fatal offences Flashcards
(49 cards)
Definition of murder
Lord Coke:
The unlawful killing of a reasonable creature in being under the King or Queen’s peace in any country of the realm with malice aforethought (express or implied)
AR elements of murder
- Unlawful killing, the defendant has
caused death to the victim. - The victim is a reasonable creature
in being (human). - The act was committed under the
King/Queens peace.
MR element of murder
- Malice aforethought, express, or implied
Unlawful Killing
R v Gibbins and Proctor
-It is important to note that the definition of murder does not require an ‘act causing the
death’, rather it requires a ‘killing’, this means a defendant may commit the offence of
murder by omission. An offence can only be committed by omission where defendant is
under a duty to act.
Human Being (Reasonable creature in being)
Attorney General’s Reference (No 3 of 1994)
-capable of having an ‘independent existence outside of the womb’
A03
This raises issues of morality as many people would view the foetus inside the womb
to be a human being after a certain point in the pregnancy, therefore if it dies it should be
murder. The debate regarding when a life starts, and ends needs to be resolved to make
the law effective.
R v Malcherek and Steel
Both Vs’ life-support machines were switched off by doctors. The D’s argued that the doctors’ actions were a ‘novus actus intervenien’ which broke the chain of causation.
HELD: Both convictions were upheld. At the time of switching off the machine, the V’s were already dead as their brain stems had died. The doctors could not therefore be the cause of death.
Under the King (or Queen’s) peace
-killing enemy soldiers during the time of war will not
constitute the actus reus of murder or manslaughter.
Factual Causation
‘but for D’s actions, V would not have…’
R v Pagett - does apply
R v White- doesn’t apply
Legal Causation
‘more than a minimal cause but the operating and substantiating factor of…’
R v Pagett- substantial cause and more than a minimal cause of pregnant girlfriend’s death.
Novus Actus Interveniens
-act of third party
- victim’s own actions
- act of God
Express Malice Aforethought (direct intent)
- Intention to kill.
- This is the highest level of mens rea (most serious).
- The D directly intends a criminal act where they want to carry out the actus reus of a criminal offence.
- The defendant must have the aim and desire to produce a certain result.
- The defendant must foresee the consequences of his actions and do everything possible to bring these about.
Test for direct intent
The test for direct intention is a subjective test. This means that it is what the defendant thought in those circumstances, not the reasonable man
-R v Mohan – direct intention was defined as the ‘decision to bring about the criminal consequence’.
Implied Malice Aforethought (indirect intention)
- Intention to do grievous bodily harm.
- This is also sometimes referred to as ‘oblique intention’.
- The criminal law recognises that sometimes a defendant does not necessarily want an outcome to occur, but the chances of that outcome (the actus reus) occurring are so high, and the defendant realised this and continued with their actions anyway.
- This shows it was within the realm of the defendant’s intention.
R v Woollin
-‘the defendant has the relevant
intent if he realised by his actions that there was a ‘substantial risk’ that he would suffer serious harm.’
-Held: Guilty of manslaughter, not murder.
Essentially, the Woollin case establishes a 2-part test:
- Was the outcome (the actus reus/criminal consequence) a virtually certain consequence
of the defendant’s actions?
-the jury should consider as a
matter of fact:was the actus reus a virtually certain consequence of the defendant’s actions? - Did the defendant realise this?
-that the defendant themselves actually foresaw the criminal consequence as a ‘virtual certainty’.
Voluntary Manslaughter
Homicide Act 1957 & the Coroners and Justice Act 2009
-Step down from murder
- Two partial defences:
-loss of control
- diminished responsibility
Loss of Control
Coroners and Justice Act 2009 s.54 and s.55.
Three-part test:
1. Does a killing by D result from D’s loss of self-
control? (s.54(1)(a))
2.Does D’s loss of self-control satisfy a qualifying
trigger? (s.54(1)(b))
3.The normal person test
Would a person of D’s age and sex, with a normal degree of tolerance and self-restraint, and in the circumstances of D, react in the same or a similar way? (s.54(1)(c))
s.54 (2)
The loss of control does not have to be sudden; there can be a ‘cooling off period’ - up to the jury to decide
s.54 (4)
If a person acts out of revenge, then the defence will fail. There can be no evidence of a plan or pre-meditation.
Jewell (2014)
’ a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning”.
s.54 (1) (b))
Must be one of two qualifying triggers:
-Trigger 1=Fear of serious violence (s.55 (3))
* The fear of violence need not be reasonable as long it was honestly thought by D.
* D can fear serious violence to another person (Ward).
R v Lodge
- Trigger 2=Things said or done (s.55 (4))
- The things said or done must be of extreme graveness and give the D a justifiable
sense of being seriously wronged. - This is to be judged objectively.
R v Zebedee
R v Hatter
Both triggers together (s.55 (5))
This is when both triggers may be present at the same point.
s.55 (6)(c)
The thing said or done constituted sexual infidelity is
to be disregarded Dawes (2013).
Clinton- sexual infidelity can be taken into considered if combined with other triggers
