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

Mens rea

Mens rea is a Latin term referring to the mental element of criminal liability and broadly there are 2 types of mens rea; intention and recklessness.

• It can be either an actual intention to do the particular kind of harm, or
• recklessness whether such harm should occur or not.

Intention is also known as specific intent and can be split into two types:

Direct Intent - the defendant's aim and purpose is to bring about the consequence. He set off on a course of action trying to bring about a certain consequence and that is what occurs.

R v Mohan (1976)
A police officer signialed the defendant to stop his car. The defendant accelarated towards the police officer who jumped out of the way and the defendant drove off without stopping.


Oblique intent
1.The consequences of the defendant’s actions were virtually certain and
2.the defendant foresaw this.

R v Woollin [1998]
The defendant lost his temper with his three month old son and threw him towards his cot. He missed and the baby hit the wall behind. The baby was badly injured and died as a result.
Serious harm was virtually certain

Recklessness - The defendant realised there was a risk of the result occurring but went ahead
with his actions anyway. (Conscious risk taking or taking an unjustified risk)

R v Cunningham [1957]
The defendant broke into a gas metre to steal the money inside. The gas leaked into the property next door and made the resident ill. D was charged, with having unlawfully and maliciously caused V to take a certain noxious thing, coal gas, so as thereby to endanger her life.

Held: The correct test is whether D foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it.

Not guilty (on misdirection)