Murder - TOPIC 5

Murder

Definition (AO1)

When a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any creature in rerum natura under under the king’s peace, with malice aforethought, either expressed by the party or implied by law. (Sir Edward Coke)

Murder - AR

Definition (AO1)

Unlawfully killing a human being under the King’s peace

Killing

Definition (AO1)

P must prove that D’s conduct (act or omission) caused V’s death.

(Generally the killing will be by an act i.e. stabs, shoots, poisons etc)

Killing by Omission

Rule

Generally D has no liability for the consequences of a failure to act

Unless

D was under a legal duty to act, either imposed by statute or imposed by common law

Killing by Omission

Case (AO3)

(R v Gibbons & Proctor) - Parent & Child duty

Where the parent killed child through failing to feed.

Other Common Law Duties to Act

Examples (AO1)

1. Creating or contributing to a dangerous situation

   (R v Miller)

2. Voluntary assumption of responsibility

   (R v Stone & Dobinson)

3. Close Relationship (R v Gibbons & Proctor)

4. Under Contract (R v Pittwood)

Killing caused death (Causation)

Requirements (AO1)

P must prove that D’s act or omission caused V’s death:

1. In fact - But for Test (Pagett)

2. In law - De Minimis Test (Kimsey)

3. That the chain of causation was not broken - Foreseeability Test: Naturally occurring event, 3rd party, V’s own conduct

4. Look for Thin Skull rule

Killing was Unlawful

Definition (AO1)

Killing by D must be unlawful (D has no defence in law)

e.g. Self-defence (R v Gladstone Williams) - Responsibility for the killing lies with the aggressor.

Human Being

Definition (AO1)

V must be a human being:

Life starts: Once first independent breath has taken place

Life Ends: When someone is brain stem dead.

Life Starts - Foetus

Rule (AO1)

An unborn child is not a human being under law and so is not protected by murder/manslaughter but can be protected under other offences - Abortion/Child destruction.

Life Starts - Foetus

Case (AO3)

(R v Poulton)

Life ends - Death

Rule (AO1)

No legal definition of moment of death but seen as the moment at which the brain stem ceases to function.

Meaning, switching off life support does not cause death

Life ends - Death

Case (AO3)

(R v Malcherek)

Doctor turning off life support

Orbiter gave the brain stem ceasing to function as moment of death.

Under the King’s peace

Definition (AO1)

Excludes killing in war

Under the King’s peace

Case (AO3)

(R v Blackman [Marine A])

British marine who shot dead a seriously wounded Taliban prisoner was convicted of murder but quashed and replaced with manslaughter due to DR

Murder - MR

Definition (AO1)

Malice aforethought (under s.1 Homicide Act 1 1957):

• Express Malice = Intention to kill (Direct or Oblique)

• Implied Malice = Intention to cause grievous bodily harm (Direct or Oblique)

(Intention to cause ABH would result in manslaughter)

Murder - MR

Case (AO3)

(R v Vickers)

D broke into cellar of V’s shop to steal. V appeared on stairs and D attacked her, hitting her 10-15 times and kicking her in face. V died as result of the shock.

Seen as implied malice

Evidence that may point towards MR

Examples

1. Motive

2. Use of a weapon

3. Premeditation

4. Level of force

5. Location of attack (geographically)

6. Time of day

7. Where injury occurs on body.

Difference between intention and motive

Definition (AO1)

D may intend to bring about death/grievous bodily harm without wishing/desiring for it to happen - Mercy killings / Euthanasia

Difference between intention and motive

Case (AO3)

(R v Inglis)

Mother intentionally killed her disabled son out of compassion and desperation but still guilty of murder