You Be the Examiner

You be the examiner. Look at the following answers for this question which do you think is best and why, what marks would you give each one?

1.Encouraged by their friends whilst they were all being rowdy, Henry and Jack took part in a ‘boxing match’ in which each had one glove and both wore blindfolds. During the match,

Henry had struck Jack twice in the face, leaving him with red marks and a small swelling under his eye. Jack then took out a knife which he had hidden in his pocket. Before anyone could intervene, Jack lashed out in Henry’s direction but missed him and, instead, inflicted a deep cut on the arm of Karim, one of the friends who was watching. The cut required a large number of stitches.

Mike, Jack’s father, had found it increasingly difficult to cope with the stress of modern life, including Jack’s wild behaviour. Mike had developed a strong (but wholly unjustified) belief that he was being followed wherever he went, and that his life was in danger. Walking on the upper level of the shopping centre one day, he noticed Pete, who lived in the neighbourhood.

Mike and Pete had recently had a number of arguments. Mike immediately assumed that Pete was “following” him, and shouted at him to go away. Pete shouted back, “If you keep on like that, someone will get you, you stupid old idiot.” Pete then walked off but, a few minutes later,

Mike suddenly ran at him and pushed him over the railing. Pete fell to the lower level, where he struck his head very heavily and died.

(b) Consider the liability of Mike for the murder of Pete. (25 marks) 2. Murder Question 1b January 2010 Candidate 1

The actus reus for murder is the killing of another person and was set out by Sir Edward

Coke. In terms of causation there is no problem in this case as Mike’s action was the operating and substantial cause of death as in Pagett and the first act was enough to kill as in Shahid. A problem would arise with mens rea. The mens rea for murder is intent to kill or cause GBH. It is not clear, however, if Mike had the intention to do this. The case of Matthews and Alleyne 2003 is the current law on foresight of consequences saying that it should only be taken as evidence of intention if the defendant foresaw the risk of his actions. If the jury decided that there was enough evidence to suggest that

Mike had intended to kill Pete then he would be found guilty of murder as both actus

Reus and mens rea would be satisfied. Candidate 2

Murder is the unlawful killing of another person under the queen’s peace, Coke’s definition. Mike must have caused the death of Pete. But for Mike pushing Pete he would not have fell and died as in Pagett. There are no other issues of mens rea, with no intervening acts, etc. To have the mens rea of murder, Mike must have malice aforethought, whether express which is intent to kill, or implied, which is intent to cause grievous bodily harm. Mike could either have direct intention where he desired the consequence as in Mohan, where it was seen as aim, purpose, objective, or as I believe he could have oblique intention as in Woollin where he saw risk of death or GBH as virtual certainty. Malcherek and Steel states court discretion whether it was virtual certainty. Candidate 3

When discussing Mike’s criminal liability the offence of murder can be identified. It is the unlawful killing of a person in being and under the Queen’s peace with malice aforethought express or implied. A killing may not be lawful if it is to constitute murder, such as a judicial execution in a country using the death penalty. A murder may be carried out through an act or an omission, where D owes a duty of care but fails to act.

This was seen in Pittwood where D had a contract of employment to guard a railway gate, but in failing to do so someone died. Murder is also a result crime, so the victim must die. The victim must be a “person in being” ie they cannot be a foetus and their brain stem must still be alive. The actus reus must also be carried out under the Queen’s peace, so cannot occur during declared warfare. It is possible to see that in Mike’s case, causation was not an issue. This is because upon falling from the balcony “he struck his head heavily and died”. Therefore his death can be seen to have occurred as a direct result of Mike’s actions, and no time elapsed in between during which an intervening act could occur. It is therefore possible to see that Mike has satisfied the actus reus as he unlawfully killed, under the Queen’s peace, a person in being which resulted in Pete’s death.

The mens rea of murder is either an intention to kill or commit GBH. It is described as malice aforethought, but requires no ill-will towards V, ie. mercy killings, and does not require pre-meditation. In R v Vicker D only intended to cause GBH to an old lady who caught him in her cellar, but when she died, was found guilty of her murder. The intention may also be direct or indirect. Direct intent is where D achieves his purpose. In contrast, indirect intent is when it is a “virtual certainty” that a certain result will occur, and D appreciates this. This was exemplified in R v Matthews and Alleyne where Ds dropped a boy off a bridge into a river who couldn’t swim. It was therefore a virtual certainty that he would die, as he couldn’t swim, and the defendants appreciated this to be the case, as the boy had told them he couldn’t swim. This can be seen to be the likely form of intention in Mike’s case. It is a virtual certainty that if a person falls from the upper level of a shopping centre, they will be seriously injured or die, and as long as the prosecution could prove that Mike knew this, he would have the necessary mens rea for murder. Mike would therefore be found guilty of murder, resulting in the mandatory life sentence. Esther (clear)

There is an accurate definition of the actus reus of murder, and application of causation. The first reference to mens rea is regarded as a slip of the pen. There follows a valiant attempt to explain the mens rea of the offence, with the distinction between express and implied intent clearly explained and the distinction between direct and oblique intention almost accurately explained. There is no attempt to apply the mens rea, merely some assertions. Presumably Malcherek and Steel should read Matthews and Alleyne.

The main weakness in this answer is the poor application of mens rea. Esther needs to refer in detail to the facts of the scenario to support her judgment in favour of oblique intention. This is where she can demonstrate whether or not she has properly understood the test for intention based upon foresight of the consequences, which is needed for an answer to be considered sound.

Richard (weak sound)

Richard’s answer is generally accurate, detailed and precise, with good use of appropriate authority and some convincing application. He focuses successfully upon the different elements of the actus reus, and makes the necessary distinctions in the mens rea between express and implied intention, and between direct and indirect intent. However, there are a few minor weaknesses: firstly, the reference to Pittwood is not relevant here, and secondly, in spite of recognising that causation is not an issue, he cannot resist dealing with it in some detail. Overall, however, the answer demonstrates sufficient understanding to be deemed sound. (The other two parts of this answer were covered to a similar standard, and the candidate was awarded 24 out of 25 for this part question.)

Honoria (some)

The answer begins with a partial definition of the actus reus of murder, and application of causation. There follows a partial explanation of the mens rea of murder, with some reference to the issues resolved in Matthews and Alleyne, but only a partial understanding is demonstrated. The conclusion avoids the issue of application.

A better answer requires a more detailed explanation of the actus reus of the offence, and a clearer explanation of the mens rea, especially the meaning of intention based upon foresight of the consequences as a virtual certainty. Honoria also needs to apply the law, rather than to duck the issue by declaring that it is a matter for the jury. To do this, she must refer to the facts of the scenario and weigh up the evidence for herself.