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HOMICIDE

HOMICIDE. MURDER MANSLAUGHTER Both are common law offences. MURDER. In this lecture we will consider: The definition of murder. The actus reus of murder, with particular reference to the concept of causation. The mens rea of murder. Murder is the most serious homicide offence.

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HOMICIDE

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  1. HOMICIDE • MURDER • MANSLAUGHTER • Both are common law offences.

  2. MURDER • In this lecture we will consider: • The definition of murder. • The actus reus of murder, with particular reference to the concept of causation. • The mens rea of murder.

  3. Murder is the most serious homicide offence. • It is contrary to common law. • Use a modern day definition – the unlawful killing of a human being by a human being during the Queen’s Peace with malice aforethought.

  4. CAUSING DEATH • When does a person become a corpse? • Malcherek & Steele (1981) - brain stem death.

  5. The issue of causation raises 2 questions: • 1. A question of fact • 2. A question of law

  6. Question of fact • In order to establish causation, it must first be proven that D was the factual i.e “but for” cause of the death.

  7. QUESTION OF LAW • D’s act must be the operating and substantial cause of the death (Smith (1959)). • The fact that others have contributed to the death will not relieve D of liability (Benge (1865)).

  8. D MUST TAKE HIS VICTIM AS HE FINDS HIM • Under the criminal law, the physical susceptibility of the victim (V) will not relieve D of his liability (Martin (1832)). • Nor will V’s spiritual beliefs relieve D of liability (Blaue(1865)).

  9. Novus actus interveniens • Negligent/poor medical treatment • Naturally occurring intervening event • The “flight” cases • Neglect by V • Intervening act of a 3rd party not involving poor/negligent medical treatment

  10. Negligent/poor medical treatment • Relevant caselaw: • Jordan (1958) • Smith (1959) • Cheshire (1991) – “independent and potent” test

  11. What if the wound does not cause the death but prevents life saving treatment for an independent condition? • See McKechnie (1991) • But was factual causation satisfied?

  12. If the doctor switches off a life support machine, who has caused the death – D or the doctor? • See Malcherek (1981)

  13. NATURALLY OCCURRING INTERVENING EVENT • Test applied is whether the death was the natural or reasonably foreseeable consequence of D’s actions - test is known as the “natural consequence test.”

  14. THE FLIGHT CASES • Where the intervening act is that of V attempting to escape D, the courts apply the natural consequence test. (Mackie (1973)).

  15. In assessing whether the reasonable man would have foreseen V’s escape as a possible consequence of D’s actions, the reasonable man will not be endowed with D’s age, sex or, indeed, any of D’s characteristics (Marjoram (2000)).

  16. Whether the chain of causation is broken in the situation where V overreacts or suffers some unusual harm because of the type of person he is was considered in Williams & Davis (1992).

  17. Neglect by the victim If D injures V and V mistreats or neglects to treat the injuries and dies as a consequence, does this self-neglect break the chain of causation? See: Holland (1841) Dear (1996)

  18. Intervening act of third party where medical negligence not involved • The situation under consideration here is that in which D's act does not directly cause death but does so indirectly in that the intervening act which is the immediate cause of death would not have occurred but for D's act. • The courts apply the natural consequence test, see Pagett (1983).

  19. Mens Rea of murder • Malice aforethought • (i) an intention to kill or • (ii) an intention to cause grievous bodily harm • Moloney (1985)

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