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Summary Offence of Murder - Notes and Explanations
Detailed notes and explanations To the Offence of Murder in Criminal Law.
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MurderNo statutory defintion Definition- Lord Justice Coke
(When a man of sound memory and the age of discretion) unlawfully killeth any
reasonable creature in rerum natura under the King’s peace, with mailce
aforethought
Actus Reus
Unlawful killing of a human being under the Queen’s Peace
‘any reasonable creature’= human being
Not a foetus
Born alive, wholly expelled and capable of existence independently from the
mother
David Ormerod in Smith and Hogan = independent existence, independent
circulation and should have breathed after birth (problematic)
Born alive, wholly expelled and capable of existence independently from the
mother
Death= where the brain stem has ceased to function, no electrical activity (3
Law Lords accepted this definition obiter in Airedale NHS Trust v. Bland
Queen’s (King’s) Peace
Outside of wartime
Causation
Homicide is a result crime so the act or omission of D must have caused the death of
V (or accelerated it)
Factual
Apply the ‘but for’ test as established in White. But for the conduct of the
defendant, the victim would not have died.
Legal
D’s contribution to V’s death must be the operating and substantial cause
(Smith)
Substantial = “more than slight or trifling” (Kimsey), D’s action not sole
cause but must be more than minimal – Benge
There must be no novus actus interveniens (no break in the chain)
Can include
o The ‘free, deliberate and informed act of a third party’ Pagett – shot at police, used
girlfriend as shield, officers shot her, deliberate act but not free (self defence)
, o Abnormal natural event coinciding with or occurring after D’s conduct
o Negligent medical treatment, but sub-standard won’t if original injury still playing
significant part
o Smith- stabbed but then dropped twice and wrong treatment but didn’t break chain
(original wound substantial cause of death)
o Cheshire
o Jordan- original wound was nearly healed, hospital gave him antibiotics he was
allergic too, broke the chain. Medical treatment was ‘palpably wrong’
Mens Rea
Malice aforethought = no wickedness or premeditation “intention to kill or cause
GBH”
Moloney
It is either EXPRESS or IMPLIED
Express malice
Intention to kill
R v Vickers
Implied malice
Intention to cause GBH
GBH= “really serious harm” DPP v Smith, “serious harm” Saunders
Mens rea can extend to oblique intention... has the meaning attributed to it in
Woollin. The degree of foresight in relation to oblique intention has differed
over the years;
Moloney- If the result was a “natural consequence” of D’s actions, and D
realised this. Fairly low standard, problematic because something can be a
natural consequence without being certain (conception)
Hancock and Shankland- Lord Scarman changes foresight to “degrees of
probability”, higher probability= increases likelihood that consequence was
foreseen= greater probability it was intended
Nedrick- result (of death/serious injury) was a “virtually certain” result of
D’s actions AND did D appreciate the result was virtually certain? Lord Lane
changes test to “foresight of virtual certainty”
Woollin- Lord Steyn endorsed Nedrick and the “virtually certain” test with
both elements.
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