Intro

The legal definition of murder is 'the unlawful killing of a human being in the King’s peace, with malice aforethought'

The actus reus of murder consists of the unlawful killing of a human being in the King’s peace. The mens rea of murder is malice aforethought, which has been interpreted by the courts as meaning intention to kill or intention to cause GBH.

Act or Omission

The defendant’s (D) physical acts or omissions required for liability. The general rule regarding omissions is that there is no liability for a failure to act.

Gibbons and proctor -  she died of starvation as the result of a long course of cruelty and neglect at the hands of both appellants.  Gibbons was in regular employment and the latter was earning a decent amount of money. It was his duty to provide the money; it was hers to provide food. However, the child was not hers, but she was living with Gibbons

Causes

Factual causation -

But for test (but for the actions of the defendant, would the result have occurred?)

White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.

Legal causation -

Was the defendant the operating and substantial cause?

Medical treatment

- will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.

Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way.  He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.

Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.

Victims Response

- There are three types of acts of the victim that we will consider: ‘fright and flight’ cases,  refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)

Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)

Act of a third party

• The act of a third party will generally break the chain of causation unless the action was foreseeable. There may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant

Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.

Thin skull

- never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs

Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment

Unlawful

Death is only lawful if War, Necessity and Self Defence. The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.

Beckford - The appellant said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him, the appellant stated that Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact no gun was ever found.

Death

A person is classed as legal dead if they are ‘brain stem dead.’

Malcherek - the defendant had stabbed his wife. The victim had been taken to hospital and placed on a life support machine. The doctors later switched off the life support machines as the victim was not showing any activity in their brain stem.

Steel - Defendant attacked a girl and as a result she suffered serious head injuries. She was taken to hospital and had to be put on a life support machine. After a short time, the doctor’s came to the conclusion that there wasn’t any activity in her brain stem and classed her as ‘brain dead’, and turned off her life support machine.

Human Being

You are classed as a human being if you are wholly independent from the mother and have taken your first independent breath.

AG Ref No3 - The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave birth to a live baby. The baby died 121 days later due to the premature birth.

Direct intent to cause death or serious injury

there must be a direct intent to cause death of serious injury.

Vickers - Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is a term of art. It has always been defined in English law as either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result."

Death or serious injury was a virtual certainty

2 tests -  Was death or serious injury a virtual certainty? Did the Defendant foresee it as such

Nedrick - The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night, poured paraffin through her letter box and set light to it. A child died in the fire. “He knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty or murder.”

Woollin - The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. He must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder.