LAW03: Criminal Law (Offences against the Person) MURDER

Definition:

Lord Coke (a 17th century judge) defined murder as ...

"the unlawful killing of a reasonable person in being and under the Queen's peace with malice

aforethought, express or implied."

Actus reus:

"the unlawful killing of a reasonable person in being and under the Queen's peace"

The actus reus of murder can be an act or an omission but it must cause the death of the victim

(V).

Omissions

An omission is a failure to act.

The general rule is that an omission cannot satisfy the actus reus of a crime.

But, an omission is able to satisfy the actus reus of a crime if there is a duty to act.

A contractual duty: Pittwood (1902)

A railway crossing keeper failed to close the gates when a train was due. V was crossing the line, was hit by a train and was killed.

The D's omission satisfied the actus reus of manslaughter because of his contractual duty to act.

Duty through a relationship: Gibbins and Proctor (1918)

G's daughter was deliberately starved to death and both Ds were convicted of murder.

G's omission was sufficient to satisfy the actus reus of murder because of his duty to his daughter because of their relationship.

A duty taken on voluntarily: Stone and Dobinson (1977)

S's elderly sister came to stay with the Ds and when she became ill they failed to help her or call for assistance.

The Ds' omission was enough to satisfy the actus reus of manslaughter because they h a d t a k e n o n a d u t y voluntarily.

Reasonable person in being

It means simply a "human being" ...

... and it raises 2 possible problems.

1. Is a foetus a "reasonable person in being"? 2. Is a V still alive and a "reasonable person in

being" if they are "brain-dead" but being kept alive by a life-support machine.

Foetus

The killing of a foetus is not murder.

In order to be a human being a child must have an "existence independent of the mother".

The child must be expelled from the mother's body and have an independent circulation. The umbilical cord does not need to be cut and the child need

not have taken it's first breath.

Attorney-General's reference (No. 3 of 1994) (1997)

The HL stated that if a foetus is injured and the child is then born alive but later dies as a result of the injuries then a human being will have been killed and can satisfy the definition of murder.

Brain-dead

It is probable that a person who is "brain-dead" would not be considered a "reasonable person in

being".

Doctors are allowed to switch off life-support machines without being liable for murder

(Malcherek (1981)) ... the original attacker would still be liable for the death.

Queen's peace

This simply means the killing of an enemy in the course of war is not murder. But the killing of a prisoner of war would be sufficient for the actus

reus of murder.

This is very unlikely to come up in the examination!

Causation

The prosecution must show that the D's conduct was ...

1. The factual cause of the consequence; and 2. The legal cause of the consequence; and 3. There was no intervening act which broke the

chain of causation.

Factual cause

The D is only guilty if the consequence (V's death) would not have happened "but for" the D's

conduct.

Pagett (1983)

The D used his pregnant girlfriend as a human shield, the D shot at armed police, the police fired back and killed the girlfriend.

The D was guilty of his girlfriend's manslaughter. She would not have been killed "but for" the D's actions. D was the factual cause of her death.

White (1910)

The D put cyanide in his mother's drink in order to kill her. But she died of a heart attack before the poison could kill her.

"But for" D's actions she would have died anyway and therefore the D is not the factual cause of his mother's death.

Legal cause

The D's conduct must be more than a "minimal" cause of the consequence but it doesn't need to

be a substantial cause.

Cato (1976)

The V prepared an injection of heroin and water which the D then injected into the V. The V died and the D was convicted of manslaughter.

The CA stated ... "It was not necessary for the prosecution to prove that the heroin was the only cause of death. As a matter of law, it was sufficient if the prosecution could establish that it was a cause, provided it was a cause outside the de minimus range, and effectively bearing on the acceleration of the moment of the V's death."

Kimsey (1996)

The CA held that instead of using the term de minimus it was acceptable to tell the jury that there must be "more than a slight or trifling link" between the D's act and the consequence.

So, the D can be guilty even though his conduct was not the only cause of death.

The thin skull rule

This rule states that the D must take the V as he finds them.

If the V has something unusual about his physical or mental state that makes him more susceptible

to injury, then the D will be liable for that injury even if it is more serious than expected.

Blaue (1975)

V was stabbed by the D and needed a blood transfusion to save her life. The V refused the blood transfusion because she was a Jehovah's Witness, and died. The D was still guilty of murder because he had to "take the V as he found her", religious beliefs and all.

Intervening acts

The chain of causation can be broken by:

1. The act of a 3rd party;

2. The V's own act;

3. A natural and unpredictable event.

In order to break the chain an intervening act must be sufficiently independent of the D's conduct and sufficiently serious enough.

If the D's conduct causes foreseeable action by a 3rd party then the D is still likely to be held

to have caused the consequence (Pagett (1983)).

Medical treatment

Medical treatment is unlikely to break the chain of causation unless it is so independent of the D's act and "in itself so potent in causing death" that

the D's acts are considered insignificant.

Smith (1959)

2 soldiers had a fight and one was stabbed in the lung. The V was carried to the medical centre and was dropped twice on the way. At the medical centre he was given inappropriate treatment which made the injury worse and he died.

Had he been given the correct treatment V's chances of recovering would have been as high as 75%.

But the original attacker was still guilty of V's murder, the medical treatment was not independent enough of the D's act.

Cheshire (1991)

The D shot the V in the thigh and s t o m a c h . V d e v e l o p e d breathing problems and was given a tracheotomy. The V then died from rare complications of the tracheotomy which were not spotted by the doctors. When V died his original injuries were no longer life threatening.

The D was still liable for V's death, the medical treatment was not independent enough of the D's actions.

Jordan (1956)

the V had been stabbed in the stomach, was treated and his wounds were healing well. V was then given an antibiotic but suffered an allergic reaction. One doctor stopped the use of the antibiotic but the next day another doctor ordered a large dose of the antibiotic to be given to the V. V died.

In this case the doctor's actions were held to be an intervening act that was sufficiently independent of the D's action and it broke the chain of causation.

Victim's own act

If the D causes the V to react in a foreseeable way, then any injury suffered will be caused by the D.

Roberts (1971)

The V jumped from a car in order to escape from the D's sexual advances. V was injured and the D was held liable for her injuries.

It was considered foreseeable that the V would react in this way as a result of the D's action.

If the V's reaction to the D's action is unreasonable and unforeseeable then this may

break the chain of causation.

Williams (1992)

V (a hitch-hiker) jumped from D's car and died from head injuries caused by his head hitting the road. The car was travelling at a p p r o x . 3 0 m p h . T h e prosecution alleged the D had attempted to steal V's wallet causing him to jump from the car.

The CA stated in order for D to be liable the V must have acted i n a f o r e s e e a b l e w a y i n proportion to the threat. The V didn't and the D was not liable.

Mens rea: malice aforethought

There are 2 ways in which the mens rea of murder can be satisfied.

1. Express malice aforethought: the intention to kill; or

2. Implied malice aforethought: the intention to cause GBH.

So, a D can be guilty of murder even if they did not have the intention to kill the V.

This was decided in the case of ...

Vickers (1957)

The D broke into the cellar of a sweet shop and knew that the old woman who owned it was deaf. The old lady came into the cellar and discovered D. D hit her several times and kicked her once in the head. She died.

The CA upheld D's conviction for murder. If a D intends GBH and V dies then this has always been sufficient to imply malice aforethought.

Oblique intent

The main problem with proving intention is where the D's main aim (direct intent) was not the death of the V but something else. But in achieving the

main aim death is caused.

In these situations the D will not have the mens rea for murder unless he foresaw that he would cause

death or GBH.

Moloney (1985)

The HL ruled that foresight of consequences is only evidence of intention.

Woollin (1998)

The HL stated that the jury are not ent i t led to find the necessary intention unless they are sure the death was a virtual certainty as a result of the D's action and that the D appreciated this was the case.

Matthews and Alleyne (2003)

The CA stated that if a jury decides D did foresee the virtual certainty of death then they are entit led to find intention but they do not have to do so ... because, as Moloney states, foresight is only evidence of intention.