Murder

• Murder is a common law crime - meaning?

  It's not defined by statute, judges in different cases have shaped this through precedent
• Sir Edward Coke's 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 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.
• Issues with Sir Coke's definition?

  • 'sound memory' - sane
  • 'age of discretion' - criminal responsibility was 10
  • 'within any country of the realm' - any citizen charged with murder anywhere can be tried in the UK
  • 'reasonable creature in being' - a human being
  • 'under the King's peace' - not in war time
  • 'malice aforethought either expressed by the party or implied by law' - mens rea is intention
  • 'within a year and a day' - has been removed, we have better healthcare now so people are likely to live longer through medications
• Now simply defined as?

  The unlawful killing of a human being with expressed or implied intent under the King's peace
• Actus reus of murder

  D caused the death of a human being under the King's peace and the killing was unlawful
• Most murders are committed by a voluntary act however what else can be sufficient?

  An omission if they had a duty of care that they failed to fulfil eg failing to medicate a child (Gibbons & Proctor)
• Murder is a result crime, meaning?

  The action itself may not be criminal, eg throwing a stone, but it causes the death which makes it criminal
• A 'reasonable creature in being' means a human being but how does this apply to foetus'?

  • AG (No.3) 1997 where D stabs girlfriend which causes a premature birth and baby dying at 4 months old, he's acquitted but certainly could've been charged for manslaughter
  • you cannot murder a foetus in the womb
  • if it's born alive then dies then you can convict for manslaughter
  • if it dies in the womb there will be no conviction
• A 'reasonable creature in being' means a human being but how does this apply to somebody who's brain dead?

  It's uncertain because a doctor can turn off a life support machine lawfully, which suggests brain dead is a recognised test for death, but if D switches off a life support machine with intention to kill V then they'd be guilty of murder
• The killing must be unlawful - when might it be lawful?

  War time, doctors who give high doses of pain relief and cause the death, self-defence
• Where is the starting point for self defence?

  The Criminal Law Act 1967 states that, 'a person may use such force as is reasonable in the circumstances in the prevention of crime'
• What 2 questions do prosecutors ask ask to assess the reasonableness of the force used in self defence?

  1. Was the use of force necessary in the circumstances eg was there a need for force at all?
  2. Was the force used reasonable in the circumstances?
• How must D be judged in self defence?


  Judged on the facts of the case as he genuinely believed, even if they were mistaken eg Beckford 1988 where D genuinely believed his own life was in danger as a man ran out of his house when he was investigating a report of a man armed with a gun so he killed him
• Beckford 1988 was put on a statutory footing under what Act?

  Criminal Justice and Immigration Act 2008
• In the Criminal Justice and Immigration Act 2008 the act also stated that in deciding whether the force was reasonable in circumstances of self defence 'That evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person, for that purpose'
• What has the CJIA 2008 on deciding whether the force was reasonable in circumstances of self defence led judges to have to evaluate?

  The difference between reasonable and excessive force. In Clegg 1995 D was convicted because he used excessive force and the car had already passed him when he shot. In Martin (Anthony) 2002 D shot 2 burglars who'd broke into his farmhouse, D appealed with evidence that his paranoid personality disorder should allow self defence because he may have genuinely (but mistakenly) believed he was in an extremely dangerous situation but it was rejected.
• What does S76 of the CJIA give exception to in regards to the reasonable force required of self-defence?

  'except in householder cases force which is disproportionate will not be reasonable'
• What did the Crime and Courts Act 2013 amend in S76 of the CJIA 2008?


  It gave a wider defence to householders where an intruder enters the property. It will be regarded as reasonable if it was 'disproportionate' in householder cases but 'grossly disproportionate' would not be accepted. Also the force used by D must be whilst in or partly in a building that is a dwelling so D must not be a trespasser and must believe V to be one
• Mens rea for murder?

  'Malice aforethought' expressed or implied. HL in Moloney held that nothing less than intention to kill or cause GBH would constitute malice aforethought, merely foreseeing the victim's death as probable was insufficient
• What did Woollin rule about intention?

  Foresight of consequences/ risk has to be a virtual certainty for intention to stand in murder, anything less would be recklessness
• Express malice?Cases?

  Intention to kill, making murder a specific intent crime eg it requires intention not recklessness. Intention in this context includes direct (desired the death) and oblique intent (the death is foreseen by D as a virtual certainty, although not desired for its own sake). In Matthews & Alleyne foresight of consequences was evidence of intention, but in Re A foresight of consequences was intention itself.
• Implied malice?


  Intention to cause serious harm (GBH). In Vickers it was established that intention to cause GBH was sufficient mens rea for murder because if D was willing to inflict GBH then how was he to know V wouldn't die? Intention to cause GBH evidenced acceptance of the substantial risk that the V might die. In Cunningham D killed V by repeatedly striking them with a chair. Argued there was no intention to kill but to do serious bodily harm. D was convicted of murder, HL stated intention to cause 'really serious injury' was sufficient to amount to mens rea for murder