MURDER
Homicide is the unlawful killing of another human being. The mens rea can vary meaning it will be a different variant of murder. The most serious of these is murder.
The problem with Murder is that it is a common law offence and has been created through the courts and decisions made by judges, and there is no one act of Parliament that determines the law. Lord Coke defined Murder as 'the unlawful killing of a reasonable creature in being and under the King's (or Queen's) Peace with malice aforethought, express or implied'.
Actus Reus of Murder
This is the unlawful killing of another person under the Queen's Peace. The killing has to be unlawful, meaning there is no lawful reason why this person could have been killed. If there is a defence then there will be no murder. The actus reus could be an act or omission, but it must cause the death of the victim.
Omission as part of the actus reus for Murder
An omission is a failure to act when there is a duty to do so. These can be created in a few ways.
Contractual duty - Pittwood (1902)
A Duty because of relatiobship - Gibbins and Proctor (1918)
A duty which has been taken on voluntarily - Stone and Dobinson (1977)
A duty arises when the defendant sets in motion a chain of events - Miller (1983)
Reasonable creature in being
This phrase means human being. This means that for a murder to be committed, a person must have died. In Attorney-General's Reference (No 3 of 1994) (1997) the defendant stabbed his girlfriend who was 23 weeks' pregnant. The baby was born premature and died, and the _defendant was charged with murder. The defendant was acquitted after the jury was directed that the foetus was not a 'reasonable creature in being'. The House of Lords said 'violence towards a foetus which results in harm suffered after the baby has been born alive can give rise in criminal responsibility.'
In Malcherek (1981), doctors have carried out lots of tests for brain death. They switched off the life support machine and it was said that this did not break the chain of causation. The original attacker was still the cause of death and liable for murder.
In Airedale NHS Trust v Bland (1993), it was ruled tha doctors could withdraw treatment but they could not do anything positive that could cause the death. The sanctity of life was important but the quality of life could also be taken into consideration.
Queen's Peace
This means that the killing of an enemy in modern warfare would not be murder. Killing a prisoner of war would fulfil the actus reus of murder, but in combat there would be no murder committed.
The problem with Murder is that it is a common law offence and has been created through the courts and decisions made by judges, and there is no one act of Parliament that determines the law. Lord Coke defined Murder as 'the unlawful killing of a reasonable creature in being and under the King's (or Queen's) Peace with malice aforethought, express or implied'.
Actus Reus of Murder
This is the unlawful killing of another person under the Queen's Peace. The killing has to be unlawful, meaning there is no lawful reason why this person could have been killed. If there is a defence then there will be no murder. The actus reus could be an act or omission, but it must cause the death of the victim.
Omission as part of the actus reus for Murder
An omission is a failure to act when there is a duty to do so. These can be created in a few ways.
Contractual duty - Pittwood (1902)
A Duty because of relatiobship - Gibbins and Proctor (1918)
A duty which has been taken on voluntarily - Stone and Dobinson (1977)
A duty arises when the defendant sets in motion a chain of events - Miller (1983)
Reasonable creature in being
This phrase means human being. This means that for a murder to be committed, a person must have died. In Attorney-General's Reference (No 3 of 1994) (1997) the defendant stabbed his girlfriend who was 23 weeks' pregnant. The baby was born premature and died, and the _defendant was charged with murder. The defendant was acquitted after the jury was directed that the foetus was not a 'reasonable creature in being'. The House of Lords said 'violence towards a foetus which results in harm suffered after the baby has been born alive can give rise in criminal responsibility.'
In Malcherek (1981), doctors have carried out lots of tests for brain death. They switched off the life support machine and it was said that this did not break the chain of causation. The original attacker was still the cause of death and liable for murder.
In Airedale NHS Trust v Bland (1993), it was ruled tha doctors could withdraw treatment but they could not do anything positive that could cause the death. The sanctity of life was important but the quality of life could also be taken into consideration.
Queen's Peace
This means that the killing of an enemy in modern warfare would not be murder. Killing a prisoner of war would fulfil the actus reus of murder, but in combat there would be no murder committed.
Causation
it must be proved that the defendant's conduct caused the death of the victim. The defendant's conduct need to be proved to be the factual causation, the legal causation and that there was no intervening act that broke the chain of causation.
it must be proved that the defendant's conduct caused the death of the victim. The defendant's conduct need to be proved to be the factual causation, the legal causation and that there was no intervening act that broke the chain of causation.
Factual Causation
This is proven using the 'but for' test. But for the defendant's actions, would the outcome have occurred? We use Pagett (1983) and White (1910) as examples of this principle. In Pagett (1983), the defendant used his pregnant ex-girlfriend as a shield and she was caught in the crossfire and killed by gunfire from the police. She would not have died 'but for' him using her as a shield. |
Legal Causation
The defendant's action must be more than a minimal cause of the outcome. This is linked to moral responsibility but does not need to be the substantial cause. In Cato (1976) the victim had prepared an injection of heroin and the defendant then injected it into the victim. The victim then died and Cato was convicted of manslaughter. The Court of Appeal stated that 'it was not necessary for the prosecution to prove that the heroin was the only cause of death. As a matter of law, it was sufficient if the prosecution could establish that it was a cause, provided it was a cause outside the de minimis range, and effectively bearing on the acceleration of the moment of the victim's death.' In Kimsey (1996) the Court of Appeal held that instead of using Latin phrase de minimis, it was acceptable to tell the jury that it must be 'more than a slight or trifling link.' The defendant can be guilty even if his act was not the only act contributing, but as long as it was one of them. |
Intervening Acts
We need to then ask was the actions of the defendant the operating and substantive cause. This means that their actions were the overwhelming reason or the largest reason for why the harm or damage occurred. In the case of Smith (1959) the victim was stabbed. He was then dropped twice on the way to the medical bay and then given treatment described as palpably wrong. The courts said that the defendant was the operating and substantive cause of the injury. It was the overwhelming reason for the injury. In Jordan (1956), the victim was given terramycin twice. He was allergic to it, and the second time was a negligent act of the medical practitioners involved. This was enough to stop the previous injury from being the operating and substantive cause of the death. If there is a break in the chain of causation then there could not be criminal liability. This is known as a 'novus actus intervienes'. Very rarely will medical treatment break the chain of causation. sometimes, like in Jordan, there will be a substantial action (the incorrect treatment twice given negligently) which will be enough to take away from the original cause of the harm. |
The unlawful killing of a person in being under the Queen's peace with malice aforethought."
The Thin Skull Rule The defendant also takes the victim as they find them. In Blaue (1975), the victim was a Jehovah's Witness and refused a blood transfusion. The defendant was guilty of murder. The refusal of treatment was not a break in the chain of causation, because if the defendant is going to stab somebody then the actions flowing from this act will be their responsibility. |
Victim's own act
The victim's response or reaction to a criminal offence could affect the conviction. If the defendant causes the victim to react in a reasonable way then the injured suffered will be caused by the defendant. In Roberts (1971) , a girl was injured when she jumped out of a car after the defendant tried to take her coat off in the car. She left the car to escape the sexual advances and was injured. The courts said this was a reasonable reaction to the defendant and he was liable for all the injuries as the cause. in Williams (1992), a hitch-hiker jumped out of a car and died. The prosecution alleged there was an attempt to steal the victim's wallet. The car was travelling at 30 mph and the courts said that if the reaction of the defendant was so daft then it would not be foreseeable and the chain of causation would be broken.
The victim's response or reaction to a criminal offence could affect the conviction. If the defendant causes the victim to react in a reasonable way then the injured suffered will be caused by the defendant. In Roberts (1971) , a girl was injured when she jumped out of a car after the defendant tried to take her coat off in the car. She left the car to escape the sexual advances and was injured. The courts said this was a reasonable reaction to the defendant and he was liable for all the injuries as the cause. in Williams (1992), a hitch-hiker jumped out of a car and died. The prosecution alleged there was an attempt to steal the victim's wallet. The car was travelling at 30 mph and the courts said that if the reaction of the defendant was so daft then it would not be foreseeable and the chain of causation would be broken.
Mens Rea of Murder
The latin term 'mens rea' means guilty mind. It is the mental element of a crime. The mens rea needs to be present at the same time of an actus reus to make an offence. The exception to this rule is strict liability offences. For a Murder conviction, we need to have the actus reus and mens rea, the intention to kill somebody, present at the same time.
The latin term 'mens rea' means guilty mind. It is the mental element of a crime. The mens rea needs to be present at the same time of an actus reus to make an offence. The exception to this rule is strict liability offences. For a Murder conviction, we need to have the actus reus and mens rea, the intention to kill somebody, present at the same time.
Malice Aforethought
'Malice Aforethought' is an old expression that doesn't make it clear what the state of mind of the defendant must be because malice is an old term that is used today only to mean ill will or with a bad motive. This is not its technical, legal definition.
In legal terms the term malice aforethought when applied to the common law offence of murder means intent to kill or intent to do GBH ( really serious harm) . This definition is confirmed in the case of R v Vickers 1957, where the defendant broke into a cellar. He knew the old lady who was running the shop was deaf and she came down into the cellar and he hit her several times with his fists and kicked her once in the head. She subsequently died because of her injuries. The Court of Appeal upheld the conviction for murder and stated that if the defendant intends to inflict grievous bodily harm and the victim dies, then this has always been sufficient in English law to imply malice aforethought.
In Cunningham (1981), the defendant hit the victim over the head with a stool. The House of Lords held that an intention to cause really serious harm was sufficient for the mens rea of murder. You need either an intention to kill or intention to cause GBH for a murder conviction.
Foresight of consequences
This means indirect intention. Intent can either be Direct or Indirect (or Oblique). For an overview of this click here.
Three important cases that help us define 'intent'.
R v Nedrick
R v Woollin
R v Matthews & Alleyne ( bbc news report)
The beginning factor for foresight of consequences is s.8 Criminal Justice Act 1967, which states:
'A court or jury, in determining whether a person has committed an offence-
(a) shall not be bound by law to infer he intended or foresaw a results of his actions by reason only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances'.
So an oblique intent will be an outcome that wasn't intended origianlly but is more than probable to occur given the action taken. This means for Murder the defendant must intend or foresee that death or really serious injury will occur. In the case of Moloney (1985), it is stated that foresight of consequences is only evidence of intention, not intention itself. This is still the law, but Woollin (1998) is the leading legal case for foresight of consequences.
Coincidence of actus reus and mens rea
This is the principle that the actus reus and the mens rea need to both happen at the same time. For most offences, you need to have the actus reus and a mens rea, but they both need to be proved to have occurred at the same time as well. In the case of Fagan v Metropolitan Police Commissioner (1969), the defendant reversed his car on to the foot of a police officer. He didn't know until the police officer asked him to move the car off his foot. The defendant was then aware and then refused to move. At this point, the mens rea began. The actus reus was a continuing act. This mean that the actus reus and mens rea began to occur at the same time and the crime was committed.
The courts have also seen cases where there is a series of acts that come together and actus reus can continue when the mens rea occurs. This is seen in the case of Thabo Meli v R (1954), where the defendants injure a man and throw him off a cliff, thinking they killed him. He then dies at the bottom of exposure to the elements, and the courts find them guilty because all of the actions go together as one transaction and carry on to when the mens rea occurs. It is not necessarily a continuing act, but similar in the way the actus reus continues.
The rule established here applies to manslaughter as well, as shown in Church (1965). The defendant had a fight with a woman and knocked her unconscious. He tried for thirty minutes roughly to help her regain consciousness. She thought she was dead so he put her in a river. She drowned there and his conviction for manslaughter was upheld.
Transferred Malice
This is the principle where the defendant is guilty if they meant to harm one person but harms another instead. So, if I hit a man with my belt, but catch somebody else with it as well, I am guilty for crimes against both of them. I have the mens rea for both interactions as it is transferred from my original act to the recipients. In Latimer (1886), this happened and the man was guilty even though he had not meant to hit the other woman.
When the mens rea formed is for a completely different type of offence, then malice (mens rea) can not be transferred. In Pembliton (1874), the defendant threw a rock intending to hit people but he smashed a window instead. The court said the malice was not able to be transferred and therefore he did not have mens rea for criminal damage. He was not guilty therefore of any offence.
Gnango (2011) was a case where a man known only as 'Bandana Man' was in a shootout with Gnango. 'Bandana Man' hit and killed a passerby. The courts upheld the murder conviction of Gnango, who did not shoot the passserby. By taking part and agreeing, he was aiding and abetting the murder of himself. The malice for this could therefore be transferred and he then had malice to kill people involved in the shootout.
When you have a question that requires you to examine a scenario and apply the actus reus and mens rea of murder you need to address all the elements of the offence. Click here to find a powerpoint to help you APPLY actus reus and mens rea in a murder question.
'Malice Aforethought' is an old expression that doesn't make it clear what the state of mind of the defendant must be because malice is an old term that is used today only to mean ill will or with a bad motive. This is not its technical, legal definition.
In legal terms the term malice aforethought when applied to the common law offence of murder means intent to kill or intent to do GBH ( really serious harm) . This definition is confirmed in the case of R v Vickers 1957, where the defendant broke into a cellar. He knew the old lady who was running the shop was deaf and she came down into the cellar and he hit her several times with his fists and kicked her once in the head. She subsequently died because of her injuries. The Court of Appeal upheld the conviction for murder and stated that if the defendant intends to inflict grievous bodily harm and the victim dies, then this has always been sufficient in English law to imply malice aforethought.
In Cunningham (1981), the defendant hit the victim over the head with a stool. The House of Lords held that an intention to cause really serious harm was sufficient for the mens rea of murder. You need either an intention to kill or intention to cause GBH for a murder conviction.
Foresight of consequences
This means indirect intention. Intent can either be Direct or Indirect (or Oblique). For an overview of this click here.
Three important cases that help us define 'intent'.
R v Nedrick
R v Woollin
R v Matthews & Alleyne ( bbc news report)
The beginning factor for foresight of consequences is s.8 Criminal Justice Act 1967, which states:
'A court or jury, in determining whether a person has committed an offence-
(a) shall not be bound by law to infer he intended or foresaw a results of his actions by reason only of its being a natural and probable consequence of those actions; but
(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances'.
So an oblique intent will be an outcome that wasn't intended origianlly but is more than probable to occur given the action taken. This means for Murder the defendant must intend or foresee that death or really serious injury will occur. In the case of Moloney (1985), it is stated that foresight of consequences is only evidence of intention, not intention itself. This is still the law, but Woollin (1998) is the leading legal case for foresight of consequences.
Coincidence of actus reus and mens rea
This is the principle that the actus reus and the mens rea need to both happen at the same time. For most offences, you need to have the actus reus and a mens rea, but they both need to be proved to have occurred at the same time as well. In the case of Fagan v Metropolitan Police Commissioner (1969), the defendant reversed his car on to the foot of a police officer. He didn't know until the police officer asked him to move the car off his foot. The defendant was then aware and then refused to move. At this point, the mens rea began. The actus reus was a continuing act. This mean that the actus reus and mens rea began to occur at the same time and the crime was committed.
The courts have also seen cases where there is a series of acts that come together and actus reus can continue when the mens rea occurs. This is seen in the case of Thabo Meli v R (1954), where the defendants injure a man and throw him off a cliff, thinking they killed him. He then dies at the bottom of exposure to the elements, and the courts find them guilty because all of the actions go together as one transaction and carry on to when the mens rea occurs. It is not necessarily a continuing act, but similar in the way the actus reus continues.
The rule established here applies to manslaughter as well, as shown in Church (1965). The defendant had a fight with a woman and knocked her unconscious. He tried for thirty minutes roughly to help her regain consciousness. She thought she was dead so he put her in a river. She drowned there and his conviction for manslaughter was upheld.
Transferred Malice
This is the principle where the defendant is guilty if they meant to harm one person but harms another instead. So, if I hit a man with my belt, but catch somebody else with it as well, I am guilty for crimes against both of them. I have the mens rea for both interactions as it is transferred from my original act to the recipients. In Latimer (1886), this happened and the man was guilty even though he had not meant to hit the other woman.
When the mens rea formed is for a completely different type of offence, then malice (mens rea) can not be transferred. In Pembliton (1874), the defendant threw a rock intending to hit people but he smashed a window instead. The court said the malice was not able to be transferred and therefore he did not have mens rea for criminal damage. He was not guilty therefore of any offence.
Gnango (2011) was a case where a man known only as 'Bandana Man' was in a shootout with Gnango. 'Bandana Man' hit and killed a passerby. The courts upheld the murder conviction of Gnango, who did not shoot the passserby. By taking part and agreeing, he was aiding and abetting the murder of himself. The malice for this could therefore be transferred and he then had malice to kill people involved in the shootout.
When you have a question that requires you to examine a scenario and apply the actus reus and mens rea of murder you need to address all the elements of the offence. Click here to find a powerpoint to help you APPLY actus reus and mens rea in a murder question.
Evaluation of Murder
Key issues with the law on Murder
The law for Murder has developed through different cases and is not in one coherent place. This has had a problem for the courts to determine 'intention' as there are different cases that give different interpretations. This means there is a problem because it is difficult to know which case applies.
If a defendant intended to cause really serious harm, but then causes death, he will be guilty of murder. The mens rea for murder is 'the intention to kill or cause GBH'. This creates problems for defendants who may not have meant to kill, because they are then given a mandatory life sentence equal perhaps to someone who planned to kill someone with express intention.
The self-defence issue within Murder is unfair. If excessive force is used, then the defendant will not be able to use the defence and be subject to a mandatory life sentence. In Martin (2002), the defence was rejected because there was evidence of the house being set as potential traps and the facts looked like he had planned it and waited for them to come to him before he fired.
There is no defence of duress under the law of Murder. The Law Commission have proposed changes to the law, including duress as a complete defence for murder. They stated that they would have to prove that they were under duress and that they were threatened with death or life-threatening harm. This would be a difficult burden of proof to attach to a defendant.
Key issues with the law on Murder
The law for Murder has developed through different cases and is not in one coherent place. This has had a problem for the courts to determine 'intention' as there are different cases that give different interpretations. This means there is a problem because it is difficult to know which case applies.
If a defendant intended to cause really serious harm, but then causes death, he will be guilty of murder. The mens rea for murder is 'the intention to kill or cause GBH'. This creates problems for defendants who may not have meant to kill, because they are then given a mandatory life sentence equal perhaps to someone who planned to kill someone with express intention.
The self-defence issue within Murder is unfair. If excessive force is used, then the defendant will not be able to use the defence and be subject to a mandatory life sentence. In Martin (2002), the defence was rejected because there was evidence of the house being set as potential traps and the facts looked like he had planned it and waited for them to come to him before he fired.
There is no defence of duress under the law of Murder. The Law Commission have proposed changes to the law, including duress as a complete defence for murder. They stated that they would have to prove that they were under duress and that they were threatened with death or life-threatening harm. This would be a difficult burden of proof to attach to a defendant.