Component 2: Criminal Law

(Offences against the Person) MURDER

 Definition:
Lord Coke (a 17th century judge) defined murder
as ...

"the unlawful killing of a reasonable person in being

and under the Queen's peace with malice
aforethought, express or implied."
Actus reus:

"the unlawful killing of a reasonable person in being

and under the Queen's peace"

The actus reus of murder can be an act or an

omission but it must cause the death of the victim
(V).
Omissions
An omission is a failure to act.

The general rule is that an omission cannot satisfy

the actus reus of a crime.

But, an omission is able to satisfy the actus reus of

a crime if there is a duty to act.
A contractual duty:
Pittwood (1902)

A railway crossing keeper

failed to close the gates when
a train was due. V was
crossing the line, was hit by a
train and was killed.

The D's omission satisfied the

actus reus of manslaughter
because of his contractual
duty to act.
Duty through a relationship:
Gibbins and Proctor (1918)

G's daughter was deliberately

starved to death and both Ds
were convicted of murder.

G's omission was sufficient to

satisfy the actus reus of
murder because of his duty to
his daughter because of their
relationship.
A duty taken on voluntarily:
Stone and Dobinson (1977)

S's elderly sister came to stay

with the Ds and when she
became ill they failed to help
her or call for assistance.

The Ds' omission was enough

to satisfy the actus reus of
manslaughter because they
had taken on a duty
voluntarily.
Reasonable person in being

It means simply a "human being" ...

... and it raises 2 possible problems.

1. Is a foetus a "reasonable person in being"?

2. Is a V still alive and a "reasonable person in
being" if they are "brain-dead" but being kept
alive by a life-support machine.
Foetus
The killing of a foetus is not murder.

In order to be a human being a child must have an

"existence independent of the mother".

The child must be expelled from the mother's body

and have an independent circulation. The umbilical
cord does not need to be cut and the child need
not have taken it's first breath.
Attorney-General's reference
(No. 3 of 1994) (1997)

The HL stated that if a foetus

is injured and the child is then
born alive but later dies as a
result of the injuries then a
human being will have been
killed and can satisfy the
definition of murder.
Brain-dead
It is probable that a person who is "brain-dead"
would not be considered a "reasonable person in
being".

Doctors are allowed to switch off life-support

machines without being liable for murder
(Malcherek (1981)) ... the original attacker would
still be liable for the death.
Queen's peace
This simply means the killing of an enemy in the
course of war is not murder. But the killing of a
prisoner of war would be sufficient for the actus
reus of murder.

This is very unlikely to come up in the examination!

Causation
The prosecution must show that the D's conduct
was ...

1. The factual cause of the consequence; and

2. The legal cause of the consequence; and
3. There was no intervening act which broke the
chain of causation.
Factual cause
The D is only guilty if the consequence (V's death)
would not have happened "but for" the D's
conduct.
Pagett (1983)

The D used his pregnant

girlfriend as a human shield,
the D shot at armed police,
the police fired back and killed
the girlfriend.

The D was guilty of his

girlfriend's manslaughter. She
would not have been killed
"but for" the D's actions. D
was the factual cause of her
death.
White (1910)

The D put cyanide in his

mother's drink in order to kill
her. But she died of a heart
attack before the poison
could kill her.

"But for" D's actions she

would have died anyway and
therefore the D is not the
factual cause of his mother's
death.
Legal cause
The D's conduct must be more than a "minimal"
cause of the consequence but it doesn't need to
be a substantial cause.
Cato (1976)

The V prepared an injection of heroin

and water which the D then injected
into the V. The V died and the D was
convicted of manslaughter.

The CA stated ... "It was not

necessary for the prosecution to
prove that the heroin was the only
cause of death. As a matter of law,
it was sufficient if the prosecution
could establish that it was a cause,
provided it was a cause outside the
de minimus range, and effectively
bearing on the acceleration of the
moment of the V's death."
Kimsey (1996)

The CA held that instead of

using the term de minimus it
was acceptable to tell the jury
that there must be "more
than a slight or trifling link"
between the D's act and the
consequence.

So, the D can be guilty even

though his conduct was not
the only cause of death.
The thin skull rule
This rule states that the D must take the V as he
finds them.

If the V has something unusual about his physical

or mental state that makes him more susceptible
to injury, then the D will be liable for that injury even
if it is more serious than expected.
Blaue (1975)

V was stabbed by the D and

needed a blood transfusion to
save her life. The V refused
the blood transfusion because
she was a Jehovah's Witness,
and died. The D was still
guilty of murder because he
had to "take the V as he
found her", religious beliefs
and all.
Intervening acts
The chain of causation can be broken by:

1. The act of a 3rd party;

2. The V's own act;

3. A natural and unpredictable event.

In order to break the chain an intervening act
must be sufficiently independent of the D's
conduct and sufficiently serious enough.

If the D's conduct causes foreseeable action

by a 3rd party then the D is still likely to be held
to have caused the consequence (Pagett
(1983)).
Medical treatment
Medical treatment is unlikely to break the chain of
causation unless it is so independent of the D's act
and "in itself so potent in causing death" that
the D's acts are considered insignificant.
Smith (1959)

2 soldiers had a fight and one was

stabbed in the lung. The V was
carried to the medical centre and
was dropped twice on the way. At
the medical centre he was given
inappropriate treatment which
made the injury worse and he died.

Had he been given the correct

treatment V's chances of recovering
would have been as high as 75%.

But the original attacker was still

guilty of V's murder, the medical
treatment was not independent
enough of the D's act.
Cheshire (1991)

The D shot the V in the thigh and

stomach. V developed
breathing problems and was
given a tracheotomy. The V then
died from rare complications of
the tracheotomy which were not
spotted by the doctors. When V
died his original injuries were no
longer life threatening.

The D was still liable for V's

death, the medical treatment
was not independent enough of
the D's actions.
Jordan (1956)

the V had been stabbed in the

stomach, was treated and his
wounds were healing well. V was
then given an antibiotic but
suffered an allergic reaction. One
doctor stopped the use of the
antibiotic but the next day another
doctor ordered a large dose of the
antibiotic to be given to the V. V
died.

In this case the doctor's actions

were held to be an intervening act
that was sufficiently independent of
the D's action and it broke the
chain of causation.
Victim's own act
If the D causes the V to react in a foreseeable way,
then any injury suffered will be caused by the D.
Roberts (1971)

The V jumped from a car in

order to escape from the D's
sexual advances. V was
injured and the D was held
liable for her injuries.

It was considered foreseeable

that the V would react in this
way as a result of the D's
action.
 If the V's reaction to the D's action is
unreasonable and unforeseeable then this may
break the chain of causation.
Williams (1992)

V (a hitch-hiker) jumped from D's

car and died from head injuries
caused by his head hitting the
road. The car was travelling at
approx. 30 mph. The
prosecution alleged the D had
attempted to steal V's wallet
causing him to jump from the
car.

The CA stated in order for D to

be liable the V must have acted
in a foreseeable way in
proportion to the threat. The V
didn't and the D was not liable.
Mens rea: malice aforethought
There are 2 ways in which the mens rea of murder
can be satisfied.

1. Express malice aforethought: the intention to

kill; or
2. Implied malice aforethought: the intention to
cause GBH.
So, a D can be guilty of murder even if they did
not have the intention to kill the V.

This was decided in the case of ...

Vickers (1957)

The D broke into the cellar of

a sweet shop and knew that
the old woman who owned it
was deaf. The old lady came
into the cellar and discovered
D. D hit her several times and
kicked her once in the head.
She died.

The CA upheld D's conviction

for murder. If a D intends
GBH and V dies then this has
always been sufficient to
imply malice aforethought.
Oblique intent
The main problem with proving intention is where
the D's main aim (direct intent) was not the death
of the V but something else. But in achieving the
main aim death is caused.

In these situations the D will not have the mens rea

for murder unless he foresaw that he would cause
death or GBH.
Moloney (1985)

The HL ruled that foresight

of consequences is only
evidence of intention.
Woollin (1998)

The HL stated that the jury are

n o t e n t i t l e d t o fi n d t h e
necessary intention unless
they are sure the death was a
virtual certainty as a result
of the D's action and that the
D appreciated this was the
case.
Matthews and
Alleyne (2003)

The CA stated that if a jury

decides D did foresee the
virtual certainty of death then
they are entitled to find
intention but they do not have
to do so ... because, as
Moloney states, foresight is
only evidence of intention.