murder Flashcards
(27 cards)
1
Q
homicide
A
- the unlawful killing of a human right,
2
Q
different homicides
A
- there are different homicide offences depending on the mens rea of the defendant and whether there is a special defence available,
- most serious homicide is murder,
- murder is a common law offence - not found in statute,
- accepted definition is based on one given in a case by a 17th century judge - lord coke,
3
Q
actus reus of murder
A
- “the unlawful killing of a reasonable creature in being and under the king’s/queen’s peace with malice aforethought, express or implied”,
- unlawful is important –> killing is not unlawful if what is done is in self defence or in prevention of crime and the defendant used reasonable force in the circumstances,
4
Q
killing - act or omission
A
- most cases, actus reus will be an act, e.g. a shooting,
- it’s possible for murder to be committed by an omission if the defendant owed a duty to the victim,
5
Q
contractual duty
A
- pittwood,
6
Q
duty because of a relationship
A
- gibbons and proctor,
7
Q
duty under taken voluntarily
A
- stone and dobinson,
8
Q
chain of events
A
- miller,
9
Q
gibbons and proctor
A
- rare example of omission amounting to murder,
- failure to feed daughter was enough for the AR of murder,
10
Q
“reasonable creature in being”
A
- human being must be killed for it to be murder,
11
Q
two problems with “creature in being”
A
- is a foetus in the womb a “reasonable creature in being”,
- is a victim still considered to be alive if they are brain dead, but kept alive on a life support machine,
12
Q
foetus
A
- killing a foetus is not murder,
- the child has to have existence independent of it’s mother to be a creature in being,
- umbilical cord doesn’t need to have been cut,
13
Q
attorney general’s reference
A
- d stabbed girlfriend who was 2-3 weeks pregnant,
- she recovered but it caused her to give birth prematurely 7 weeks later,
- baby was born alive but died 4 months later as a result of premature birth,
- house of lords held where foetus is injured and child is born alive but dies afterwards, as a result of injuries, can be actus reus for murder or manslaughter,
14
Q
brain dead
A
- unclear whether someone brain dead would be a reasonable person in being,
- doctors who switch of life support machines are not liable for homicide (Malcherek),
- suggests the test for death is whether someone is brain dead, however there are no cases to clarify this point,
- courts may decide a defendant who switches off the machine not as a medical decision, but intending to kill the victim could be guilty of murder,
15
Q
under the king’s peace
A
- killing an enemy in the course of law is not a murder,
- however, killing a prisoner of war would be sufficient for the AR of murder,
16
Q
mens rea of murder
A
- from Lords’s definition, mens rea is “malice aforethought express or implied”,
- “express malice aforethought” is the intention to kill,
- “implied malice aforethought” is in intention to cause grievous bodily harm,
- “grievous bodily harm” was held to mean “really serious harm” in DPP v Smith,
- can also include really serious psychiatric harm if medically proven - Burstow,
17
Q
express and implied intention
A
- either of these intentions will suffice,
- meaning a person can be guilty of murder even if they did not intend to kill,
18
Q
vickers (1957)
A
- d broke into cellar of local sweet shop, knowing old lady was deaf,
- old lady caught vickers - he hit her several times,
- kicked her head in - she died,
- court of appeal upheld his conviction for murder - intent to cause GBH is sufficient,
19
Q
intention
A
- defined in Mohan as:
“decision to bring about the prohibited consequence no matter whether the accused desired that consequence or not”,
20
Q
foresight of consequences
A
- main problem is proving intention is where Ds main aim was not the death of the victim, but something quite different,
21
Q
Woollin (1998)
A
- virtual certainty test,
1. was death or injury a virtual certainty as a result of the Ds actions,
2. did the D appreciate that such was the case,
3. if yes to both the jury may find the D intended the consequence but they do not have to,
22
Q
murder flow chart (paragraph 1)
A
- actus reus ‘the unlawful killing of a reasonable creature (Human being) in being and under the King’s peace with malice aforethought, express or implied.’
- murder can be committed by an omission (Miller, Gibbons and Proctor, Stone and Dobinson) as well as a voluntary act,
23
Q
murder flow chart (paragraph 2)
A
- reasonable creature in being = a human being, a foetus is not a human being, it is only considered to be a human once it has been expelled from the womb. injuried caused whilst in the womb resulting in the death of the baby following birth will result in criminal liability,
- persons who are ‘brain dead’ are also not considered human beings Malcherek decides that a doctor is permitted to switch off the life support machine of a person who is brain dead,
24
Q
murder flow chart (paragraph 3)
A
- causation - both factual and legal causation must be proved,
- factual - ‘but for’ test - Pagett,
- legal - ‘the chain of causation’,
25
murder flow chart (paragraph 4)
- mens rea
- 'malice, aforethought, express or implied'
- this means an intention to kill or an intention to cause grievous bodily harm (really serious harm, DPP v Smith) - as defined in vickers,
26
murder flow chart (paragraph 5)
- intention can be direct or indirect,
- direct intention - the defendant's aim is to bring about the prohibited consequence - Mohan,
- is the defendants aim to kill or to cause really serious harm? if yes, the defendant is likely to be convicted of murder,
27
murder flow chart (paragraph 6)
- if no,
- indirect intent - this is relevant when the defendant does not intend to kill or cause GBH, but his aim is something entirely different,
- if so use the virtual certainty test from Woollin,
- is the consequence (death/GBH) a virtually certain consequence of the d's actions and did the d appreciate this?
- it is a matter for the jury to decide, Matthews and Alleyne - if the virtual certainty test is established, it is not intention itself, but, evidence from which the jury may find intention, if they choose so,
