Actus Reus of Murder
The unlawful killing of a reasonable creature in being and under the Queen’s peace
The killing must be unlawful
It is not unlawful if what is done is in self-defence, or prevention of crime and the defendant used reasonable force in the circumstances
The actus reus can be an act or omission but it must cause death of the victim
Murder is a result crime, the defendant cannot be guilty unless his act or omission caused the death
Omissions as Actus Reus and exceptions
Omissions as Actus Reus
In nearly every case the actus reus will be an act such as stabbing the victim, shooting them or running them over in a car.
Exceptions to the rule
- There are exceptions to the rule that an omission cannot make a person guilty of an offence
- In some cases it is possible for a failure to act (an omission) to be the actus reus
- An omission is only sufficient for the actus reus where there is a duty to act:
A contractual duty Pitwood (1902)
A duty because of a relationship Gibbons and Proctor (1918)
A duty which is taken on voluntarily Stone and Doninson (1977)
A duty which arises because the defendant has set in motion a change of events Miller (1983)
- A duty through official position Dytham (1979)
A reasonable creature
- This phrase means a human being – for murder to be committed a person must be killed
- Normally this part of the definition does not cause any difficulties, the only 2 problems are:
Is a foetus in the womb a ‘reasonable creature in being’?
Is a victim still considered to be alive (and so a reasonable creature in being) if they are ‘brain dead’ but being kept alive by a life-support machine?
- A homicide offence cannot be charged in respect of the killing of a foetus
- This child has to have an ‘existence independent of the mother’ for it to be considered a ‘creature in being’
- This means that it must have been expelled from her body and have independent circulation
- However, the umbilical cord connecting to the mother need not be cut
- Also it is probable that the child need not have taken its first breath to be considered ‘a reasonable creature in being’
- In addition, Attorney-General’s Reference (1997) it was stated by the House of Lords that where the foetus is injured and the child is born alive but dies afterwards as a result of the injuries, this can be the actus reus for murder or manslaughter
Brain dead and a year and a day rule
- It is probable that a person who is ‘brain dead’ would not be considered as a ‘reasonable creature in being’
- Doctors are allowed to switch off life-support machines without being liable
- In Malcherek (1981) doctors had carried out many, but not all, of the tests for brain death
- The CofA held that switching off life support machine did not break the chain
- There used to be a rule that death must have occurred within a year and a day of the unlawful act
- This rule was sensible for past centuries when medical knowledge was not sufficient, however improvements in medical sill made the rule outdated
- The year and a day rule was abolished by the Law reform act (1996)
- There is now no time limit when the death may occur, however where there is more than three years after the attack, the consent of the Attorney-General is needed for the prosecution
Under the Queen’s Peace 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 for the actus reus of murder.
The prosecution has to show that the D’s conduct was:
The factual cause of that consequence; and
The legal cause of that consequence; and
There was no intervening act which broke the chain of causation
- D can only be guilty if the consequence would not have happened “but for” the D’s conduct
- In Pagett 1983 the defendant used his pregnant girlfriend as a shield while he shot at armed policemen. The police fired back and the girlfriend was killed. She would not have died ‘but for’ him using her as a shield in the shoot-out
- In White 1910 the opposite situation happened. The defendant put cyanide in his mother’s drink intending to kill her. She died before she could drink it, so he was not the factual cause of her death, so he was not guilty of murder, although he was guilty of attempted murder.
- The D’s conduct must be more than a “minimal” cause of the consequence but it need not be “substantial”
- In Cato 1976, V had prepared an injection of heroin and water which the D then injected into the V. D was found guilty and the judge clearly stated that it was not necessary for the prosecution to prove that the heroin was the only cause of death just more than a minimal cause (de minimis)
- In Kimsey 1996 the jury was told that it must be more than a slight or trifling link. There may be more than one person whose act contributed to the death. The D can be guilty even though his conduct was not the only cause
- Thin skull Rule as illustrated in Blaue 1975 - D must take the victim as you find them
What breaks the chain of causation?
The Chain of Causation can be broken by:
Act of a third party
The victims own act
Natural but unpredictable event
- Unlikely to break the chain of causation unless it is so independent of the defendant’s acts and ‘in itself so potent in causing death that the defendant’s acts are so insignificant’.
- Jordan 1956 – broke the chain as v was allergic to antibiotics and doctors mistakenly kept giving them
- Cheshire 1991 – Didn’t break chain. V died from rare complications
- Smith 1959 – Didn’t break chain. Treatment made V worse but D still liable
Victims own Act and Unpredictable event
Victims own act;
If the defendant causes the victim to react in a foreseeable way, then any injury to the victim will have been caused by the defendant (Roberts 1971) This didn’t break the chain of causation
If the victim’s reaction is unreasonable, then this may break the chain of causation (Williams 1992)
Natural but unpredictable event;
Weather conditions (Storms, Earthquakes and Tsunami’s)
Mens Rea of Murder
The mens rea for murder is stated as being “Malice aforethought express or implied”.
- Express malice aforethought – intention to kill
- Implied malice aforethought – intention to cause GBH which resulted in death
This mens that a person can be guilty of murder even though they did not intend to kill. This was decided in Vickers 1957 - D broke into the cellar of an old ladies sweet shop. He knew the old lady was deaf. She came down to the cellar and saw him and he punched her a few times and then kicked her in the head. She died of her injuries. In Cunningham 1981 the House of Lords confirmed that the Court of Appeal’s decision in Vickers was correct. D hit the V over the head with a stool. V died of injuries. Held that the intention to cause really serious harm which resulted in death was sufficient for murder.
Foresight of Consequence
S8 CJA 1967 – the D was intend or foresee that death or really serious injury would be caused.
The main problem is with cases where the D did not obviously intend GBH or death but it still resulted in death – this is called oblique intent
The D does not have the mens rea for murder unless he foresaw that he would also cause death or serious injury – foresight of consequence
Main wants to claim insurance money. He put some fake cargo on a plane and then arranges for it to explode when the plane if over the sea. This has the effect of killing the crew. The D direct intention is to claim the insurance on the loss of the cargo
The oblique intention – is the killing of the crew
Foresight of consequence – D foresaw that death or serious injury was a virtual certainty.
D and his step father had been drinking at a party and playing “quick draw” seeing who could load the gun the quickest. Step father then said to the D “you haven’t got the guts to pull the trigger
More Foresight of Conseqence
- Hancock and Shankland 1986 - D’s were miners on strike. They tried to prevent another miner from going to work by pushing a concrete block onto the road to stop the taxi. The concrete block struck the windscreen and killed the driver. The D’s were not convicted of murder
- Nedrick 1986 - D had a grudge against a woman. He poured paraffin through the letterbox and set it alight. A child died in the fire. Convicted of manslaughter not murder. Created a 2 part test;
1. Was death or serious injury a virtual certainty
2. D had to realise that death or serious injury was a virtual certainty
- Woolin 1998 - D had been feeding 3 month old baby son. Baby choked on the food and D admitted that he “lost his cool” and threw the baby towards his pram which was 3 or 4 feet away against a wall. Baby suffered head injuries and died. Convicted of Manslaughter not murder. The case confirmed the following:
- Intention cannot be found unless they feel sure that death or serious injury was a virtual certainty as a result of the D actions and that the D understood that this was the case.
More Foresight of Consequence
- Case law has continued to confuse the issue of foresight of consequence being intention. It is only evidence to argue intention which isn’t the same as intention itself.
- Matthew and Alleyne 2003 - D had thrown the V into the middle of a wide rive. V had told them he could not swim. They watched him “doggy paddle” towards the bank but left him before he reached safety. The V then drowned. Still convicted of murder as the V’s death was a virtual certainty and that at the time the victim was thrown off the bridge the D’s understood this.
- Is the principle that the D can be guilty if he indeed to commit a similar crime but against a different victim.
- Latimer 1886 - Blow with a belt aimed at a men, it bounced off him and hit a women
- Mitchell 1983 – D tried to push his way into a queue at a post office. A 72 year old man told him off and the D punched the man causing him to stagger and knock over a 89 year old women, who was injured and then died of her injuries. D was convicted of unlawful Act manslaughter
- Pemblington 1874 – The defendant threw a stone, intending to hit people who he had been fighting with. The stone hit and broke a window. The intention to hit people could not be transferred to the window
- Gnango 2011 - Gnango and another man known as “Bandana Man” shot each other. Bandana Man hit an innocent passer-by and killed her. Gnango was also held to be guilty by the Supreme Court because he entered into the shoot out and was therefore aiding and abetting. He had the mens rea of attempted murder on Bandana Man and this mens rea was transferred to the innocent women.
Coincidence of Actus Reus and Mens Rea
- Actus reus and mens rea have to be evident at the same time
- This applies to all offences including murder
- Thabo Meli v R 1954 - D’s attacked a man and believed they had killed him. They then pushed his body over a low cliff. The man hadn’t died straight away and died later of exposure. They argued that there were two spate attacks. The first being the attack the second being the pushing off the cliff. They argued that they didn’t have the mens rea for murder when they pushed him off the cliff as he was already dead. Held that it was still murder as the two parts were part of the overall plan of murder.
- Church 1965 - He had a fight with a women and knocked her out. He tried to bring her round for half and hour. He put her in the river because he thought she was dead. She drowned. He was convicted of manslaughter
Reform of Murder
2006 Law Commission published a report on Murder, Manslaughter and Infanticide
It set out the existing problems:
The law on murder has developed bit by bit in individual cases and not as a coherent whole
D can be convicted of murder even though he only intended to cause serious harm
There is no defence available if excessive force is used in self defence
The defence of duress is not available as a defence to murder
Mandatory life sentence and the governments sentencing guidelines do not allow sufficient differentiation in sentencing
Law Commission also pointed out that there are problems with the special defences to murder of diminished responsibility and the loss of control
Bit by Bit Development of the Law and the Serious
- One of the main areas where the bit by bit development by the courts has caused problems is the meaning off “intention”.
- The key issue with this is foresight of consequence
- Maloney 1985 – foresight of consequence is not intention
- Woolin 1998 – intention being found from foresight of consequence
- These two cases have made the law confusing
- Law Commission Report 2006 pointed out that Parliament under the Homicide 1957 never intended a killing to amount to murder unless the D realised that his or her conduct might cause death. They stated that in their view the present offence of murder is too wide.
- Under present law D is as guilty if he intended murder as a posed to those that intended serious harm (but didn’t realise necessarily that death could occur)
- Law Commission are very critical of this rule and feel that the D shouldn’t receive a mandatory life sentence for examples such as the one above
- Suggesting that Murder should be limited to the intention to kill
No defence where excessive force is used
- Self-defence or prevention of crime is a defence to murder. However where the force is considered excessive in the circumstance then they are still found to be guilty
- Clegg 1995- D was a solider at a check point in N Ireland. Stolen car came towards him at speed. He fired, shot and killed a passenger. The evidence was that the car had passed the checkpoint when he fired. Because of this it was deemed to be excessive force and he was guilty of murder
- Martin 2002 - Farmer – shot the burglar in the back. Excessive force was felt to be used so no defence available
- These decision were criticised as many people feel that if the degree of force is genuinely believed to be reasonable at the time then they should not be guilty of murder.
- 2 changes were made to try and alleviate the situation
- Loss of Control was then created in the Coroners and Justice Act 2009 which gives some defence – the defence can be used where the D loses control because of fear of serious violence. However it wouldn’t probably have helped Clegg or Martin
- Defence for householders when an intruder enters the property – Crime and Court Act 2013 – the degree of force used cannot be “grossly disproportionate” though which is another subjective test
No defence of duress
- Duress is where the D is threatened with death or serious injury so that he takes part in an offence.
- Duress is allowed as a defence to almost all offences apart from Murder and attempted murder
- Law Commission points out that it is unfair in certain situations
- Gunman gets into a taxi and forces the driver at gunpoint to drive to a destination at which point the Gunman gets out and shoots someone. Under the current law the Taxi driver would be liable and receive a life sentence as there is no defence of duress
- Law Commission suggests that it duress should be a complete defence for murder but the D would have to prove that he was threatened with death and had no realistic opportunity to seek police protection. The jury would have to find that a person of ordinary courage might have responded in the same way
Mandatory life sentences
- Applies to anyone over 18 – life imprisonment
- Offenders 10 – 17 are held under Her Majesties Pleasure
- Judges have no choice and cannot take into consideration circumstances
- For all other offences including attempted murder the judge can use their discretion
- Gotts 1992
- Father of a 16 year old boy threatened to kill him if he didn’t stab his mother. The boy did stab her and seriously injured her. He was convicted of attempted murder but because of the circumstance the judge put him on probation for three years instead of a prison sentence. If the mother had died then he would have served life imprisonment
- Homicide Act 1957 – reacted to the concerns above and sets our special defences of diminished responsibility and provocation which allows the reduction of a murder charge to that of manslaughter.
- In each case the Judge will impose a life sentence but will state the minimum number of year the offender must serve before an application of realise
- Government sentencing guidelines laid down in the CJA 2003 have aggravated this problem:
- Whole life term for exceptionally serious cases, such as premeditated killings of two or more people. Sexual or sadistic child murder etc.
- 30 year minimum for serious cases such as murders of police, murders involving firearms, those that are sexually or racially motivated.
- 15 year minimum for anyone that doesn’t fall into the above categories
- Under these rules Martin 2002 would have received 30 years as he used a firearm to shoot the burglars which would be the same as a contract killer.
Law Commission and Government Response
The law commission want Murder to be divided into 2 categories:
- First Degree Murder – Those with intention to kill and those that intended serious harm and were aware that it could result in death. (Mandatory life sentence)
- Second Degree Murder – Those that intended to do serious injury but was not aware that there was a serious risk of death. (Maximum of life and allows for judge’s discretion)
- 2008 Consultation paper rejected the Law Commissions proposals
- The only area the Government felt needed to be reformed was the lack of defence when excessive force was used in self-defence
- This reform was the implemented as part of the CJA 2009 and created the defence of “Loss of control” – murder is then reduced to manslaughter
- CJA does not address the problems of no intent to kill, the difficulty of the meaning of intention, the lack of defence of duress and the use of the mandatory life sentence
This is also known as ‘mercy killing’ and is where D kills V because V is suffering through an incurable illness. (Quite often, D is the spouse or partner of V and has seen V suffering for a long period of time)
Under the present law, if D kills V because he or she can no longer bear to see V in such pain then D is guilty of murder. This is even if V has begged D to do the killing. This means that D will be sentenced to life imprisonment
This happened in the case of Inglis (2010) D was the mother of the V. He had been healthy young man before he was injured in a fight. He was taken to hospital by ambulance. During the journey the back doors opened and he fell out suffering serious head injuries. He would have needed lifelong care and was permanently disfigured but would eventually go on to lead an independent life. D suffered from depression and refused to believe the medical opinion and said she wanted to put him out of his misery. D behaviour became increasingly erratic and she attempted to kill him at the hospital. D was forbidden to visit but a year later after careful planning she got access to him and injected him with heroin, killing him. She was convicted of murder but only sentenced to 5 years.
Euthanasia and Assisted Suicide
- There is also a law stopping assisted suicide
- The DPP is obliged by s2(1) Prosecution of Offences Act 1985 to issue a code for Crown prosecutors when making a decision when to prosecute – however the Code did not cover all situations
- R v DPP (Purdy) – she wanted to know if her husband would be prosecuted if he helped her travel abroad to a specialist euthanasia clinic. DPP refused to give guidance so she applied for a judicial review to force them to give guidance.
- R v Ministry of Justice 2013 (Nicholson and Lamb) - they were so seriously disabled that they could not commit suicide even with assistance. The argued that common law should recognise the Defence of necessity applied to voluntary euthanasia so as to give a defence to murder. They argued that they had a right to end their own lives under article 8 of the Human Rights Act - Held that only Parliament could make that kind of ruling. By the time the C of A heard the case Nicholson had already died.
- R (M) v DPP - held that although the DPP policy review meant that spouses and family members were allowed to travel with the person abroad, there was no ruling on healthcare professionals or others with no emotional ties.