Criminal Law - Murder

• Common Law offence
• Accepted definition is based on Lord Coke in the 17th Century 
• 'Murder is the unlawful killing of a reasonable person in being, under the Queens Peace with malice aforethought expressed or implied.'
• Jurisdiction includes any murder committed by a Briton in any country.

• D killed
• A reasonable creature in being
• under the Queen's peace
• The killing was unlawful.

Killed

• Can be an act or ommission, but must cause the death. This can be seen in the case of Gibbins and Proctor
• Murder is a result crime and so the usual rules of casusation apply.

Reasonable Creature in being

• This essentially means a human being.
• Does a foetus in the womb satisfy this? A homicde offence cannot be charged in respect of killing a foetus. The child has to have an 'existance independant of the mother'. The umbicial cord need not be cut, but it must be expelled from the mothers body and have independant circulation. The child need not have taken its first breath. In AG's ref (3 of 1994) (1997) it was held that where a foetus is injured, born alive, but dies as a result of its injuries then this can be the actus reus of murder.

• It is not certin whether a person who is 'brain dead' would be considered a reasonable creature or not. Doctors are allowed to switch off life-support machines which may mean that 'brain death' is the recognised legal test for death, but there has been no case. It is possibe that the courts might decide that a defendant who switches off the machine, not as a medical decision, but to kill, could be guilty of murder.
• There used to be a rule that death must have occured 'within a year and a day'. This was sensible in past centuries where medical knowledge was not sufficent to prove that an attack had caused the death after such a long time. This was abolished in 1996 due to advancements in medicine that often allowed victims to survive longer. Where it is 3 years after the attack, permission has to be gained from the attorney general.

Queens Peace

• Killing an enemy during the course of war is not murder.

Unlawful

• If ther killing is in self-defence or in the prevention of crime, and the defendant used reasonable force, it is not unlawful. These are common law defences to any crime. In the case of Re:A the killing was lawful.

• When deciding whether force is reasonable, the fact that the defendant had only done what they honestly and instinctively thought was necessary in a moment of unexpected anguish is strong evidence the action was reasonable. The defendant must be judged on the facts as they genuinely believed them to be, illustrated in Beckford. This is even where the belief is mistaken or unreasonable.
• The Criminal Justice and Immigration Act allows for the fact that a person who is facing attack may be unable to calculate the exact amount of force. As long as they 'honestly and instinctively' thought the level of force was reasonable, then this is strong evidence that the defensive action was reasonable
• If excesive force is used, the defence will fail as in Clegg and Martin(anthony), although these cases may have been able to plead loss of control. A personality disorder cannot be taken into account.

• Malice aforethought expressed or implied has been held to mean intention to kill or intention to cause GBH. Cases where the defendant only intended GBH but was guilty of murder is the case of Vickers and Cunningham.
• In the case of Smith it was held that GBH was 'really serious harm', and in Saunders it was held to be just 'serious harm'
• It is not possible to form the mens rea to kill or seriously injure a foetus.
• Problems occur in Oblique intent cases. In Moloney it was held that foresight of consequence is not intention, it is just evidence from which intention can be inferred. In Hancock and Shankland it was held that there should be more relevance to probablility. The more likely a consequence was going to occur, the more likely the defendant forsaw it. The more likely a defendant forsaw it, the more likely he intended it.
• In Nedrick they imposed a 2-part test. 1) How probably was the consequence? 2) Did the defendant forsee that consequence? It was held that the consequence has to be a virtual certainty and the defendant to realise this in order to be evidence from which the jury could infer intention. The case of Woolin disapproved the use of the two questions, and felt that the word 'infer' should be changed to 'find'.
• The general rules of Transferred Malice also apply.

In 2006 the Law Commission reported that the law was 'a rickety structure on shaky foundations' and acknowledged the age of some laws, and the uncertainty of the constantly developed.

• Bit-by-Bit development. This is true of the concept of intention. Although this problem exists for all specific intent offences, most of those heard by the HoL would be murder. s8 of the Criminal Justice Act attempts to make this clear but  there are still issues surrounding foresight of consequence.
• The serious-harm rule. When Parliment passed the Homicide Act, it never intended a killing to amount to murder unless the defendant realised their actions might cause death. Murder is too wide because intention to cause GBH satisfies the mens rea, who would recive the same conviction as an intentional killer. As yet, no reform has been made.
• No defence where excessive force is used. This can be very harsh in murder cases, where the defendant is either acquitted or given life. They were justified to use force, they just miscaluclated. This should not justify a life sentance. A person who kills with an honest but unreasonable belief as to the amount of force is surely not as blameworthy as a person who intentionally kills. Although loss of control can now be used, it can still be quite narrow.

• No defence of duress. This does not account for the use of getaway drivers, who would recieve a mandatory life sentance just as the gunman would. The issues with Duress also apply here.
• Mandatory life sentance - A defendant 18+ convicted of murder is always sentanced to life imprisionment, any younger and they can be detained 'at her majesty's pleasure'. For other offences, the judges often have sentancing discretion to match the blameworthiness of the defendant, as in attempted murder, seen in the case of Gotts. The defences of Diminished Responsibilty and Loss of Control are in place to alleivate this and reduce a charge of murder to one of manslaughter. The judge has slight discretion on the minimum amount of time before the offender can apply to be released on license. However the guideline also do not allow differentiation between blameworthiness in many cases.
• Law Commission proposed that murder should be split into first degree murder and second degree murder. 1st degree murder would cover intention to kill and cause GBH where the d was aware his conduct posed a serious risk of death. Second Degree murder would cover circumstances where the d was not aware their conduct posed a serious risk of death, but intended to cause serious harm. The government rejected this proposal, but did reform DM and LoC under the Coroners and Justice Act 2009.

• Where d kills v because they are suffering from an incurable illness.
• Under current law, d is still guilty of murder.
• The d is unlikely to be dangerous in this scenario, so there should be more sentancing discretion.
• Doctors can withdraw treatment from patients in certain circumstances as in the case of Bland, but are not allowed to do anything positive to kill a patient. Wouldnt it be better to adminster a pain-relief drug so the patient can die rather than effectively starving them to death?