Murder

“Murder is the unlawful killing of a reasonable creature in being under the Queen’s Peace with malice aforethought, express or implied.”

Actus reus (AR):

• Reasonable creature in being.
• A foetus does not count as a reasonable creature in being.
• For a baby to count as one, it must have totally been expelled from the mother and have an independent circulation. The umbilical cord does not need to be cut. Need not have taken the first breath.
• Attorney-General’s Reference (No3 of 1994)(1997): if a foetus is injured and born alive and dies afterwards as a result of the injuries, then there is AR for murder/manslaughter.
  
• Brain dead:
• (Malcherek 1981) Switching off a life support machine for a ‘brain dead’ patient is not AR of murder.  
• Year and a rule: and abolished rule saying that death must have occurred before that time limit of the unlawful. However, victim (V) can be kept alive with life support machine for more than 1y1d, therefore rule abolished and there is no limit. But if V dies after 3 years consent needed from A-G.
• Under the Queen’s Peace: does not constitute AR of murder to kill enemies in wartime conditions. However, killing a prisoner of war will constitute AR.

Cannot be an omission, unless defendant (D) is under these duties:

• A contractual duty (Pittwood 1902)
• A duty because of a relationship (Gibbins and Proctor 1918)
• A voluntary duty (Stone and Dobinson 1977)
• A duty where D set in motion a chain of events in other words created a dangerous situation (Miller 1983), (Evans 2009)

Causation:

Factual causation: “But for” D’s act V wouldn’t have died. Established by Pagett (1983). Contrast to White (1910) where the same principle was applied to find D not guilty.

Legal causation:

• Cato (1976): D’s conduct must be more that a minimal consequence of V’s death.
• Must not break chain of causation. No intervening act (novus actus interveniens (NAI)).
• Act needs to be the operating and substantial cause of death (Smith 1959).
• The prosecution does not need to prove that D’s act was the main/sole cause of death, just that it was of siginificant contribution (Cheshire 1991).
• Doctors treatment must be “palpably wrong” to constitute NAI (Jordan 1956).
• Victim’s own act:
• Roberts (1971): was a foreseeable consequence of D’s act.
• Williams (1992): daft act, was not foreseeable, therefore NAI.
• Take your victim as you find him (Blaue 1975).

Mens rea (MR):

• Express malice: intention to kill.
• Implied malice: Intention to cause grievous bodily harm (GBH).