Murder

Homicide is the term that describes the unlawful killing of a human being. There are different types of homicides, depending on the MR of D and whether there is a special defence available:

• Murder
• Voluntary Manslaughter (Essentially murder but with a defence under the Homicide Act 1957/Coroners and Justice Act 2009.)
• Involuntary Manslaughter

This represents the most serious category of offences against the person and as such carries a mandatory sentence of life imprisonment under s 1(1) Murder (Abolition of Death Penalty) Act 1965. This is designed to apply to killings that society regards as most abhorrent. Such severe penal consequences remain unparalleled elsewhere by the criminal law. (See Wright [2008] and Bellfield [2008]).

It is a specific intent offence and is also a common law offence as it is not defined by any statute. Instead, the accepted definition is based on one given by a 17th Century judge – Lord Coke: “The unlawful killing of a reasonable person in being under the Queen’s peace with malice aforethought, express or implied.”

Obviously a person can be charged with murder committed anywhere in England and Wales. However, murder is unusual in that jurisdiction over the offence also includes any murder, in any country by a British citizen. This means that if D is a British citizen, he may be tried in an English court for a murder he is alleged to have committed in another country

The AR of murder is the unlawful killing of a reasonable creature in being (human being) and under the Queen’s peace. Each element has to be proved:

1. D killed...

2. A human being...

3. Under the Queen’s peace and...

4. The killing was unlawful.

Usually the AR is an act. However, an omission, such as deliberately failing to feed someone, can similarly result in the AR of murder and attract criminal liability, see R v Gibbins and Proctor [1918]. Either way, the act or omission must be the cause of the death.

Causation

 Murder is a result crime. To convict D, it must be shown that the act/omission caused the death. Where there are other contributing factors/intervening acts, Ds liability may be affected.

A person must be killed. Normally this area is unproblematic. The only difficult areas are when dealing with a foetus and a person who is brain dead but on life support.

(i) Foetus: A homicide offence cannot be charged in respect of killing a foetus. The child has to have an “existence independent of the mother” for it to be considered a ‘human being’. This means it must be separate from the mother and have an independent circulation. However, the umbilical cord need not have been cut.

D stabbed his pregnant girlfriend necessitating an operation on the wall of her uterus. She recovered but gave birth prematurely but due to pre-natal damage to its abdomen, the baby died at the age of 4 months. D was charged with the murder of the baby but acquitted as the judge directed that a foetus was not a ‘reasonable creature in being’ and so D could not be guilty of any offence against it as the intent to stab the mother (a live person) could not be transferred to the foetus (not a live person), an organism which could not be the V of a crime of murder.

As to the alternative verdict of manslaughter the judge considered that since the stabbing of the mother was an unlawful and dangerous act which led to the death of the baby, a conviction could be sustained even though the act was not aimed at the ultimate victim (see R v Mitchell [1983]). In the end, however, he was persuaded that this approach could not be sustained where there was at the time of the offence no victim capable of dying as a direct and immediate result and thus the judge directed the jury to acquit.HL agreed with the trial judge but only where the foetus died before being born. As the baby was unique from the mother the offence transferred to the baby and D could be convicted of manslaughter.

D was prosecuted for an offence of wounding the mother with intent to cause her grievous bodily harm (s.18 GBH), had pleaded guilty and had been sentenced to a term of four years' imprisonment.

Doctors are allowed to switch off life support machines without being liable for homicide as brain-death is the recognised test for legal death. However, where D turns off a life support machine, not as a medical decision, but intending to kill the victim, they could be guilty of murder.

Malcherek [1981] CA D stabbed his wife. She was put on life support machine but suffered two heart failures and after 10 days, tests revealed her to be brain dead and the machine was switched off. D was convicted of her murder. CA rejected the argument that switching off the machine broke the chain of causation.

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 the past when medical knowledge was not sufficient to prove that an attack had caused the death after such a long time. Significant advances in medical science that can pro-long a victims life triggered considerable criticism that this rule was out of date.  In response to this, the Law Reform (Year and a Day Rule) Act 1996 has abolished this common law rule. There is no time limit on when the death must occur after D’s unlawful act/omission but where it is more than 3 years, consent of the Attorney General is needed to prosecute.

Queens Peace-The killing of an enemy at war is not murder. However, killing a POW could be sufficient for murder. The killing must be unlawful. It is lawful if what is done is in self defence and reasonable force is used. An interesting case in which the killing of one person was thought to be justified is:

Re A (Conjoined twins) [2000] Twin girls were born joined at the lower abdomen. Jodie was capable of independent existence, but Mary was not. Mary was being kept alive by a common artery through which Jodie’s stronger heart circulated enough oxygenated blood for the both of them. If the twins were not separated, then both twins would die within 6 months as Jodie’s heart would eventually not be strong enough to pump the blood around. If separated, Mary would die, but Jodie should lead a normal life. Twin’s parents refused permission to separate, so the hospital authority applied for a declaration that it would be lawful to separate them.

CA: Held that the operation to separate would be lawful. The main reason for this finding was that the defence of necessity justified the separation. However, one judge, Ward LJ thought that Mary’s dependence on Jodie’s heart was the equivalent of a potentially fatal attack on Jodie. This entitled doctors to intervene and use force to save Jodie.

MR is stated as being “malice aforethought, express or implied”. Malice aforethought is misleading as neither ‘malice (ill will) nor aforethought (pre meditation) is necessary. A person acting on the spur of the moment or a doctor who carries out euthanasia is equally guilty as the person who kills in cold blood. The express or implied part means that there are 2 different intentions; either can be used to prove the D is guilty of murder.

 Express malice aforethought: This is intention to kill.

 Implied malice aforethought: This is intention to cause GBH. D can be guilty of murder even though he did not intend to kill and only intended really serious harm. Accept the consequences of your actions.

D broke into cellar of a sweet shop. D knew the old lady who ran the shop was deaf. Unfortunately she disturbed him whilst breaking in and D hit her several times with his fists and kicked her once in the head and she died.

CA: Upheld Ds conviction for murder and pointed out that where D intends to inflict GBH and V dies that has always been sufficient in English law to imply malice aforethought.

Cunningham [1981] HL

D attacked V in a pub, hitting him repeatedly with a chair.

HL: in dismissing the appeal, the HL regarded the law as being firmly established. An intention to cause s.18 GBH was sufficient for the MR of murder.

DPP v Smith [1961]

HL decided that GBH has the natural meaning of really serious harm. If the word really is left out of a direction to a jury it is not misdirection.

Where Ds actions/omission clearly indicates their aim to kill/cause serious harm, intention is easily satisfied, known as direct intent.

However, problems occur in cases where Ds main aim was not to cause the death or serious injury to V but something different and in achieving this aim, a death is caused. This is oblique intent.

This means that D does not have the MR for murder unless he foresaw that he would also cause death or serious injury as a result of his actions. This is known as ‘foresight of consequences’. It is important to remember that foresight of consequences is NOT intention but it is evidence from which it can be found.

Woollin [1998]

“A jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious injury was a virtual certainty as a result of the D’s actions and that the D appreciated that such a risk was the case.”

This is where D kills because V is suffering an incurable illness. Quite often, D will be spouse/partner who has seen V suffer for a long time. If D kills V because D can no longer bear to see V in pain – MURDER. If V begged D to do this killing – MURDER. D will be sentenced to life with a minimum term of 15 years before considered for released.

Such a D is unlikely to be a dangerous and therefore this sentence seems disproportionate. In some countries, doctors are allowed to end the life of terminally ill patients, subject to strict controls (such as in the Netherlands.) In the UK, although euthanasia is forbidden, doctors can withdraw treatment from patients in certain circumstances.

Bland had been suffocated in Hillsborough Stadium tragedy of 1989. This had starved his brain of oxygen leaving in him a persistent vegetative state for over 3 years. He was being fed through tubes. Hospital applied for permission to stop feeding him.

HL: 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 should also be considered. If it was in his best interests to discontinue support, then that should happen.

This means that although doctors can withdraw treatment where a patient is in a PVS, the doctors are not allowed to do anything positive to kill the patient .It can be argued that it is better to administer a drug which kills such a patient painlessly, rather than deprive them of food and drink so that they effectively starve to death.