- Common law
- Applies to a murder committed by a British Citizen in any country
- "The unlawful killing of a reasonable creature in being under the Queen's peach, with malice aforethought, express or implied"
- An act or omission
- A killing may give rise to a defence of self-defence
- A killing may give rise to a defence of necessity
Murder is a result crime so there must be a chain of causation
A creature in being
- When life begins is problematic, can only be murder if the creature has a separate existence from it's mother
- Being brain dead has no time limit on the occurrence of death, although Attorney General has to give permission for a prosecution if it is more than 3 years after the original attack
Killing of an enemy in time of war is not murder
- Mens rea of murder
- Express - an intention to kill
- Implied - an intention to cause GBH
- Direct intent- D wants to cause death/GBH and death results
- Oblique intent - D's main aim was not to cause death or GBH but death occurs
- Transferred malice
Under the present law 'mercy killing' or 'assisted suicide' is unlawful, the only exception being the situation where doctors can withdraw treatment
AO2 Discussion Points
- Parliament has had no involvement in the law except for S8 Criminal Justice Act 1967
- An intention to cause GBH which results in death makes murder very broad and potentially unfair as the D may not realise that death could occur
- Reasonable force can provide a complete defence but if the force is decided to be excessive there is no defence at all. Consequently, some Ds appear less blameworthy if they have an honest, but unreasonable, belief to the amount of force they need to use but are treated the same as the most calculating of murderers
- Duress is no defence even though a person might find themselves in an extreme situation where they are forced to act
- The mandatory life sentence makes reflecting blameworthiness very difficult; although the judge can give minimum sentences this does not separate categories of defendants
- There is a lot of pressure on the jury which can affect their decision making
Law Commission - Murder, Manslaughter and Infanticide 2006:
- 1st degree murder - D intends to kill or to cause serious harm and is aware their conduct poses a serious risk of death, mandatory life sentence
- 2nd degree murder - D intends to do serious injury but is not aware there is a serious risk of death, max penalty of life
Attorney-General's Reference (No. 3 of 1994) (1997
A man stabbed his pregnant girlfriend. She recovered but the baby was born prematurely as a result and died four weeks after this. The trial judge said this was not murder or manslaughter. Acquitted The House of Lords ruled that the trial judge was correct that a foetus was not 'a reasonable creature in being' if it died before being born; it stated obiter that if the foetus died after being born, then there was liability for manslaughter.
A Jamaican police officer approached a house, believing there was an armed man inside. He shot a man who came running out but the man turned out to be unarmed. Conviction for murder quashed The Privy Council ruled that the jury should have been asked to consider whether Beckford had a 'genuine belief' that his life was in danger as this would justify self-defence.
He was a soldier in Northern Ireland. He fired three shots at a car that drove towards his checkpoint at speed. One bullet killed a passenger. Since she was shot in the back, the car had passed Clegg by the time this bullet was fired.The Court of Appeal ruled that excessive force was used; the amount of force used for self-defence must be reasonable. (The House of Lords later ruled that the defence of self-defence was not available anyway as the danger had passed by the time the fatal shot was fired.)
He beat a man with a chair in a pub. The House of Lords confirmed Vickers: intent to cause GBH was sufficient mens rea for murder.
His 19-day-old baby kept crying so he killed it. Conviction for murder quashed. He should have been allowed the defence of provocation; the 2009 Act, however, would probably not allow the defence of loss of control.
Mrs Duffy was an abused wife. She quarrelled with her husband. After he had gone to bed, she killed him with a hammer and a hatchet. Murder. The loss of control must be 'sudden and temporary'.
He had been sexually abused as a child. One day he awoke, after drinking, to find his friend unzipping his trousers. He killed him. Conviction for murder upheld This was because he had not mentioned the sexual abuse during the original trial. If he had, the jury would have to consider a 'normal person' that had suffered similar abuse as a child.
Ibrams and Gregory (1981)
They were boyfriend and girlfriend. Gregory's ex-boyfriend was terrorising them. On 7th October the police were called but did nothing. On 10th October the two made a plan to kill the ex. On 12th October they carried it out. Conviction for murder upheld. There was no sudden loss of control. (This was necessary under the old law on provocation.)