Murder - Notes and Evaluation.

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Murder is a common law offence; it has been defined by the decisions of judges in cases and the accepted definition is based on one given by Lord Coke. This is that murder is 'the unlawful killing of a human being under the Queen's peace with malice aforethought, express or implied'.
In order for the actus reus to be fulfilled, the following principles must be satisfied : 1.) The defendant must do an act 2.) Which is unlawful 3.) which substantially causes the death of the victim 4.) who was a human being. There used to be a further requirement - that the victim had to die within a year and a day of his last injury by the defendant. This was abolished in 1996.

The defendant must do an act
To be guilty of murder the Defendant must have been proven to have done a voluntary act, although manslaughter can also consist of an omission. This can arise when the Defendant is under a legal duty to act but fails to do so, as in the following situations - Special legal relationship, e.g. Gibbons & Proctor (loco parentis), Statutory Duty, e.g. Road Traffic Act 1972, Voluntary undertaking, Employment duties and Accidental act which creates a dangerious situation. It is very unusual for a charge of murder to be based upon an ommission.

Which is unlawful
The act or omission that causes the victims death must be unlawful. It is not unlawful if what is done is in self-defence, or in the prevention or crime and the defendent used reasonable force.

Which substantially causes the death of the victim
The prosecution must show that the defendants conduct was the factual cause of the consequence and the legal cause of the consequence. The factual cause is when the defendant can only be guilty if the consequence would not have happened 'but for' the defendants conduct, e.g. Pagett (1983). The legal cause is when the defendants conduct must be more than a minimal cause of the consequence, although it does not need to be a substantial cause, e.g. Cato (1976). The defendant must also take the victim as he finds him. This is known as the thin skull rule, and means that if the victim has something about him which makes an injury more serious, the defendant is liable for the more serious injury, e.g. Blaue (1975).

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Who was a human being.
A homicide offence cannot be charged in respect of the killing of a foetus - the child must have been entirely expelled from its mother and have an independent circulation, although the umbilical cord does not need to have been cut. It is not certain whether a person who is 'brain dead' would be considered as a reasonable creature in being or not - it is suggested that 'brain death' is the recognised test for death, but there has been no case on this point.

The Mens Rea of murder is malice aforethought, express ...

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A thoughtful and well researched essay. Further reference could be made to, amongst other things, proposed amendments including the "tiered" offence structure (like in place in the US), and the distinction between voluntary and involuntary manslaughter. 4 Stars.