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:
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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