Murder

• Actus Reus: Lord Coke in the C18th:

  “Murder is when man of sound

  judgement commits the unlawful killing

  of a reasonable person in being and

  under the King’s Peace within the realm

  with malice aforethought, express or

  implied."
• 5 elements of actus reus-

  Sound judgement and age- D must be over the age of 10 and have mental sanity.

  Unlawful killing- D’s actions or omissions must have led to the death. (Gibbins v Proctor) D must not be acting in self-defence/necessity.
• 5 elements of actus reus-

  Reasonable creature in being- V must be a human being, capable of living and has own identity.

  (A-G Ref no.3 1994,1997)-If baby born alive but dies, Actus Reus for manslaughter. However, Mens Rea cannot be transferred from mother to foetus.

  If patient is brain dead, life support machine being switched off doesn’t break the chain of causation. Test for murder is brain death. (R v Malcherek)

  King’s peace- Killing an enemy in war is not murder.

  Within the nation- If D is a British citizen, they can be tried in the UK for murder committed elsewhere.
• Causation-

  Factual causation- ‘but for’ test, consequences would not have occurred but for D’s conduct. (R v Pagett)

  Legal causation- ‘de minimis’ principle, D’s actions must be more than minimal/slight or trifling link. D doesn’t need to be substantial/principle cause. (R v Kimsey)
• Mens Rea-

  Malice a forethought express/implies is the mens rea of murder.

  Express malice is intention to kill, the aim/purpose/desire is to kill V. (R v Mohan)

  Implied malice is intention to cause GBH. (R v Woollin)

  Oblique intent is when D foresees/realises death or serious injury as a virtual certainty. (R v Vickers)

  GBH (Grievous Bodily Harm) is really serious harm. (DPP v Smith)
• Any defences that may apply-

  ·         Self-defence.

  ·         Defence of necessity (Re A conjoined twins case)