieving drugs to terminally-ill patients, where doctors are aware that the patient's life expectancy will be reduced as a side-effect. 
  • The doctor would satisfy the actus reus of murder as her conduct in prescribing drugs accelerates the patients death. For mens rea, the shortening of life is a virtually certain consequence of her conduct and her knowledge of this is likely to amount to an oblique intention to kill. Thus, elements of murder are satisfied.
  • BUT can result in doctrine of double effect: intentionally causing a harmful result can be morally defensible where it's a side effect of promoting a good end (Adams case)
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Partial defences and reform

Three partial defences to murder

  • Loss of self-control: D kills whilst out of control owing to fear of serious violence/grave circumstances giving her a justifiable sense of being seriously wronged.
  • Diminished responsibility: D's recognised medical condition led to an abnormality of mind and substantially impaired her capacity, causing her to kill.
  • Suicide pact: D kills V in pursuance of an agreement that they'll both die together. 

Reforming mandatory life sentence 

  • Tariff period: minimum period of imprisonment is between 15years and a life term. (must be served in full before D's release is considered by parole board)
  • Areas of interest instead of MLS: narrowing definition of murder, reform of partial defences, extenuating circumstances mitigation (allows MLS not to apply to certain exceptional murder cases).
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