3- Murder

Question 1

What is homicide?

Answer 1

General term used to describe unlawful killing of a human being.
- Murder & manslaughter are two of the offences that constitute homicide.

Question 2

What is murder?

Answer 2

‘The unlawful killing of a reasonable person in being & under the Queen’s Peace with malice
aforethought, express or implied’ (Lord Coke in 17th century).
- Common law offence

Question 3

What is the AR of murder?

Answer 3

‘Unlawful killing of a reasonable creature in being under the Queen’s Peace’.

1. D must have killed
2. A reasonable creature in being
3. Under the Queen’s Peace
4. The killing was unlawful

Question 4

What is the MR of murder?

Answer 4

‘Malice aforethought, express or implied’

1. Intention to kill
2. Intention to cause GBH

Intent can be:

• direct
• oblique

Question 5

Explain the 1st point of the AR of murder- include KEY CASE

Answer 5

D must have killed

• It can be by an act or omission (R v Gibbins and Proctor (1918)- murder by omission).
• Murder is a result crime and thus causation must also be established.

Question 6

Explain the 2nd point of the AR of murder- include KEY CASE

Answer 6

A reasonable creature in being

• The victim must be a human being.
  
  • A homicide cannot be charged for the killing of a foetus. A child
    must have an ‘existence independent of the mother’ to be
    considered a human being.
  • The victim must be alive, ‘brain-death’ is recognised as death as
    doctors are allowed to switch off life-support machines without
    being criminally liable (R v Malcherek (1981)).

Question 7

What is the ‘year and a day’ rule?

Answer 7

Related to ‘reasonable creature in being’

• This rule, where death must have occurred within a year and a day after the attack for it to be considered murder, was abolished in 1996 by the Law Reform as improvements in medical skill meant that the rule had become outdated.
• Now there is no time limit on ehe

Question 8

Explain the 3rd point of the AR of murder- include KEY CASE

Answer 8

Under the Queen’s Peace

• The killing of an enemy in the course of war isn’t murder.

Question 9

Explain the 4th point of the AR of murder- include KEY CASE

Answer 9

The killing must be unlawful

• Killing might be lawful if in:
  i. Self defence
  ii. Defence of another
  iii. Prevention of crime
• If D successfully argues the partial defences of loss of control and diminished responsibility the killing will still be unlawful but D will be guilty of voluntary manslaughter and the judge will have greater discretion when sentencing.