IS THE CURRENT LAW ON MURDER STILL ACCEPTABLE?
The traditional basis of criminal liability is an Actus Reus (the physical element). The general principle is that a person may not be convicted of a crime unless the prosecution has proved beyond doubt that the defendant has: * Caused a certain event, or responsibility is to be attributed to them for the existence of a certain state of affairs which is forbidden by criminal law. * Had a defined state of mind (Mens Rea) in relation to the event or state of affairs (Actus Reus)
It means the “guilty act” it is made up of all the parts of a crime except the defendant’s mental state. Most crimes require the accused to commit a particular act, however this is not always and criminal liability can also arise through a failure to act (an omission) and from a certain type of conduct. E.g. R v Larsonneur (1993)
Where a person has performed acts or brought about consequences which constitute the Actus Reus of an offence they will be generally found guilty of the offence only if they had the necessary Mens Rea at the time they acted.
Mens Rea means the “guilty mind” refers to the mental element necessary for a particular crime. This may differ from one crime to another and the definition of each crime must be examined to determine what state of mind. Offences which require Mens Rea are seen as more serious than those which may be committed negligently. R v Steane (1947).
Murder is a common law offence, it is not defined by an act of Parliament. It has been defined by decisions of judges in cases and the accepted definition is the one given by Lord Coke on 17th Century: “Murder is the unlawful killing of a reasonable person in being and under the King’s (or Queen’s) Peace, with malice aforethought, express or implied”
THE ACTUS REUS OF MURDER:
It is the unlawful killing of a reasonable creature in being and under the Queen’s Peace. It has to be proved that D killed B, a reasonable creature in being, under the Queen’s Peace and the killing was unlawful. The Actus Reus of killing can be by an act or omission, but it mist cause the death of the victim, in murder cases, the Actus Reus is an act.
Attorney-General’s Reference (no.3 of 1994) 1998:
“With the intent to cause her grievous bodily harm, the defendant stabbed a pregnant woman in the abdomen. The child was born prematurely because of the stabbing and died as a result of having been premature”
Homicide can be charged for causing death of a child, born alive, by injury inflicted (on the foetus or its mother) prior to its birth.
Murder is a result crime. The defendant cannot be found guilty unless his act or omission caused the death. E.g. D shoots V in the head and V is killed instantly. However in some cases there may be other causes contributing to death, such as poor medical treatment. This type of situation raises questions of causation.
R v D (2006):
The Crown Prosecution Service brought a test prosecution for manslaughter following the suicide of a woman after a long period of domestic abuse on her. On the evening of the suicide, her husband had struck her in the forehead, causing a cut. He was then prosecuted for manslaughter and inflicting GBH, However the judge ruled the case should not go on trial because as there was no basis on which a reasonable jury could conduct the defendant of either offences.
Under the traditional rules of causation, the woman voluntary conduct of killing herself breaks the chain of causation as it was confirmed in R v Kennedy No.2 (2007). Despite this general rule, in the Crown Court the trial judge suggested that: “Where a decision to commit suicide has been triggered by a physical assault which represents the culmination of abusive conduct”. It could be possible for the Crown to argue that the final assault played a significant part in causing the victim’s...
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