Murder

What kind of offence is murder?

Common Law offence (not defined by act of parliament)

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What did Lord Coke define murder as?

'Murder is the unlawful killing of a reasonable person in being, under the King's/Queen's peace, with malice aforethought express or implied'

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Jurisdiction

Includes someone murdering someone in a different country if they are a british citizen

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Actus Reus of Murder

Killed, Reasonable Creature in being, Under the Queen's peace, Killing was unlawful.

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KILLED by act or omission

Must cause D of V. Omission example is GIBBINS V PROCTOR (1918)

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REASONABLE creature in being

Reasonable person must be killed. Problems are is a foetus a reasonable creature, and what about someone who is brain dead with life support?

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Murdering of a foetus

Can't be charged with killing a foetus, has to be separate from mother to be a reasonable creature in being.

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ATTORNEY-GENERAL'S REFERENCE (1997)

Injured foetus but child born alive, then dies - can be actus reus for murder

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Year and a day rule

Used to be a rule that must have occurred a year and a day after the attack. This was when there was not much medical knowledge. Abolished

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Under the Queen's peace

Killing of an enemy during war is not murder

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UNLAWFUL

Killing must be unlawful. Killing is not unlawful if it is in self defence or defence of another or prevention of crime.

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Re A (2000)

Killing of one twin was thought to be lawful.

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Reasonable Force

D must be judged on the facts as he genuinely believed them to be, even so if they were mistaken about the true facts BECKFORD (1988)

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Criminal Justice and Immigration Act (2008)

in self defence/of another/prevention of crime person who is under fear or attack cannot be expected to calculate amount of force. 'Honestly and Instinctively' shows that it was reasonable.

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Householder cases

Crime and Courts Act (2013) has amended Criminal Justice and Immigration Act (2008) to give wider defence to householders. Must be in a dwelling, not be a trespasser, D must have believed V to be a trespasser.

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CLEGG (1995) and MARTIN (2002)

Amount of force must be reasonable not excessive

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Coroners and Justice Act (2009)

Created partial defence to murder of 'loss of control' - D killed because of threat/fear of serious violence.

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Rules on when force justifies D's actions

Must be reasonable, D genuinely believed in the situation, personality disorder not taken into account, force must not be excessive.

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MENS REA for Murder

Malice Aforethought, express or implied (two different types of intention)

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Express

Intention to Kill

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Implied

Intention to cause GBH

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VICKERS (1957)

D can be guilty of murder even if they did not intend to kill.

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CUNNINGHAM (1981)

Confirmed that intention to cause GBH was sufficient for mens rea of murder.

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DPP V SMITH (1961)

GBH is to be referred to as 'really serious harm' however this is not totally necessary when directing the jury.

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Oblique Intent

Main aim not to cause serious injury or death but something different, but causes death.

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Foresight of Consequences

D does not have mens rea for murder unless he foresaw that it may cause death or serious injury.

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MOLONEY (1985)

Foresight of Consequences is not intention, only evidence of it.

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NEDRICK (1986)

How probable was the consequence? Did D forsee that consequence?

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WOOLIN (1998)

Find should be used instead of 'infer' when directing the jury when finding/inferring the necessary intention.

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Reforms

Law Commission Report 2006 (Murder, Manslaughter and Infanticide) pointed out there were problems.

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What did they say in this report?

The law on murder is not one coherent whole (developed in bit by bit), Can be convicted of murder even though only serious harm was intended, no defence of self defence if excessive force is used, Duress not available for murder.

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What did the Law Commission propose?

Murder should be divided into first and second degree.

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What would first degree murder be?

Intended to kill/ serious harm, aware of high likelihood of death, mandatory life sentence

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What would second degree murder be?

Intended to cause harm and didn't know it would cause murder, maximum life sentence with judges discretion.

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Murder

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