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27 Cards in this Set
- Front
- Back
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Definition of murder
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unlawful homicide with malice aforethought
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Actus Reus
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unlawful homicide
defined by Coke as “unlawafully killing a reasomable person who is in being and under the King’s peace” "unlawful" So not: - killing enemy soldiers in battle - advancement of justice (e.g. death penalty) - self-defence (where force of defence was reasonable and necessary) killing - the act resulted in the death of the person “a reasomable person in being” -born alive and capable of independent life • R v Poulton – child must be fully expelled from mother’s body and born alive • R v Reeves – not necessary for umbilical cord to have been cut “under the King’s (Queen’s) Peace” - so not in the course of a war or rebellion against the crown |
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Mens rea
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“malice aforethought”; modern version is “with intention to kill or cause GBH” (R v Vickers)
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Intention
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aim or purpose (R v Maloney)
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GBH
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really serious harm (DPP v Smith) or just harm (Saunders)
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Causation: factual
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Factual causation: “but for” the acts (or omissions) of the accused, the relevant consequence would not have occurred in the way it did.
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R v White
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Factual causation
Intended to kill his mother through poisoning a drink. Mother died, but not from the poison. White acquitted of murder, because there was not a link between his actions and the death, but guilty of attempted murder |
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Legal causation
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they have to be the operating and substantial cause of the prohibited consequence
- The consequence must be caused by the defendant’s culpable act: if the death would have occurred even if they had not made the mistake, not murder (R v Dalloway) - D's act need not be the only cause (R v Benge) - but must be more than a "slight or trivial link" (R v Kimsey) - Novus actus interveniens Key bit of legal causation: Is the defendant the operating substantial cause of death (Pagett, Cheshire). Would need to be a significant contributor (Pagett), which has been held to mean more than slight or trifling cause (Cato, Kimsey) |
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Novus actus interveniens
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- Intervention by a third party
- medical negligence - Thin skull rule - act of the victim: refusal of treatment - act of the victim: "fright and flight" / "author of her own misfortune" - act of victim: suicide - "operating and substantial cause" (R v Cheshire) |
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R v Cheshire
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Legal causation satisfied if the defendant's acts or omissions are the "operating and substantial cause" of the prohibited harm
"most unlikely" that medical negligence will count as a NAI "it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the defendant that it could be regarded in law as the cause of the victim's death to the exclusion of the defendant's acts" "the defendent's acts need not be the sole cause or even the main cause od death it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of death, the jury should not regard it as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant" |
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R v Pagett
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Legal causation: Act of a third party
Pregnant girlfriend used as human shield "There can, we consider, be no doubt that 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 a novus actus interveniens" So doesn’t break if action is: - Involuntary – i.e. acting under compulsion / distress - A reasonable act performed for the purpose of self preservation / defence - Act done in the performance of a legal duty However, if the act was free, deliberate and informed it could break the chain of causation |
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R v Smith
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Medical negligence
Was the original wound an “operating and substantial cause” Is the second cause “so overwhelming as to make the original wound merely part of the history” |
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R v Blaue
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Thin Skull Rule, refusal of medical treatment
Woman was stabbed, and needed a blood transfusion, which she refused because of her beliefs (Jehovah Witness) and then died "It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgement means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him fro accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death . The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the casual connection between the act and death. |
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R v Holland
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Refusal of medical treatment
Man died from complications of a wound, after he refused the recommended amputation |
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R v Roberts
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Acts of the Victim: escape!
• element of objectivity - Was the victim’s action “something that could reasonably have been forseen as the consequence of what [the defendant] was saying or doing”? - or was it “so daft… or unexpected… that no reasonable man could be expected to forsee” |
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Professor Ormerod
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Escape!
if the jury are sure that they, as reasonable observers of the event, would have forseen the possibility of, causation is established |
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R v Williams & Davis
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Approves test from Roberts
Jury has to consider: 1) was it reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself 2) was the deceased's reaction in jumpting from the moving car within the range of responses which might be expected from a victim placed in the situation which he was In addition: “The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation” - unclear how much can be included in "characteristic of the victim" |
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R v Dear
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Act of the victim: suicide
Dear cut a man severely. His wounds reopened (unclear whether he did this intentionally, or merely made no attempts to rectify the situation) and he died. Confirms Smith & Hogan critical view that: "the common law rule is that neglect or maltreatment by the injured person of himself does not exempt the defendant from liability for his ultimate death" |
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R v Kennedy
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Act of the victim: drug administration
Is the supplier of drugs responsible if someone dies from voluntarily taking them? No - free will means that the person has the drugs can decide not to take them |
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R v Girdler
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The facts of the case will determine what legal causation test to turn to
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Oblique intent
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Test is from R v Nedrick, applied by House of Lords in R v Woolin:
- was death or GBH a virtual certainty as a result of D's act? - did D appreciate that death or GBH was a virtual certainty? |
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R v Clinton & Others
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Prosecution only needs to disprove one element to defeat the defence of loss of control
Old common law largely irrelevant, look for evidence based on facts Defence is only lost by taunts of sexual infidelity if this is the SOLE trigger for loss of control. Sexual infidelity can be considered within s54(3) circumstances of an extremely grave nature & justifiable sense of being wronged = objective test |
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Richens
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Loss of control was an element of the old law; this case stated:
- does not need to be complete loss of control - merely unable to restrain oneself - but more than mere loss of temper |
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Morhall
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normal person will be sober
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Byrne
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Diminished responsibility, abnormality of mental functioning: "a state of mind so different ... that a reasonable person would term it abnormal"
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Recognised medical condition
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Seers: depression
Reynolds: PMS Ahluwalie & Thornton: BWS |
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Substantial impairment (DR)
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Substantial is more than trivial or minimal (Lloyd)
Simcox directed that jurys use their common sense |
