Murder - Lecture 4 PDF

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Summary

Homicide is the unlawful killing of a human being, and the jurisdiction over murder extends to any murder in any country by a British Citizen. Murder is the most serious form of homicide and what distinguishes murder from other forms of homicide is that the defendant must act with specific intent. M...

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Homicide - Murder 2012 Homicide is the unlawful killing of a human being, and the jurisdiction over murder extends to any murder in any country by a British Citizen. Murder is the most serious form of homicide and what distinguishes murder from other forms of homicide is that the defendant must act with specific intent. Murder is a Common Law offence and is defined by Lord Coke in 1797 as: ‘The unlawful killing of a reasonable person in being and under the King’s (or Queen’s) Peace with malice aforethought express or implied’. Actus Reus: The AR of murder is the unlawful killing of a reasonable person in being and under the Queen’s Peace. - ‘Unlawful’ The killing must be unlawful, the AR of murder is usually an act, and however, it can be an omission if there is a duty to the V. It must be voluntary and it must cause the death of the V. It will be lawful to kill another if it falls into one of the following categories: - Killing enemy soldiers in battle - Advancement of justice - Self defence -

‘Killing’ This requires that the D caused (causation) the death of the V. The inclusion of this element informs us that we are dealing with a result crime.

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‘A reasonable person in being’ The V of a homicide must be a person (human being). It may be necessary to determine when a person becomes ‘in being’. Essentially this is when a person is born alive and is capable of independent life (See: R v Poulton 1832, R v Reeves 1839 and AG-ref (No 3 of 1994)). A corpse is also not considered as a person in being – Medical Royal Colleges and Faculties 1979.

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‘Under the King’s (Queen’s) Peace’ The only killings which seem to be excluded are those in the course of war and rebellion against the Crown.

Actus Reus – Killing - Causation: The D’s act or omission must cause the harm (the result) in order for guilt to be established. First, we must establish a chain of causation in fact between the D’s acts and the result. Secondly, that factual chain must also exist in law, and thirdly, it must not be broken by an intervening act. D’s act/omission

End Result (death)

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Criminal Law – Year 2!

Homicide - Murder 2012 Establishing the chain of causation in fact: If the defendant is to be found guilty of a crime it must be shown that ‘but for’ the defendants actions the victim would not have been harmed – R v White (1910).  Has it been established that the result would not have occurred as and when it did but for the D’s conduct? If it would have happened anyway, D has no liability for end result.  The consequence must be caused by the D’s culpable act – R v Dalloway (1874)  The D’s act need not be the only cause of death – R v Benge (1865) and R v Paget (1983) ‘De minimis principle’ – the conduct of the D need not be the only cause or even the main cause of the end result, as long as it provides more than a minimal cause … more than a slight and trifling link … between the conduct of the D and end result – R v Kimsey (1996). Establishing the chain of causation in law: Is the accused conduct the ‘operating and substantial’ ( R v Cato 1976 ) cause of the result? If the chain of causation has been broken (novus actus interveniens), the D is not legally liable. The following are capable of breaking the CoC: a) Unpredictable event b) Medical Negligence c) Intervention of 3rd parties d) The Thin Skull Rule e) Flight & Flight (Victims own act)

A) Unpredictable event: If the unpredictable event/natural event was not reasonably foreseeable or is a major intervening act, it breaks the chain of causation. B) Medical Treatment: R v Smith (1959) – Was the D’s conduct the ‘operating and substantial’ cause? Parker LJ: Only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. R v Cheshire (1991) – Beldam LJ: The accused’s acts need not be the sole cause or even the main cause of the death, it being sufficient that his acts contributed significantly to that result. R v Malcherek (1981) – Switching off a life support machine does not break CoC. Refusing Medical Treatment: R v Holland (1841) and R v Blaue (1975) R v Dear (1996) – suicide – was the wound an operating and substantial cause? C) Intervention of 3rdparties: The actions of 3rd party must be ‘free, deliberate and informed’ to break the CoC.

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Criminal Law – Year 2!

Homicide - Murder 2012 R v Paget (1983) – Goff LJ: A reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as N.A.I. D) Thin Skull Rule: Take your V as you find them – R v Hayward (1908) and R v Blaue (1975) E) Flight & Fright (Victims Own Act): Stephenson LJ: Was the C’s action something that could reasonably have been foreseen as the consequence of what the D was saying or doing? The V’s reaction can only break the CoC if it were an act that was ‘so daft’ that a reasonable person could have foreseen it. R v Williams and Davies (1992) (compare to R v Roberts (1971)) – The jury must consider: I. Was it reasonably foreseeable that some harm was likely to result from the threat itself? II. Was the V’s reaction within the range of responses which might be expected from a V in the same situation? Smith LJ: The jury should bear in mind any particular characteristic of the V and the fact that in the agony of the moment he may act without thought and deliberation … Was the car driving fast? Has the V been raped before? But what about Kennedy? R v Kennedy (2007) – If there has been a voluntary and informed decision by the victim the CoC can be broken, even if the consequences were reasonably foreseeable. Mens Rea: Murder is a specific intent crime. The MR for murder is stated as being ‘malice aforethought’, express or implied. This means there are two different intentions either of which can be used to prove the D guilty of murder:  

Express malice aforethought – Intention to Kill Implied malice aforethought – Intention to cause GBH (See: serious and really serious harm - DPP v Smith 1960 and R v Saunders 1985)

If the D has either of these intentions then he has the MR for murder. A person can therefore be guilty of murder even though they did not intend to kill, as decided in R v Vickers 1957. This ‘implied malice’ rule has been severely criticised. In 1957 when Parliament passed the Homicide Act it never intended that a killing would amount to murder unless the D realised that his conduct might cause death.

INTENTION: (Aim? / Objective? / Purpose?)

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Criminal Law – Year 2!

Homicide - Murder 2012 Intention is widely regarded as the most important form of Mens Rea, and has been considered to be the most blameworthy state of mind although there have been much judicial dispute over the years about its meaning. Traditionally, intention has been split into two types; direct and indirect. Direct Intention – Where the D acts deliberately, wanting or desiring the outcome (Mohan 1975). Indirect Intention (Oblique Intention) – D foresees the result but does not necessarily desire it. Two issues have confronted the judiciary (i) Is how much foresight is needed before intention can be found? (ii) Is whether foresight is evidence of intention, or whether foresight of a virtual certainty is, in law, the same thing as intention?

DPP v Smith (1961) – D is presumed to intend or foresee the natural consequences of his actions.

S.8 Criminal Justice Act (1967) – Repealed the decision in Smith (above). The jury is not bound in law to infer intent or foresight, but is to draw inferences from the evidence.

Hyam (1975) – The Mens Rea for murder is satisfied if D knew death or serious harm was highly probably.

Moloney (1985) – Intent could be inferred where the D foresaw the consequence as a natural consequence of his act.

Hancock and Shankland (1986) – The greater the probability of a consequence the more likely it was that the consequence was foreseen and the greater the probability was that the consequence was also intended.

Nedrick (1986) – Introduced the ‘foresight of a virtual certainty’ test. ‘If the jury are satisfied that … the D recognised that death or serious harm would be virtually certain to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious harm, even though he may not have had any desire to achieve that result’. There is evidence of intention to bring about the consequence.

Woollin (1999) CURRENT LAW– The jury is not entitled to find the necessary intention unless it feels sure that death or serious harm was a virtual certainty, and that the D appreciated such was the case.

 Oblique Intent + Evidence = Direct Intention

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Criminal Law – Year 2!

Homicide - Murder 2012 R v Mathews and Alleyne (2003) – ‘The law has not yet reached a definition of intent in terms of appreciation of a virtual certainty’. Intention v Foresight IF the jury deliberates and finds that D did not foresee death or GBH as a virtual certainty THEN the jury cannot convict D of murder. IF the jury deliberates and finds that D did foresee death or GBH as a virtual certainty THEN if the test is one solely on ‘fact’ (oblique intention) then the jury can either convict or not. IF the jury deliberates and finds that D did foresee death or GBH as a virtual certainty THEN if the test is one of ‘law’ then the jury must convict. Intention v Motive What D wanted to do – Intention Why D wanted to do it – Motive The court is only concerned with intention and not motive – see Chandler v DPP (1964)

Voluntary Manslaughter: Where the AR and MR for murder are established, a D may raise certain defences (provocation and diminished responsibility) and, if successful, be convicted of voluntary manslaughter as oppose to murder.

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Criminal Law – Year 2!

Homicide - Murder 2012 Cases CASENOTE

R v Poulton (1832)

FACTS DECISIONS

Makes it clear that the child must be fully expelled from the mother’s body and born alive.

CASENOTE

R v Reeves (1839)

FACTS DECISIONS

Indicated that it was not necessary for the umbilical cord between mother and child to have been cut.

CASENOTE

AG-ref (No 3 of 1994)

FACTS

Following the stabbing of a pregnant women in the abdomen, her child was born prematurely and subsequently died.

DECISIONS

HoL held that the child was not a live person when stabbed and therefore this could not be murder. If D intended the child to be born alive and then die, that would be murder. It might be manslaughter by gross negligence, if there was an obvious an unjustifiable risk of, for example, premature birth and consequently early death.

CASENOTE

R v White (1910)

FACTS

The defendant put potassium cyanide into a drink for his mother with intent to murder her. She was found dead shortly afterwards with the glass, threequarters full, beside her. The medical evidence showed that she had died, not of poison, but of heart failure.

DECISIONS

The defendant was acquitted of murder and convicted of an attempt to murder. Although the consequence which the defendant intended occurred, he did not cause it to occur and there was no Actus Reus of murder (chain of causation broken).

CASENOTE

R v Dalloway (1874)

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Criminal Law – Year 2!

Homicide - Murder 2012 FACTS

The defendant was driving a horse and cart down a road without holding on to the reins. A child ran in front of the cart and was killed.

DECISIONS

The defendant was not liable as he would not have been able to stop the cart in time even if he had been holding the reins. This case is authority for the point that the result must be caused by a culpable act. Here the culpable act was not holding the reins, which was not the cause of death.

CASENOTE

R v Benge (1865)

FACTS

D, a foreman platelayer misread the timetable as to when a train was to arrive. He placed a flagman at the wrong distance giving insufficient warning to the driver. A train left the rails at a spot where rails had been taken up and not replaced. D argued that the accident would not have occurred if other servants of the company had done their duty. It was the duty of the foreman of plate layers to direct when the work should be done, and also to direct effective signals to be given.

DECISIONS

It was irrelevant that it might have been avoided if other persons had not also been negligent. Though D was under the general control of an inspector of the district, the inspector was not liable; and the foreman was, assuming his negligence, to have been a material and substantial cause of the accident, even though there had also been negligence on the part of the engine driver, in not keeping a sufficient look-out.

CASENOTE

R v Paget (1983)

FACTS

D used his pregnant girlfriend as a shield while he shot at armed policeman. The girlfriend was shot by a policeman and killed.

DECISIONS

The D was found guilty of manslaughter. She would not have died ‘but for’ his actions (holding her out as a shield).

CASENOTE

R v Kimsey (1996)

FACTS

D was charged with causing death by dangerous driving. He and V had been racing each other in their cars at very high speed. Their cars collided and V’s car spun out of control and was hit by an oncoming car.

DECISIONS

Upheld the judge’s direction that the jury could find D had caused V’s death even if they were not sure that D’s driving ‘was the principle, or a substantial, cause of the death, as long as you are sure that it was a cause and that there was something more than a slight or a trifling link’.

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Homicide - Murder 2012 CASENOTE

R v Cato (1976)

FACTS

The V prepared an infection on heroin and water, which the D then injected into the V. The V died.

DECISIONS

D convicted of manslaughter as there was no intent. It was sufficient for the prosecution to establish that the injection was a cause of death. The D act made a significant contribution.

CASENOTE

R v Smith (1959)

FACTS

A soldier stabbed another in his lung. The V was dropped from the stretcher twice on the way to medical help. Staff gave him artificial respiration by pressing on his chest, of which made the injuries 75% worse.

DECISIONS

D was found guilty of murder. Stabbing was the ‘operating and substantial cause of death’.

CASENOTE

R v Cheshire (1991)

FACTS

D shot victim in thigh and stomach. Given a tracheotomy but died from rare complications of the tracheotomy.

DECISIONS

The D was still held liable for the death because the D. made a significant contribution to the cause of death.

CASENOTE

R v Malcherek and Steel (1981)

FACTS

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.

DECISIONS

Convictions upheld. The test of death is where the brain stem has died. Thus at the time of switching off the machine, the victims were already dead. The doctors could not therefore be the cause of death.

CASENOTE

R v Holland (1841)

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Criminal Law – Year 2!

Homicide - Murder 2012 FACTS

The defendant was involved in a fight in which he inflicted a deep cut on the victim's finger. The victim failed to take care of the wound or get medical assistance and the wound became infected. Eventually gangrene set in and the victim was advised to have his arm amputated. The victim refused and died.

DECISIONS

The defendant was liable for his death despite the victim's actions in contributing to his own death.

CASENOTE

R v Blaue (1975)

FACTS

The victim of wounding declined, on religious grounds, a blood transfusion which would have saved her life.

DECISIONS

This did not break the casual connection between the act of wounding and death. D was not entitled to claim that the victim’s refusal of medical treatment because of her religious beliefs was unreasonable.

CASENOTE

R v Dear (1996)

FACTS

D stabbed V with a Stanley knife, V did not try to stop blood flow and reopened the wounds himself (suicide?)

DECISIONS

The CoC was not broken and therefore he was convicted of murder.

CASENOTE

R v Hayward (1908)

FACTS

The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition.

DECISIONS

The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances.

CASENOTE

R v Williams and Davis (1992)

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Criminal Law – Year 2!

Homicide - Murder 2012 FACTS

A hitch-hiker jumped from a car and died from head injuries. It was claimed to prevent an attempt to steal his wallet.

DECISIONS

The D was held not to be guilty. The V’s reaction was unreasonable and broke the chain of causation. The V’s conduct must be proportionate to the threat.

CASENOTE

R v Roberts (1971)

FACTS

Girl jumped from car in order to escape from sexual advances.

DECISIONS

Roberts lost his appeal as the actions of the victim did not break the chain of causation because they were foreseeable.

CASENOTE

R v Kennedy (2007)

FACTS

The D prepared heroin injection for the V. The V injected himself and died.

DECISIONS

CoC was broken because it was a voluntary act on behalf of the V.

CASENOTE

DPP V Smith (1961)

FACTS

D trying to escape from the police in a car was signalled to stop. He did not do so. A PC jumped onto the car's bonnet. D drove at high speed, swerving from side to side, until the officer was thrown off and killed.

DECISIONS

Guilty of murder. It was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury. Section 8 Criminal Justice Act 1967 now requires subjective approach. This case not followed in R v Hyam.

CASENOTE

R v Saunders (1985)

FACTS DECISIONS

CASENOTE