Murder (Report Format)

IS THE CURRENT LAW ON MURDER STILL ACCEPTABLE?

The traditional basis of criminal liability is an Actus Reus (the physical element).
The general principle is that a person may not be convicted of a crime unless the prosecution has proved beyond doubt that the defendant has: * Caused a certain event, or responsibility is to be attributed to them for the existence of a certain state of affairs which is forbidden by criminal law. * Had a defined state of mind (Mens Rea) in relation to the event or state of affairs (Actus Reus)

ACTUS REUS:
It means the “guilty act” it is made up of all the parts of a crime except the defendant’s mental state.
Most crimes require the accused to commit a particular act, however this is not always and criminal liability can also arise through a failure to act (an omission) and from a certain type of conduct. E.g. R v Larsonneur (1993)

Where a person has performed acts or brought about consequences which constitute the Actus Reus of an offence they will be generally found guilty of the offence only if they had the necessary Mens Rea at the time they acted.

MENS REA:
Mens Rea means the “guilty mind” refers to the mental element necessary for a particular crime.
This may differ from one crime to another and the definition of each crime must be examined to determine what state of mind.
Offences which require Mens Rea are seen as more serious than those which may be committed negligently. R v Steane (1947).

Murder is a common law offence, it is not defined by an act of Parliament.
It has been defined by decisions of judges in cases and the accepted definition is the one given by Lord Coke on 17th Century:
“Murder is the unlawful killing of a reasonable person in being and under the King’s (or Queen’s) Peace, with malice aforethought, express or implied”

THE ACTUS REUS OF MURDER:
It is the unlawful killing of a reasonable creature in being and under the Queen’s Peace. It has to be proved that D killed B, a reasonable creature in being, under the Queen’s Peace and the killing was unlawful.
The Actus Reus of killing can be by an act or omission, but it mist cause the death of the victim, in murder cases, the Actus Reus is an act.

Attorney-General’s Reference (no.3 of 1994) 1998:

“With the intent to cause her grievous bodily harm, the defendant stabbed a pregnant woman in the abdomen. The child was born prematurely because of the stabbing and died as a result of having been premature”

Held:
Homicide can be charged for causing death of a child, born alive, by injury inflicted (on the foetus or its mother) prior to its birth.

Causation:
Murder is a result crime. The defendant cannot be found guilty unless his act or omission caused the death. E.g. D shoots V in the head and V is killed instantly.
However in some cases there may be other causes contributing to death, such as poor medical treatment. This type of situation raises questions of causation.

R v D (2006):
The Crown Prosecution Service brought a test prosecution for manslaughter following the suicide of a woman after a long period of domestic abuse on her. On the evening of the suicide, her husband had struck her in the forehead, causing a cut. He was then prosecuted for manslaughter and inflicting GBH, However the judge ruled the case should not go on trial because as there was no basis on which a reasonable jury could conduct the defendant of either offences.

Under the traditional rules of causation, the woman voluntary conduct of killing herself breaks the chain of causation as it was confirmed in R v Kennedy No.2 (2007).
Despite this general rule, in the Crown Court the trial judge suggested that:
“Where a decision to commit suicide has been triggered by a physical assault which represents the culmination of abusive conduct”. It could be possible for the Crown to argue that the final assault played a significant part in causing the victim’s death. However, defendants are only held responsible for a death where their acts are both a “factual” and “legal” cause of the victim’s death.

Factual Causation (causation-in fact):
In order to establish factual causation, the prosecution must prove two things: 1. “The but for” test that but for the conduct of the accused the victim would not have died as when they did.
The defendant would not be held liable if the victim would have died at the same time regardless of the defendant’s actions.

R v White (1910):
The defendant was charged with murder having put cyanide into his mother’s drink with the intention to kill her. Medical evidence showed that her death was due to heart failure and not the poison.

Held: the defendant was not guilty of murder, but he was, on the evidence, guilty of attempted murder

Commentary: the decision (concerned with attempted murder) does not deal directly with the point; it is a good illustration of lack factual causation.
But for his act, the defendant’s act would have still died and so he was not the cause of her death.

2. The original injury arising from the defendant’s conduct was more than a minimal cause of the victim’s death. De miminis rule, when we say a person killed someone; we mean that they make the person’s death occur earlier than it otherwise would.

Legal Causation (causation in-law):
Even if factual causation is established, the judge has to direct the jury as to whether the defendant’s acts are sufficient to amount in law to a case of the victim’s death. 1. The original injury was an operative and significant cause; under this criteria the prosecution must show that, at the time of the victim’s death, the original wound or injuries inflicted by the defendant were still “an operative and substantial” cause of death.

R v Smith (1959):
The defendant stabbed the victim, causing internal injury. A medical officer, not realising the nature of the injury, gave “thoroughly bad” treatment. The victim died within two hours of being stabbed but might not have died if given different treatment. The defendant appealed against conviction for murder on the basis that the treatment broke the chain.

Held:
Appeal dismissed. Death resulted from the original wound which was still an operating and substantial cause of death despite operative causes.

2. Medical intervention. R v Jordan (1956):
The defendant stabbed the victim who died a few days later following treatment of the wound. The wound had almost healed and the immediate cause of death was the medical treatment, described as “palpably wrong”

Held:
Conviction quashed. The direct and immediate cause of death was a separate and independent feature (the treatment) and not the stab wound.

Commentary:
The treatment was not normal and so broke the chain of causation.

3. There must be no Novus Actus Interveniens. This is a new intervening act which breaks the chain of causation. Different tests apply to decide if the chain has been broken depending on the intervening party. Where the act is of the victim, the chain of causation will not be broken unless the victim’s actions are disproportionate or unreasonable on the circumstances. 4. The act of a third party will generally break the chain of causation unless the action was foreseeable.

R v Pagett (1983):
The defendant held his pregnant girlfriend in front of him as he fired at armed police.
The police returned fire, killing the woman. The defendant appealed against conviction on two grounds: a. The immediate cause of the death was the act of the police and not attributable to the defendant. b. The judge had misdirected the jury in saying that causation was matter of law rather than fact.

Held: In dismissing the defendant’s appeal, the court stated that an intervention must be independent and voluntary to break the chain. A reasonable act or self defence did not break the chain because it was an involuntary response, dependant on the defendant’s actions.

5. Thin skull test. The defendant must take their victim as they find them. This means if the victim had a particularly vulnerable reaction to certain injuries, where another person would survive, and the defendant is still liable of the death even if they had not mean harm. R v Blaue (1972)

Omissions:
An omission is a failure to act; it can make a person liable of an offence.
It is an act where a person is bound to it.
In UK law there are specific laws described to punish a person who omits to do, act unless described to punish a person who do such act. It is not to be confused with duty of care; it is generally where there is a “duty to act”. 1. Parental Duty:
Gibbins & Proctor (1918):
Where the father of a seven year old and his mistress kept the girl separate from his other children, deliberately starved her to death.
The father had the duty to feed her and the mistress was held to have undertaken to look after the children, including the girl, so she was under the duty to feed the chid. The omission or failure was deliberate with the intention of killing or causing serious harm to her.

Held: father was guilty of murder, having breached the duty owed by parents to protect their children.

2. Duty arising from statute:
Where a defendant is duty-bound by a specific statute or law to act but they willingly do not do so they are liable f an offence. R v Dytham (1979).

3. Contractual Duty: R v Instan (1893).

MENS REA OF MURDER:
The Mens Rea of murder is stated as being “malice aforethought, express or implied”. This means that there are two different intentions, wither of which can be used to prove the defendant guilty of murder.

* Express malice which is the intention to kill. * Implied malice aforethought, which is the intention to cause grievous bodily harm

A defendant has the mens rea of murder if they have either of these intentions; this means that the person can be guilty of murder even though they did not intend to kill. This was decided in R v Vickers (1957).
The same point was considered in R v Cunningham (1981) where it confirmed that an intention to cause grievous bodily harm was sufficient for the mens rea of murder.

R v Cunningham (1981):
D attacked V in a pub. He hit C repeatedly with a chair. V died from his injuries. D was convicted of murder. The House of Lords dismissed his appeal. It held that the law was firmly established. An intention to cause grievous bodily harm was sufficient for the mens rea of murder.

The test of what a defendant foresaw and intended is always a subjective one, based on what the jury believes the defendant actually foresaw and intended, and not what they should have foreseen or intended in the same situation.

The other issue is: what is meant by “grievous bodily harm?” in DPP v Smith (1961) the House of Lords decided that it has the natural meaning of “really serious harm”.

Intention:
The general rules of intention apply to murder. The main problem with proving intention is in cases where the defendant’s main aim was not to cause the death or serious injury of the victim, but something quite different, but in achieving this aim, a death is caused.

* Direct Intention
It corresponds with the everyday definition of intention, and applies where the accused actually wants the result that occurs, and sets out to achieve it. For example, deliberately pointing the gun at some to kill and shooting them

* Indirect Intention
Sometimes also knows as “oblique intention” is less straightforward. It applies where the accused did not desire particular result but in acting as they did realise it might occur.

R v Moloney (1985);
A soldier shot and killed his stepfather in response to a drunken challenge. He claimed that he did not aim the gun at the victim and had, at the time, no idea that firing it would cause injury. The judge directed that intention included both desire and foresight of probable consequences and the defendant was convicted of murder

Held:
Appeal allowed, substituted with manslaughter. The mens rea of murder should normally be left to the jury without explanation. However in rare cases, judges should direct that intention might be inferred if the consequence was foreseen as a natural one by the defendant. Such knowledge or foresight was not equivalent to intention but was, at most, evidence on intention.

Foresight of consequences:
The main rule of that foresight of consequences is not intention, in Moloney (1985), it was held that foresight of consequences is only evidence from which intention may be inferred.
In Nedrick (1986) the defendant poured paraffin through the letter box of a house in order to frighten the woman who lived there. A child died in the fire.
The Court of Appeal suggested that the juries to ask themselves two questions:

1. How probable was the consequence which resulted from the defendant’s voluntary act? 2. Did the defendant foresee the consequence?
The Court of Appeal also said that the jury should be directed that they are not entitled to infer necessary intention unless they feel sure that death or serious injury was a virtual certainty as a result of the defendant’s actions.
The virtual certainty test in Nedrick became the key test on indirect intention.
Then confusion was thrown into this area of Law by the Court of Appeal judgment in R v Wollin (1996) where the defendant killed his 3 months old child by throwing him onto a hard surface. Part of the judge’s direction suggested that intention could be established if he realised that there was a substantial risk of grievous bodily harm.

Held: Appeal allowed, the manslaughter was substituted for murder. Using the phrase “substantial risk” was misdirection, blurring the distinction between intention and recklessness. The direction from R v Nedrick was approved. This direction had been that a jury is not entitled to infer intent unless the defendant appreciated that the consequence was a virtual certainty.

It seems that the prosecution has to prove that the result is actually virtually certain and not simply that the defendant believes it to be virtually certain. E.g. R v Matthews & Alleyne (2003).
It is confirmed that the consequence does not have to be virtually certain in cases of purposive intent that the Wollin direction should only be given in “rare circumstances” where the defendant has acted without purpose of bringing about the result.
The House of Lords in Wollin replaced the word “infer” with the word “find”, which led to suggest that the case might have changed the law as stated in Moloney, so that foresight of virtual certainty was now proof of intent rather than just evidence of it.

The courts have difficulties have difficulties in deciding what is meant by “intention”. It is a concept which affects all specific intent offences but most of the cases which have been heard by the House of Lords have involved murder. Section 8 of the Criminal Justice Act 1967 tried to make law clear by stating:

“A court or jury in determining whether a person has committed an offence –

a) Shall not be bound in law to infer that he intend or foresaw a result of his actions by reason only its being a natural and probable consequence of those actions; but b) Shall decided whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstance

DOES THE LAW RELATING TO THE DEFENCES TO MURDER NEED REFORM OR IS IT SUFFICIENT?
Concerns were expressed by the law Commission in 2004, that the Law on Murder was “in a mess” and that there was a “pressing need for a review on the whole law of murder rather than merely some of the partial defences”
The major review will be carried out jointly by the Home Office and the Law Commission, to ensure that law provides coherent and clear offences which protect the public and enables the conducted to be appropriately punished.

The Government is particularly concerned about the law on provocation.
It has stated that the consultation will not lead to the abolition of the mandatory life sentence or any charge to the sentencing guidelines for murder set out in the Criminal Justice Act 2003.

The Law Commission published a Consultation Paper (No. 177) in December 2005, “A New Homicide Act for England and Wales?”; where it is meant t negotiate the obstacle of the mandatory life sentence by constructing a framework of offences reflecting different degrees of culpability. At the moment English law only recognises two types of homicides, murder and manslaughter.
In their final repost, Murder, Manslaughter and Infanticide (Law Commission No.304) the Law Commission proposes that there should be three tiers of homicide:

1) First Degree Murder (mandatory life sentence) a. Killing intentionally b. Killing where there was an intention to do serious injury, complied with an awareness of a serious risk of death. 2) Second Degree Murder (discretionary life sentence) a. Killing where the offender intended to do a serious injury b. Killing where the offender intended to cause some injury or a fear or risk of injury, and was aware of a serious risk of causing death c. Killing in which there is a partial defence to what would otherwise be first degree murder 3) Manslaughter (discretionary life maximum penalty) a. Killing through gross negligence as to a risk of causing death b. Killing through a criminal act: (i) Intended (ii) Where there was an awareness that the act included a serious risk of causing injury c. Participating in a joint criminal venture in the course of which another participant commits these or second degree murder, in circumstances where it should have been oblivious that first or second degree murder might be committed by another participant

Under its proposal, manslaughter would be more narrowly defined than it’s current. Gross negligence manslaughter would continue to impose an objective standard on defendants, but they would only be liable if they had the capacity to appreciate the risk.

The Government responded with its own Consultation Paper Murder, Manslaughter and Infanticide: Proposal for the Reform of the Law (CP09/08).
They have rejected the referendum of the basic offences of murder but proposed to proceed in the legislation of provocation, dimished responsibility, complicity and Infanticide. They seem oblivious to the Law Commission proposal in respect to these matters were posited upon its key proposal to reform murder and manslaughter.
One critic observed “The resulting structure, unfortunaly, looks rather like a wheel without a hub” (JR Spencer, “messing up murder” [2008] 8 Arch. News 5).

ABOLISH MURDER AND MANSLAUGHTER DISTINCTION?
A different reform would be to abolish murder and manslaughter altogether, creating a single offence of homicide or unlawful killing.
The offence would be the same, regardless of the accused state of mind and circumstances, but these would be taken into account in order to determine the appropriate level of punishment.
However, this would be taking important elements out of the hands of the jury.

STATUTORY DISTINCTION OF INTENTION?
The Law Commission also suggested that the common law approach to intention could be replaced by a statutory definition
A person acts intentionally with respect to a result when they act either: (i) In order to bring it about; or (ii) Knowing that it will be virtually certain to occur; or (iii) Knowing it will virtually certain to occur if they were to succeed in their purpose of causing some other result.

Defendants would not be deemed to have intended any result which it was their purpose to avoid. It was hoped that this statutory definition could provide clarity and certainty while achieving justice.
Foresight a virtual certainty would have amounted to intention, so foresight would again have formed part of the substantial law, not merely part of the evidence.
At present, a person who kills foreseeing death, or GBH as virtually certain may be a murderer, if the proposed definition of intention applied they would be a murderer.

BIBLIOGRAPHY:
Your Detailed Evaluation Report. 2013. Your Detailed Evaluation Report. [ONLINE] Available at: http://evaluationtoolbox.net.au/index.php?option=com_content&view=article&id=48&Itemid=60. [Accessed 09 January 2013]
Jacqueline Martin, 2004. Key Facts: Criminal Law 2nd Edition. 2 Edition. Routledge.
C M V Clarkson, 2005. Understanding Criminal Law. 4th Edition. Sweet & Maxwell.
Penny Childs, 2011. Criminal Law (Nutcases). 6th Revised edition Edition. Sweet & Maxwell.
Diana Roe, 2005. Criminal Law. 3rd Edition. Hodder Education.
Catherine Elliott, 2012. English Legal System 2012/13. 13 Pap/Psc Edition. Pearson/Education.

Bibliography: Your Detailed Evaluation Report. 2013. Your Detailed Evaluation Report. [ONLINE] Available at: http://evaluationtoolbox.net.au/index.php?option=com_content&view=article&id=48&Itemid=60. [Accessed 09 January 2013] Jacqueline Martin, 2004. Key Facts: Criminal Law 2nd Edition. 2 Edition. Routledge. C M V Clarkson, 2005. Understanding Criminal Law. 4th Edition. Sweet & Maxwell. Penny Childs, 2011. Criminal Law (Nutcases). 6th Revised edition Edition. Sweet & Maxwell. Diana Roe, 2005. Criminal Law. 3rd Edition. Hodder Education. Catherine Elliott, 2012. English Legal System 2012/13. 13 Pap/Psc Edition. Pearson/Education.