Murder

Question 1

What is Homicide?

Answer 1

• A general term to describe the unlawful killing of a human being Homicide act 1957
  2 offences are
  1. Murder
  2. Manslaughter
• Voluntary and involuntary

Question 2

What is Murder?

Answer 2

• Common law offence
  Definition by lord coke:
  “An unlawful killing of a reasonable creature in being, under the kings peace with malice aforethough express or implied”

Question 3

What is the Actus Reus of Murder?

Answer 3

• Unlawful killing of a reasonable creature in being, under the kings peace
• This means it has to be proved that:
  1. D killed
  2. A reasonable creature in being
  3. Under the kings peace
  4. Killing was unlawful

Question 4

What Does killed mean? (AR)

Answer 4

• Can be an act or omission but must cause death of V
  Act - a positive act like hitting or stabbing V
  Omission - Failure to act can make D liable for murder - R v Gibbins and proctor

Question 5

What is a Reasonable Creature in being?

Answer 5

• Human being
• Foetuses in the womb do not count and have to be breathing independantly - AG Ref no.3 1994
• Brain death is recognised as death so doctors are able to switch off life support without being liable - R v Malcherek

Question 6

What is the Year and a Day rule?

Answer 6

• old rule that death must occur within a year and a day otherwise attacker could not be charged
• Now there is no time limit but if death occurs after 3 years consent of the AG is needed for prosecution

Question 7

What is the kings peace?

Answer 7

• Means Killing of an enemy in the course of war is not murder

Question 8

Explain Unlawful killing

Answer 8

• Killing must be unlawful
• if killing is in self defence of another or prevention of crime and D used reasonable force in the circumstances then it is lawful
• if LOC is argued or DR, killing is still unlawful but will be guilty of VM instead

Question 9

What is the Mens Rea of Murder?

Answer 9

• Mens Rea is malice aforethough expressed or implied

Question 10

What are the 2 Intentions that can be used to prove D is guilty of murder?

Answer 10

1. Expressed Malice aforethough - Intention to kill R v Smith
2. Implied Malice aforethought - Intention to cause GBH - R v Vickers and R v Cunningham 1981 They can be guilty of murder even if they didn’t intend to kill

Question 11

What are the 2 Main forms of intent?

Answer 11

1. Direct - D intends the consequences (death)
2. Oblique - Aims was not to bring about death unless D foresaw that D would cause death or serious injury

Question 12

What is Foresight of consequences?

Answer 12

• It is not intention but can be evidence and suggest intention - R v Woolin and R v Matthews and Alleyne
• s8 criminal justice act 1967 states jury should decide whether D intended or foresaw that result, by using all relevant evidence and common sense and not to speculate beyond evidence

Question 13

What was the test in R v Nedrick CoA suggested juries ask themselves when establishing Virtual Certainty?

Answer 13

1. How probable was the consequence which resulted from D’s Voluntary act?
2. Did D foresee that consequence?

Question 14

Explain Transferred Malice and Murder

Answer 14

• Applies to murder
• If D shoots at v1 but misses and hits v2 and dies D is guilty of murder of v2
• It doesn’t matter if D did not intend to kill v2 D’s intention to kill or Cause GBH to v1 is transferred
  R v Latimer

Question 15

What is The Madatory life sentance?

Answer 15

• If D is 18+ and convicted of murder the judge has to pass a sentance of life imprisonment
• 10-17 judge has to order they are detained at His majesty’s pleasure

Question 16

What is the Minimum term?

Answer 16

• Minimum years offender has to serve in prison before application can be made for release on license

Question 17

What are the guidelines in CJA 2003 when deciding the **minimum term? **

Answer 17

• Whole life term (never) - premeditated killing of 2 or more people,Sexual or sadistic child murders or politically motivated
• 30 Years - For murders of police,prison officers,murders involving firearms,sexual or sadistic killings or killings agggravated by racial or sexual orientation
  15 Years - For murders not Falling within the 2 higher categories