Murder

• Common Law Definition of Murder:

  "Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natra under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. Die of the wound or hurt, etc. Within a year and a day after the same." - Sir Edward Coke, 1797
• Modern use of langue - Murder:

  "Causing the unlawful death of a human being under the King's peace with malice aforethought."
• Murder is Common Law offence.

  There is no Act of Parliament.

  It is an indictable offence (Crown Court ONLY) and the mandatory sentence if LIFE.
• Murder - Actus Reus:

  Causing

  Unlawful Death

  Of a Human Being

  Under the King's Peace
• Murder - Mens Rea:

  Malice Aforethought

  This can be:

  Intention to Kill

  OR

  Intention to commit GBH
• Murder - Actus Reus - Causation:

  • Murder requires proof that person has been killed. Factual causations can be known as 'but for' causation, as it must be well-established that the result of the crime, (in this case, the murder) would not have happened but for the actions of the accused.
• Murder - Actus Reus - Unlawful Death:

  • In some situations causing death may be considered lawful.~

  1. If the Defendant has a valid defence (Self defence, Prevention of Crime, Necessity)
  2. If they are a doctor withdrawing treatment.
• Murder - Actus Reus - Unlawful Death:

  • Re A (2000) - Doctors who operated to separate conjoined twins - knowing it would certainly kill Mary - would have a defence of necessity to Mary's murder because the operation was necessary in order to save her twin Jodie.
• Murder - Actus Reus - Unlawful Death:

  • Airedale NHS Trust v Bland (1993) - Tony Bland - a victim of the Hillsborough disaster who was left in an persistent vegetative state - could lawfully have treatment withdrawn to effectively end his life.
• Murder - Actus Reus - Unlawful Death:

  • R v Clegg (1995) - A soldier at a checkpoint in Northern Ireland opened fire on a car which was not stopping. The death was not lawful and self defence was not allowed as the fatal bullet was fired as the car drive away from the checkpoint.
• Murder - Actus Reus - Of a Human Being:

  It questions:

  • When does life start?
  • When does life end?
• Murder - Actus Reus - Of a Human Being:

  • AG's Ref (no 3 of 1994)(1995) - A foetus is not legal recognised as a human being.
  • D stabbed his pregnant girlfriend, causing the baby to be born prematurely. The child died at 121 days old. He was not guilty of murder as the baby was a foetus and therefore not a human being at the time of the stabbing.
• Murder - Actus Reus - Of a Human Being:

  • R v Malcherek (1981) - Someone on life support who is considered 'brain stem dead' is no longer alive in the eyes of the law.
  • D stabbed his wife, then claimed at his murder trial that the doctors has killed her when they turned off her life support. This was rejected as she was already legally dead. D was guilty of her murder.
• Murder - Actus Reus - Of a Human Being:

  • R v Inglis (2011) - A victim with brain damage - however severe - is still classed as a human being.
  • The victim had suffered extensive brain damage and disfigurement after falling out of an ambulance. D was his mother who gave his an overdose of heroin on purpose to end his suffering. She was guilty of murder.
• Murder - Actus Reus - Under the Kings Peace:

  • Refers to death outside of war time.
  • Therefore a soldier who kills during wartime or in battle is not guilty of murder because the death was not under the King's peace.
  • This would only apply to death caused during sanctioned missions/ operations (R v Clegg)
  • Therefore is a soldier were to kill a fellow soldier in the barracks this could still be murder (R v Smith)
• Murder - Mens Rea - Intention to Kill:

  • Intention to kill is referred to as 'express malice'
  • R v Mohan 1975 - "A decision to bring about, in so far as it lies within the accused's power, (the prohibited consequence), no matter whether the accused desired that consequence or not".
• Murder - Mens Rea - Intention to Kill:

  • R v Nedrick 1986/ R v Woolin 1998 - includes indirect/ oblique intention - where it is not D's main aim but D knows it is a virtually certain consequence.
• Murder - Mens Rea - Intention to commit GBH:

  • Intention to commit GBH is referred to as 'implied malice'.
  • R v Vickers 1975 - "Malice aforethought... has always been defined in English law as either an express intention to kill, ... or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result"
• Murder - Mens Rea - Intention to commit GBH:

  • R v Cunningham 1982 - Confirmed Vickers is still good law. D beat up another man who died from a brain injury. He intended GBH but not death. He was still guilty of murder.