Murder

 Definition

• Common Law offence
• Lord Coke´s definition:
• The unlawful killing of a human being under the Queen's Peace with malice aforethought
• Also requirement that death occur within a year and a day
• What is a human being?
• One who is capable of having an existence independent of their mother
• What is death?
• R v Malcherek and Steel (1981) - brain dead (not defined in statute)

Actus Reus

Unlawful Killing

• Can be an act or an omission
• Gibbins v Proctor (1918)
• Defendant must have caused the death
• Prosecution must prove the defendant's act caused the death
• Must establish causation in BOTH fact and law - referred to as factual and legal causation

Factual Causation

• But for test
• But for the actions of the defendant the victim would not have died as and when they did
• White (1910)
• De minimis rule
• Defendant's actions must have been more than just a minimal cause of the death

Legal Causation

• Thin skull test
• Defendant must take the victim as they find them
• Blaue (1975)
• Chain of causation
• Must be a clear link between the actions of the defendant and the victim's death
• Intervening acts may break the chain of causation
• Pagett (1983)
• Original injury must be an operative and substantial cause of the death
• Negligent medical treatment is rarely sufficient to break the chain of causation
• Smith (1959)
• Cheshire (1991)
• Jordan (1956)
• Switching off a life support machine will not break the chain of causation
• Malcherek (1981)

Mens Rea

• Malice aforethought
• Now known as an intention to kill or intention to cause grievous bodily harm
• Can be either express or implied
• Vickers (1957)
• A person can be guilty of murder even though they did not intend to kill. Vickers broke into a sweet shop, he knew that the owner, an old lady, was deaf, however she came in and saw Vickers, who punched her and kicked her once in the head. Shw died from her injuries. The Court of Appeal upheld Vickers' conviction for murder, where a defendant intends to inflict grievous bodily harm and the victim dies, this is sufficient to imply malice aforethought
• The same point was considered in Cunningham (1981):
• The defendant attacked the victim repeatedly with a chair in a pub. The victim died and the defendant was convicted of murder, his appeal was dismissed by the House of Lords - an intention to cause grievous bodily harm was sufficient for the mens rea for murder
• Moloney (1985)
• Moloney killed his father in a drubken state in an argument involving a discussion about who could load and present a gun quickest. Moloney won.
• The court said that they needed to establish that Moloney actually intended to kill, or had reasonable foresight that playing with the gunds in the way that he did was likely to result in death. The court said that the existence of this foresight was not the same as saying that the defendant intended to kill. It is only evidence that goes towards the larger concept of whether the death was intended. In other words, foresight is only evidence of intention, and is not intention itself
• This case is important because of the Court's distinction between crimes that they said should require 'Specific intent' to commit them, and crimes that only require an underlying or 'basic intent' to commit them
• Specific intent
• Murder
• Wounding or Causing GBH
• Basic intent - a slightly lesser degree of intention required
• Manslaughter
• GBH
• ABH
• Arson

Direct intent

• Defendant desires a result and sets out to achieve it
• R v Steane (1947)
• The defendant was charged after the war with making propaganda films for the Nazis. His defence was that he was forced to, otherwise the Nazis were going to put his family in a concentration camp
• PRINCIPLE - You cannot just assume that because someone did something that they had the full Mens Rea to commit the act. Intention has to be dealt with separately as a stand-alone concept

Indirect/Oblique Intent

• Defendant intends one thing but another result actually occurs as a result of his/her actions
• Hancock and Shankland (1986)
• The defendants were stiking miners. They tried to stop another miner from going to work by pushing a concrete block from a bridge on to the road where he was being driven to work in a taxi. The concrete block hit the car and killed the taxi driver - the defendants were convicted of murder following the Moloney guidelines, but on appeal their convictions were quashed
• In Nedrick (1986) the Court of Appeal thought that the judgments in Moloney and Hancock and Shankland needed to be made clearer
• In Nedrick the defendant had a grudge against a woman, he put parrafin through the letter box of her house and set dire to it, a child died in the fire. The defendant was convicted of murder but the Court of Appeal quashed the conviction and substituted it to manslaughter
• The Court of Appeal laid down two questions in Nedrick which they said would be helpful for a jury to ask themselves:
• How probable was the consequence which resulted from the defendant's voluntary act?
• Did the defendant foresee that consequence?
• Following Nedrick it was necessary for the consequence to be a virtual certainty and for the defendant to have realised that
• This remained the law until the case of Woollin (1998): The House of Lords felt that the two questions in Nedrick were not helpful and the model direction laid down by Lord Lane of virtual certainty should be used
• Woollin (1998)
• The defendant threw his 3 month old baby towards his pram which was near a wall some 3/4 feet away

Indirect/Oblique Intent

• Foresight of consequences
• Moloney (1985)
• Lord Bridge's direction to the jury:
• Was death or really serious injury a natural consequence of the defendant's act?
• Did the defendant foresee that consequence as being a natural result of his act?
• This direction has been criticised:
• Lord Bridge did not refer to the word 'probable' which is in the Criminal Justice Act 1967
• In the case of Matthews and Alleyne (2003) the Court of Appeal held that the judgment in Woollin meant that foresight of consequences is not intention, it is a rule of evidence. If a jury decides that the defendant foresaw death or serious injury as a virtual certainty they are entitled to find intention but they do not have to do so

Coincidence of Actus Reus and Mens Rea

• Actus reus and mens rea need to be present at the same time for the defendant to be successfully convicted
• Thabo Meli v R (1954)
• This case is the authority for the principle of the 'continuing act'
• Where someone sets out with the clear intention of killing the victim, but the victim does not die straight away, the courts see this as a 'transaction' - a series of acts designed to bring about a specific end. THe Actus Reus is deemed to continue until the point of death and it is taken as read that the Mens Rea is also present and continuing throughout
• Church (1965
• A knockout blow of the victim who later drowned after she was thrown into a river being believed to be dead was deemed to again be a transactinal crime. The intention lasted throughout and using Thabo Meli as precedent, the court regarded the punch and the later drowing as part of a series of events designed to bring about a particular end

Reform

• The Law Commission in 2006 published a report. Murder, Manslaughter and Infanticide. The report identified many problems with the existing law on murder:
• The law has developed piecemeal and is not a coherent whole
• A defendant can be convicted of murder even though there was only intention to cause serious harm
• There is no defence available if excessive force is used in self-defence
• The defence of duress is not available as a defence for murder
• The mandatory life sentence does not allow sufficient differentiation in sentencing to cover the different levels of blameworthiness in the current law on murder
• The Law Commission proposed that murder should be reformed by dividing it into two separate offences
• First degree murder
• Second degree murder
• In 2008 the Government responded to these suggestions and rejected the Law Commision's two-tier reform of murder.
• The Government did however pass the Coroners and Justice Act 2009 which allows for a defence of 'loss of control' (this could be used by those who use excessive force in self-defence, such as in the case of Martin (Anthony) (2002) though if this defence is proved successfully the charge of murder will be reduced to manslaughter

Misrepresentation and Economic Duress

 Objectives

• Explain what is meant by misrepresentation
• Understand the types of misrepresentation under common law: fraudulent misrepresentation, innocent misrepresentation, and negligent misrepresentation
• Explain misrepresentation by statute under the Misrepresentation Act 1967
• Understand the meaning of economic duress and its distinction with duress

What is a Misrepresentation?

• A representation is a statement made at the time of the contract being made and can be incorporated into the contract
• If the representation is falsely made, however, it can be a misrepresentation and can cause the contract to be voidable
• Legal Definition:
• A misrepresentation is a statement of material fact, made by one party to the other party, during the negotiations leading up to the formation of the contract, which was intended to operate and did operate as an inducement to the other party to enter the contract, but which was not intended to be a binding obligation under the contract, and which was untrue or incorrectly stated
• Key cases:
• Bisset v Wilkinson (1927)
• A statement by someone trying to sell land in New Zealand for raising sheep, that the land was capable of supporting two thousand sheep was deemed, on the facts, to be no more than an opinion. Both men knew that up to that point the land had not been used for sheep farming, therefore any representation was never going to be founded on fact but was more likely to be an opinion
• Edgington v Fitzmaurice (1885)
• An invitation to invest in a company by granting loans in it (debentures) was stated to be for the growth of the business, specifically for improving property and extending the investment portfolio that the business could offer. When this turned out to be an exercise in raising money simply to pay off debts, this was seen as a misrepresentation
• Peyman v Lanjani (1985)
• A lease between persons A and B stated that person A could not sublet to another without person B's consent. This is exactly what happened however, and person C was told by person A that he was fully authorised to sublet, when he wasn't
• HELD - Straightforward fraudulent misrepresentation - the original landlord's permission for the original lease was based on a fraud
• Roscorla v Thomas (1842)
• Oral statement as to the suitability of a horse was not part of the contract and had in fact been made post-contract. It had not therefore been a misleading statement that would allow a remedy for misrep
• JEB Fasteners Ltd v Marks Bloom & Co Ltd (1983)
• The claimants wanted to buy a business in order to secure the services of two directors of the business. The claimant had got wind of the fact that the business was in a precarious financial state, so they asked Bloom and Co to check the accounts of the business as a result.
• The defendants passed the accounts as healthy when they weren't . The claimants said that they had relied upon Bloom to check the figures and had acted to their detriment by buying a failing business
• HELD - not the case. There was ample evidence that the claimants were going to buy the business anyway because they wanted to employ the two directors. No reliance was therefore proven
• Attwood v Small (1838)
• The claimant's own investigations as to the profitability of a mine that they purchased painted a positive picture. BUT - it meant that they had not relied on the defendant's own representations to that effect, and hence could not sue them for misrep
• Couchman v Hill (1947)
• A sales catalogue for an animal auction stated that a heifer for sale had not been mated with a bull, and this had been confirmed by the auctioneer and the defendant
• It turned out to be wrong - the heifer gave birth to a calf and then died. The CoA said that as a result of the statements that the claimant clearly relied on, he could recover damages - the sales catalogue AND the oral representation were part and parcel of the same contract, because both had been consulted by the claimant pre-contract

Fraudulent Misrepresentation

• Where fraudulent misrepresentation is alleged, fraud must also be proved
• Derry v Peak (1889) - if a person makes a false statement which he or she does not believe to be true at the time, this is a fraudulent misrepresentation. The claimant will then sue for damages under the tort of deceit:
• The claimant was mistaken as to whether he had permission for his business to run horse drawn AND steam trams along the sea front in Plymouth - the permission was supposedly given under an Act of Parliament AND came from the Minister of the Board of Trae. Neither was correct
• This meant that the investors in the business lost money because the company wasn't as valuable as it would have been had the statement been true
• HELD - on the facts, this was not a deliberate and therefore not a fraudulent misrepresentation. There was no tort of deceit
• HOWEVER - the HoL decided to clarify when fraudulent misrepresentation would arise, and they gave a three step test
• To be fraudulent, a statement must be:
• Given knowingly
• Without belief in its truth
• Reckless as to whether it is true or not
• The damages will then be awarded according to the tort of deceit and are also available under s2(1) Misrepresentation Act 1967. The equitable remedy of recission is also available. The defendant is responsible for all losses including any consequential loss providing a causal link between the fraudulent misrepresentation and the claimant's loss
• Under the Misrepresentation Act 1967 the responsibility of proving the statement was true now shifts to the defendant

Negligent Misrepresentation

• Hedley Byrne v Heller & Partners (1964) - damages may be recovered for a negligent misrepresentation where a financial loss has been incurred and where there is a special relationship between the parties
• Hedley Byrne needed a credit reference for a business on whose behalf it contracted for work The defendants, a bank, said that the business was in good financial health. Hedley Byrne relied on this and then incurred about £100,000 worth of work for which they were responsible
• They sued Heller Bank saying that they had relied on a professional opinion which was wrong, and had suffered loss as a result
• HELD - sadly in this case, because the claimants had signed a contract with the defendants that contained an exclusion clause denying all responsibility for the inaccuracy of any statement they made, the defendants were not liable
• BUT that need not be the case in the future. In an obiter statement the HoL said that there CAN be liability for negligent misrepresentation on normal tort principles, where a duty of care exists, if there is a special relationship between the parties
• Three requirements:
• The party making the statement must be in possession of the particular type of knowledge for which the advice is required
• There must be sufficient proximity between the two parties that it is reasonable to rely on the statement
• The party to whom the statement is made does rely on the statement and the party making the statement is aware of that reliance
• Damages will be applied according to the standard tort measure of negligence or under s2(1) of the Misrepresentation Act 1967. The equitable remedy of recission is also available
• The court says that if the misrepresentation is proved, then you can claim damages as if it were a Tort situation...meaning that potentially damages could be whatever financial cost flows from the misrepresentation
• Section 2(1) of the Misrepresentation Act 1967 shifts the burden of responsibility for proving that the statement was not wrong/misleading onto the defendant (the statement maker)
• If you prove your claim under the Act, your rights are rescission (ending the contract) and damages - this means that you could sue under the Tort of deceit for damages, which will allow you to claim consequential loss rather than just what a contract promised
• Esso Petroleum Co Ltd v Mardon (1976)
• In the context of the sale of the lease of a petrol station by Esso, one of their reps stated that the garage was capable of selling 200,000 gallons of petrol per year
• This proved to be wildly inaccurate and the defendant lost money
• HELD - under Hedley Byrne, the defendant WAS entitled to rely on Esso's rep's statement about the petrol sales...and he could claim damages on a tort basis

Innocent Misrepresentation

• Any misrepresentation not made fraudulently was historically classed as an innocent misrepresentation regardless of how it was made
• Since the emergence of the Hedley Byrne principle and the passing of the Misrepresentation Act 1967, the only misrepresentations that can be claimed to be made innocently are those where a party makes a statement with an honest belief in its truth - for example, where the party merely repeats innacurate information, the truth of which they are unaware
• The main remedy for innocent representation is the equitable remedy of rescission: that is to void the contract as if it never happened. Damages are also available under s2(1) Misrepresentation Act 1967

Misrepresentation Under Statute

• S2(1) Misrepresentation Act 1967
• "Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently unless he proves that he had reasonable grounds to believe and did believe up to the time the contract was made that the facts represented were true"
• In other words, a party who has been a victim of misrepresentation has an action available without having to prove either fraud or the existence of a special relationship under the Hedley Byrne criteria. The burden of proof is reversed so that the person making the statement has to prove that they were not negligent
• Key cases:
• Howard Marine and Dredging Co Ltd v A Ogden and Sons (Evacuations) Ltd (1978)
• Spice Girls Ltd v Aprilla World Service (2002)
• Under s2(2) Misrepresentation Act 1967 the judge has the discretion of which remedy to apply. Recission will not therefore be available if the judge has decided that damages is a more appropriate remedy

Economic Duress

• A contract may be set aside because extreme coercion has rendered the contract otherwise commercially unviable
• Five conditions need to be satisfied in order for there to be a finding of duress
• Pressure was exerted on the contracting party - North Ocean Shipping Co v Hyundai Construction Co (1979) [The Atlantic Baron]
• The pressure was illegitimate - Atlas Express Ltd v Kafco (Importers and Distributors) Ltd (1989)
• The pressure induced the claimant to enter the contract - Barton v Armstrong (1975)
• The claimant had no choice but to enter the contract - Universe Tankships v International Transport Workers' Federation (1983)
• The claimant protested at the time or shortly after the contract was made - North Ocean Shipping Co v Hyundai Contruction Co (1979) [The Atlantic Baron]