Understanding Duty and Intention in Murder: Actus Reus and Mens Rea, Lecture notes of Criminal Law

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LAW03: Criminal Law

(Offences against the Person)

MURDER

Definition: Lord Coke (a 17th century judge) defined murder as ... "the unlawful killing of a reasonable person in being and under the Queen's peace with malice aforethought, express or implied."

Omissions An omission is a failure to act. The general rule is that an omission cannot satisfy the actus reus of a crime. But, an omission is able to satisfy the actus reus of a crime if there is a duty to act.

A contractual duty: Pittwood (1902) A railway crossing keeper failed to close the gates when a train was due. V was crossing the line, was hit by a train and was killed. The D's omission satisfied the actus reus of manslaughter because of his contractual duty to act.

A duty taken on voluntarily:

Stone and Dobinson (1977)

S's elderly sister came to stay with the Ds and when she became ill they failed to help her or call for assistance. The Ds' omission was enough to satisfy the actus reus of manslaughter because they h a d t a k e n o n a d u t y voluntarily.

Reasonable person in being It means simply a "human being" ... ... and it raises 2 possible problems.

1. Is a foetus a "reasonable person in being"?
2. Is a V still alive and a "reasonable person in being" if they are "brain-dead" but being kept alive by a life-support machine.

Attorney-General's reference (No. 3 of 1994) (1997) The HL stated that if a foetus is injured and the child is then born alive but later dies as a result of the injuries then a human being will have been killed and can satisfy the definition of murder.

Brain-dead It is probable that a person who is "brain-dead" would not be considered a "reasonable person in being". Doctors are allowed to switch off life-support machines without being liable for murder ( Malcherek (1981) ) ... the original attacker would still be liable for the death.

Causation The prosecution must show that the D's conduct was ...

1. The factual cause of the consequence; and
2. The legal cause of the consequence; and
3. There was no intervening act which broke the chain of causation.

Factual cause The D is only guilty if the consequence (V's death) would not have happened "but for" the D's conduct.

White (1910) The D put cyanide in his mother's drink in order to kill her. But she died of a heart attack before the poison could kill her. "But for" D's actions she would have died anyway and therefore the D is not the factual cause of his mother's death.

Legal cause The D's conduct must be more than a "minimal" cause of the consequence but it doesn't need to be a substantial cause.

Kimsey (1996) The CA held that instead of using the term de minimus it was acceptable to tell the jury that there must be "more than a slight or trifling link" between the D's act and the consequence. So, the D can be guilty even though his conduct was not the only cause of death.

The thin skull rule This rule states that the D must take the V as he finds them. If the V has something unusual about his physical or mental state that makes him more susceptible to injury, then the D will be liable for that injury even if it is more serious than expected.