#4626 - Murder Ar - GDL Criminal Law

Actus Reus: “unlawful killing of a reasonable person under the Queen’s peace”

1. “Unlawful”

Unless:

1. Killing enemy soldiers in battle

2. Advancement of justice (e.g. death penalty)

3. Self-defence (if necessary in the prevention of crime or protection of self, others or property)

2. Killing

• Must cause the death of the victim

3. “A reasonable person in being”

• Victim must be a person (human being)

• ‘In being’ when born alive and capable of independent life

  • R v Poulton (1832) – child must be fully expelled from the mother’s body

  • AG-Ref (No 3 of 1994): stabbing of pregnant woman, child was born prematurely and died but HL said couldn’t be murder of the child as it was not a live person when stabbed

  • But – R v Reeves (1839) – not necessary for umbilical cord to be cut

• Determining the point of death – brain has stopped workin

Causation

Factual Causation: The “but for” test

• But for the act, the relevant consequence would not have occurred

• R v White [1910) – W put poison in his mother’s drink (2 grains of cyanide of potassium), with the intention of killing her – she was then found dead, but due to a heart attack – no evidence she had drunk any of the liquid – W acquitted of murder because no causal link – but convicted of attempted murder

Legal Causation

• The consequence must be caused by the defendant’s culpable act:

  • R v Dalloway – (1847) D was driving horse and cart without holding the reigns: child ran out in front of the cart and was killed - but even if the D had been holding the reigns, he wouldn’t have been able to stop the car. If he had not been driving the cart the child would not have been killed (factual causation): but couldn’t show that the death was due to the culpable element in his act

  • R v Marchant (2004) – Motorcyclist was killed when he was impaled on the front forks of a hay-bale tractor – even if the tractor driver had covered the spikes as he was meant to, the impact with the tractor would have killed the biker anyway

• The defendant’s act need not be the only cause of the prohibited consequence

  • R v Benge (1865) – defendant can still be liable if others are present – Benge had misread timetable – ordered gang to remove part of the track – signal-man was meant to put up signal lights and didn’t go the right distance – but so long as it could be shown that the D was negligent and his negligence was a main/substantial cause of the crash, the subsequent negligence of the train driver and flag holder were immaterial

• The defendants act must be the “substantial” cause of the prohibited harm

  • Needs to be “operating and substantial”

  • R v Cato: substantial does not mean ‘really serious’ but more than a ‘de minimis, trifling one’

  • Latterly courts decided that it need not be substantial or really serious – R v Malcherek and Steel

  • R v Pagett – ‘in the law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result’

  • R v Kimsey (1999)- sufficient that it be more than a minimal contribution

Intervening acts and/or events which may break the chain of causation “new intervening factor” – novus actus interveniens

Medical negligence: only breaks cause if “extraordinary”

• R v Smith (1959) – Smith stabbed victim and pierced his lung – then soldier dropped him twice carrying him to medical station, and then received inappropriate treatment but Smith still convicted of murder

  • ‘even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant’

  • R v Cheshire (1991)– victim’s original wounds had healed – but CA held that bad medical attention didn’t break the chain – victim’s windpipe had become blocked due to a narrowing near the tracheotomy scar (doctor’s didn’t notice)

  • R v Jordan (1956)– Jordan convicted but then successfully granted leave – had stabbed someone, victim died 8 days later - but found that stabbing was not the cause – deceased had died of the effects of sensitivity to Terramycin –a very particular case

Intervention of third parties

• R v Pagett : D used his pregnant girlfriend as a shield from police’s gunfire as he shot at them: the police returned fire and killed the girl

  • CA – there would only be a break of causation if the third party’s actions were ‘free, deliberate and informed’ : the police’s actions were reasonable

The “Thin Skull Rule”: take the victim as you find them

• Even if harm caused is disproportionate to the act (pre-existing infirmity or peculiarity)

• R v Hayward – chased wife into road – she collapsed and died (abnormal thyroid condition) : D guilty for the full extent of the damage

• R v Blaue : D stabbed a woman several times and pierced her lung – she refused treatment as it was contrary to her religious beliefs despite advise that without it she would die: she subsequently died but he was liable for the full extent of the damage – no break in causal chain

Acts of the Victim

“Fright and Flight” cases

• Test – was the escape foreseeable by the reasonable man

  • R v Mackie (1973)

    • Appellant (Mackie) had been looking after a 3 year old boy

    • The boy believed he was going to be assaulted by Mackie and ran away, fell down a flight of stairs and died: M was convicted

  • R v Roberts (1972)

    • Victim was terrified of D and jumped out of moving car, D convicted of assault occasioning actual bodily harm

    • Ask: did the victim do something so ‘daft’ or unexpected that no reasonable man could be expected to foresee it

    • Only if it is a voluntary and unforeseeable act will it break the chain of causation

• R v Roberts was approved in R v Williams and Davis V was a hitch-hiker who accepted a lift from the appellants who tried to rob him causing him to jump from the car and subsequently die

  • Jury should consider:

1. Whether it was reasonably foreseeable that some harm (albeit not serious harm) was likely to result from the threat itself

2. Whether the deceased’s actions were within the range of responses which might be expected

   • Jury should bear in mind and particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation

   • We await clarification on what characteristics can be considered (unknown to the D?)

Refusal of medical treatment

• R v Holland (1841) Refusal of treatment no defence (treatment of cut finger would have saved V)

• R v Blaue (1975) (see...