- Created by: erw16
- Created on: 05-03-19 14:51
Lord Coke LJ in the 17th Centuary defined murder as "the unlawful killing of a human being under the queen's peace with malice aforethouht either express or implied."
The actus reus of murder is "the unlawful killing of a human being under the queen's peace.
The Unlawful Killing:
The death must be the result of an unlawful act. A death is not unlawful if it is done in self defence or in the prevention of a crime and the defendant used reasonable force in the circumstances. The killing may also not be unlawful if the killing is conducted by an executioner, the killings are by the police or armed forces. However if the police or armed forces exceed their powers, they may face a murder charge as shown in the case of Clegg 1995. Certain deaths accelerated by the medical profession. Doctor's may be allowed to shorten someone's life in very limited circumstances, but they must be careful to operate within the law. Acceleration of a persons death is generally not allowed as affirmed in the case of Cox 1992. The exceptions to this rule are that the acceleration is minimal, the patient is in a persisten vegetative state and where the defence of necessity is pleaded as in the case of Re A.
A Human Being:
A human being is someone who is able to breath independantly and able to "exist independant" to the mother.
In the case of foetuses, the child has to have an "existence independant to the mother" for it to be considered a human being. An attack on an unborn child by the mother or by someone else would normally only be considered to be an abortion or child destruction. In AG Ref No. 3 1998 it had to be decided whether a murder charge could be sustained in a case where the foetus was injured but not killed, was born alive but then later died from its injuries that had been inflicted in the womb. The murder charge could not be brought as there was no mens rea, but a manslaughter charge could.
The courts must decide when death occurs but are prepared to accept medical opinions on this. In the case of Malcherek and Steel 1981 the…