Murder

Lord Coke defined murder as: 


"The unlawful killing of a human being under the Queen's Peace with Malice aforethought."
CausationDefendant can only be liable for victims death were their acts are both the factual and legal cause of death;• Nedrick was death or serious injury a virtual certainty as a result of defendants actions? Did the defendant foresee this as in Woolin? If yes, the jury can infer intent.Read the following articles and consider, was there sufficient mens rea for murder? Why was the defendant charged with murder?

• A foetus in utero (a baby who has not been born and is does not exist separately from its mother) and a person who is brain dead (Malcherek) is not a reasonable creature in being and therefore cannot be murdered. 

• Attorney General's Reference (No 3 of 1994)(1997): "Violence towards a foetus which results in harm suffered after the baby has been born alive can give rise to criminal responsibility"

• Under the Queen’s Peace means not during active war.

Actus reus 
This can be either an act or an omission. In most cases an omission doesn't amount to criminal liability, but there are exceptions to this, namely whether the law recognises a duty to act, including:

• A duty arising through relationship (Gibbins and Proctor)

• A contractual duty (Pittwood)

• A duty which has been taken on voluntarily (Stone and Dobinson)

• A duty arising from creating a dangerous situation (Miller) 

Factual

• ‘But for’ test as in the case of Pagett. (human shield)
• For legal causation, there must be more than a slight or trifling link between D’s act/omission and the consequences for the victim and it doesn't need to be the sole cause (Kimsey)

• Cato – must be more than a minimal cause

Legal
• Defendants actions must be the operative and significant cause of death as in the case of Smith. 
It is unlikely negligent medical treatment would break the chain of causation as in Cheshire.
• An intervening act that is reasonably foreseeable will not break the chain of causation such as Blaue (Jehovah’s witness, thin skull test). There are circumstances where an intervening act will break the chain of causation such as in Williams  where the victims action was unpredictable and stupid (Daftness test - victim thought the defendant was trying to steal his wallet so he jumped out of moving car and was injured)

Mens rea of murderDefendant must demonstrate the required malice aforethought – the intention to kill or cause really serious harm. Intention has two types;

Direct intent

• Must have intended to kill or cause grievous bodily harm. 
Indirect/Oblique intent

• Did not desire the outcome but in acting as they did, realised it might occur as in Maloney (intention and nothing less.)

http://news.bbc.co.uk/1/hi/uk/8466140.stm
http://obiterj.blogspot.co.uk/2010/11/r-v-frances-inglis-considerations-far.html

Actus reus

There are three basic elements which must be provided in order to establish criminal liability: 

1. guilty conduct (actus reus)

2. a guilty mind (mens rea)

3. absence of any defence. 

Actus reus is a Latin phrase meaning the conduct or state of affairs which a particular offence prohibits. i.e.

the guilty act.

The actus reus is usually, although not always, committed through a voluntary act, taking into account of the surrounding circumstances, e.g. causing death by dangerous driving. This is a result crime.

The voluntary nature of the action was discussed in the case of Hill v Baxter (1958) where the court gave examples of where a driver could not to be said to be doing the act of driving voluntarily, these included the driver losing control of the car because they had been attacked by a swarm of bees, being hit on the head by a stone or having a heart attack at the wheel. 

There are some rare instances where the defendant has been convicted not because of a voluntary act they  have committed, but because of the situation they have found themselves in. This is known as 'state of affairs' cases. An example is the case of Larsonneur (1933) in which the defendant who was a French citizen was deported from Ireland to England. When she arrived in England she was immediately charged with being an illegal entrant and her conviction was upheld on appeal even though she had come to England against her will. She was convicted not because of a positive action on her behalf, but simply because of the situation she found herself in. 

In some situation an omission, meaning a failure to act, can constitute the actus reus although this is only in particular circumstances which include the following:

1. Assuming responsibility  meaning that reasonable steps need to be taken to care for the individual

R v Stone & Dobinson

The defendant's voluntarily took on care of an anorexic sister. They did nothing to care for her and didn't call a doctor when it was clear she she was very ill and she died

They were found guilty of manslaughter because they had volunteered to care for her and then failed to do so. 

 2. Creating a dangerous situation meaning a legal obligation to take reasonable steps to reduce the danger that you have created.

R v Miller

While the defendant was squatting in a house he accidentally set fire to a mattress with a cigarette 

He did nothing to put the fire out and just moved into another room. 

He was found guilty of arson because he failed to do anything about the dangerous situation he had created.

      3.  Contractual -  Legal obligation to fulfill duty set out in a contract.

       R v Pittwood

The defendant was employed (and therefore had a contract of employment) to open and close a gate to vehicles crossing a railway track. 

He failed to do this and a cart went on to the track when a train was coming and people were killed 

He was found guilty of manslaughter because he failed to carry out task given to him.

 4. Relationship -  Legal obligation to look after children/partner.

R v Gibbons & Proctor

The father of a child was found guilty of murder because he had failed to provide reasonable care.

 5. Where an act of Parliament expressively states that one will be required to act

 Road Traffic Act 1988

 E.g. not wearing a seatbelt.

 E.g. failing to give a specimen test.