Fatal Offences - Murder

Definition of Murder

• Common law offence• Sir Edward Coke (17th Century) – “…the unlawful killing of a

reasonable person in being and under the King (or Queen’s) peace with malice aforethought, express or implied.• Actus Reus:• Unlawful killing• Of a reasonable person in being• Under the Queen’s peace

• Mens Rea• Malice aforethought

Actus Reus – Unlawful killing

• Some killings may be lawful – e.g. killing in self defence, killing during wartime, judicial executions.• Usually an act – e.g. shooting, stabbing, strangulation • Can be omission or failure to act – if accused has duty to a person and

fails to carry out that duty and death occurs – AR of murder may exist• Examples of omissions arising from duties:• Gibbins and Proctor – duty arising from relationship – e.g. parent and child• Pittwood – contractual duty• Miller – duty following accidental creation of a dangerous chain of events• Stone and Dobinson – duty if taken on voluntarily

Actus Reus – A “Reasonable Person in Being”• When a person begins and ceases to be classed as a human being in

the eyes of the law• Foetus not a human being – has no existence independent of its

mother. Only a human being when fully expelled from mother’s body• But Attorney-General’s Reference (No. 3 of 1994) – if foetus in womb

is deliberately injured and child dies from injuries after being born, attacker would be criminally liable• Doctors permitted to switch of life support machines of people

deemed to be “brain dead”

Actus Reus – Under the Queen’s Peace• Killing of enemy at war not murder

Causation

• Has to be a direct and unbroken link between the defendant’s act and the death of the victim• No intervening act breaking the chain of causation – Novus Actus

Interveniens• Need factual and legal causation• Factual – death would not have happened “but for” conduct of D• Legal – act must be operating and substantial cause of death

Causation - Factual

• White – need a direct link between D’s act and the death (D put poison in mother’s drink with intention of killing her. Mother took some of drink but died of heart attack before poison could take effect. D acquitted of murder)• Pagett – D attempting arrest holds 16 year old girl in front of him as a

human shied and fires at police officers. Police instinctively fire back and kill the girl.. Even though he was not the one who fired the shot that killed the girl, but for his actions the girl would not have been killed.

Causation - Legal

• Cause must be operating and substantial cause - more than minimal cause of death• D can be guilty even if conduct only contributes to death or he was

only one among others who contributed to it• Cato – two drug addicts spent night injecting each other with heroin and

water. One died in the morning. Court held that heroin need not have been the only cause of death but was more than a minimal cause.• Benge – D’s action need not be the sole cause of the resulting harm, but it

must be more than minimal

• Must be more than just a “slight or trifling” link

Causation – “Taking the victim as he finds him” (The “Thin Skull Rule”)• Thin Skull Rule – must take the victim as you find him – if a victim’s

injuries are made more serious by some unusual physical or mental condition, D is still liable for injuries.• Blaue – D stabbed victim who needed blood transfusion but refused

due to her religion (Jehovah’s Witness) and died. D found guilty of murder

Causation – Novus Actus Interveniens– Act by Third Party• Chain of causation can be broken by new and independent event providing intervening

event is sufficiently different and serious• Jordan – victim stabbed in stomach and was healing well. Antibiotic which he had

previously been found to be allergic to was given to him and he suffered a severe allergic reaction and died. Court held that actions of medical staff were main cause of death and new intervening act broke chain of causation

• But medical treatment does not usually brake chain of causation• Smith – stab victim dropped on way to hospital and then mistakes in artificial

respiration which worsened his condition and he died. Court held that although treatment reduced his chances of survival chain of causation not broken

• Cheshire – shot victim suffered complications during tracheotomy which led to his death. Wounds at time of death not life threatening but court held D was still responsible for death

• Malcherek and Steel – switching off of life support machines does not break chain of causation

Causation – Novus Actus Interveniens– Action Taken by Victim• Usually occurs when victim trying to escape a threat• Where victim who feels threatened takes drastic action to escape, whether this

breaks the chain of causation depends on the nature and seriousness of the threat. If threat is serious it would be more reasonable for victim to take evasive action and chain will not be broken. Where threat is of a relatively minor nature, drastic evasive action would normally be held to break the chain:• Roberts – driver of car subjected passenger to unwanted sexual advances. Victim

jumped out of car to escape and was injured. Court held that D liable and there was a direct line of causation between his conduct and her injuries which had not been broken by her act• Williams – victim jumped out of moving car because he claimed there had been an

attempt to steal his wallet. Court held this was an unreasonable reaction under the circumstances and disproportionate to the threat and therefore chain of causation broken by victim’s intervening act

Mens Rea – Malice Aforethought

• Sir Edward Coke – “malice aforethought express or implied”• Malice - Case law has developed so that there is no longer a

requirement for malice to be present :• Gray – parent who gives fatal overdose of drugs to child suffering from painful

terminal illness – D acting out of love but still liable for death

• Aforethought – does not need previous planning or thinking beforehand, but intention must not come after the act

Express or Implied Malice

• Express Malice - intention to kill• Implied Malice - Intention to cause Grievous Bodily Harm • Mens Rea for murder is intention to kill or cause grievous bodily harm• Vickers – intention to inflict GBH resulting in death of victim is enough

to imply the necessary intention for murder• This decision was confirmed in the case of Cunningham

Mens Rea – Direct and Indirect Intent• Direct Intent – D embarks on a course of conduct to bring about a

result which occurs• Indirect Intent – D embarks on a course of conduct to bring about a

desired result knowing that the consequences of his actions will also bring about another result

Mens Rea – Indirect Intent - Foresight of Consequences – Development in case law• Mens Rea more difficult to find in cases where D’s main aim is not to kill or cause GBH but

something different• Moloney – nothing less than the actual intention to kill or cause GBH is enough for mens rea for

murder • Hancock and Shankland – foresight of consequences may amount to intention. Juries should be

directed that:• The greater the probability of a consequence, the more likely it is that the consequence was foreseen• If the consequence was foreseen, the greater the probability is that it was also intended• Decision is for the jury on all the evidence

• Nedrick – juries should consider:• Was death or serious injury the virtually certain result of the accused’s act?• Did the accused foresee that death or serious injury was the virtually certain result of his act?• If yes to both, jury could reasonably infer the accused intended the consequences of his act

• Woollin – confirmed the decision in Nedrick but changed infer to find – so if answer to both questions is yes, jury must find rather than infer intention

• Matthews and Alleyne – if jury decides D foresaw the virtual certainty of death/serious injury, they are entitled to find intention but they don’t have to

Transferred Malice

• D can be guilty if he intended to commit a similar crime but against a different victim – also applies to mens rea for murder• Latimer – D guilty of assault on victim even though he was aiming for

someone else and had not meant to hit her• Mitchell – transferred malice also accepted

Prosecution for Murder

• If death occurs more than 3 years after the injury, need consent from Attorney General to prosecute for murder• If person has already been found guilty for an offence connected to

the circumstances of the death need consent from Attorney General to prosecute for murder