2010 / 2011
1.Homicide - Murder3
9.Critical evaluation of murder and voluntary manslaughter 47
10. Critical evaluation of intoxication53
11. Critical evaluation of consent57
10.Reform of non-fatal offences59
13.Exercises on Actus reus and mens rea of murder76
14.Defences revision grid81
This is the killing of a human being. The most serious crime is murder and the difference between it and manslaughter is in the intention of the defendant. Murder is a specific intent crime and manslaughter is a basic intent crime.
Murder is a common law crime which means that it is not contained in any Act of Parliament. It is defined as:
‘Where a person of sound memory and of the age of discretion unlawfully kills any reasonable creature in being, under the Queen’s peace, with malice aforethought.’
Murder carries a mandatory sentence of life imprisonment, which is 15 years.
Sound memory—the person responsible must not be insane.
Age of discretion — a child less than 10 years old is not criminally responsible for his/her actions. Since S.34 of the Crime and Disorder Act of 1998 the presumption of doli incapax has been abolished and consequently any child over 10 years has potentially full legal capacity.
Unlawfully kills — the act must be an unlawful killing. The law recognises that in certain circumstances the killing may be either justified or authorised eg. execution or self defence.
Living human being — a foetus is not deemed in law to be a living human being. However, a murder conviction may be possible if a foetus is injured and, after birth, dies as a result of injuries sustained whilst in the womb. Attorney-General’s Reference (No 3, 1994) 1996.
A defendant cannot be convicted of the murder of someone who is already dead at the time of the attack.
R v Maicherek and Steel 1981
The accused had seriously wounded the victim who was then artificially maintained on a respirator. When it was discovered that irreversible brain damage had occurred the respirator was turned off M was found guilty of murder and his appeal was dismissed when he claimed the doctor had caused death. It was his act which caused death. The court appeared to favour the approach that death occurs when the victim is brain-dead.
Queen’s Peace — killing an enemy during wartime is not murder.
Malice aforethought — since the case of R v Moloney the mens rea of murder is the intention to kill or cause grievous bodily harm.
The actus reus of murder is that the killing is unlawful, causation must be established (A caused B’s death) and the victim must be a human being. (see causation notes from AS).
MENS REA DIAGRAM
The mens rea of murder is malice aforethought which is the intention to kill or cause grievous bodily harm (GBH).
There are two forms of intent:
• Direct intent — this is what D desires, eg. pointing a gun at someone and shooting them because you want to kill them. It was their aim or purpose to kill.
• Indirect or oblique intent — this is not necessarily what D desires but what he foresees will almost certainly happen, eg. D sets fire to a building and killed someone, did he foresee the risk that death might occur?
Four important cases must be looked at.