Fatal Offences - Murder

• what is a homicide and what differentiates different offences of homicide?

  homicide is the unlawful killing of a human being

  different offences of homicide depend on the mens rea of D & whether there is defence available to D
• what are all the offences under the category of unlawful homicide?

  1. murder (the most serious fatal offence)
  2. voluntary manslaughter (killing with the mens rea for murder, but with partial defence)

  -defence of loss of control

  -defence of diminished responsibility

  3. involuntary manslaughter (mens rea of murder not present)

  -gross negligence manslaughter

  -unlawful act manslaughter
• what type of offence is murder, and what/who defined it?

  murder is a common law offence

  it was defined by Sir Edward Coke as "the unlawful killing within any country of the realm of reasonable creature under the king's peace, with malice aforethought, express or implied"
• who can commit murder?

  from Coke's definition: "a man of sound memory, and of the age of discretion"

  basically:

  • A person who is responsible according to the general principles of law
  • over the age of nine
  • not insane
  • no diminished responsibility
  • no other defence
  • not a corporation

  if the murderer is not of sound memory (mind) and age of discretion, they cannot be found guilty of murder
• AR elements of murder - 1) Unlawful

  the killing must be unlawful

  lawful killings include:

  • execution: abolished in english law by the murder (abolition of death penalty) act 1965
  • soldier/police killing in the course of duty - powers must not be exceeded (R v Clegg)
  • medical profession: only when it is in the best interest of the patient (Airedale NHS Trust v Bland)
  • self defence: the force used must be reasonable
• AR of murder - unlawful case example (R v Clegg)


  soldier at checkpoint in northern ireland fired 4 shots at a car speeding through checkpoint (self defence)

  final shot killed passenger as car was driving away - the car posed no immediate threat at the time of the fatal shot

  HoL held that the killing was unlawful

  Clegg's conviction of murder was upheld because the force used was excessive - final shot wasn't necessary to prevent harm
• AR elements of murder - 2) Killing (causing death)

  AR of killing can be:

  • an act causing the death of the victim
  • an omission causing the death of the victim, where there is a duty to act

  murder is a consequence (result) crime - therefore rules of causation apply:

  factual causation (R v Pagett)

  legal causation (R v Smith)

  no intervening acts

  
  

  D cannot be guilty unless their act/omission caused the death
• AR elements of murder - 3) a reasonable creature in being

  for murder, a living person must be killed

  homicide cannot be charged for killing a foetus - doesn't count as a reasonable creature in being: A-G Ref (No.3 of 1994)

  the child has to have "an existence independent of the mother" (being born alive & breathing through it's own lungs)

  doctors are allowed to switch off life support machines without being liable for homicide

  this suggests that "brain stem death" is the recognised test for death (if no brain stem activity then the person is recognised as dead) - R v Malcherek & Steel
• AR of murder - a reasonable creature in being (foetus) case example: A-G Ref (No.3 of 1994)


  D stabbed his pregnant girlfriend (V) in the face, abdomen & back when she was 22-24 weeks pregnant - 17 days after the incident she gave birth

  baby died 121 days later due to premature birth - D charged with murder & manslaughter

  trial judge held that at the time of the attack the foetus was not classed as a human being & thus the MR aimed at the mother couldn't be transferred to the foetus

  HoL held that D's actions couldn't amount to murder for the reasons given by the trial judge
• AR of murder - a reasonable creature in being (brain dead) case example: R v Malcherek


  2 seperate appeals were heard: In Malcherek, D stabbed his wife.

  In both cases, V was taken to hospital and placed on life support machines

  the doctors in the respective cases later turned off the life support machines, V's weren't showing any brain stem activity

  D's argued that the doctor's actions constituted a novus actus interveniens which broke the chain of causation

  convictions were upheld, the test of death is where the brain stem has died so V's were already dead before the machines turned off
• AR elements of murder - 4) under the king's peace


  This means that the killing of an enemy soldier in the course of war isn't murder

  However, killing a prisoner/s of war would be murder

  EXAMPLE: the case of sargeant Blackman (aka marine A) who shot dead a taliban fighter

  Blackman was convicted of murder but was later reduced to manslaughter on the grounds of diminished responsibility
• AR elements of murder - 5) within any country of the realm (jurisdiction)


  This means a person can be charged with murder committed anywhere in England & Wales

  However, murder and manslaughter are unusual because British courts have jurisdiction where the offence has been committed by a British citizen in any country - (s.9 OAPA 1861) and (S.3 British nationality act 1948)
• when does death need to occur?

  The year and a day rule: "...so as the party wounded, or hurt, etc. Die of the wound or hurt etc within a year and a day after the same"

  The year and a day rule was abolished by the law reform (year and a rule) Act 1966

  Now, if an act has caused death, there is no time limit (if certain conditions are met)
• If an act has caused death there is no time limit (example) - Steven Craig case

  Craig, 58, covered Jacqueline Kirk in petrol and set her alight in a car park in Sommerset in April 1998

  V died due to medical implications in August 2019 (from her injuries)
• what are the MR elements of murder?

  there is expresss malice aforethought which is the intent to kill (direct or oblique)

  there is implied malice aforethought which is the intent cause GBH (direct or oblique)
• If there is oblique intent for either MR of murder, which case should be used?

  R v Woollin
• Express malice aforethought case example: R v Shipman (2000)


  Shipman (a GP) was convicted of murdering 15 patients by administering lethal doses of diamorphine

  investigation revealed D falsified medical records to make deaths appear natural

  over 200 deaths were later attributed to his actions

  legal issue: did D possess requisite intent to kill (express malice) & were his actions sufficient to constitute murder

  D convicted of murder - court found he had direct intent to kill
• Implied malice aforethought case example: R v Vickers (1957)


  D broke into the cellar of a local sweet shop - knew that the old lady (V) who ran the shop was deaf

  V came into the cellar and saw D - D hit her with his fists & once in the head

  V died of her injuries

  CoA upheld D's conviction on the basis that where D intends to inflict GBH & V dies

  sufficient to imply malice aforethought
• do the general rules of intention apply?

  yes, for direct intention - D wanted the result & set out to achieve it for oblique - D didn't actually want the result but the result was virtually certain and D knew it

  In cases of oblique intent: D doesn't have the mens rea for murder unless they foresaw that they would cause death/serious injury (foresight of consequence)

  HOWEVER, foresight of consequence is not intention, only evidence of intention
• does transferred malice apply for murder?

  yes, so if D shoots A but misses and hits & kills B, then D is guilty of murder

  the intention to kill A is transferred to B