Criminal Law - Murder

Nota:

• Technical name for mens rea Can be expressed or implied

1. Intention
   1. Direct

      Nota:

      • Where D acts deliberately, wanting or desiring the outcome  (Mohan) 
   2. Oblique

      Nota:

      • Situation in which D foresees the result but does not necessarily desire it
      1. Follow the cases for development of the rules concerning oblique intent
2. Express malice (retained by Homicide Act 1957)
   1. Means an intent to kill
3. Implied malice
   1. Means an intent to cause serious (grievous) bodily harm
      1. The decision of whether an injury is serious or grievous, the decision is left to the jury
      2. The gbh rule breaches the ‘principle of correspondence’ that should be read into mens rea: “the fault element does not correspond with the conduct element (which is, causing death) and so a person is liable to conviction for a higher crime than contemplated” Ashworth & Horder, Principles of Criminal Law, p.75
4. Constructive malice
   1. Abolished by Homicide Act 1957
   2. Occurred when D killed in the course or furtherance of a violent felony

1. Intention
   1. Moloney
      1. Lord Bridge provides the Golden Rule

         Nota:

         • D and his step father had been drinking, had a competition to see who could load a gun the fastest, D won and his father told him to pull the trigger, not knowing the gun was pointed at his father he pulled the trigger and killed his father
         1. ‘The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent ……. Unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.
            1. The appropriate jury direction according to Lord Bridge ( to be given in exceptional circumstances): "Was death a natural consequence of the defendant’s voluntary act, and if so did the defendant foresee that consequence as being a natural consequence of his act?"
               1. However Lord Bridge had failed to raise the question of probability in the context of foresight of consequence
                  1. Nedrick

                     Nota:

                     • D wanted to frighten neighbour. He went to her house in the early hours of the morning and poured paraffin through the letter box and onto the front door then set it alight. No warning was given. The house was burnt down and the neighbour’s child, a boy aged 12, died of asphyxiation and burns. 
                     1. intention can be inferred if the jury feels that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions and that the defendant appreciated that such was the case.
                        1. Woolin
                           1. The authority of this test was questioned in Woollin. The House of Lords largely approved of the test with some minor modifications setting the current test of oblique intent
                              1. CURRENT TEST: "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case."
   2. Differs from motive or desire
      1. Inglis

         Nota:

         • Mother who killed her child because she believed he was in extreme pain "The law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Subject to well established partial defences, like provocation or diminished responsibility, mercy killing is murder."
2. Recklessness
   1. Cunningham

      Nota:

      • Cunningham recklessness which asks: did the defendant foresee the harm that in fact occurred, might occur from his actions, but nevertheless continue regardless of the risk.  The appellant ripped a gas meter from the wall in order to steal the money in the meter. This caused gas to escape. The gas seeped through small cracks in the wall to the neighbouring property where his future mother-in-law was sleeping and was poisoned by the gas
      1. R v G v R
3. Wilful
   1. Sheppard
4. Awareness
5. Originally the test for intention was objective
   1. DPP v Smith

      Nota:

      • Use of 'reasonable man' test.  The jury convicted of murder and the defendant appealed on the grounds that this was a mis-direction and that a subjective test should apply. The Court of Appeal quashed his conviction for murder and substituted a manslaughter conviction applying a subjective test. The prosecution appealed to the House of Lords who re-instated the murder conviction and held that there was no mis-direction thereby holding an objective test was applicable.
      1. This position was reversed by:
         1. S8 Criminal Justice Act 1967

1. Negligence
   1. Adomako
2. Recklessness (from 1981 to 2003 only)
   1. Caldwell
      1. Caldwell recklessness - heavily criticised for being an objective test
         1. Elliot v C
         2. CALDWELL TEST OVERRULED IN R V G V R
            1. The House of Lords held a subjective standard now applies to criminal damage: "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."
3. Dishonesty
   1. Ghosh

Nota:

• Allows D to be convicted on the strength of his intention to kill/cause gbh to A where he ‘misses’ A, his intended victim, and strikes B instead (even if injury to B is not contemplated)

1. Gore

   Nota:

   • D decided to murder her husband by poisoning some medicine which had been prepared for him by his apothecary. Husband became ill, survived but suspected apothecary. To prove he had not tampered the apothecary drank the medicine and died. 
2. Latimer

   Nota:

   •  D used a heavy buckled belt as a weapon to strike at a man with whom he had a quarrel but he missed and cut the face of a woman Through the same principle he was convicted of maliciously wounding •   
3. Limitations
   1. Pembliton

      Nota:

      •  Boy throws stone at friend, hits window instead His intention is to injure a person not to cause damage so you cannot transfer that malice to the window  
   2. A-G’s Reference (No 3 of 1994)

      Nota:

      • ‘double transfer’ from mother to foetus to child born alive ‘strains the idea of transferred malice’ (Lord Mustill)