Murder

Question 1

What is the definition of murder?

Answer 1

Murder is not defined under statute, it is a common law offence. The definition of murder was originally laid down in 1797 by Sir Edward Coke. A modern version of his words define murder as ‘the unlawful killing of a human being, within the Queen’s Peace with the intention to kill or the intention to cause serious harm.’

Question 2

What is the actus reus of murder?

Answer 2

The actus reus of murder is the unlawful killing of a human being under the Queens peace and death needs to occur.

Question 3

What does unlawful mean in the definition of murder?

Answer 3

The killing must be unlawful, however certain defences such as self-defence if pleaded successfully will make the killing lawful.

Question 4

What does killing mean in the definition of murder?

Answer 4

The AR of killing can be by act or omission but it must cause the death of the victim. The act could be to shoot or stab. An omission could be where the defendant failed to act under their legal duty, for example where the defendants in R V Gibbins and Proctor 1918 failed to fulfil their duty as parents and Gibbins daughter died.

Question 5

What does human being mean in the definition of murder?

Answer 5

The killing must be of a human being and for the vast majority of cases this doesn’t present any issues. However, there are two problem areas, at what stage does a fetus become a human being and at what stage during death does a person become a corpse?

Question 6

What are the two problems areas of ‘human being’ in the definition of murder?

Answer 6

At what stage does a fetus become a human being and at what stage during death does a person become a corpse?

Question 7

The fetus and the definition of human being in the definition of murder?

Answer 7

The baby has to have an ‘independent existence’ to that of the mother for it to be considered a ‘creature in being’. In R V Poulton 1832 the mother tied a string around the neck of the baby and killed it whilst it was still in the process of being born. The Court held for the baby to be considered a person it must be fully expelled from the body.

Question 8

Death and the definition of human being in the definition of murder?

Answer 8

It is not certain whether a person who is ‘brain dead’ would be a ‘creature in being’. Doctors are allowed to turn of life support machines and this suggests that brain death is the recognised test. If the life support machine is turned off there will be no break in the chain of causation and the defendant would still be guilty of murder as in R V Malcherek and R V Steel.

Question 9

Attorney Generals Reference (No 3 of 1994) 1997?

Answer 9

The status of fetus in relation to criminal liability was the focus of a more modern case. The defendant stabbed his girlfriend who was 23 weeks pregnant. She recovered but her baby was born prematurely at seven months and died four moths later from complications of the birth. The defendant pleaded guilty to wounding with intent and also charged with the murder of the baby and was acquitted as the trial judge said that there was no liability for murder and manslaughter as the fetus was not a ‘creature in being’. The prosecution appealed against the trial judge’s ruling and the Court of Appeal allowed the appeal and said that a murder conviction was possible and that the trial judge was wrong. It was held that the fetus is part of the mother so that an intention to cause GBH to the mother is equivalent to the same intent directed towards the fetus. This was rejected in the HoL disagreeing with the use of the doctrine of transferred malice and decided that at most manslaughter was possible.

Question 10

What does Queens peace mean in the definition of murder?

Answer 10

This means the killing of an enemy during war time is not murder.

Question 11

What does death needs to occur mean in the definition of murder?

Answer 11

There used to be a rules that for a defendant to be liable for a fatal offence the victim had to die within one year and a day of the last act or omission done by the defendant to the victim. Advances in medical technology and in particular the use of life support machines meant that if the life support machine was turned off after a year and a day the defendant could not be charged with murder. Therefore the year and a day rule was abolished by the Law Reform (Year and a day rule) Act 1996. There is no time limit on when death may occur after the unlawful act but where it is more than three years after the unlawful act the Attorney Generals consent is needed for prosecution.

Question 12

What is the mens rea for murder?

Answer 12

Malice aforethought.

Question 13

What is the definition of malice aforethought?

Answer 13

The intention to kill or an intention to cause GBH, it is a technical term and it includes those situations such as assisted suicide.

Question 14

What are the two types of intention?

Answer 14

Direct intention and indirect (oblique) intention.

Question 15

What is direct intention?

Answer 15

This applies where the accused wants the result to occur and sets out to achieve it.

Question 16

What is indirect (oblique) intention?

Answer 16

This is less straightforward, it applies where the accused did not desire a particular result but in acting as he or she did they realised it might occur.

Question 17

R V Hyam 1972?

Answer 17

The HoL ruled that if the defendant foresaw the consequence of her actions as highly probable, that meant she intended it, if she knew it was highly likely to happen.

Question 18

R V Moloney 1985?

Answer 18

Hyam was declared to be bad law, just because someone foresaw something it did not automatically follow that they intended it. Lord Bridge created a two part test: was death or serious injury a natural consequence of the defendant’s act? and did the defendant foresee that? If the answer to both questions was yes, then the jury could infer that the defendant intended it, looking at all the other evidence in the case.

Question 19

R V Hancock and Shankland 1986?

Answer 19

Lord Scarman stated that the guidelines laid down in Moloney were ‘unsafe, defective and misleading’ and needed a reference about the probability of the consequence happening. He said that it should be explained to the jury that the ‘greater the probability of a consequence, the more likely it is that the consequence was foreseen and if the consequence was foreseen then the greater the probability is that the consequence was also intended.

Question 20

R V Nedrick 1986?

Answer 20

The Court of Appeal crystallised the rulings in both Moloney and Hancock by creating the virtual certainty test; how probable was the consequence which resulted from the defendant’s voluntary act and did the defendant foresee the consequences as virtually certain? Only if the jury are satisfied that at the material time the accused recognised that GBH or death were virtually certain from their voluntary act can intention be inferred. It is very important to note that the fact that the defendant foresees the result to be virtually certain does not in itself mean that the accused intended the result, it is merely evidence that intention existed. A jury must consider all the facts together before deciding intention.

Question 21

R V Woollin 1999?

Answer 21

In this case the trial judge referred to ‘substantial risk’ when directing the jury. The House of Lords said he should have used the phrase ‘virtually certain’ because of his misdirection the House of Lords quashed the murder conviction and substituted manslaughter. This means that the Nedrick/Woolin direction must be used in murder cases. With a slight modification the word ‘infer’ to ‘find’ as the court felt it would be easier for a jury to understand.

Question 22

R V Matthews and Alleyne 2003?

Answer 22

Both defendant’s were convicted of murder and appealed against their convictions stating that the trial judge went beyond the virtual certainty test and had equated foresight with intention. The court of appeal concluded that the trial judge had gone further than the law permitted him to do so when directing the jury over the virtual certainty test. However, they went on to add that ‘if the jury were sure that the defendants had appreciated the virtual certainty of the victims death when they threw him from the bridge into the river and they had no intention of saving him, it was impossible to see how they could not have drawn the inference that defendants intended to kill the victim’. The appeal was dismissed and their murder convictions were upheld. According to Alan Norrie, after Woollin the new approach adopted by the courts gives the jury ‘moral elbow room’.

Question 23

What is transferred malice?

Answer 23

Where a defendant intends to kill or cause serious injury to one victim but accidentally kills another, he can be guilty of the murder of victim number two. This is generally described as the doctrine or the concept of transferred malice.

Question 24

Latimer 1886?

Answer 24

The defendant was having an argument in a pub and he took his belt off and swung it at his intended victim but it hit a bystander instead. Even though it was an accident he was still convicted of malicious wounding.

Question 25

Evaluation of murder?

Answer 25

• all criticisms of intention are applicable here. For example its meaning remains unclear or inconsistent verdicts invite prejudice and discrimination.
• The Law Commission recommends having degrees of murder similar to the American system. First degree murder would have a mandatory life sentence, second degree murder would have a discretionary life sentence but with guidelines on minimum terms and manslaughter would have a discretionary life sentence.
• Juries are reluctant to return a murder verdict in some cases due to punishment.
• the definition of a human being is antiquated and old fashioned, a more modern concept of what is regarded a human being in the 21st century should not be such a huge issue as the year and a day rule was modified in 1996. New legislation provides that not only has it extended the term to be charged with murder to three years but in addition to this the Attorney General has the authority to charge someone with murder even after this period has expired if he considers the victims death was due to the actions of the offender e.g. transmitting a virus such as HIV.
• having a mandatory life sentence makes it difficult to differentiate between different types of murder when imposing a sentence e.g. a premeditated killing to a mercy killing. Sentences should be proportionate to the offence, as loon as the sentence is life the law cannot do this. However, the courts can set minimum tariffs but this will still mean a prison sentence no matter what. The starting point is 15 years minimum tariff, 12 years if under 18 years old). For knives it is now a minimum tariff of 25 years and for guns 30 years. However, these tariffs can be increased due to aggravating factors or reduced if there are mitigating factors. Judges are in favour of discretionary sentences.
• there is no defence of duress, it is allowed for almost every other offence but not for murder. It seems unfair that a defendant could not rely on duress if he is forced to do something against his will and is fearful for his life or the life of another. The Law Commission in its report Murder, Manslaughter and Infanticide 2006 have proposed that duress be a complete defence for murder and that the defendant should be acquitted if it could be proved that the defendant took part in a killing only in response to an imminent threat of death or life-threatening injury.
• Under present law a defendant is guilty of murder if he had the intention to cause GBH and then actually causes the death of the victim. In some situations the defendant may not realise that death could occur, yet he is as guilty as the man who set out to intentionally kill his victim. So if the defendant intentionally punches the victim breaking his nose and he falls to the ground hitting his head which causes a brain haemorrhage and he dies, the jury conclude that the harm the defendant intended was a punch but he was aware that this punch could cause ‘really serious harm’ then the defendant would be guilty of murder.
• Another problems with the issues associated with the retention of the mandatory life sentence is the existence of the partial defences of loss of control and diminished responsibility. These defences were created in a time when the death penalty existed and they were called ‘gallows savers’. They were created to reflect a lower degree of blameworthiness. However, there are massive discrepancies in the use of these defences by courts which ultimately leads to inconsistencies. One person may be able to use loss of control due to a type of taunt resulting in manslaughter, but another person may not be able to use it and would be guilty of murder. There is however, in the criminal justice system wide use of these defences and this perhaps reflects the dislike of a mandatory sentence.

Question 26

What is the report for reform of murder?

Answer 26

Law Commission Report 2006 - Murder, Manslaughter and Infanticide.

Question 27

What did the Law Commission Report 2006 - Murder, Manslaughter and Infanticide suggest?

Answer 27

• it is proposed that we should have a three tier system with first degree murder, this would have a mandatory life sentence. Second degree murder, this would have a discretionary life sentence with guidance on minimum terms and manslaughter this would have a discretionary life sentence.
• it also proposed to abolish the murder and manslaughter distinction and to create a single offence of homicide or unlawful killing.
• it recommended to have a statutory definition of intention but they later removed it.
• it is recommended the abolition of the mandatory life sentence because it forces the courts to artificially stretch the defences available to murder, in an attempt to avoid imposing a harsh sentence where a lighter sentence would be more appropriate. However, the government has made it very clear that they are opposed to this.
• it is proposed to create a new defence, for the jury to be able to acquit a defendant of murder if the defendant can prove they took part in a killing only in response to an imminent threat of death or life threatening injury. This would overrule R V Howe 1987.
• the Law Commissions proposals to change the law on provocation and diminished responsibility were implemented in The Coroners and Justice Act 2009. Loss of control has replaced provocation and diminished responsibility has been modernised.