- Created by: Luke Berry
- Created on: 02-04-10 18:35
Lord Coke's definition:
"The unlawful killing of a reasonable person in being and under the Queens Peace with malice aforethought, express or implied."
Lord Coke's 17th Century Institutions
Murder is the most serious offence in English law.
It is a common law offence and carries a mandatory life sentence, the judge has no discretion in sentencing.
The actus reus of murder is the unlawful killing of a human being under the Queen's Peace.
This can be by an act or an omission. This was established by Gibbins v. Proctor (1918)
Gibbins and his partner starved his seven-year old daughter to death. The other children of the family were well cared for and fed.
An omission can be the actus reus for murder where a duty of care is owed.
Factual causation is established by the 'but for' test.
Elements of the Actus Reus
Reasonable Person in Being
This means a human being. A murder charge cannot be brought in respect to killing a foetus. (Att. Gen. Ref. Case [No. 3 of 1994]).
Killing of an enemy in the act of war is no murder, killing a POW however, may be.
The killing must be unlawful, the use of self defence (see later) would be acceptable.
1. In the case of Smith, D stabbed V. Legal causation was established even though soldiers dropped V on the way to hospital. How?
The wound was still an 'operating and substantial' cause.
2. In the case of Cheshire, legal causation was established even though V's wound was healing. How?
D's actions 'contributed significantly' to the death.
3. Malcherek & Steel were both convicted of murder and argued that turning off life support machines was the cause of death (thereby breaking the chain of causation). What did the judge say about their defence?
That it was a 'spurious line of argument'.
Mens Rea - to Kill
The mens rea for murder is malice aforethought.
In more modern terminology, this means:
- the intention to kill - express malice
- the intention to cause GBH - implied malice
The case of Mohan (1975) described intention as a decision to bring about a certain consequence.
Mens rea of Murder - to Cause GBH
In Vickers (1957) it was decided when D broke into a shop and beat up the proprietor (an elderly lady), who later died as a result of her injury - that intention to cause grievous bodily harm was sufficient mens rea for murder.
In Smith v. DPP (2006) it was stated that the word "grievous" meant "really serious".
Direct intent means D carries out the actions with the consequence that he wants. This can be demonstrated by the cases of Calhaem orShipman.
Direct intent is also known as purposive intent.
Indirect or oblique intent means D carries out an action but the consequences are not those which he wants.
Foresight of Consequences is evidence of intention. (Moloney (1985))
In Moloney(1985), the judge said that "no elaboration should be given to the jury on the meaning of intention unless it is absolutely necessary."
In Woolin (1998) it was stated that "the jury cannot find the necessary intention unless they feel sure that the death or serious bodily harm was a virtual certainty as a result of D's acts and that be appreciated this."
- The 'thin skull rule' can be viewed as unfair.
- What is 'really serious harm' and how does it link to the crime?
- What is 'excessive foce' for self defence?
- Mandatory life sentence is too strict.
In 2006, the Law Commission proposed major changes to the law on murder. These included a three tier homicide system:
- First Tier Murder
- Second Tier Murder