Definition of Murder
- Common law offence: not defined by an Act of Parliament
Defined by 17th century judge, Lord Coke:
'Murder is the unlawful killing of any reasonable person in being and under the kings peace with malice aforethought, express or implied.'
Actus reus of Murder
The defendent must have unlawfully killed a person under the Queens peace, this can be either through an act or an omission.
- Gibbons and Proctor (1918): a father and his mistress kept one of his daughters seperate from the others and starved her to death. He had a duty of care and so his omission to feed her had the intention of killing or causing serious harm.
A foetus cannot be considered a person for the purposes of murder.
- Attorney-Generals Reference (No 3 of 1994) (1997): D stabbed his pregnant girlfriend who's baby was then born prematurely and died. His case was aquitted because the foetus was not considered a 'reasonable creature in being'.
A killing is not unlawful if it is in self-defence, defence of another or in the prevention of crime and the use of force is reasonable in these cirnumstances; D had done what he honestly and instintively thought was necessary.
- Beckford (1988): D was a Jamaican police officer who had gone to investigate a report of an armed man, he saw a man run from the house and so he shot and killed the man . D thought his life was in danger.
If the force was excessive, their is no defence. Clegg(1995): soldier shot at car.
Mens rea of Murder
Intention to kill or intention to cause grevious bodily harm
- Vickers (1957): D broke into a shop and beat up the old lady who ran it, she died from her injuries. Intention to inflict GBH and the victims dies implies malice aforethought sufficient for mens rea for murder.
- Cunningham (1981): D attacked V in a pub repeatedly with a chair, he died.
Foresight of consequences is only evidence from which intention may be inferred and that death or serious injury was a virtual certainty.
- Moloney(1985): D shot and killed his step-father in drunken quick draw challenge.
Jury can find intention if death or serious injury was a virtual certainty as a result of D's actions and D appreciated this.
- Woolin(1998): D threw his 3 month old baby across the room who suffered head injuries and died.
- The jury must find both these two points to find intention.
The Need For Law Reform
In 2006 the Law Commission published a report, Murder Manslaughter and Infanticide which set out the problems with the law on murder:
- Law on murder has developed bit by bit in individual cases and not a coherent whole
- Defendents can be convicted on murder even though he only intended to cause serious harm
- There is no defence available if excessive force was used in self-defence
- The defence of duress is not available as a defence to murder
- The mandatory life sentence dos not allow sufficient differentiation to cover the wide variety of blameworthiness in the current law of murder.
Bit-by-Bit Development of the Law
- Caused problems with the meaning of 'intention'
- s8 of the CJA 1967 tried to make it clearer:
"A court or jury in determining whether a person has committed an offence-
a) Shall not be bound in law to infer that he intended or foresaw a result 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 forsee that result by refrence to all evidence, drawing such inferences from the evidence as appear proper in the circumstances
- Main problem is on the law on "foresight of consequences". Moloney(1985): ruled that foresight of consequences is not intention
- However, the later case of Woollin (1998) threw up a few more problems. The judge stated that intention is indeed found in the foresight of consequences; therefore the law is a little uncertain.
- Is there a substantive rule of criminal law that foresight of consequences is intention, or is there only a rule of evidence that intent can be found from foresight of consequences?
- Matthews & Alleyne(2003): saw the Court of Appeal say that there was little to choose between a rule of evidence and one of substantive law, thus leaving it even more unclear.
The Serious Harm Rule
- The present law on murder is too wide
- Current law states that if defendent intended to inflict GBH and caused victims death, he is liable for murder.
- In some of these cases, defendent may not actually realise that death could occur
- Should defendent still be as guilty as someone who actually intended to murder?
- Should defendent still receive a life sentence?
Mandatory Life Sentence
- No disrection for deciding whether D is as blameworthy as a deliberate killer
- Attempted murder: judge can drop the sentence as low as a community order where the circumstances justify it.
- Gotts(1992): if he had indeed killed his mother he would have been given a mandatory life sentence regardless of the circumstances (threatened by father (duress))
- Special defences for murder, Diminished Responsibility and Loss of Control have allowed the judge some flexibility in sentencing when it is reduced to manslaughter.
Proposals For Reform
Law Commission proposed that murder should be reformed by dividing it into two seperate offences:
- First degree murder: covering cases in which D intended to kill, where D intended to cause serious harm and was aware that their conduct posed a risk of death. Carrying a sentence of mandatory life
- Second degree murder: covering cases where D intended to cause serious injury but was not aware of the risk of death. Carrying a max of a life sentence to the judges discretion.
- Governments response to proposals: the only area the government accepted a need for reform was a lack of defence when excessive force was used- implemented as part of C&JA 2009, Loss of Control. When successful, this defence would reduce murder to manslaughter.
- This would allow Clegg(1995) and Martin(Anthony)(2002) a partial defence.
- D must prove 'loss of control' as well as a fear of serious violence.
- C&JA 2009 does not address the problems of:
- no intention to kill
- the difficulty of the meaning of intention
- the lack of defence for duress and;
- the mandatory life sentence
Problems in the law: Euthanasia
- The current law on euthanasia or 'mercy killing' says that D will be guilty regardless of the circumstances. He will be sentenced to life inprisonment with a minimum of 15 years before he can be considered for release.
- Should there be more discretion in sentencing for cases involving euthanasia?
- Doctors can withdraw treatment from a patient in certain circumstances Airdale NHS Trust v Bland(1993)
- Doctors can withdraw treatment but aren't allowed to anything positive to kill the patient
- It can be argued that it is better to administer a drug which kills the patient painlessly rather than deprive them of food and drink, effectively starving them to death.