Rabea Ashraf

Homicide I: Murder

HOMICIDE I: MURDER
Murder is a common law crime. There is not a specific definition or legislation on
murder, as it has just arisen over the years.
Coke says, Murder is when a [person] unlawfully killeth any reasonable creature in
rerum natura under the Queens Peace, the death following within a year and a day
Lord Mustill in Attorney General's Reference (No 3 of 1994) [1997] says,
My Lords, murder is widely thought to be the gravest of crimes. One could expect a
developed system to embody a law of murder clear enough to yield an unequivocal result
on a given set of facts, a result which conforms with apparent justice and has a sound
intellectual base. This is not so in England, where the law of homicide is permeated by
anomaly, fiction, misnomer and obsolete reasoning. One conspicuous anomaly is the
rule which identifies the malice aforethought (a doubly misleading expression) required
for the crime of murder not only with a conscious intention to kill but also with an
intention to cause grievous bodily harm. It is, therefore, possible to commit a murder
not only without wishing the death of the victim but without the least thought that this
might be the result of the assault. Many would doubt the justice of this rule, which is not
the popular conception of murder and (as I shall suggest) no longer rests on any
intellectual foundation. The law of Scotland does very well without it, and England could
perhaps do the same.

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Homicide I: Murder

Actus Reus
Coke says: Murder is when a [person] unlawfully killeth any reasonable creature in
rerum natura under the Queens Peace, the death following within a year and a day
Therefore Coke is saying actus reus of murder is the unlawful killing of another person
in the Queens peace.

Unlawfulness

To kill someone unlawfully means to do it without presence of a justification.

If the defendant is able to rely on the defence of self-defence she has not killed
unlawfully.

Killing

Murder is a result crime, in which the outcome has to be death. It must be shown
that the defendant caused the death of the victim. In the context of murder, it is
necessary to show that the defendant accelerated the victims death by more than
a negligible amount.
This is interpreted fairly generously in cases of doctors providing pain-relieving
drugs to terminally ill patients. A doctor who provides a dying patient with drugs
to ease his pain will not have committed the actus reus of murder if the drugs
shorten the patients life by a few minutes, although the doctor would if the time
involved was days or weeks.

Killing and Death

It is questionable when life ends. If the victim is already dead when he was shot by the
defendant, the defendant cannot be guilty of murder. The law accepts the medical
definition of death. The basic position is that a person dies once he stops breathing, the
heart stops pumping blood, and the brain ceases to function: in other words brain
dead.
Killing and death are not complicated principles. However, advances in medical
technology mean the understanding of death are far greater now.
Brain stem death means there is no functionality in the hypothalamus. The brain stem
connects the brain and spinal chord sending messages throughout the body.
Brain Stem Death is irreversible; there is no output, and no sensory functions
Re A [1992]
Details of Case -> Doctors wanted to find out the legal consequences of separating
conjoined twins. If they separated the twins, the weaker twin would almost certainly die,
and so the doctors wanted to know whether this operation would mean that they could
be held liable for murder.
Held -> It was found that the doctors would not be guilty of murder. A couple of the
judges followed a definitional approach to Woollin, where they said that if it was
virtually certain that the operation would result in the death of one of the twins, then
there is an intention to kill. One of the judges said post Woollin, you can look at
intention from an evidential approach, and say foresight of virtual certainty means that
you can find intention but you are equally entitled not to find intention, and in this case
they didnt find intention. This was however a CA decision and we are waiting for a HL
case.

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Homicide I: Murder

Airedale NHS Trust v Bland (1993)

Herring page 95
Details of Case -> Bland, aged 17, was horrifically injured at a disaster at the
Hillsborough football ground. He was diagnosed as suffering from a condition known as
persistent vegetative state. The medical opinion was that there was no hope of any
improvement in his condition or recovery. The consultant in charge of his case, with the
support of his parents, sought from the court a declaration permitting the
discontinuation of all life sustaining treatment.
Held -> HL said that withdrawing life sustaining treatment is terminating life. However
if it is seen in the view that it is failing to provide medical care, then the courts can
question whether the doctors are performing their duty. However a doctor has to do
what is reasonable. The court said it was in the best interests of the patient to withdraw
treatment. This shows how some conduct could be seen as an act, but could also be
framed as an omission.

Killing and Birth

It is questionable when life begins. According to law, human life begins at birth. So
foetuses or unborn children cannot be the victims of murder or manslaughter as they
are not yet people. However, the actus reus of murder or manslaughter is made out if
the child is injured while in the womb, is then born alive, but dies shortly afterwards
from the injuries. The crucial moment at which the foetus becomes a human being is
when the child is born alive and is completely outside the mother. The child must be
capable of breathing, although need not to say that unborn children are not protected by
the criminal law until they are born. They are protected by offences of causing or
procuring a miscarriage or child destruction, both of which carry the maximum sentence
of life imprisonment.
There is no utility now in the word reasonable. The doctrine has not been invoked since
Victorian times which related to births of very seriously deformed children. The test that
is now used is that the child must be independent separate to the mother, but not
necessary the umbilical cord is cut. For almost every situation, foetuses are not
protected by the law of murder, only exception is if someone hurts a mother with the
intention to harm the unborn baby. This does not mean they are unprotected by the law,
there are statutes protecting them but not protected from the law of murder.
Enoch (1833)
Foetuses are not protected by the law of murder. The exception to this is when someone
attacks the mother intending for the death of the unborn child.
Re A (Children, Conjoined Twins) [2000]
Details of Case -> Doctors wanted to find out the legal consequences of separating
conjoined twins. If they separated the twins, the weaker twin would almost certainly die,
and so the doctors wanted to know whether this operation would mean that they could
be held liable for murder.
Held -> It was found that the doctors would not be guilty of murder. A couple of the
judges followed a definitional approach to Woollin, where they said that if it was
virtually certain that the operation would result in the death of one of the twins, then
there is an intention to kill. One of the judges said post Woollin, you can look at
intention from an evidential approach, and say foresight of virtual certainty means that
you can find intention but you are equally entitled not to find intention, and in this case
they didnt find intention. This was however a CA decision and we are waiting for a HL
case.

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Homicide I: Murder

Queens Peace
It must be shown that the killing took place in the Queens peace. What this
means is that the killing of enemy aliens during war and under battle conditions
is not a criminal homicide.
An English court can try a British citizen for murder or manslaughter committed
in any country.
Vo v France [2004]
Cokes definition was brought further:
A person who is killed has to be under the Queens Peace
Normally, the UK criminal jurisdiction is only territorial. Most parts of the UK only
assert jurisdiction over crimes in UK itself. For murder, however, the UK asserts
jurisdiction over UK citizens wherever they are.
This causes some problems when we go to war and armed forces are sent abroad to kill.
However due to the queens peace principle, soldiers who kill the enemy are not liable
for murder.
R v Page [1954]
Here they said enemy soldiers in the heat of battle are not under the queens peace.
However, prisoners of war come under the queens peace if they are civilians. If soldiers
are wounded and sick and therefore are no longer fighting, they are under the queens
peace. The point of this additional requirement is so soldiers killing soldiers in battle are
not murderers. They are protected by various other laws, e.g. it is unlawful under the
International Criminal Court Act 2001 to shoot people with dumdum bullets (pierced
cone) when in battle.
The Year and a Day Rule
This is no longer part of the law. We can be clear that it is not part of the law because
part of the Law Reform Act 1996 abolishes it.
The original reason for this rule was evidential. In the 17th century, due to Cokes rule, if
someone had not died within a year and a day, their death was difficult to prove, and the
most likely explanation was that the defendant hadnt caused the death. But obviously,
advances in medical science in particular forensics or life support machines, meant that
this rule became obsolete. This has negative consequences.

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Homicide I: Murder

Mens Rea
The mens rea of murder is an intention to kill or cause GBH. This was established by
Cunningham, where the HL upheld the conviction of a defendant who killed a victim by
hitting him on the head with a chair. Even though there was no intent to kill, the
defendant intended to cause grievous bodily harm, and that was sufficient for a murder
conviction.
The traditional expression is malice aforethought
(Coke: Murder is when a [person] unlawfully killeth any reasonable creature in
rerum natura under the Queens Peace, with malice aforethought)
However, malice aforethought, is a misleading phrase because there is no need to
show any kind of malice or ill-will. For example, mercy killing (where a defendant
kills the victim out of compassion) could still involve malice aforethought.
Malice or forethought is doubly misleading; as malice normally means recklessness
but here it means intention. The major cases of intention Woollin, Maloney, Nedrick
are all actually murder cases.
Forethought is also misleading because it implies that there has to be some form on
pre meditation, but no pre meditation is required, only intention is required
-wanting something to happen or foreseeing it as a virtual certainty of your actions
and still acting upon in.
Mens rea separates murder apart from manslaughter, although there are both types of
homicide.
Intention is to be given its ordinary meaning or purpose. Intention is wanting
something to happen or foreseeing it as a virtual certainty of your actions and
nonetheless undertaking those actions.
In most cases it will not be necessary for the judge to give any special direction to the
jury on the meaning of intent. In difficult cases where the defendant may not have acted
with the purpose of killing or causing GBH, but that was an extremely likely result of the
defendants actions, then they jury should be given the Woollin direction. This is that
the jury may find intention only if the death or GBH was a virtually certain result of the
defendants actions and the defendant realised this was so.
What we need to look at are two issues:
(1) Intention to do what
(2) To whom?

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Homicide I: Murder

Intention to do what?
Homicide Act 1957, section 1
1. Abolition of "constructive malice"
(1) Where a person kills another in the course or furtherance of some other offence,
the killing shall not amount to murder unless done with the same malice
aforethought (express or implied) as is required for a killing to amount to
murder when not done in the course or furtherance of another offence.
This makes it clear it is no longer sufficient for a murder conviction to show that the
defendant killed while committing some other crime. Only an intention to kill or cause
GBH will do.
This is known in the states as the felony murder rule. In a number of states in America,
where criminal jurisdiction is state based, if you kill someone in the course of
committing another crime it is automatically murder. E.g. if you rob someone and they
are killed unintentionally it is considered murder. It is argued that if you dont intend
someone to die it isnt fair that you are liable for murder and you are not necessarily
entirely to blame. This Act abolishes this harsh view.
There are some hangovers because of this; particularly in manslaughter; an element is
left over in murder
R v Cunningham [1981]
Details of Case -> Cunningham was a squatter who entered an unoccupied house where
he was staying, which had a coin operated gas meter. He tried to get the money out of it
but the gas started leaking out and subsequently made a neighbour really ill. He was
charged with maliciously administrating an obnoxious substance. The judge said
malicious meant wickedness. At trail he was convicted of this offence, but went on to
appeal to CA that this terminology was old fashioned.
Held -> Even though there was no intent to kill, the defendant intended to cause
grievous bodily harm, and that was sufficient for a murder conviction.
Byrne J said,In any statutory definition of crime, malice must be taken not in the old
vague sense of wickedness in general but as requiring either (1) an actual intention to do
the particular kind of harm that in fact was done; or (2) recklessness as to whether such
harm should occur or not (i.e. the accused has foreseen that the particular kind of harm
might be done and yet has gone on to take the risk of it).
Therefore it is necessary to show only that the accused foresaw that there was a risk. It
does not have to be foreseen as highly likely to occur. Secondly, the question is whether
the accused foresaw the risk, not whether the risk was obvious or would have been
foreseen by a reasonable person.
Lord Edmund-Davies said, I find it passing strange that a person can be convicted of
murder if death results from, say, his intentional breaking of anothers arm, and action
which, while undoubtedly involving the infliction of really serious harm and, as such,
calling for severe punishment, would in most cases be unlikely to kill. And yet, for the
lesser offence of attempted murder, nothing less than an intent to kill will suffice. But I
recognise the force of the contrary view that the outcome of intentionally inflicting serious
harm can be so unpredictable that anyone prepared to act so wickedly has little ground for
complaint if, where death results, he is convicted and punished as severely as one who
intended to kill. So there are forceful arguments both ways. And they are arguments of the
greatest public consequence, particularly in these turbulent days when... violent crimes
have become commonplace. Resolution of that conflict cannot, in my judgment, be a

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Homicide I: Murder

matter for your Lordships House alone. It is a task for none other than Parliament, as the
constitutional organ best fitted to weigh the relevant and opposing factors.
The intention for murder is to kill or cause GBH. GBH just means really serious harm.
The fact that an intention to cause grievous bodily harm is sufficient mens rea for
murder is controversial. Some commentators think that nothing less than an intention
to kill should suffice. This can be quite problematic, for example, if someone only
wanted to cause serious bodily harm, e.g. breaking an arm but the victim died as a
result.
Lord Mustill in Attorney General's Reference (No 3 of 1994) [1997]:
"My Lords, in a system based on binding precedent there could be no ground for
doubting a long course of existing law, and certainly none which could now permit this
House even to contemplate such a fundamental change as to abolish the grievous harm
rule: and counsel rightly hinted at no such idea. But when asked to strike out into new
territory it is, I think, right to recognise that the grievous harm rule is an outcropping of
old law from which the surrounding strata of rationalisations have weathered away. It
survives but exemplifies no principle which can be applied to a new situation."
Hence, Lord Mustill admits the reason for the GBH rule has disappeared. The reason for
the GBH rule was because when the law of murder first developed, there was not much
medical treatment so people were more likely to die. Due to modern technology this is
not the case. Whereas before the breaking of a bone may cause someone to die, now
medical intervention would mean it wasnt that serious.
Although the general view is that it is a bad law, the HL refuses to change the GBH rule.
It shouldnt be up to the courts to decide what the law on this point is, but it should be
up to the Parliament to decide. The House of Commons should pass a bill that makes
intention for murder intention to kill. As with other laws such as manslaughter, they
may just change it when it suits them.
The principle of fair labelling and correspondence, is the principle that a crime tells you
exactly what you have done wrong in conduct. The principle of GBH does not come
under murder and so is not fair labelling as liability should not be held for unforeseeable
circumstances. The principle of fair labelling also tells us that crimes should not lump
too many people together. Crimes should accurately reflect what is wrong exactly. The
law of murder calls people the same name if they are a hit man or if someone breaks
anothers arm and they die as a result. The GBH rule dilutes the murder label.
The Law Commission agrees with the criticism brought about with the GBH rule. GBH
is really an outcropping of the old law.
They suggested in draft criminal code that murder should be:
Draft Criminal Code (Law Com 177, 1989), clause 54:
"(1) A person is guilty of murder if he causes the death of another:
(a) intending to cause death; or
(b) intending to cause serious harm and being "aware that he might cause
death
They have adopted something of a compromise. This subjective test is a little closer to
the principle of fair labelling.

To whom?

Although the mens rea for murder requires the defendant to intend to kill or cause
grievous bodily harm to the victim, there is no difficulty in establishing a murder
conviction if the defendant intends to kill one person, but in fact kills another. This is

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Homicide I: Murder

because the doctrine of transferred mens rea operates and the defendant can be guilty of
murder.
A-Gs Reference (No.3 of 1994)
Details of Case -> This related to a man who stabbed a pregnant woman in the back. As
a result of this, she had her baby very prematurely. As a result of complications from the
premature birth, the baby died. There was no assertion that he actively intended to kill
or harm the child but it was clear that he intended to cause serious harm to the mother.
Held -> HL questioned if he could be guilty of murder, but said in this circumstance he
wasnt.
Lord Mustill response to the transferred intent problem:
"My Lords, the purpose of this inquiry has been to see whether the existing rules are
based on principles sound enough to justify their extension to a case where the
defendant acts without an intent to injure either the foetus or the child which it will
become. In my opinion they are not. To give an affirmative answer requires a double
transfer of intent: first from the mother to the foetus and then from the foetus to the
child as yet unborn.
Then one would have to deploy the fiction (or at least the doctrine) which
converts an intention to commit serious harm into the mens rea of murder. For
me, this is too much. If one could find any logic in the rules I would follow it from
one fiction to another, but whatever grounds there may once have been have long
since disappeared. I am willing to follow old laws until they are overturned, but
not to make a new law on a basis for which there is no principle.
"The defendant intended to commit and did commit an immediate crime of violence to
the mother. He committed no relevant violence to the foetus, which was not a person,
either at the time or in the future, and intended no harm to the foetus or to the human
person which it would become. If fictions are useful, as they can be, they are only
damaged by straining them beyond their limits. I would not overstrain the idea of
transferred malice by trying to make it fit the present case."
In essence what he is saying is he dislikes the GBH rule. He says there are 2 sorts of legal
fictions. Legal fiction which call someone murderer if they dont intend to kill but only
intend serious harm. Lord Mustill said 1 legal fiction is ok, but two is too many. This has
been criticised by JC Smith.
JC Smith "the act was done with the mens rea of murder and it is acknowledged that it
caused the death of the child, it is hard to see why it is not murder."
If we accept the GBH rule, J Smith has a point. His point was that Lord Mustill was
unwilling to take the step that ought to be taken. In other words, that GBH rule should
be abolished.
R v Latimer [1886-90]
Details of Case -> L lashed out at someone with his belt. He missed but he managed to
cut the face of an innocent bystander.
Held -> It was held that if you have malicious intent towards one person but hit another,
the law just thinks that you intended the harm towards the actual victim.
R v Pembliton [1874-80]
Point of Law -> Malice cannot be transferred to different types of crime
Details of Case -> P threw a stone at someone but instead broke a window.
Held -> It was held that this wasnt enough to transfer malice, as that was a criminal
damage. Therefore malice cant be transferred between different types of crime

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Homicide I: Murder

Penalty
The penalty for murder is a mandatory life sentence.
The point of the Murder of Abolition of Death Penalty Act 1965 was to abolish the
death penalty. The issue in 1965 was whether or not they should abolish the death
penalty for murder. The compromise was that the death penalty be abolished but the
penalty for death become a mandatory life sentence.
However, people do not always serve their whole sentence, because a judge sets a tariff
which is the amount of time you have to spend in prison before you can apply for parole.
If a prisoner get parole they can spend the rest of their life of under a certain licence.
There are only a few people in the whole of Britain whose tariff is for their whole life.
This is primarily so that it isnt too hard for prison officials.
Three levels for offences to fall into to decide the tariff period:
- Exceptionally high: very serious murders, the baseline to decide the tariff if a full
term tariff (pre meditated murders, child murders with a sexual thought
-

Particularly high: murders with firearms/explosives/for payment or interfere

with the course of justice e.g. Killing a witness. The baseline tariff is 30 years.

Other: baseline tariff is 15 years.

There is complete discretion for the judge to decide what the tariff is but the baseline
tariffs are what they start with.
Thomson v Venebles
Details of Case -> T and V were two 10 and 11 year old who killed a toddler. They were
sentenced to detention at her majestys pleasure. The tariff was set which was thought to
be too low. The Sun newspaper started a petition to raise the tariff.
Held -> The Home Secretary did raise the tariff and they went to the European High
Court as they said this interfered with their right to a fair trial because the judge did not
decide. Their claim was successful. This shows how important it is for the judge to
decide.

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Homicide I: Murder

Reform of the Law of Murder

Law Commission Consultation Paper 177 (2005)
A New Homicide Act for England and Wales?
Led to Murder, Manslaughter and Infanticide Law
(Law Commission Report No 304).
1. First Degree Murder (for which there would be a mandatory life penalty)
(a) Intentional Killing
(b) Killing with the intention to cause serious injury, where there is also an
awareness of a serious risk of serious injury.
2. Second Degree Murder (for which there would be a discretionary sentence, with a
maximum of life imprisonment)
(a) Conduct causing death which was undertaken with the intention of causing
serious injury.
(b) Conduct causing death undertaken with an intention to cause injury, or a risk or
fear thereof, and with an awareness of a serious risk of causing death.
(c) Killing in circumstances which give rise to a partial defence to what would
otherwise be first degree murder.
3. Manslaughter (for which the sentence would be discretionary, up to a maximum
of life imprisonment)
(a) Killing as a result of gross negligence as to a risk of causing death.
(b) Killing through a criminal act either intended to cause injury or where there was
an awareness that it involved a serious risk of causing injury
(c) Being part of a Joint criminal enterprise during which another member of the
enterprise commits first or second degree murder, in circumstances in which it
should have been obvious that such an offence might be committed by another
member of the enterprise.
The Law Commission consultation paper tried to distinguish between the different
types of murder. They wanted to say there was 1st degree murder, 2nd degree then
manslaughter.
Normally law commission proposals are taken on board by the Government and
filed. However, this one was subject to government consultation. Hence, it may have
a possibility of entering into law.
Advantages -> Different types of murder would be distinguished so it would be more
consistent with the principle of fair labelling.
Disadvantages -> It does not limit first degree murder to intention to kill. Instead it
compromises, and says that you intend death or serious injury where you foresaw a
risk. This at least is closer to you actually having to intend the result.