Murder

Question 1

Definition of murder and where it is found

Answer 1

Murder derives from common law and is defined by Lord Coke as, “when a man of sound memory and of the age of discretion unlawfully killeth any creature in rerum natura under the King’s peace with malice aforethought”

Question 2

To consider murder, what 3 considerations do we need to take into account and include cases

Answer 2

1. Human beings- neither before birth nor clinically brain dead (R v Malcherek and R v Steel, R v Enoch)
2. Age of Criminal responsibility- children aged below 10 cannot be convicted of a criminal offence(s.50 Children and Young Persons Act 1933)
3. the act was “committed under the kings peace” i.e not during a time of war

Question 3

What is the Actus Reus of murder?

Answer 3

the “unlawful killing” in rerum natura (a human being in being).

This requires a positive voluntary act or an omission by the defendant resulting in the victim’s death

Question 4

What is Causation?

Answer 4

Considers the link between the defendant’s actions and harm caused
i.e Defendant’s conduct must be the factual and legal cause of the prohibited consequence

Question 5

Define factual and legal causation and cases

Answer 5

Factual causation: “but for” test (R v White)

Legal causation: d’s conduct was the operating and substantial cause of the harm

key note: does not need to be sole or main cause only a more than minimal contribution (de minimis) (R v Smith)

Question 6

What may affect causation?

Answer 6

novus actus interveniens (NAI), meaning a new intervening act, which becomes the operating cause of death, such as a third party intervention (R v Pagett)

Question 7

Define mens rea

Answer 7

The mental state of the defendant while committing the crime- this is the “malice aforethought” outlined by Lord Coke

note- you can form this intention in an instant

Question 8

What are the elements of mens rea of murder

Answer 8

Intention to kill (express malice)
or
Intention to commit grievous bodily harm: DPP v Smith tells us this means “really serious harm” (implies malice)

Intent may be direct or oblique

Question 9

Define direct and oblique intent

Answer 9

Direct intent: reflects the ordinary common sense meaning, whereby the prohibited consequence was the defendant’s aim, desire or purpose (R v Moloney)

Oblique intent: the defendant must have foresight of the virtually certain consequence of a desired result or that it is a necessary prerequisite to a desired result (R v Woollin)

Question 10

What is the time limit for the prosecution of murder?

Answer 10

No time limit on the prosecution of murder- mainly due to medical advancements- Law Reform (Year and One Day Rule) Act 1996
but
If its gone over 3 years you seek the attorney generals permission to prosecute murder

Question 11

AR: the victim- What about death in utero?

Answer 11

Not murder, but could instead be:

Child destruction- foetus capable of being born alive considered post 24 weeks

Criminal abortion- s58 offences against the persons act

Need existence independant of its mother both of the following cases confirm this Enoch and Poulton

Question 12

AR: the victim- death after birth

Answer 12

Death due to injuries sustained while in womb may be murder or manslaughter.

AG’s Reference (No. 3 of 1994)[1998] AC 245
pregnant woman stabbed and foetus died post birth due to injuries sustained in the womb- murder

Question 13

What is the law on accelerating death

Answer 13

Set out in common law -

Dyson:
Child who is already dying of meningtits when D injures them dies
Because the child died sooner than they would have, they were guilty of murder

Question 14

What about the law on medical treatment which hastens death?

Answer 14

Rule set out in common law:

• Adams: proper and necessary treatment used to relieve suffering which incidentally shortens life is ok
• Moors: if D’s purpose is proper treatment and not to kill- should be acquitted even if he realises death is a virtually certain consequence

Question 15

What about killing to relieve pain?

Answer 15

Cox- it is unlawful to use of drugs with the primary purpose of hastening the moment of death

Question 16

What about letting patients die?

Answer 16

Airedale NHS trust v Bland- doctors duty to continue to treat can stop at one point
here there was no hope of recovery

Question 17

What about mercy killing/ euthanasia/ assisted suicide-outline some opinions

Answer 17

Controversial and much disputed topic
Should it be left to the jury to decide, as it is in R v Wallace-V, was euthanised following injuries inflicted by D? Or must we treat informed adults as “autonomous beings able to make voluntary and informed decisions” as stated in R v Kennedy

Question 18

Arguments for euthanasia being a subjective topic in causation left to the jury

Answer 18

1. Simester and Betts- courts adopted a “context specific approach” in R v Wallace and these cases are “highly fact dependant” and should only rarely be “withdrawn from the jury”
2. LJ Goff agrees it is generally a question for the jury but that doesn’t mean there aren’t principles of law relating to causation
3. May J and Firkins fail to acknowledge the complexity of human decision making as a valuable aspect in moral reasoning important in such cases to ensure fairness

Question 19

Argument for euthanasia being a topic based on principle

Answer 19

1. Adopting a subjective interpretation, Firkins suggests “gives rise to incoherence and uncertainty” in the law. In R v Wallace May J seems to attempt to impose that structure by withdrawing the case from the jury

Question 20

What is the law for sentencing on murder

Answer 20

Provided the jury find the D guilty, Schedule 21 of the Criminal Justice Act 2003- minimum tariffs range from 12 years to a whole life order depending on the seriousness of the offence

Question 21

Name some of the factors updated CPS guidance offers on mercy killing which tends to favour prosecution:

Answer 21

-V is under 18 or V does not have the capacity to reach an informed decision to request this

-No evidence or indication that it was a voluntary, clear, settled and informed decision

-V was physically able to undertake the act of taking their own life

-Suspect was not wholly motivated by compassion or history of violence or abuse towards V

etc.

Question 22

What about less likely to prosecute factors:

Answer 22

-The suspect was motivated on compassion alone
-V was physically unable to undertake the act of taking their own life

• V made a genuine attempt to take their own life at the same time

Etc.

Question 23

Time limit for the prosecution of murder

Answer 23

No time limit on prosecution, mainly due to medical advancements- Law Reform (Year and One Day Rule) Act 1996, but if it has been over 3 years, you seek the attorney general’s permission to prosecute

Question 24

Aggravating Factors in relation to murder

Answer 24

Schedule 21 Criminal Justice Act 2003
-Significant degree of planning or premeditation
-V particularly vulnerable due to age or disability
-Mental or physical suffering inflicted on the V before death
-Position of trust, etc.

Etc.

should law reform not be undertaken to make abuse of children a separate category?

Question 25

Mitigating Factors in relation to murder

Answer 25

Schedule 21 Criminal Justice Act 2003 - Lack of premeditation , Age of offender -Offender was provoked eg. Prolonged stress -The offender acted in self defence or fear of violence Etc

Question 26

What is the law on Attempted Murder

Answer 26

Must do an act which is more than merely preparatory- s.1 (1) Criminal Attempts Act 1981(* embarked on the crime proper) Whybrow 1951: - D must intend to kill (express malice); - Intention to cause GBH is insufficient

Question 27

Discuss two cases which clarify aspects of the law on Attempted murder

Answer 27

R v Gullefer 1990- when the merely preparatory acts come to an end and D embarks on the crime proper R v Jones (Kenneth) 1990- by merely pointing the gun he had embarked on the crime proper

Question 28

What is the sentence for attempted murder

Answer 28

maximum life imprisonment as per Section 4 Criminal Attempts Act 1981

Question 29

Hot topic is the current definition of murder satisfactory? For Reform

Answer 29

There is a huge spectrum of harm and wrongdoing under murder e.g. Terrorism In Hyman v DPP Lord Kilbrandon- it is not the most heinous example of unlawful homicide Lord Hailsham in R v Howe agrees and builds on this further discussing the vast degrees of culpability, brutality and repeated offences e.g. Moor murders compared to mercy killings of beloved partners Why is intention to cause GBH enough mens rea for murder even breaking an arm? Is it really fair? Is it not too broad Intention to cause GBH as mens rea does not align with the correspondence principle nor the principle of fair labelling, as the label we attach to a person should match the wrongdoing Under Scottish law- “wicked intention to kill or wicked recklessness” instead of GBH intent- more of a link to moral blameworthiness rather than technical intention- should this be implemented into UK law as its more morally coherent?

Question 30

Hot topic is the current definition of murder satisfactory? Against Reform

Answer 30

Murder is a uniquely heinous crime, and a mandatory sentence of life imprisonment is a proper and justifiable expression of public repugnance Lord Edmund Davies in Cunningham 1982 in relation to GBH satisfying mens rea of murder- recognised that inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, should be punished in the same was a those who intended to kill

Question 31

Hot topic linked to first one: Is this two tier structure suggested really a better approach? Arguments for yes

Question 32

Hot topic linked to first one: Is this two tier structure suggested really a better approach? Arguments for no

Question 33

What was the law commissions proposed two tier structure

Answer 33

The Law Commission have proposed first degree and second degree murder, with the first being worse than the second, which seems to work in a lot of jurisdictions eg. Canada and United States