The unlawful killing of a reasonable person in being under the King’s (or Queen’s) peace with malice aforethought, express or implied.
Murder is a common law indictable offence with a mandatory life sentence if D is found guilty.
Murder requires the P to prove:
- An unlawful killing (AR)
- Of a reasonable creature in being (AR)
- In the Queens peace (AR)
- With malice aforethought (MR)
1. When can D’s conduct be classed as an “unlawful killing”?
Most of the rules of causation are based on murder cases. You need to familiar with all cases at AS summarised as follows:
- Factual Causation: But For test R v White
- Legal Causation: Is D’s conduct a substantial cause of death? R v Kimsey, De minimus rule
- Break in the chain of causation: V’s own conduct, R v Roberts
Legal Causation - What the P have to prove
R v Kimsey 1996: D and his girlfriend were involved in a high speed car chase when the girlfriend lost control of her car and was killed. The P’s argument was that the D’s driving had led the girlfriend to lose control of her car and crash. The trial judge directed the jury that as long as D’s driving was believed to be more than a “slight or trifling” cause of the girlfriends death this was sufficient to form legal causation. The judge also told the jury that there was no need for them to have to believe that the D’s driving was a “substantial” cause of death. The jury found the D guilty and D appealed.
Held: The CA dismissed the appeal and said the judges directions were correct, legal causation can be proved from evidence that shows the D’s actions were more than slight or trifling in the committing of the offence. There was no need to prove the D’s conduct was the substantial cause of death in this case.
2. D has a right to defend himself or family which in some situations makes a killing lawful.
On the night of Aug 20th 1999 Freddie Barras (aged 16) and Brendan Fearon (aged 30) broke into Martin’s farm. Martin armed with a 12 bore shot gun went downstairs and fired indiscriminately at where he thought the disturbance came from. He shot both the intruders killing Barras by a gunshot wound to the back. At his trial his plea of self defence was rejected by the jury and he was convicted of murder. He appealed on the grounds that his personality disorder should be taken into account in assessing whether he had used reasonable force for the purposes of self defence.
Held: Where D uses force that is excessive in defending himself this will be classed as unreasonable and an unlawful killing. Where D uses force when it is not necessary to defend himself then this will also be an unlawful killing. Personal characteristics cannot be taken into account when looking at what is reasonable or excessive force.
Task: watch the video below summarising the current law on self defence and the use of excessive force. Give reasons why the law should remain the same and why it should change?
Beckford was a police officer. He was issued with a shot-gun and ammunition and sent with a number of other armed police officers to a house. According to the Beckford a report had been received from Heather Barnes that her brother Chester Barnes was terrorising her mother with a gun. Heather Barnes, however, denied that she had made a telephone call to the police or that her brother was armed. Beckford said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him, the appellant stated that Barnes fired at the police; in response to this he fired back, shooting and killing Barnes. In fact no gun was ever found. The jury convicted him of murder as the judge had told them that it could only be reasonable force based on Beckford’s belief that the V had a gun if the jury felt Beckford’s belief was a reasonable one based on the evidence.
Held: Quashing his conviction the Privy Council ruled that a person may use such force as is reasonable in the circumstances as he honestly believes (even if mistaken) them to be in the defence of himself or another.
3. When does a foetus become a “reasonable creature in being”?
Attorney-General's Reference (No 3 of 1994) (1997): A foetus is not a reasonable creature in being as it cannot survive without its mum. Obiter: If the D had intended to kill the child and it had survived to be a reasonable creature in being then this could be murder.
4. Does brain death mean D is no longer a reasonable creature in being?
R v Malcherek and Steel (1981):
Two separate appeals were heard together. In Malcherek the defendant had stabbed his wife. In Steel the defendant was accused of sexually assaulting and beating a woman over the head with a stone. In both cases the victims had been taken to hospital and placed on life support machines. The doctors in the respective cases later switched off the life support machines as both victims were not showing any activity in their brain stem. The defendants sought to argue that the doctors' actions constituted a novus actus interveniens which broke the chain of causation.
Held: Doctors can switch off a life support machine when D is brain dead as the person is no longer a reasonable creature in being. This doesn’t act as a break in the chain of causation as it is the D who caused the V to be brain dead in the first place.
5. What does malice aforethought mean the prosecution have to prove?
R v Gray: ‘Aforethought’ does not need any previous planning or thinking about it beforehand, merely that the intention to kill does not occur after the act. In this case D, a parent, gave a fatal overdose to his child who was suffering from a terminal illness in terrible pain.
During D’s burglary of V’s shop, V discovered D whereupon D struck V with several blows. V eventually died from shock due to general injuries.
Held: Malice includes implied malice. Implied malice is where the V dies and evidence can show the D’s main aim was to cause the V GBH. This will be enough to prove D intended to kill. The intention to cause GBH is constructed in law to automatically mean an intention to kill (known as constructive intention).
R v Mohan: D can have a direct intention to kill where evidence proves this was the main aim of D’s conduct, express malice.
D can be found guilty of indirectly intending to kill the D as long as it can be proved
he had foresight of this consequence – oblique intention
The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night poured paraffin through her letter box and set light to it. A child died in the fire. D was convicted of murder after the judge directed the jury that he would have an intention to kill where evidence showed that he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it.
Held: Lord Lane, ”Intention to kill cannot be inferred by the jury unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case."
R v Woollin 1998: To find intention to kill the jury must:
Be sure that death or serious bodily harm was a virtual certainty of D ‘s actions;
The D appreciates that death or serious injury is a virtual certainty of his actions.
Task: Read the attached cases and together with your notes and any other research answer the questions on the attached worksheet.
Assessment: This is a formal quiz online for which you need your username and password. If you don’t have this please ask your tutor.
You only get one chance to complete this quiz the results of which will go towards your progress grade. The quiz allows you a maximum of 25 minutes to complete it after which you will not be able to access it again.
Please make sure you have revised thoroughly for the quiz and good luck. The quiz is called: Murder.
Task: Write a solution for the following scenario applying the law on the offence of murder only. You should do this in no more than one side of A4 paper.
Frank, Ena’s neighbour, suffered from a physical illness which affected his judgment and made him very short tempered. When he heard about Ena, he was very upset and he began to hate all skateboarders. So, when he saw Luke walking through the town with a skateboard, he began shouting at him. Luke laughed and told him not to be such a stupid old man. Frank seized Luke’s skateboard and hit him over the head with it twice with considerable force. Luke died from a brain haemorrhage, made worse by a genetic weakness.
Discuss Frank’s liability for the murder of Luke.
Evaluation of Murder
What the exam board have said is the best approach to evaluating murder:
What the exam board have said is the best approach to evaluating murder:
Task: Complete the activity deisgned to help you with the technique in writing the evaluation essay on murder.
Murder has been criticised as an offence for a number of reasons. The main ones are:
1. Implied intention and oblique intention
2. The use of force in self-defence.
3. The mandatory life sentence and different types of killing.
Implied intention and oblique intention
There has been a great deal of discussion about the meaning of the phrase malice aforethought and the concept of indirect/oblique intention.
In Moloney (1985), Lord Bridge said that in the great majority of cases it would be enough for a trial judge to ask the jury to consider whether the prosecution had satisfied them that the defendant had intended a particular consequence. In cases where there is a shooting or stabbing, there is usually no problem as to the meaning of malice aforethought.
However, establishing mens rea in cases where the prime intent was not to kill, will inevitably involve problems. What did the defendant intend? In cases like Moloney (1985), even the defendant himself might not have known. To solve this problem the courts have interpreted malice aforethought to not only include an intention to kill, known as express malice but to take a wider meaning for those situations where D clearly intended GBH, which then resulted in death. Malice aforethought was defined in this way in the case of Moloney with the courts clearly considering this as a matter of public policy that if the D intended GBH that results in death criminal law should punish this person as severely as one who intends to commit murder.
This position, which had previously been confirmed in R v Vickers (1957), Hyam v DPP (1975) and R v Cunningham (1983), has nevertheless been argued against. The two dissenting judges in Hyam took the view that whilst the intention to cause grievous bodily harm is the necessary mental state for the crime of "causing grievous bodily harm" it is not sufficient intention for the more serious crime of murder. The majority, however, said that it is sufficient intention and this is still the law.
The courts have also needed to consider what the words 'grievous bodily harm' means and in DPP v Smith (1961), it was decided that they should be given their ordinary, natural meaning of 'really serious harm'. What actually constitutes really serious harm is a question of fact for the jury to decide. In Saunders 1985 (a S20 OAPA case) it was held that the omission of the word 'really' when a judge was directing the jury was not significant. This was confirmed in the context of murder in the case of R v Janjua and Choudury (1998).
But should a defendant whose only intention is to cause serious bodily harm be as guilty of murder as one who deliberately sets out to kill? The defendants in Hancock and Shankland (1986) maintained that their only motive was to block the road. They did not intend to cause serious bodily harm, let alone death. They were both convicted of murder, although this verdict was changed on appeal to one of manslaughter.
Over the years it has often been suggested that the criminal law be codified. This would mean that murder would be included in new legislation. A draft criminal code was produced in 1989, in which the following definition of murder was proposed:
A person is guilty of murder if he causes the death of another –
a intending to cause death; or
b intending to cause serious personal harm and being aware that he may cause death.
This would mean that a defendant who did not intend to kill, but had the intention as described in (b), above, could still be found guilty of murder. This would happen only if the jury was sure that the defendant was aware that his action could cause death. However, no such attempt at codifying the criminal law has yet been made, probably due to shortage of parliamentary time.
It is the foresight of consequences, which is the main area of concern in the MR of murder. In the case of Smith 1961 the House of Lords held that the D had the necessary intention for murder if an ordinary responsible man, in similar circumstances, would have contemplated the end result.. The government tasked the Law Commission with dealing with this strongly criticized case as the test for foresight of intention was now an objective one, which goes against a key principle in English law that the more serious the crime the more important it is to show that the D had knowledge of the results of his actions.
The Law Commission suggested what is now S8 of the Criminal Justice Act 1967 which swept away the Smith ruling. The section states that juries should now be told they are not bound in law to infer that the D intended or foresaw a result of his actions just because it was a natural and probable consequence of them. The jury should now look at all the evidence in the case on what the D intended or foresaw. However, this still left the courts to decide how to properly direct the jury on foresight of consequences and drawing ‘proper conclusions’ from the evidence as the act did not make it clear as to whether a foresight of a consequence of death was an evidential issue in proving murder or should be concluded as an oblique intention to kill.
Eventually the House of Lords in Woollin 1998 has clarified that foresight of intention for murder can be found by the jury where death or serious injury would be a virtual certainty from the D’s own voluntary act and the D appreciates this. This is in line with Professor Glanville Williams’ view that intention should include “not only the desire of a consequence (direct intent) but also foresight of certainty of the consequence (oblique intention) and the Woollin test clearly allows the jury to consider the probability of death occurring from the evidence, objectively, but also to consider carefully whether the D appreciated death was a virtual certain probability at the time of his actions, leading to the conclusion that D had foresight of this consequence..”
However, the word “find” intention used in the Woollin direction continues to cause debate as it seems at odds with S8 of the Criminal Justice Act 1967 and Nedrick 1986 (CA), which both use the word infer, suggesting that parliament did not want juries to simply conclude that foresight of intention of murder would automatically lead to a jury stating the D obliquely intended to kill. The Court of Appeal tried to resolve this issue in the case of Matthews & Alleyne 2003, stating that the House of Lords meant appreciating that death was a virtual certainty did not in itself amount to an intent to kill, it was only evidence from which an intent could be inferred.
The issue of oblique intention and foresight of intention to kill in directing the jury on this matter has caused significant problems in the law and there is an argument to suggest it would be much better simply to draw the juries attention to S8 of the Criminal Justice Act 1967 and then allow the jury to use their common sense in deciding whether the D intended to kill.
A more effective approach may be to adopt the Law Commission’s proposed definition of the word ‘intentionally’ in its report Offences Against the Person and General Principles (1993)
A person acts intentionally with respect to a result when:
a it is his purpose to cause it; or
b although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.
The Criminal Law Act 1967, s3 states that a person may use ‘such force as is reasonable in the circumstances’ in self-defence or to prevent a crime being committed. What is reasonable depends on what the defendant honestly and instinctively thought the needs of the moment to be. The situation as it stands at present therefore is that a person who kills in self-defence, or to prevent a crime, either:
1. Has a complete defence, in which case he is innocent of the charge of murder; or
2. If his use of force is considered to be disproportionate, he is found guilty of murder.
It can be seen therefore that the dividing line between what is reasonable force in the circumstances and what is not determines either complete guilt or compete innocence. This harsh all-or-nothing situation results in the defendant either walking free from the court, or being sentenced to life imprisonment. It is clearly unjust that a person who oversteps the mark of what is reasonable force, usually in a situation of considerable stress, faces a term of life imprisonment. Two cases illustrate the problems arising from these situations.
In Clegg (1994) the defendant was a soldier on duty in Northern Ireland before the peace settlement. He was at a road checkpoint when a car came towards him at high speed. Seeing that it was not going to stop, he fired at it. His last shot hit a girl passenger in the back seat and killed her. Evidence showed that the car had already passed him when he fired that final shot. It was held that under the circumstances neither he nor anyone else was any longer in danger, therefore his plea of self-defence or defence of another should not succeed. He was found guilty of murder, a decision that was upheld on appeal.
In Martin (Anthony Edward) (2001), the defendant lived alone in an isolated farmhouse in East Anglia, which had been burgled in the past. On this particular occasion, Martin, woken by the sounds of someone entering his property took his shotgun and fired without warning into the darkness. One of the intruders, 16-year-old Fred Barras, was shot in the back and killed. Martin was found guilty of murder. On appeal his plea of self-defence was rejected on the grounds that the force he had used was unreasonable. However, his conviction was reduced to manslaughter on the grounds of diminished responsibility. He was freed in 2003.
In February 2005, the Crown Prosecution Service and the Association of Chief Police Officers jointly issued a leaflet containing new guidelines. This was aimed at reassuring householders that they would not necessarily face prison as a result of tackling intruders who were burgling their homes. If householders do what they ‘honestly and instinctively believe is necessary in the heat of the moment’, they will be unlikely to end up in court. This is the case even if a weapon is used and the intruder is seriously injured or killed. In addition, the law does not expect that a householder has to be attacked before he uses force to defend himself. Householders are reminded that they are not entitled to use force maliciously, or by way of retribution or revenge. The leaflet states that, ‘As a general rule, the more extreme the circumstances and the fear felt, the more force you can lawfully use in self-defence’.
The government has also reformed the defence of Loss of Self control along the lines pointed out by the Law Commission’s report on partial defences to murder 2004. In some situations such as cases of prolonged domestic violence or where excessive force is used in the heat of the moment, to a perceived threat, a partial defence of loss of self control can be argued under the S54 of the Coroners and Justice Act 2009, where D's loss of self-control is attributable to D's fear of serious violence from V against D or another identified person.
An alternative suggestion was that if the mandatory life sentence for murder were to be abolished, judges would have the discretion to pass suitable sentences in such cases. However the government’s response to the Law Commission recommendations in 2008 of a two tier system of murder and the abolition of the mandatory life sentence has been one of rejection.
Mandatory life sentence and different types of killing
The mandatory life sentence for murder was laid down by the Murder (Abolition of the Death Penalty) Act 1965. The reason for this was that murder is generally held to be the most dreadful of crimes and deserves the maximum sentence permitted by the law. There was also an element of appeasement of those who opposed the abolition of the death penalty.
A judge must impose life imprisonment on any person aged 18 or over who is found guilty of murder. A person between the ages of 10 and 17 is ‘detained at Her Majesty’s pleasure’. This means indefinitely, until such a time as it is deemed safe to return him to society.
Objections to the mandatory life sentence are often put forward, however. It is suggested that although murder is a dreadful crime and deserves to be punished, there is no latitude for the judge to vary the sentence according to the seriousness of the killing. Murders cover varying degrees of seriousness. On the one hand, there are the cold-blooded serial killers like Sutcliffe or the Wests, and ruthless terrorist bombers belonging to extremist groups. On the other hand, there are those who kill from motives of compassion, (‘mercy killers’), or those like Anthony Martin who overstep the limits of reasonable force in self-defence. All convictions for murder, of whatever degree of seriousness, attract the same sentence– life imprisonment. Another objection to the mandatory life sentence is that, in order to avoid it, inappropriate verdicts of manslaughter might be returned. This has happened in the case of so-called ‘mercy killings’, where the defence of diminished responsibility has been accepted on the flimsiest of evidence to avoid a conviction for murder. More recently the courts have had to consider the issue of euthanasia and assisted suicide in cases such as Diane Pretty where the courts have consistently held that any part played in the death of V would be regarded as murder, which attracts the same mandatory life sentence as the Soham killer, Ian Huntley.
Suggestions for reform of the law in this matter continue to be made. If life imprisonment usually does not mean ‘for life’, then why call it life imprisonment, and why insist on it being passed? One suggestion is to abolish the mandatory life sentence and make it discretionary. Other crimes, such as manslaughter, rape, wounding with intent, and indeed attempted murder, attract a maximum of life imprisonment. It is, however, discretionary; the judge may impose any sentence up to and including life imprisonment, according to the seriousness of the offence.
The Law Commission’s proposals in 2006 were to create two separate offences of first and second degree murder. First-degree murder would cover cases where the D intended to kill whereas second degree murder would cover situations such as assisted suicide and where the D was unaware that their actions would result in death or serious harm. Crucially second-degree murder would allow judges to pass a discretionary life sentence resolving the problems with the current mandatory life sentence being unfit to cover the range of culpability murder cases may cover.
However there has been vocal criticism from victim’s families and right to life groups regarding what they see as the watering down of the most serious criminal offence of murder and the ultimate punishment of a mandatory life sentence. Unsurprisingly the government has decided to ignore the recommendations on changing murder and the mandatory life sentence so criticisms and potential injustices are likely to continue until a fair solution to this problem is agreed.
The Government's response to suggested reforms
Attached is a link to the government’s response to the Law Commission report published in 2008. The government consulted a large number of interested parties before deciding which proposals should be enacted in law. Below is a presentation summarising the proposed reforms and the government’s response including changes to the law on Loss of Control and Diminished Responsibility:
Task: Write the answer to the following murder evaluation essay. The answer must include 4 criticisms and be no longer than 1 A4 page of average size writing:
Despite some recent reforms there are still criticisms to be made of the current law on murder and voluntary manslaughter. Consider relevant criticisms of that law, and suggest any reforms that may be appropriate. (25)