• Created by: Emily
  • Created on: 06-06-14 11:52

Actus Reus of Murder

Lord Coke's definition: "...the unlawful killing of a reasonable person in being and under the King's (or Queen's) Peace, with malice aforethought, express or implied."

Actus Reus:  Unlawful killing = act or omission (e.g Gibbins and Proctor (1918))

Casuation: Murder is a result crime. D cannot be guilty unless his act or omission caused the death. 

Factual: Pagett (1983) - "but for" test --> White (1910) - NG of murder as his act did not cause the death of his mother in fact.

Legal: Kimsey (1996) - D's actions must be "more than a slight or trifling link".

Thin Skull Rule: Blaue (1975) - D must take victim as they find them.

Intervening Act: There must be a direct link from D's conduct to consequence. Chain of causation can be broken by an act of a third party, the victim's own act or a natural but unpredicatable offence.

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Actus Reus of Murder (cont)

Medical Treatment: Unlikely to break the chain of causation unless it is so independent of D's acts and "in itself so potent in causing death" that D's acts are insignificant, e.g. in Smith (1959) the injury caused by D was still and "operating" and "substantial" cause, even though there was medical negligence, so was guilty of murder. However, in Jordan (1956) D was NG of murder because the doctors gave V a large dose of drugs that was known he was allergic to.

Life-support Machines: Switching off a life-support machine by a doctor where it has been decided that V is brain-dead does not break the chain of causation shown in Malcherek (1981) where D stabbed his wife, V, who was put on a life-support machine but tests showed she was brain-dead so doctors switched it off. This suggests that "brain-death" is the recognised test for death, but there has been no case on this point. It is possible for courts to decide that a defendant who switches off a life-support machine, not as a medical decision but intending to kill the victim, could be guilty of murder. In Airdale NHS Trust v Bland (1993) the House of Lords stated that there was no rule that a patient's life be prolonged regardless of the quality of life. Sanctity of life was an important principle, but quality of life could also be considered. If it was in the best interests of the patient to discontinue life support, then that was allowed to happen.

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Actus Reus of Murder (cont)

"Reasonable person in being" - This phrase means a "human being". So, for murder, a person must be killed. Normally this part of the definition does not cause any difficulties. There are two problem areas:

1. Brain-dead (as disccussed in the previous section):- There used to be a rule that death must have occurred within a year and a day of the attack. This rule was sensible in past centuries when medical knowledge was not sufficient to prove that an attack had caused the death after such a long time. However, with medical improvements this rule has become out of date as where a victim was in a coma for over a year (due to the attack) the attacker could not be charged with murder if the life-support machine was switched off. So, the "year and a day" rule was abolished by the Law Reform (Year and a Day Rule) Act 1996. There is now no time limit on when the death may occur but when it is more than 3 years after the attack, the consent if the Attorney-General is needed for the prosecution.

2. Foetus:- A homicide offence cannot be charged in respect of killing a foetus. The child has to have an "existence independent of the mother". This means it must be expelled from the womb and have independent circulation, but can still have umbilical cord attached. In Attorney-General's Reference (No 3 of 1994) (1997) it was held that where a foetus is injured and the child is born alive but dies after as a result of the injuries, the AR for murder/MS is present.

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Actus Reus of Murder (cont)

"Queen's Peace" - This means that the killing of an enemy in the course of war is not murder. However, the killing of a prisoner of war would be sufficient actus reus for murder. 

"Unlawful force" - The killing must be unlawful. If the killing is in self-defence, self of another (common law) or prevention of a crime (s(1) of the Criminal Law Act 1967) used reasonable force in the circumstances, then the killing is not unlawful. Necessity may also be a defence to murder as seen in Re A (Conjoined Twins) (2000) as it was held that it would be lawful to separate the conjoined twins to prevent a worse evil from occurring. 

However, the force must be reasonable. In deciding whether the force used was reasonable, the fact that D had only done what he "honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence thaat only reasonable action was taken by that person for that purpose" as explained in the Criminal Justice and Immigration Act 2008. This allows for the fact that a person who is facing an attack by another is under stress and cannot be expected to calculate the exact amount of force which needs to be used in the circumstance. Also, D must be judged on the facts as he genuinely believed them to be, this is true even if D was mistaken about the true facts; as shown in Beckford (1988)

If excessive force is used the defence will fail, as shown by Clegg (1995) and Martin (2002).

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Mens Rea of Murder

The mens rea for murder is stated as being "malice aforethought, express or implied". This means that there are two different intentions, either of which can be used to prove the defendant guilty of murder:

1. express malice aforethought, which is the intention to kill, or

2. implied malice aforethought, which is the intention to cause grievous bodily harm.

A defendant has the mens rea for murder if he has either of these intentions, which means that a person can be guilty of murder even though they did not intend to kill as decided in Vickers (1957). In this case D hit an elderly lady several times after breaking in to the cellar of her sweet shop which resulted in her death. The same point was considered in Cunningham (1981) when it confirmed that an intention to cause GBH was sufficient MR for murder. 

The other issue is the question of what is meant by "grievous bodily harm". In DPP v Smith (1961) the House of Lord held that it has the natural meaning of "really serious harm". However, if the judge directed the jury leaving out the word "really" and just said "serious harm" it would not be a misdirection.

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Mens Rea of Murder (cont)


The general rules on intention apply to murder. In the case of Mohan (1975) the court defined "intention" as:

"a decision to bring about, in so far as it lies within the accused's power, [the prohibited consequence], no matter whether the accused desired that consequence or not."

This makes it clear that the defendant's motive or reason for doing the act is not relevant. The important point is that the defendant decided to bring about the prohibited consquence. 

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Mens Rea of Murder (cont)

The main problem with proving intention is in cases where D's main aim was not to cause death/serious injury to V but something entirely different, but in achieving that other aim a death is caused. This is know as oblique intent. D does not have the MR for murder unless he foresaw that his act would also cause death/serious injury. This is known as foresight of consequences and the main rule is that foresight of consequences is EVIDENCE of intention. The starting point for foresight is s8 of the Criminal Justice Act 1967.

In Moloney (1985) it was held that foresight of consequences is only evidence from which intention may be inferred. In Nedrick (1986) the CoA suggested the jury ask themselves a) how probable was the consequence which resulted from D's voluntary act? and b) did D foresee that consquence? CoA directed the jury that they are not entitled to infer intention unless they feel sure that death was a virtual certainty of D's actions, and that the defendant appreciated this. In Woollin (1998) the HoL approved this direction but disapproved of the two questions. The Law Lords said that "substantial risk" was not the correct test as it blurred the line between intention and recklessness. They approved the direction given in Nedrick, provided that the word "find" would be used instead of "infer".

Transferred Malice: The general rule of transferred malice applies to murder. 

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Mens Rea of Murder (cont)

Mens Rea Critique

Woollin seems to have created more problems than it solved. The main problem was that it was interpretated in two different ways:

- In Re A (2000) it was thought that Woollin meant that foresight of consequences IS   intention.

- In Matthews and Alleyne (2003) it was thought that foresight of consequences is only    EVIDENCE of intention.

It can be seen from this that the law on intention is still not satisfactory.

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Problems with the Law on Murder

In 2006 the Law Commission published a report called "Murder, Manslaughter and Infanticide". In this report th Law Commission pointed out that there were many problems with the law on murder saying that it is "set upon shaky foundations" and that "they are in dire need of reform.

One of the main areas is that the law on intention has been created in an ad-hoc fashion through case law regarding murder. The main problem in the law is whether foresight of consequences IS intention or is EVIDENCE of intention, as shown by the conflicting cases of Re A (2000) and Matthews and Alleyne (2003).

The Law Commission pointed out in its report that Parliament, when it passed the Homicide Act 1957, never intended a killing to amount to murder unless D realised that his conduct might cause death. It stated that in its view the present offence of murder is too wide; under the present law D is guilty of murder if he had intention to cause GBH and he actually causes V's death. Not only is the LC very critical of this rule, but the problem had been pointed out by judges as far back as 1981 in the case of Cunningham (1981). When the law was considered by the HoL, Lord Edmund Davies stated that he thogh the mens rea of murder should be limited to an intention to kill but, although critical of the law, he felt that any change had to be made by Parliament. This was because the law has been the same for over 200 years and would, therefore, be wrong for judges to change such a well-established law. As of yet no reform to the law has been made.

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Problems with the Law on Murder (cont)

Also, if a defendant can show that he used reasonable force in self-defence or prevention of crime in doing the killing, he is not guilty of murder. However, if the force used in the circumstance is excessive then the defendant is guilty of murder. This "all-or-nothing" effect of the defence is very harsh in murder cases, as the defendant is either acquitted or given a mandatory life-sentence. He was justified in using some force and his only "fault" is that he used more force than was reasonable. This surely does not justify a life sentence. The cases of Clegg (1995) and Martin (Anthony) (2002) highlighted this problem. Both these decisions have been criticised. Many people believe that a person who kills where he has an honest, but unreasonable, belief as to the degree of force needed is not as blameworthy as a "true" murderer. It is unjust that that such a person us found guilty of the same crime of a murder and sentenced to the same punishment. 

The Coroners and Justice Act 2009 does now allow a partial defence where D kills having lost control due to fear of serious violence. But it is still doubtful that either Clegg or Martin would have been able to prove "loss of contol".

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Problems with the Law on Murder (cont)

There is also no defence of duress. Duress is where the defendant is threatened with death or serious injury so that he takes part in an offence. Duress is allowed as a defence for all offences except murder or attempted murder. The Law Commission gave the following example:

 "A taxi driver has his vehicle commandeered by a gunman, who holds a gun to the driver's head and tells him to drive to a place where the gunman says he may shoot someone. The taxi driver does as the gunman demands and the gunman goes on to kill someone."

The report points out that, under the existing law, the taxi driver is an accomplice in the killing and could be convicted of murder. He would receive a mandatory life sentence - the same as the the gunman - which is clearly not fair. 

The Law Commission proposed that duress should be a complete defence to murder. However, a defendant claiming this defence would have to prove that he was threatened with death or life-threatening harm and had had no realistic opportunity to seek police protection. The jury would also have to find that a person of ordinary courage might have responded in the same way as the defendant did by taking part in the commission of the crime.

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Problems with the Law on Murder (cont)

There is also a mandatory life sentence. If a defendant is over 18 and is convicted of murder, the judge has to pass a mandatory life sentence imprisonment. For offenders aged 10-17 who are found guilty of murder, the judge has to order that they be detained at Her Majesty's Pleasure. Because the judge has no discretion in what sentence to impose, he cannot give a different sentence even if he feels that the defendant is not as blameworthy as a deliberate killer.

For other defences, such as attempted murder, the judge can impose an appropriate sentence depending on the offence and offender. This can be seen in the case of Gotts (1992) where a 16-year-old boy stabbed his mother because his father threatened to kill him if he did not. The boy did stab her but she was not killed, only seriously injured. He was convicted of attempted murder and because of the circumstances the judge put him on probation for 3 years. If the stabbing had caused death then the defendant would be detained at Her Majesty's Pleasure because there is no defence of duress available for murder. 

However, there are special defences of diminished responsibility and loss of control - due to the mandatory life sentence - which reduce a murder charge to manslaughter. This allows the judge flexibility in passing sentence which he does not have when the defendant is convicted of murder.

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Problems with the Law on Murder (cont)

In each case the judge will impose a life sentence when the defendant is found guilty but will then state the minimum number of years the offender must serve before any application can be made for release on licence.The sentencing problems have been aggravated by the government's guidlines on the minimum sentences as laid down by the Criminal Justice Act 2003. This gives the starting points for adult offenders:

- A whole life term for exceptionally serious cases, such a premeditated killings of two or more people, sexual or sadistic child murders or politically motivated murders.

- 30 years minimum for serious cases such as the killing of a police officer, murders involving firearms or killings aggravated by racial or sexual orientation.

- 15 years for murders that don't fall into either category.

Under these rules the defendant in Martin (Anthony) (2002) would have had to have been given a minimum sentence of 30 years. This is the same number of years as a hitman - someone who is paid to kill - would receive. The guidelines do not allow sufficient differentiation between levels of blameworthiness.

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Law Commissions Proposals for Reform

The Law Commission proposed that murder should be reformed by dividing it into separate offences of first degree murder and second degree murder.

First degree murder covers cases in which the defendant intended to kill. It would also cover situations where the defendant intended to cause serious harm and was aware that his conduct posed a serious risk of death. 

Cases where the defendant intended to do serious injury but was not aware of the risk of death would be second degree murder

By dividing murder into two separate categories the mandatory life sentence would only apply to first degree murder. Second degree murder would carry a maximum life sentence but would allow judges discretion in sentencing.

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Government's Response to the Law Commission's Prop

In July 2008 the government issued a consultation paper called "Murder, Manslaughter and Infanticide: Proposals for Reform of the Law" which rejected the Law Commission's proposal of completely reforming murder by making it a two-tier offence. 

The only area the government did agree was that reform was needed as there was a lack of defence for those who used excessive force in self-defence. This reform was implemented as part of the Coroners and Justice Act 2009. Under this Act there is a defence of "loss of control" where the defendant kills through loss of control due to fear of serious violence. If the defence succeeds the charge of murder will go down to manslaughter. 

This Act might allow defendants such as Clegg (1995) and Martin (2002) to have a partial defence to a charge of murder which could reduce it to manslaughter.. However, they would have to prove "loss of control" as well as the fear of serious violence. 

The Coroners and Justice Act 2009 does not address the problems of no intent to kill, the difficulty of the meaning of intention, the lack of a defence of duress and the mandatory life sentence. These will continue to be a problem in the law on murder.

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There is also the problem of euthanasia (a.k.a a "mercy killing"). This is where D kills V because V is suffering from an incurable illness.

Under the present law, if D kills V because D cannot bear to see V in so much pain then D is guilty of murder, even if V begged D to do the killing. This means that D will have to serve a minimum of 15 years before D can be considered for release on licence. 

As such a defendant is unlikely to be a dangerous person, surely there should be more discretion in the sentence that courts can impose. 

In such places as the Netherlands, doctors are allowed to end the life of a terminally ill patient. There are, of course, strict controls on when this can be done. 

In the UK, although euthanasia is not allowed, doctors can withdraw treatment from patients in certain circumstances, as held in Airedale NHS Trust v Bland (1993). However, doctors can do a positive act to kill the patient, it must be an omission, such as withdrawing treatment. 

It is argued that it would be better for a patient to be given a drug which kills a patient painlessly, rather than deprive them of food and drink so they effectively starve to death.

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