Murder

Question 1

Describe

Murder in general.

Lord Coke

Apart of Murder

Answer 1

Murder is the most serious offence and is defined in common law.

Defined by Lord Coke - As the unlawful killing of an reasonable creature in being under the kings peace, with malife aforethough, express or implied.

If D guilty, most recieve a mandatory life sentence.

Question 2

Describe

Unlawful Killing

Gibbons and Proctor, Pagett, Kimsey, Jordan

Apart of Murder

Answer 2

Gibbons and Proctor - The AR, is an unlawful killing through an act or omission. It must cause the death of the V.

D must be the factual and legal cause of the death with no intervening act, Pagett, Kimsey, Jordan etc

Question 3

Describe

Reasonable Creature in Being

A-G Ref (No 3 of 1994)(1997), Malcherek

Apart of Murder

Answer 3

A human being must be killed, a foetus is not a human being, so killing a foetus is not murder

 A-G Ref (No 3 of 1994)(1997) - If baby sustains an injury in womb and later dies as a result when alive, this can be a murder.

A tested braindead person is not a reasonable creature of being, but switching off their life support machine with intent to kill (as well as doctor intending to kill) can be murder.

Malcherek - Doctors can switch off life support and this won't break the chain of causation.

Question 4

Describe

Under the King’s Peace

Apart of Murder

Answer 4

Killing a enemy soldier in warfare will not be murder, except if there is no war, or a prisoner of war is murdered.

Question 5

Describe

Mens Rea of Murder in General

Inglis, Cunningham

Apart of Murder

Answer 5

Two types of intention that can be proven for murder.

Express Malice Aforethought - The direct or oblique intention to kill.

Implied Malice Aforethought - Direct or Oblique Intention to cause GBH

Malice does not mean Illwill, or wanting to cause harm.

Inglis -  Mercy Killing is murder.
Cunningham - An Intention to cause GBH is enough for murder

Question 6

Describe

Direct and Oblique Intention and Transferred Malice

Woolin, Matthews and Alleyne, Saunders

Apart of Murder

Answer 6

Direct Intention - 100% aim or desire to kill or cause GBH.

Oblique Intention - Woolin:
1) Was death a virtual certain consequence of D's actions.
2) Did D know this?

Oblique Intention doesnt automatically make you guilty of murder.

Matthews and Alleyne - Foreseight of Consequence is evidence for intention, jury decides if this is enough to satisfy malice aforethought.

Saunders - Trying to murder a specific person but killing another, transfers your malice and still guilty of murder.

Question 7

Apply the facts to a question.

Flip

Apart of Murder

Answer 7

Actus Reus

Killing – When did the D kill? What did they do? Who died?

Unlawful – Was the killing unlawful or in self-defence? If it was unlawful explain why. If it was in self-defence explain why it was necessary to use force and if the force was reasonable or excessive.

Reasonable creature in beings – Did the D kill a human being? If the V was a foetus or brain dead explain these are not reasonable creatures in being if so.

Causation – Is the D the factual and legal cause of the death? Apply the tests.

Under the King’s Peace – Was the killing done at war? If so, it is not murder. If the killing was done at a time of peace, it will be unlawful.

Mens Rea

Did the D intend GBH or to kill? Why?

State which type of malice aforethought the D has:
Intention to kill = express malice aforethought
Intention to cause GBH = implied malice aforethought

Did the D have direct or oblique intention to kill or cause GBH?

Direct intention = It was the D’s 100% aim and desire to kill or cause GBH, explain why.
Oblique intention = It was a virtual certain result the V would die/suffer GBH, and the D knew this. Explain why.

Conclusion

Will the D be guilty of murder? Briefly explain why and who the V is.