#17262 - Murder - GDL Criminal Law

Airedale N.H.S. Trust v. Bland [1993] – Held that the trust was not ending the victim’s life (PVS post Hillsborough) but was discontinuing treatment through omission.

• Lord Goff stated to actively to bring a patient's life to an end is “to cross the Rubicon.”

Re A [2001] – conjoined twins, would not survive together. One would have a strong chance of survival if separated. Catholic parents did not consent to the operation. High court granted the declaration on the grounds that the operation would be akin to withdrawal of support (despite its being a 4hr invasive op).

• CA held not an omission but justified on grounds of necessity.

• Brooke J: We need a utilitarian calculus

• Walker LJ showed a great deal of imagination: The situation was just like that in a private school playground, a six-year old shooting randomly in a playground – we would kill the six-year-old if necessary to save the others.

• Ward LJ: The motive makes it proper here

• This is a highly specialized case.

R (Pretty) v DPP [2002] – terminally ill with MND. Pretty wanted immunity for her partner so that when her suffering became unbearable her partner could end her life with immunity. DPP refused.

• HoL agreed - was legitimate as was needed to protect the weak and vulnerable for effective justice system.

• ECtHU upheld HoL in terms of overall outcome for effectiveness of justice.

R (Purdy) v DPP [2009] – argued DPP was infringing on human right by failing to clarify how Suicide Act would be enforced (in particular individuals aiding in transporting them to Switzerland).

• Held it does interfere with Ms Purdy’s right to respect for private life (Art 8 – overturning Pretty)

• Required the DPP to prepare an offence-specific policy - including: age, capacity, family members, paid carers, was there any gain,

R v Inglis (2010) – D’s son fell out of ambulance, suffered severe head injury, surgery resulted in severe disfigurement. He was in a vegetative state but doctors were hopeful that he would make a recovery. D was convinced that his vegetative state was permanent, D became obsessed and depressed and injected son with heroin killing him.

• Court held provocation was inapplicable. We do not have mercy killings in English law.

R (Nicklinson) v MoJ (2014) – Nicklinson had locked in syndrome. Appealed to allow others end his life when it reached a certain point.

• SC Court held that this was not a matter for the courts; it was a matter for parliament. Necessity is not a defence for murder.

Murder is a common law offence: Sir Edward Coke:

• AR: “Unlawfully killing a reasonable person in being and under the King’s Peace, the death following within a year and a day.”

• MR: An intention to kill or cause GBH – this is the same as s.18 OAPA 1861

“Unlawfully killing…”

• Only killing of soldiers in battle, death penalty and certain self-defences are considered lawful.

“…a reasonable person in being…”

• Question of when does life end.

  • Malcherek and Steel [1981] – D stabbed V nine times. Life support eventually switched off. D argued it was the decision to switch off not the stabbing that ended victims life.

    • Employed a brain-stem death test: The test of death is where the brain stem has died. Thus at the time of switching off the machine, the victims were already dead.

• Question of when does life begin.

  • NB the killing of a foetus is a separate crime than murder – Infant Life (Preservation) Act 1929; OAPA 1861; Abortion Act 1967

  • Must be able to show some sort of independent existence from the mother: R v Enoch (1832); R v Poulton (1833)

    • Civil case of Rance (1993) defined this: Living or breathing through their own lungs rather than through their connection with the mother.

  • A-G Ref No. 3 of 1994[1997] – child survived for 121 days, died as a result of pre-birth stab rooms. CA held transferred malice from mother to the baby.

    • House of Lords (per Lord Mustill) argued that you cannot have double transferred malice (mother to foetus, and foetus to child).

    • Held there was unlawful act manslaughter....