Murder Revision

What is murder? Common law offence Compulsory life sentence Result crime Mens rea and Actus reus have to coincide Must be proved by prosecutor beyond all reasonable doubt Woolmington 1935 Introduction

Definition Derives from Lord Coke in the 16th century Whosoever shall unlawfully kill a reasonable creature in being under the queens peace with malice aforethought express or implied Introduction

Actus Reus Killing Reasonable Creature in Being Under the Queens peace Unlawfully Actus Reus

Killing Murder = result crime Result crimes require causation No cause = attempted murder Murder needs two types of causation Factual Legal Can also be omissions Actus Reus-Killing(1)

Killing-Factual Causation But, for tests established in the case of white (1910) Prosecutor must prove V would not have died ‘as’ they did, ‘when’ they did “but, for” D’s actions Actus Reus-Killing(2)

Killing-Legal Causation Looks at D’s responsibility &Culpability 3 rules Consequence resulted from a culpable act Dalloway (1847) Act is more than minimal cause Benge (1985) No intervening acts Act of 3rd party breaks chain unless its foreseeable Pagett (1983) Act of victim, only when actions are unreasonable Roberts (1871) Williams (1992) Medical intervention Smith (1959) Jordan (1956) Cheshire (1991) Actus Reus-Killing(3)

Reasonable Creature in Being Murder only when D kills a Independently living Human being ReA (2000) 3 types of victims Newborns/ Foetus Coma Victims Brain dead victims Every other form of murder is just that Actus Reus-RCIB(1)

Reasonable Creature in Being Newborns & Foetus A/G Reference where a foetus is attached while in the whom and born alive but died at a later date the D will be charged with murder as the baby is a reasonable creature in being at death Baby must be delivered alive Enoch (1832) Must be fully expelled from the mother Poulton (1832) Umbilical cord must be cut Moot point Child needs not to have taken first breath Brian Actus Reus-RCIB(2)

Reasonable Creature in Being Long term comas Old law D could not be held liable if v died after a year and a day Criminal Law Revision Committee “it would be wrong for a person to remain almost indefinitely at risk for prosecution of murder, a line must be drawn somewhere” Actus Reus-RCIB(3)

Reasonable Creature in Being Brian dead victim Point of death is when V is mentally unresponsive Brain dead is when the Brain stem test fails Bland (1993) Malcherek (1981) Actus Reus-RCIB(4)

Under the Queens peace Killing enemies of the state during the time of war is not murder R v Page (1953) Killing prisoners of war is Murder Killing non enemies of the state, I.E civilians, during conflict is also murder Actus Reus-UQP

Actus Reus- Unlawful (1) Unlawfully Lawful Killing Killing does not need to be unlawful War – its legal to kill an alien of the state in war Judicial executions- Nations where death penalty exists Self defence/ defence of another/ prevention of a crime – force cant be excessive Was the mistaken belief genuine & honest? Was the force reasonable under the circumstance? S76 (2) Immigration and Justice Act 2008 Actus Reus- Unlawful (1)

Actus Reus- Unlawful (2) Unlawfully Unlawful Killings Acts and omissions Cases apply to murder Gibbons and Procter Actus Reus- Unlawful (2)

Actus Reus- Unlawful (3) Unlawfully Authorities Soldiers and police may kill in line of duty unless done so ultra vires R v Clegg Doctors may kill in limited circumstances Bodkin (1957) Bland (1993) Re A (2000) Actus Reus- Unlawful (3)

Mens Rea Malice aforethought express or implied Can be direct/ indirect intention Four separate types Direct express Direct implied Indirect Express Indirect implied Found in statute Mohan (1976) & common law Test established in Woolin 1998 also applies Was the consequence virtually certain? Did D personally foresee the consequence as being virtually certain? Mens Rea Introduction

Direct intention D’s primary aim was to kill or cause harm to the victim Direct intention is two separate things in murder Direct express- sole intention is to kill Direct implied- intention to cause gbh with a consequence virtually certain to be death Woolin. But would only be found to have it if P prove to the jury that intention is that of S.18 OAPA 1861 Mens Rea

Indirect intention Where D embraces a course of action where the consequence is virtually certain Woolin 1998 Indirect intent for murder is split in two Indirect express- knows death is virtually certain yet continues his action Indirect implied-intention to cause GBH even if the primary aim was not to cause death he should have foresaw harm Cunningham 1981 Mens Rea

Problems and Reforms to murder

Problems and Reforms to murder Background Law Commission report “Murder, manslaughter and Infanticide” heavily criticised current law: Rickety structure based on shaky foundations Some elements are outdated Some elements have changed too much causing uncertainty Problems and Reforms to murder

Problem 1 The piecemeal approach Problems Alternate view law developed bit by bit defined by numerous cases meaning of ‘intention’, affects all specific intent offences S8 of the Criminal Justice Act 1967 jury not bound to infer intention from D’s actions was natural and probable jury to decide whether D did intend or foresee it based on the evidence To make law coherent it needs codification Criticism of piecemeal is critising common law 1967 legislation shows Law is not settled Codification is no cure Piecemeal allows social change If the piecemeal approach for murder is criticised then it is a problem with the law as a whole Problems & reforms- Problem 1

Problem 2 Serious harm rule Alternative view D can be charged with murder without the intention to kill 2 d’s with separate moral culpability treated equally SHR not in Homicide Act 1957 Vickers est SHR which Cunningham confirmed Public policy to prove intention to kill would lower conviction rate Burden and standard of proof Proving ‘foresight of death’ could be problematic Indirect intent catches dishonest murderers Problems & reforms- Problem 2

Problem 3 Excessive force problems Alternate view Reasonable force = acquittal Excessive force = conviction Personality disorders not taken into account but gender and physicality is Balance needed to prevent vigilante law Parliament legislated self defence as a defence Criminal justice and immigration Act S.76 applies doctrine of reasonable force Coroners and Justice Act allows self defence for loss of control Problems & reforms- Problem 3

Problems & reforms- Problem 4 Problem 4 Duress Problems & reforms- Problem 4

Problems & reforms- Problem 5 Problem 5 Life sentence problems Alternate view Life should not have a minimum term imprisonment CJA 2003 Life = Serial killers, Sex & sadistic child killers, political assassins 30 years- sex/sadistic killers, radicals, shootings, cop killers 15 years- everyone else Life = life- murders who are released can go back whenever Murder is murder and should be distinct Problems & reforms- Problem 5

Problems & reforms- Proposed reforms