MURDER
The unlawful killing of a reasonable person in being under the King (or Queen's) Peace with malice aforethought
"Killing" - killing may take place by an act or omission
"Of a reasonable person in being"
"Unlawful" - the killing must be against the law (no self-defence or duress)
"Under the King's (or Queen's) Peace - killing someone in time of war is not considered murder
Legal (‘more than minimal’) causation
Factual (‘but for’) causation
No break in the chain of causation (intervening acts of the victim, intervening acts of third parties)
Causation must also be shown. This means that there must be:
"Malice aforethought" - mens rea - (direct 'specific' intention) (indirect 'oblique' intention) - express is intention to cause death - implied is intention to cause SBH
Direct Implied - I chose to (took the decision to bring about) seriously harm V
Direct intention means that D “took the decision to bring about the prohibited consequence” [see R v Mohan]. Implied means that D need only to have chosen to bring about serious harm to V in order to be guilty of murder [see R v Vickers]
Indirect Express - I realised that my actions were objectively speaking virtually certain to cause V’s death
Objectively (as seen by the jury), death must have been “virtually certain” [see R v Woolin]. Moreover, subjectively (as seen by D) the defendant must have realised this was the case. Intention is express because D foresaw V’s death as virtually certain.
Direct Express - I chose to (took the decision to bring about) V’s death
Direct intention means that D “took the decision to bring about the prohibited consequence” [see R v Mohan]. Express means that D chose to bring about V’s death specifically.
Indirect Implied - I realised that my actions were objectively speaking virtually certain to cause serious harm to V
Objectively (as seen by the jury), death must have been “virtually certain” [see R v Woolin]. Moreover, subjectively (as seen by D) the defendant must have realised this was the case. Intention is implied because the defendant intended to cause serious bodily harm or greater [see R v Vickers]
CASES
PROBLEM QUESTION STRUCTURE
R v Woollin (indirect intention)
Was the killing unlawful?
consider defences: self defence> insanity?
Was there a killing/causation?
may be an omission or an act - see R v Gibbins and Proctor
consider whether all the elements of causation apply - see cases: R v Smith and R v Jordan
must be a killing which the defendant caused
Factual (‘but for’) causation
Legal (‘more than minimal’) causation
No break in the chain of causation (intervening acts of the victim, intervening acts of third parties)
Was the victim a ‘reasonable person in being’?
The victim must have been alive - cannot murder a dead body or an unborn foetus - see Attorney-General's Reference (No 3 of 1994)
Was the killing during peacetime?
If the killing was during a war, then the defendant will not be guilty
Was mens rea present?
There must have been intention
The defendant must have intended to:
The relevant mens rea is ‘malice aforethought, express or implied’
Direct - see R v Mohan
Indirect/oblique (see R v Woollin)
Cause serious bodily harm; or cause death.
The defendant threw his three month old from across a distance. and the baby hit the wall
The baby suffered a fractured skull and died.
The trial judge stated that the defendant "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."
Murder conviction was substituted with manslaughter conviction.
R v Vickers (express/implied)
R v Mohan (direct)
Attorney general ref no 3 (1994)
“A decision to bring about, in so far as it lies within the accused’s power [the prohibited consequence], no matter whether the accused desired that consequence of his act or not.”
The defendant’s motive is not important/relevant, it is only important that the defendant decided to bring about the prohibited consequence for there to be direct intention.
The defendant was burgling a house when the elderly house owner confronted him.
To avoid being recognised, the defendant struck her many times.
She died as a result of her injuries.
The defendant was convicted of murder.
The defendant intended to inflict serious bodily harm, which was sufficient to establish the mens rea of murder.
The defendant stabbed his pregnant girlfriend. This led to her pregnancy happening quicker. The baby then died due to a premature birth. could not be convicted of murder or manslaughter since at the time of the attack the foetus was not in law classed as a human being and thus the mens rea aimed at the mother could not be transferred to the foetus as it would constitute a different offence.