Topic 2

1. Topic 2 Murder test

2. Murder test Question 1 What is the definition of murder?

3. Murder test Answer 1 ‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded or hurt die of the wound or hurt, within a year and a day after the same.’

4. Murder test Question 2 What does ‘of sound memory and of the age of discretion’ mean?

5. Murder test Answer 2 The defendant must be sane and aged 10 years or over.

6. Murder test Question 3 What does ‘unlawfully killeth’ mean?

7. Murder test Answer 3 Certain defences may make a killing lawful, for example self-defence. Defences aside, this part of the definition has been taken to mean ‘cause the death of’. Murder is a result crime and, as such, the prosecution must prove beyond reasonable doubt that the defendant’s conduct caused the victim’s death.

8. Murder test Question 4 What is a ‘reasonable creature in rerum natura’?

9. Murder test Answer 4 This is understood to mean a person who is born and not dead. This seems straightforward at first glance, but the exact timing of the beginning and end of life can cause problems. Generally, the beginning of life is taken to be when the child has an existence independent of its mother. The end of life is also difficult to determine.There is no legal definition, but generally brain-stem death is accepted as signalling the end of life.

10. Murder test Question 5 What happened in Attorney General’s Reference No 3 (1994)?

11. Murder test Answer 5 The defendant stabbed his pregnant girlfriend in the abdomen. The baby was born prematurely and later died. The question was whether the defendant could be convicted of the murder of the child. The House of Lords held that the fact that the child had not yet been born at the time of the attack did not prevent a murder conviction when it later died. On the facts, however, it was not possible to transfer the malice (the intention to cause grievous bodily harm to the mother) in order to make the defendant liable for the murder of the baby. At best, a conviction for manslaughter was a possibility.

12. Murder test Question 6 When would a killing not be under the king’s/queen’s peace?

13. Murder test Answer 6 Killing another would not amount to murder if that person were an enemy during wartime.

14. Murder test Question 7 Why was the requirement abolished that the victim must die of his or her injuries within a year and a day?

15. Murder test Answer 7 The requirement that the victim must die of his or her injuries within a year and a day was understandable in previous times, when long breaks between the defendant’s conduct and the victim’s death would make it difficult for the prosecution to prove causation. Following modern advances in medical technology, however, doctors are able to keep patients alive for much longer periods. A number of cases highlighted the unfairness of the rule, whereby a defendant was able to escape liability for murder simply because the victim took longer than a year and a day to die.

16. Murder test Question 8 Does the abolition the year-and-a-day rule lead to uncertainty for defendants?

17. Murder test Answer 8 To avoid a situation where the defendant is uncertain about possible charges as the prosecution waits to see if the victim will die, any case with a gap of more than 3 years between the defendant’s conduct and the death of the victim requires the permission of the Attorney General. Similarly, if the defendant has already been prosecuted in relation to the incident – probably for a non-fatal offence – the Attorney General’s consent will also be required.

18. Murder test: mens rea Mens rea

19. Murder test: mens rea Question 1 What is the mens rea of murder?

20. Murder test: mens rea Answer 1 The mens rea of murder is malice aforethought. This means that the defendant must intend either to kill or to cause grievous bodily harm. The phrase is misleading, since in this context ‘malice’ does not mean ill will and premeditation is not necessary.

21. Murder test: mens rea Question 2 How did the court define intention in Hyam v DPP (1975)?

22. Murder test: mens rea Answer 2 The court held that if Hyam had foreseen death or GBH as a highly likely consequence of her actions, she was guilty of murder. The case was heavily criticised in subsequent cases, as it appeared to suggest that the mens rea for murder would be satisfied by the defendant who foresaw the consequences. Thus, intention was taken to be the same as foresight of the consequences. In other words, a defendant who foresees what is likely to happen will always be taken to have intended the consequences.

23. Murder test: mens rea Question 3 What happened in R v Moloney (1985)?

24. Murder test: mens rea Answer 3 The defendant and the victim decided to have a race to see who could load and fire a gun in the fastest time. Moloney was quicker and shot his stepfather in the head, killing him. At trial, Moloney claimed that he never intended to kill the victim or even to cause him serious harm, claiming that he was just joking around. The House of Lords substituted his murder conviction for one of manslaughter, stating that only an intention to kill or to cause serious injury was sufficient for a murder charge. It said the jury should ask if death or serious injury was a natural consequence of the defendant’s actions. If so, it should then go on to consider whether the defendant realised this. If it believed that the defendant did realise this, this was evidence from which the jury could infer that the defendant did have the required intent.

25. Murder test: mens rea Question 4 How did the case of Nedrick define intention?

26. Murder test: mens rea Answer 4 The defendant held a grudge against a woman and intended to frighten her by pushing a lighted substance through her letterbox. Fire broke out in the house and the woman’s child was killed. After a misdirection by the trial judge, the Court of Appeal said that the jury should determine whether the defendant had the required intention by asking first how probable the consequence was and second whether the defendant foresaw the consequence. If death or serious bodily harm were virtually certain to occur, and the defendant appreciated this, then the jury could use this as evidence that he had the necessary intention.

27. Murder test: mens rea Question 5 Can a jury convict if it is satisfied that the defendant had foreseen a ‘substantial risk’ of serious injury?

28. Murder test: mens rea Answer 5 No. In R v Woollin, the defendant lost his temper when his 3-month-old son started choking on his food. He picked him up, shook him and then threw him across the room towards his pram. The baby hit the wall instead and died as a result of his injuries. At trial, the defendant claimed that he had not intended to kill his son and had not wanted him to die. The judge told the jury that it could convict if it was satisfied that the defendant had seen a ‘substantial risk’ of serious injury. On appeal, the House of Lords confirmed that the consequence must be a virtually certain result of the defendant’s actions and the defendant must appreciate this.