Law 03 Short notes
Murder
The unlawful killing of a reasonable person in being under the King’s (or Queen’s)
peace with malice aforethought, express or implied.
Murder is a common law indictable offence with a mandatory life sentence if
D is found guilty.
Murder requires the P to prove:
1.
2.
3.
4.
An unlawful killing (AR)
Of a reasonable creature in being (AR)
In the Queens peace (AR)
With malice aforethought (MR)
1. When can D’s conduct be classed as an “unlawful killing”?
Most of the rules of causation are based on murder cases. You need to familiar with all
cases at AS summarised as follows:
1. Factual Causation: But For test R v White
2. Legal Causation: Is D’s conduct a substantial cause of death? R v Kimsey, De minimus
rule
3. Break in the chain of causation: V’s own conduct, R v Roberts
Medical Negligence, R v Smith, R v Jordan
Thin skull rule, R v Blaue, R v Hayward
R v Kimsey 1996: D and his girlfriend were involved in a high speed car chase when the
girlfriend lost control of her car and was killed. The P’s argument was that the D’s driving had
led the girlfriend to lose control of her car and crash. The trial judge directed the jury that as
long as D’s driving was believed to be more than a “slight or trifling” cause of the girlfriends
death this was sufficient to form legal causation. The judge also told the jury that there was
no need for them to have to believe that the D’s driving was a “substantial” cause of death.
The jury found the D guilty and D appealed.
Held: The CA dismissed the appeal and said the judges directions were correct, legal
causation can be proved from evidence that shows the D’s actions were more than slight or
trifling in the committing of the offence. There was no need to prove the D’s conduct was the
substantial cause of death in this case.
D has a right to defend himself or family which in some situations makes a killing lawful.
R v Martin 2002: On the night of Aug 20th 1999 Freddie Barras (aged 16) and Brendan
Fearon (aged 30) broke into Martin’s farm. Martin armed with a 12 bore shot gun went
downstairs and fired indiscriminately at where he thought the disturbance came from. He
shot both the intruders killing Barras by a gunshot wound to the back. At his trial his plea of
self defence was rejected by the jury and he was convicted of murder. He appealed on the
grounds that his personality disorder should be taken into account in assessing whether he
had used reasonable force for the purposes of self defence.
Held: Where D uses force that is excessive in defending himself this will be classed as
unreasonable and an unlawful killing. Where D uses force when it is not necessary to defend
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Law 03 Short notes
himself then this will also be an unlawful killing. Personal characteristics cannot be taken into
account when looking at what is reasonable or excessive force.
R v Beckford 1988: Beckford was a police officer. He was issued with a shot-gun and
ammunition and sent with a number of other armed police officers to a house. According to
the Beckford a report had been received from Heather Barnes that her brother Chester
Barnes was terrorising her mother with a gun. Heather Barnes, however, denied that she
had made a telephone call to the police or that her brother was armed.
Beckford 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. The jury convicted him of murder as the judge had told them
that it could only be reasonable force based on Beckford’s belief that the V had a gun if the
jury felt Beckford’s belief was a reasonable one based on the evidence.
Held: Quashing his conviction the Privy Council ruled that a person may use such force as
is reasonable in the circumstances as he honestly believes (even if mistaken) them to be in
the defence of himself or another.
2. When does a foetus become a “reasonable creature in being”?
Attorney-General's Reference (No 3 of 1994) (1997): A foetus is not a reasonable
creature in being as it cannot survive without its mum. Obiter: If the D had intended to kill the
child and it had survived to be a reasonable creature in being then this could be murder.
Does brain death mean D is no longer a reasonable creature in being?
Malcherek and Steel (1981): Two separate appeals were heard together. In Malcherek the
defendant had stabbed his wife. In Steel the defendant was accused of sexually assaulting
and beating a woman over the head with a stone. In both cases the victims had been taken
to hospital and placed on life support machines. The doctors in the respective cases later
switched off the life support machines as both victims were not showing any activity in their
brain stem. The defendants sought to argue that the doctors' actions constituted a novus
actus interveniens which broke the chain of causation.
Held: Doctors can switch off a life support machine when D is brain dead as the person is no
longer a reasonable creature in being. This doesn’t act as a break in the chain of causation
as it is the D who caused the V to be brain dead in the first place.
3. What does malice aforethought mean the prosecution have to prove?
R v Gray: ‘Aforethought’ does not need any previous planning or thinking about it
beforehand, merely that the intention to kill does not occur after the act. In this case D, a
parent, gave a fatal overdose to his child who was suffering from a terminal illness in terrible
pain.
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Law 03 Short notes
R v Vickers: During D’s burglary of V’s shop, V discovered D whereupon D struck V with
several blows. V eventually died from shock due to general injuries.
Held: Malice includes implied malice. Implied malice is where the V dies and evidence can
show the D’s main aim was to cause the V GBH. This will be enough to prove D intended to
kill. The intention to cause GBH is constructed in law to automatically mean an intention to
kill (known as constructive intention).
R v Mohan: D can have a direct intention to kill where evidence proves this was the main
aim of D’s conduct, express malice.
D can be found guilty of indirectly intending to kill the D as long as it can be proved
he had foresight of this consequence – oblique intention
R v Nedrick 1986: 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. D was convicted of murder after the judge directed the jury that he
would have an intention to kill where evidence showed that 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.
Held: Lord Lane, ”Intention to kill cannot be inferred by the jury unless they feel sure that
death or serious bodily harm was a virtual certainty (barring some unforeseen intervention)
as a result of the defendant's actions and that the defendant appreciated that such was the
case."
R v Woollin 1998:
Held: To find intention to kill the jury must:
Be sure that death or serious bodily harm was a virtual certainty of D ‘s actions;
AND
The D appreciates that death or serious injury is a virtual certainty of his actions.
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Law 03 Short notes
R v Malcharek & Steel 1981
Facts
In Malcherek the defendant had stabbed his wife. In Steel the defendant was
accused of sexually assaulting and beating a woman over the head with a stone.
In both cases the victims had been taken to hospital and placed on life support
machines. The doctors in the respective cases later switched off the life
support machines as both victims were not showing any activity in their brain
stem. Both D’s were charged with murder. The defendants sought to argue that
the doctors' actions constituted a novus actus interveniens which broke the
chain of causation.
1. At what point does a person stop being a reasonable creature in being?
2. What could have been the effects of the court allowing switching the life
support machine off as a break in causation? Give at least one benefit to
future defendants and one problem for future doctors of this alternative
outcome to the case.
3. Thinking about the rules of causation give one argument as to why this ruling
could be seen as very harsh on Malcharek?
4. What could be a fairer way of dealing with Steel’s criminal liability if he only
acted in the heat of the moment?
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Law 03 Short notes
R v Martin 2002
Facts
Tony Martin lived alone on an isolated farm called Bleak House. The farm and
surrounding buildings were dilapidated and appeared to be derelict.
Consequently the farm was subject to numerous break-ins. On the night of Aug
20th 1999 Freddie Barras (aged 16) and Brendan Fearon (aged 30) broke into
the farm. Tony Martin armed with a 12 bore shot gun went downstairs and fired
indiscriminately at where he thought the disturbance came from. He shot both
the intruders killing Barras by a gunshot wound to the back. At his trial his plea
of self defence was rejected by the jury and he was convicted of murder. He
appealed on the grounds that his personality disorder should be taken into
account in assessing whether he had used reasonable force for the purposes of
self defence.
1. According to this case when is defending yourself still an unlawful killing?
2. Give at least 2 reasons why Martin shouldn’t be convicted of murder
3. Give at least 2 reasons why Martin should be convicted of murder
4. Do you think the force used by Martin was excessive or reasonable? Explain
your answer.
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Law 03 Short notes
R v Beckford 1988 (Privy council case)
Facts
The appellant was a police officer. He was issued with a shot-gun and
ammunition and sent with a number of other armed police officers to a house.
According to the appellant a report had been received from Heather Barnes
that her brother Chester Barnes was terrorising her mother with a gun.
Heather Barnes, however, denied that she had made a telephone call to the
police or that her brother was armed.
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. The case is
Jamaican where murder still carries the death penalty.
1. According to this case when is defending yourself a lawful killing?
2. What does the term Appellant mean? Who is the appellant in this case?
What is the correct term for the other party to the case?
3. Look at the evidence objectively. What evidence cannot be taken into
account when deciding Beckford is guilty of murder? Is this a lawful or
unlawful killing?
4. Now look at the evidence subjectively. Does this make a difference as to
whether or not is an unlawful killing? Explain your answer.
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Law 03 Short notes
R v Vickers 1957
Facts
The defendant broke into cellar shop, where Miss Duckett, 73 lived upstairs,
and the defendant intended on stealing money. Defendant attacked her when
she discovered his presence, which caused her to fall down. She died as a result
of shock due to general injuries. D was charged with murder.
1. Does D have an intention to kill beyond a doubt, based on the evidence?
2. Explain why D has a direct intention to cause GBH (S18).
3. Explain why the court held D had an implied intention to kill based on his
intention to cause GBH?
4. Give a reason why this a fair approach to the meaning of malice
aforethought?
5. Why could implied intention to kill be seen as unfair on D’s? Give one reason
based on MR and one based on the rules of causation.
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Law 03 Short notes
R v Nedrick 1986
Facts
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. D was charged with murder.
1. Did D directly intend to kill the child? Explain your answer.
2. D can be found guilty of indirectly intending to kill the child as long as it can
be proved D foresaw the death of the child when causing the fire. Give a
reason why D could foresee death. Give a reason why he may not have
foreseen the death of the child.
3. Below are Lord Lane’s instructions to the jury to help them manage the
evidence in the case and decide whether they D could have foreseen the
death of the child. Identify which is the objective and subjective element of
the test. List the evidence under each part of the test. Do you believe D
indirectly intended to kill using this test?
Lord Lane CJ:
"the jury should be directed that they are not entitled to infer the necessary
intention, unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of the defendant's
actions and that the defendant appreciated that such was the case."
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