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Law (OCR) > Chapter 2 - Murder > Flashcards

Chapter 2 - Murder Flashcards

1
Q

What is the definition of murder?

A

The unlawful killing of a reasonable person in being under the Queen’s Peace with malice aforethought, express or implied

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2
Q

What is the most serious homicide offence?

A

Murder

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3
Q

Is murder a common law offence?

A

Yes

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4
Q

What is a common law offence?

A

An offence which is not defined by an Act of Parliament

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5
Q

Who defined murder?

A

Lord Coke

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6
Q

What is the jurisdiction of murder?

A

A person can be charged with a murder committed anywhere in England and Wales and murder in another country just as long as it is committed by a British citizen

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7
Q

Can a British citizen be tried in English courts if they have committed a murder in another country?

A

Yes

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8
Q

What is the actus reus of murder?

A

(1) the defendant killed
(2) a reasonable creature in being
(3) under the Queen’s Peace
(4) and the killing was unlawful

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9
Q

Can an omission be sufficient for the actus reus of murder?

A

Yes

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10
Q

In which case did the D’s omit to doing something which resulted in murder?

A

R v Gibbins and Proctor (1918)

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11
Q

What type of crime is murder?

A

A result crime

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12
Q

What does a result crime mean in terms of murder?

A

The defendant cannot be guilty unless their act or omission caused the death

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13
Q

There may be problems with causation, what does this mean?

A

In some cases there may be other causes contributing to the death of another such as poor medical treatment which may cause a break in the chain of causation

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14
Q

What are the 2 problems areas with ‘reasonable creature in being’?

A

(1) is a foetus in the womb a reasonable creature in being?

(2) is a victim still considered to be alive if they are brain-dead but being kept alive by a life-support machine

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15
Q

If a foetus is killed is this classed as murder?

A

No

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16
Q

When is a child classed as a ‘creature in being’?

A

When the child has an ‘existence independent of the mother’ which means it can’t be in the womb

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17
Q

Is an individual who is brain-dead considered a ‘reasonable creature in being’?

A

It is not yet certain

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18
Q

Are doctors allowed to switch off life-support machines without being liable for murder?

A

Yes

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19
Q

Is there a time limit on when a death may occur after an unlawful act?

A

No

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20
Q

What is the rule called which states that there is no time limit?

A

Year and a Day Rule

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21
Q

What needs to be done where the death occurs more than 3 years after the act in order to prosecute?

A

In order to prosecution after 3 years from the unlawful act, the Attorney-General needs to give consent

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22
Q

What does ‘under the Queen’s Peace’ mean?

A

Under the Queen’s Peace this means that the killing of an enemy in the course of war is not murder

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23
Q

Must the killing be unlawful?

A

Yes

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24
Q

What makes a killing lawful?

A

If the killing is in self-defence or defence of another or in the prevention of crime and the defendant used reasonable force in the circumstances

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25
Q

What is the mens rea of murder?

A

Malice aforethought either express or implied

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26
Q

What is express malice aforethought?

A

This is the intention to kill

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27
Q

What is implied malice aforethought?

A

This is the intention to cause grievous bodily harm

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28
Q

Which case established that a defendant can be guilty of murder even though they did not intend to kill?

A

R v Vickers (1957)

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29
Q

What is meant by grievous bodily harm?

A

According to the H of L in the case of DPP v Smith, grievous bodily harm means ‘really serious harm’

30
Q

What case held that it was not possible to a defendant to have the mens rea to kill or seriously injure a foetus?

A

Attorney-General’s Reference (No. 3 of 1994) (1997)

31
Q

Why can’t a defendant have the mens rea to kill or seriously injure a foetus?

A

Because a foetus does not have a separate existence from its mother

32
Q

What is the main problem with proving intention?

A

Where the D’s main aim was something quite different from causing death or serious injury of the V, but in achieving the aim a death is caused

33
Q

What is oblique intent?

A

Where the D’s aim was quite different from causing death or serious injury of the V, but in achieving this aim a death was caused

34
Q

When does the defendant not have the mens rea for murder?

A

When the D didn’t foresee that they would cause death or serious injury and this is known as foresight of consequences

35
Q

Is foresight of consequences intention?

A

No

36
Q

What are the 3 cases associated with foresight of consequences?

A

(1) R v Moloney (1985)
(2) R v Nedrick (1986)
(3) R v Woollin (1998)

37
Q

What is transferred malice?

A

This is where the mens rea of one offence can transfer to another

38
Q

What is an example of transferred malice?

A

Where A goes to shoot B but instead accidentally shoots C, therefore because A had the mens rea to shoot B this mens rea then transfers to C because even though he didn’t intend to injure C he still intended to commit the offence

39
Q

What are 5 problems on the law of murder according to the Law Commission in 2006?

A

(1) the law on murder has developed bit-by-bit in individual cases and is not a coherent whole
(2) a defendant can be convicted of murder even though they only intended to cause serious harm
(3) there is no defence available if excessive force is used in self-defence
(4) the defence of duress is not available for the offence of murder
(5) the mandatory life sentence and the government’s sentencing guidelines do not allow sufficient differentiation in sentencing to cover the wide variety of levels of blameworthiness in the current law of murder

40
Q

Why has the bit-by-bit development by the courts on the law of murder caused problems?

A

It has caused problems on the meaning of the word ‘intention’

41
Q

What must the prosecution prove if they cannot prove direct intent?

A

Oblique intent

42
Q

What must a judge direct the jury to do according to the case of R v Woollin?

A

The judge must direct the jury that if a consequence is a virtually certain result of the D’s act and the D foresaw that consequences as a virtually certain result, then the jury is entitled to find intent even where the D didn’t intend to cause death

43
Q

In some cases there may be some ‘moral-elbow-room’, what does this mean?

A

This is where the law will recognise the existence of a moral dilemma or a good motive

44
Q

Does the Law Commission believe that the present offence of murder is too wide?

A

Yes

45
Q

Why is the present offence of murder too wide?

A

When the Homicide Act 1957 was passed, Parliament never intended a killing to amount to murder unless the D realised that their conduct might cause death

46
Q

Due to the serious harm rule why is the current offence of murder unfair?

A

A D can be guilty of murder even if he only intended serious injury and this is considered unfair because they receive the same conviction for someone who intentionally kills another

47
Q

What did Lord Edmund Davies state about the mens rea of murder?

A

He thought that the mens rea for murder should be limited to an intention to kill only

48
Q

Who would have to change the law on murder according to Lord Edmund Davies?

A

Parliament

49
Q

Why would Parliament have to change the law on murder?

A

Parliament would have to change the law on murder because the law has been the same for over 200 years and it would therefore be wrong for judges to change such a well-established law

50
Q

What is the sentence give to offenders aged 10-17 who are guilty of murder?

A

The judge has to order that they be detained at Her Majesty’s Pleasure

51
Q

What is the sentence given to offenders who are 18+ and guilty of murder?

A

The judge must pass a sentence of life imprisonment

52
Q

Does the judge have any discretion in sentencing when it comes to a charge of murder?

A

No, the judge cannot give a different sentence even if they feel that the defendant is not as blameworthy as a deliberate killer

53
Q

Does a judge have discretion over a charge of attempted murder?

A

Yes, the judge has the ability to decide the most appropriate sentence, and in some situations a community order may be imposed where the circumstances justify it

54
Q

What are the two special defences available to murder?

A

(1) diminished responsibility

(2) loss of control

55
Q

What do the special defences to murder do?

A

Diminished responsibility and loss of control reduce a charge of murder to voluntary manslaughter which therefore allows the judge flexibility in sentencing

56
Q

What is a minimum sentence to murder?

A

Even though the judge must impose a mandatory life sentence the judge will also fix the minimum number of years that the offender must serve before being released on licence

57
Q

What are the 3 starting points for sentencing adult offenders according to the Criminal Justice Act 2003?

A

(1) a whole life term for exceptionally serious cases, such as premeditated killings of 2 or more people, sexual or sadistic child murders or politically motivated murders
(2) 30 years minimum for serious cases such as murders of police or prison officers, murders involving firearms, sexual or sadistic killings or killings aggravated by racial or sexual orientation
(3) 15 years minimum for murders not falling within the two higher categories

58
Q

What is the main problem with these sentencing guidelines laid down by the Criminal Justice Act 2003?

A

The defendant in R v Martin who shit and killed a burglar would be given a minimum sentence of 30 years which is the same as a contract killer and therefore these guidelines do not allow sufficient differentiation between levels of blameworthiness

59
Q

What was the proposal made by the Law Commission in regards to sentencing?

A

It states that the mandatory life sentence and the guidelines on minimum sentences should only apply to first degree murder and therefore thus would,d create a fairer sentence structure

60
Q

What was the Law Commission’s proposals for reform?

A

That the offence of murder should be reformed by dividing it into two separate offences

61
Q

What are the two separate offence proposed by the Law Commission?

A

(1) first degree murder

(2) second degree murder

62
Q

What situations would first degree murder cover?

A

It would cover cases in which the defendant intended to kill and it would also cover situations were the defendant intended to cause serious harm and was aware that this posed a serious risk of death

63
Q

What situations would second degree murder cover?

A

In cases which the D intended to do serious injury but was not aware that there was a serious risk of death

64
Q

What is the only sentence for first degree murder?

A

Mandatory life sentence

65
Q

What is the maximum sentence for second degree murder?

A

A life sentence but the judge will be allowed discretion when sentencing

66
Q

What was the government response to the Law Commission’s proposals?

A

The government issued a consultation paper and this paper rejected the proposals of completely reforming murder by making it s two-tier offence

67
Q

What was the consultation paper issued by the government?

A

Murder, Manslaughter and Infanticide: Proposals for Reform of the Law

68
Q

What was the only area that the government accepted reform was needed?

A

The lack of a defence for those who use excessive force in self-defence

69
Q

How did the government reform the lack of a defence for excessive force used in self-defence?

A

Under the Coroners and Justice Act 2009 there is now the defence of loss of control

70
Q

What is the defence of loss of control?

A

Where the D kills through loss of control due to fear of serious violence and reduces a charge of murder to voluntary manslaughter

Law (OCR) (9 decks)

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