- Created by: George Russell
- Created on: 11-11-13 10:29
- Murder is a common law offence whereby a person has killed another person with intention to cause death or serious harm.
- The common definition of murder is based on a judgement made by Lord Coke which stated that murder is 'the unlawful killing of a reasonable creature in being under the King's (or Queen's) peace with malice aforethought express or implied.'
The elements to be proven in murder are tharefore:
- Unlawful killing
- Reasonable creature in being
- King or Queen's peace
- Malice aforethought express or implied
The Actus Reus
Actus Reus Elemments
- The killing must be unlawful
- The killing must be within the King or Queen's peace
- The D must be a reasonable creature in being in order to be covered by the law on murder
In order for a killing to be a Murder it must be an unlawful killing - although this may seem common sense, there are occassions where there may be lawful killings:
- Police firearms squads kililng a person while carrying out their duty would not be considered an unlawful killing
- An exicutioner who is implimenting the death penelty would not be liable for murder
- A killing in self defence may be considered to be 'lawful' in some instances
The King or Queen's Peace
There can be no offence of murder if a person is acting on behalf of his or her majesty's armed forces - Again, although this seems to be common sense it is considered to be good law and good sense that a soldier won't be charged for following his orders.
- There are occasions where a soldier isn't allowed to shoot a person based on the law relating to war crimes however this isn't needed for the A2 exam for example you are not allowed to shoot those who have been captured in war
A Reasonable Creature in Being 1
A killing is only murder if the person killed is a reasonable creature in being - however because murder is a common law offence, the definition of a 'reasonble creature' is based on case law so prepair for cases!
There are several factors to be considered in deciding when a person begins being a reasonable creature and when they stop being reasonable creature in being:
- When a child is born, at what point does it become a reasonable creature in being
- When a person dies, when to they stop being a creature of being
Explanations and cases on the next card!
A Reasonable Creature in Being 2
A foetus in the womb
- A child is considered to be a reasonable creature as soon as it has a life independant of that of its mother however it need not have even taken its first breath and the umbilical chord need not be cut in order for it to be considered a reasonable creature in being.
Attorney General Reference No. 3 of 1994 (1997)
- Victim was 23 weeks pregnant when she was attacked by the D
- V's baby was born prematurely due to the wounds inflicted by the D and her baby died as a result
- There could be no charge of murder in this isntance as the baby was not yet considered a reasonable creature in being however the D did have to assume some criminal responsability for their actions and was charged with manslaughter.
A Reasonable Creature in Being 3
An individual who is pronounced 'brain dead'
- This issue arose when people are put in a 'brain dead' state and are kept alive soley by a life support mechanism
- When this mechanism is turned off who has killed the V, the D? Or the doctor who turned off the machine
R v Malchereck and Steel (1981)
- Two seperate defendants tried together due to similar facts and similar grounds of appeal
- They claimed that alghough they had caused their wives to be on life support machines they cliamed that in fact it was the turning off of these machines that had killed their wives
- The court ruled that once a person's brain stem has stopped functioning and there is no hope on medical grounds of recovery then turning off a life support machine is not murder and the appeal was dismissed
The Mens Rea
Murder requiers there to be some kind of intention be it direct or oblique
- Direct intention is relitively straightforward in that it can be very easily proven in terms of the D has directly intended to kill or cause serious harm to the V and with this has brought about their death
- Oblique intention is slightly more complicated and unfortunately examiners like to use this to test a candidate's understanding of mens rea.
- Whereby the D dies not indent to cause the V's death but their death is a virtual certainty from their actions that death or serious harm could occur (more on next card)
Oblique Intention 1
R v Moloney
In this case the D killed his step father as they were challenging each other to a 'quickdraw' competition due to a drunken state. Moloney was faster than his step father. The step-father than challenged Moloney to shoot which due to his drunken state he did.
- Moloney did not desire the consequence but his actions brought about the consequence
R v Nedrick
Nedrick poured parraffin though a letterbox of an individual who he had quarels with, the resulting fire killed the occupants of the house. The court decided that intention can be found through means of:
- How probable was the consequence from the Ds deliberate act
- Did the D appretiate this
Oblique Intention 2
R v Woolin
Woolin threw a baby at its pram which was against a wall. The baby hit its head on the wall and died as a consequence. Using the principles in Nedrick the court developed the principles of virtual certainty:
- The consequence must be of virtual certainty from the conduct of the D
- The defendant must realise that this is the case
If this is proven - the jury may find intention from this in regards to any offence.
In regards to murder it is required that the D caused the death of the V which is proven using the usual rules of causation:
- Factual causation using the 'but for' rules
- Legal causation using the 'deminimus' principles and the 'thin skull rule'
- Novus actus interviens (NAI) or new act intervenes which breaks the chain of causation.