Murder

• Murder


  The most serious criminal offence, still a common law offence (not defined by an Act of Parliament)
• Definition of murder


  The unlawful killing of a reasonable person in being under the King's peace with malice aforethought, express or implied
• The English courts can try a British citizen for an alleged murder that was committed either in England or Wales, or in any other country, e.g. America
• 'Reasonable Creature in Being'


  A human being. For murder, a person must be killed.
• The killing of a foetus CANNOT be considered or charged as murder. The child must have an existence independent of the mother for it to be considered a 'creature in being'
• Attorney-General's Reference (No. 3 of 1994) (1997)

  • A man stabbed his pregnant girlfriend, she recovered but her baby was born prematurely at 7 months and died 4 months later. The man was charged with murder but was acquitted as the trial judge held that there was no liability for either murder or manslaughter.
• Declaration of brain-death by a medical professional is the usual recognised test for death, however, there has been no legal case on this point. It is not certain whether a person who is "brain-dead' would be considered as a 'reasonable creature in being or not.
• Malcherek


  • Doctors are allowed to switch off life-support machines without breaking the chain of causation.
• It is possible that the courts might decide that a D who switches off a life-support machine, not as a medical decision but intending to kill, could be guilty of murder.
• Actus Reus of Murder

  The unlawful killing of a reasonable creature in being and under the King's Peace
• Actus Reus of Murder

  1. The D unlawfully killed

  2. A reasonable creature in being

  3. Under the King's Peace
• The actus reus is an unlawful killing that can be committed through an act or an omission, as held in Gibbons and Proctor
• Gibbons and Proctor (1918)


  • D and his partner neglected D's 7-year-old daughter, Nelly, through not locking her away and not feeding her. She died from starvation.
• Causation


  Murder is a result crime. This means that the D cannot be guilty unless his act or omission caused the V's death.
• Factual Cause


  But for test (Pagett and White)
• Legal Cause


  More than a minimal cause (Lamsey)
• No intervening acts = actions of a third party (Jordan)
• Under the King's Peace


  The killing of an enemy during war is NOT murder. However, the killing of a prisoner of war would be enough for the actus reus of murder.
• Mens Rea of Murder


  Malice aforethought, express or implied
• Express malice aforethought


  Direct or oblique intention to kill
• Implied malice aforethought


  Direct or oblique intention to cause GBH
• The word 'malice' does not mean ill-will or wanting to cause evil or harm. This means mercy killings will also be classed as murder, as stated in Inglis.
• Inglis (2011)


  • D murdered her son, Thomas. Thomas had suffered serious head injuries when he had fallen out of an ambulance. He had undergone lifesaving surgery which removed part of his skull which resulted in severe head and facial disfigurement. He was in a vegetative state, but doctors were hopeful that he would make a recovery. D, however, was convinced that his vegetative state was permanent. She became obsessive and believed he was in pain and wanted to end his suffering. She injected him with a lethal dose of heroin with the intention to kill. Her appeal against her murder conviction was dismissed.
• Implied malice means that a D can be guilty of murder even though they did not intend to kill.
• Cunningham (1981)


  • D attacked V in a pub by repeatedly hitting him with a chair. The V died from his injuries and D was convicted of murder. D claimed he should not be convicted of murder as he had no intent to kill, only intention to cause serious harm.
• The House of Lords decided in DPP v Smith (1961) that 'grievous bodily harm' meant...
• Direct and Oblique Intention


  The Intention for murder may be either direct intent (100% aim and desired to kill or cause serious injury) or oblique intent (D foresaw that his actions were virtually certain to cause death or serious injury).
• Woollin (1999)


  When there is no direct intent, the courts will apply the oblique intention test:

  1. Was death or serious injury a virtually certain consequence of D's actions?

  2. Did the D know this?
• If D is found to have oblique intention, this does not mean they will automatically be guilty of murder.
• Matthews and Alleyne (2003)


  • The defendants robbed and beat up the victim before throwing him into a river. Before being thrown into the river, the victim had told the defendants that he was not able to swim. However, the defendants ignored what the victim said and threw him into river anyway. The victim drowned. At their trial, the defendants insisted that they had never intended to kill the victim when they threw him in the river.
• Transferred Malice


  Transferred malice can apply for the offence of murder. For example, if D fires a shot at V1 but misses and hits V2, who subsequently dies from his injuries, D is guilty of murder. It does not matter that he did not intend to kill V2, his intention to kill or cause serious harm to V1 is transferred.
• Saunders (1573)


  • The defendant poisoned an apple with arsenic and encouraged his wife to eat the apple. He intended to kill her so that he would be free to marry another woman. However, his wife gave the apple to their daughter instead & she ate the apple and later died as a result. The D was charged with the murder of his daughter on the grounds that his intention to kill his wife could be transferred to the death of his daughter.
• If a D is found guilty of murder, they MUST receive a MANDATORY LIFE SENTENCE. The Judge will set a minimum number of years that the D will serve behind bars before they may be released on parole.
• Murder


  The most serious criminal offence, still a common law offence (not defined by an Act of Parliament)
• The accepted definition of murder is from Lord Coke, a 17th century judge:
• The English courts can try a British citizen for an alleged murder that was committed either in England or Wales, or in any other country, e.g. America.
• Unlawful Killing


  • Can be committed through an act or an omission, must cause the death of the victim
• Unlawful Killing


  • Gibbons and Proctor (1918) - D and his partner neglected D's 7-year-old daughter, Nelly, through not locking her away and not feeding her. She died from starvation.
• Causation


  Murder is a result crime, D cannot be guilty unless their act or omission caused the V's death
• Reasonable Creature in Being

  • Means a human being, the killing of a foetus cannot be considered or charged as murder, the child must have an existence independent of the mother