3.1.2 Murder Lecture
Definition of Murder
The definition of murder, although adapted to be relevant in a modern context, remains as that set out by Sir Edward Coke. Murder occurs, therefore, where a person unlawfully kills any reasonable creature in rerum natura under the Queen’s peace with malice aforethought (Coke’s Institutes, 3 Co Inst 47).
It is likely that this definition would be required in almost all questions on murder. It is a good idea to learn it.
The actus reus of murder therefore requires the unlawful killing of any reasonable creature in rerum natura under the Queen’s peace. The mens rea, malice aforethought.
Killing means causing death and the approach in establishing the existence of this element is the same as that discussed in relation to causation. The killing will be unlawful unless there is some justification for it, such as self-defence.
Case in focus – Airedale NHS Trust v Bland  AC 789
In this judgment, permission of the court was sought for the withdrawal of life saving treatment from a patient. It was held that there is a distinction between withdrawing treatment that may sustain life in the patient’s best interest and actively administering a drug that might bring about the patient’s death. The latter would be murder, the former would not.
R v Inglis  1 WLR 1110
In this case, a mother deliberately killed her terminally ill son by injecting him with heroin. Following Bland the fact that the mother saw her actions as an act of mercy was irrelevant. Mercy killing was and is unlawful and therefore the mother was liable for her son’s murder.
It used to be the case that where death occurred beyond a year and a day following the acts of the defendant, no conviction for murder could be brought. This was known as the ‘year and a day rule’ and was abolished by the provisions of the Law Reform (Year and a Day Rule) Act 1996 for all acts committed after 17th June 1996. However, section 2 of the 1996 Act provides that permission must be obtained from the Attorney-General before a prosecution can be brought where the act of the defendant occurred more than three years before the death of the victim.
Any Reasonable Creature in Rerum Natura
This element is most simply defined as any human being. A baby does not fulfil these requirements until it has been fully born. Unborn foetuses, however advanced in their development and close to birth, cannot be murdered (A-G’s Ref (No 3 of 1994)  3 WLR 421). Although murder can occur if it is possible to show that the defendant intended to kill the mother and that they also intended that the child should die soon after being born. In R v Poulton(1832) 5 C & P 329 it was held that a baby would not satisfy the requirement of being born until fully expelled from it mother. It is however necessary that, even if fully expelled, the baby must exist separate from its mother, even if just briefly (R v Crutchley(1837) 7 C & P 814). In other words, the baby must be alive as a distinct individual before it can be murdered. However, as mentioned above, the act that causes the baby’s death can occur whilst it is still in utero providing that it lives independently briefly before dying.
Under the Queen’s Peace
It is recognised that this term may have had a specific meaning in Coke’s time that has been lost in the subsequent period (R v Page  1 QB 170). In a modern context, section 9 of the Offences Against the Person Act 1861 provides that where a person is killed, whether or not they are one of the Queen’s subjects, by a subject of the Queen outside of Her jurisdiction – that is anywhere other than England or Wales - they can be tried and convicted in England or Wales. This section applies to where the entire actus reus takes place abroad (the act causing the death and the death itself). Where only one part of the actus reus takes place abroad, section 10 of the 1861 Act applies. This section removes the requirement for the defendant to be a subject of the Queen. Although the provision suggests that an act committed by a foreigner abroad may render them liable to the English courts if the death occurs in England, it seems that this is not the case (R v Lewis(1857) Dears & B 182), although it does seem that an act committed in England and a subsequent death abroad makes the defendant liable in England.
Malice aforethought means an intention to kill or cause grievous bodily harm (R v Cunningham  AC 566, A-G’s Ref (No 3 of 1994)  3 WLR 421). On the basis of the proper definition, the term malice aforethought is misleading because it suggests elements of both ill will against a victim and some degree of premeditation; neither are required.
The requirements of intention have been discussed in detail in relation to mens rea in general and will not be repeated here. It should be noted that because murder is an offence of specific intent, the discussions in relation to virtual certainty for intention are extremely relevant. It is murder cases where the greatest likelihood of a jury being asked to consider whether intention can be found is likely to arise.
Grievous bodily harm is given the same meaning as under section 20 of the Offences Against the Person Act 1861. This means that an intention to cause really serious harm (DPP v Smith  AC 290) is required. It is not necessary for the harm foreseen or intended by the defendant to be harm that may endanger life. Therefore, a defendant who intends to break a victim’s arm, but holds no intention to kill, will be liable for murder (Cunningham). It has been suggested that this is an overly harsh approach (see Lord Edmund-Davies in Cunningham at 582 – 583; and see also R v Powell and English  3 WLR 959 where it was held that a person who only intended to cause grievous bodily harm, whilst being a murderer for the purposes of conviction, was not really one), but the position remains good law.
It is not necessary for a defendant to intend to kill the particular victim; the doctrine of transferred malice applies to murder. Furthermore, where a defendant does not intend the death of any particular victim, but simply intends to kill a random group of individuals in a terrorist attack, for example, they will be liable under what is known as general malice and will satisfy the mens rea for murder (A-G’s Ref (No 3 of 1994)).
The Mandatory Life Sentence
The mandatory sentence for murder is life imprisonment (Murder (Abolition of the Death Penalty) Act 1965, s 1(1)). Whilst this reflects the fact that murder is a very serious offence, it should be noted that numerous judgments have suggested that the sentence should be more open to judicial discretion. In R v Howe  AC 417, for example, Lord Hailsham suggested that whilst murder was indeed a heinous offence, the mandatory sentence failed to recognise the possible degrees of culpability of the defendant, ranging from brutal or repeat offenders to offences that are nothing more than mercy killings of a loved one.
It is possible that you may be asked to consider the nature of murder as a general offence in relation to the efficacy of the particular elements. You should be aware of the limitations placed on the ability to find intent, and the process of doing so, previously considered in the chapter on mens rea. You should also consider the position in respect of grievous bodily harm being sufficient to make a defendant liable for murder, and whether you think that this is appropriate. It may also be relevant in respect of mens rea that limitations should be placed on finding intent because of the mandatory life sentence. Is it important, in this context, that a defendant should only face a life sentence where they intended to kill, or is an intention to cause grievous bodily harm sufficient? Is simply being virtually certain of the harm enough?
Partial Defences to Murder
There are three specific defences that apply only to murder: loss of control (which now replaces the common law defence of provocation); diminished responsibility; and killing in pursuance of a suicide pact. Although these are termed defences, they are not defences in an absolute sense, in that they only provide a partial defence to murder and will make the defendant liable in voluntary manslaughter. It is appropriate to discuss these offences/defences here because of their relationship to murder, but it is important to note that they are technically defined as manslaughter, although they are not stand alone defences. In other words, a defendant cannot be liable for voluntary manslaughter, but may be found liable if the circumstances allow, following a charge of murder and a subsequent plea to manslaughter. If the plea is accepted, sentence is passed on the basis of manslaughter (and avoids the mandatory life sentence for murder). If the prosecution does not accept the plea, the matter becomes one for the jury.
It is important to be aware that for cases prior to 4th October 2010 a different regime existed in respect of loss of control and diminished responsibility. Whilst it is possible that cases may still pass through the courts where the crime was committed prior to this date, the passage of time makes it increasingly less likely that the old law would be examined unless it has been expressly studied. The discussion here, therefore, will deal only with the law post 4th October 2010.
Section 2 of the Homicide Act 1957 provides that:
- A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which –
- arose out of a recognised medical condition,
- substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and
- provides an explanation for D’s acts and omissions in doing or being a party to the killing.
(1A) Those things are –
- the understand the nature of D’s conduct;
- to form a rational judgment;
- to exercise self-control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.
The effect of the section is to require four elements to be made out by the defendant if they wish to demonstrate diminished responsibility:
- The defendant must be suffering from an abnormality of mental functioning;
- The abnormality must arise from a recognised medical condition;
- The abnormality must substantially impair the defendant’s ability to understand the nature of their conduct, form a rational judgment or exercise self-control;
- The abnormality will provide an explanation for the defendant’s conduct if it is a substantial contributory factor.
Abnormality of Mental Functioning – Recognised Medical Condition
Although the abnormality of mental functioning must arise from a recognised medical condition, it does not follow that the existence of a recognised medical condition will be accepted as demonstrating the existence of an abnormality of mental functioning. In R v Dowds  3 All ER 154, it was stated that certain conditions that fall within the description of medically recognised would be unlikely to be accepted by the courts as a basis for a plea of diminished responsibility. Unhappiness, irritability and anger, and paedophilia were cited in judgment as examples of such conditions (at paragraph ). Furthermore, although alcohol intoxication is a recognised medical condition in a technical sense, it cannot be the basis of a diminished responsibility plea (R v Wood  EWCA Crim 1305) unless the defendant suffers from alcoholism or alcohol dependency (R v Stewart  EWCA Crim 593).
It appears that in the context of both requirements (save for alcohol dependency) that the matter will always be a question of fact. It is firstly necessary to consider whether, as a question of fact, the condition is a medically recognised one. This will be relatively simple in most cases. It is then necessary to consider whether this condition gave rise to an abnormality of mental functioning. This is a question that is likely to require expert evidence in order to be determined. The question of whether this expert evidence is accepted, of course, is ultimately one for the jury. Therefore, even if the trial judge is uncomfortable with a particular medical condition being cited as a basis for the defence, if the jury accept that the condition gave rise to an abnormality of mental functioning, the defence will satisfy the required elements.
The existence of the abnormality of mental functioning must have the effect of substantially impairing the defendant’s ability to understand the nature of their conduct, form a rational judgment or exercise self-control. This, once again, is a question of fact and will almost inevitably require medical evidence to demonstrate whether one of the three requirements is in fact substantially impaired (R v Bunch  EWCA Crim 2498).
The issue in respect of what constitutes a substantial impairment is not settled. It was initially considered that the term substantial, in line with much of the criminal law, meant anything more than minimal (R v Brown  EWCA Crim 279). However, in R v Golds  4 All ER 64 it was held that this was not the case, and that the matter of what was or was not substantial was a question for the jury, but that if some form of direction was required this should be more restrictive on the basis that whilst a minimal impairment might exist, it may be the case that such an impairment was not something that made any really great difference. The question of whether a direction was required at all and, if it was, whether the jury should be directed that ‘substantial’ meant more than minimal or whether it meant something else was heard by the Supreme Court on 14th June 2016. At the time of writing (August 2016) judgment has not been given and therefore, the issue remains unanswered.
Any answer given in relation to diminished responsibility is likely to be coloured by the Supreme Court decision in R v Golds. It is imperative, because the impact of this judgment will not be found in any textbooks for a period of time, that the legal databases are checked prior to answering the question in order to ascertain the full extent of the law. If the judgment has not been given at the time of any examination or coursework question, marks will invariably be gained by being aware of it and by stating that the position is unclear. It should be noted however, until the Supreme Court judgment is given, that the Court of Appeal judgment in R v Golds is good law – no explanation of the term substantial need be given to the jury.
Provides an Explanation for the Defendant’s Acts or Omissions
This provision, once again, appears purely as a question for the jury but, although the matter has yet to be litigated in isolation, it seems possible that difficulties in interpretation may occur. This is because section 2(1B) allows for the abnormality of mental functioning to be a significant contributory factor in causing the defendant’s conduct. It does not therefore to be a sole contributing factor. Therefore, where other factors will inevitably contribute, the issue of the degree of contribution that should be attributed to the abnormality of mental functioning, as an explanation for the defendant’s conduct, is unclear. In other words, where the defendant would have killed without the abnormality of mental functioning, even if this caused a substantial impairment, a plea of diminished responsibility is unlikely to succeed. However, where they may have still killed, but might not have done so, and where the abnormality of mental functioning provides a partial or potential reason why they have killed, the issue is far less clear. In this context, it is open for the jury to decide by degree whether they believe that the impairment caused by the abnormality is sufficiently substantial to provide an explanation.
Loss of Control
Section 54 of the Coroners and Justice Act 2009 provides that:
- Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of murder if –
- D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
- The loss of self-control had a qualifying trigger, and
- A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
- For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
- In subsection (1)(c) the reference to ‘the circumstances of D’ is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.
Section 55 goes on to provide that:
- A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
- This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
- This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which –
- constitute circumstances of an extremely grave character, and
- caused D to have a justifiable sense of being seriously wronged.
- This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
- In determining whether a loss of self-control had a qualifying trigger –
- D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
- A sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
- That fact that a thing done or said constituted sexual infidelity is to be disregarded.
There are, with certain exceptions, three elements to be satisfied in order for loss of control to be successfully pleaded:
- The defendant must demonstrate that they killed as a result of a loss of self-control;
- That the loss of self-control had a qualifying trigger;
- That a person of the same age and sex of the defendant, with an ordinary degree of tolerance and in the same circumstances as the defendant would have acted as the defendant did.
Killing Results from the Loss of Self-control
Whilst it appears simple to recognise whether a killing results from a loss of self-control, two specific elements are a little unclear. In the first instance, section 54(2) provides that the loss of self-control need not be sudden. This reflects the position under the old law (R v Ahluwalia  4 All ER 889) where it was held that ‘sudden’ did not mean immediate, and therefore a delayed loss of self-control could allow the defence. It is unclear whether the removal of the requirement of suddenness takes the matter further, or whether it is simply a reflection of the old law. The difficulty in this context is that a distinction must be drawn between a non-sudden loss of self-control and a planned action. Section 54(4) provides that actions motivated by revenge do not fall within the concept of a loss of self-control (see also R v Clinton  2 All ER 497), but it is unclear where the line falls between premeditation and later or subsequent anger that constitutes a loss of self-control. Under the provisions, it is perfectly possible for the defence to be pleaded where the loss of self-control occurs a significant period after the qualifying trigger on the basis that the defendant became angry about the qualifying trigger only at that time.
It is also unclear from the provisions whether the loss of self-control must be total, or whether a partial loss will suffice. The Court of Appeal declined to address this point in R v Gurpinar  1 Cr App R 464 on the basis that the case could be decided on other points. Therefore, it is unclear whether a qualifying trigger that diminishes, without total loss, a defendant’s self-control will allow the defence to be pleaded.
The first qualifying trigger, the fear of serious violence against the defendant or another, is relatively self-explanatory and will necessarily be a question of fact. It is of note that this defence, in contrast to the total defence of self-defence, removes the need for proportionality from the defendant’s actions. It is implicit in this context that the defendant’s use of force against the victim was not proportionate because they lost self-control. Section 55(6) has the practical effect of preventing a defendant from pleading loss of control where they have incited the violence that causes them to lose self-control.
The second qualifying trigger has a limiting effect on the ability to be able to plead the defence in that the thing done or said must be both of an extremely grave character, and cause the defendant to have a justifiable sense of being seriously wronged. In other words, the defence requires not only the grave character of the thing said or done but, additionally, the requirement for the defendant to have a sense of being seriously wronged, with whether this is justifiable in the circumstances being a question for the jury. The important point in this context that it is irrelevant that a jury may consider the thing said and done to be of an extremely grave character if the defendant does not have a justifiable sense of being seriously wronged; both elements are essential to the defence. The same limitations in respect of inciting the thing done or said apply to this trigger as apply in relation to the fear of violence trigger (s. 55(6)(b)).
It is possible that an examination question may focus on the provisions of section 55(6)(c). This is because, in addition to the practical consideration of what exactly constitutes sexual infidelity, the question of the impact of this section has been subject to difficulties in interpretation.
Case in focusR v Clinton  2 All ER 497
The defendant killed his wife after she informed him in graphic detail about her sexual infidelity with 5 other men. His wife also taunted him about the fact that he was considering suicide, but had failed to go through with it. She additionally told him that she no longer wanted their children.
At first instance the defence of loss of control was not put to the jury because it was held that section 55(6)(c) prevented it from being so because of the presence of the wife’s sexual infidelity. In the Court of Appeal, the huge difficulty in interpreting section 55(6)(c) was recognised but it was held that the fact that sexual infidelity cannot be considered a qualifying trigger alone does not prevent it falling within the something done or said of a grave character qualifying trigger. If for example, the type of infidelity was sufficiently grave to satisfy section 55(4), section 55(6)(c) would not automatically preclude the defence. Where sexual infidelity provided the context for the loss of control based on another qualifying trigger, the presence of sexual fidelity should not remove the defence. It is only if sexual infidelity was the only reason for the loss of self-control that the limitation would apply. If another reason existed, providing this satisfied the qualifying trigger requirements, the fact that sexual infidelity was also a reason would not prevent the defence from being pleaded.
Normal Degree of Tolerance and Self-restraint
The test that is applied under this provisions is both objective and subjective. The first, objective, element is a consideration of the degree of tolerance and self-restraint of a normal person of the same age and sex as the defendant. Then the subjective circumstances of the defendant must be applied. Section 54(3) provides that these circumstances cannot relate to the defendant’s general capacity for tolerance or self-restraint. This means that a defendant cannot attempt to assert that they are just more short tempered than an ordinary person and therefore more likely to lose self-control. However, this section does not preclude the application of the circumstances to the other elements of the defendant’s character. Therefore, if an action is likely to have a graver impact on the defendant than an ordinary person without a particular characteristic of the defendant, the defendant’s loss of self-control may be reasonable in that circumstance. This means that it is not only the defendant’s age and sex that is a relevant characteristic, but any particular characteristic, save a general incapacity for tolerance, may be relevant.
The final requirement under this head, is that the jury must be satisfied that an ordinary person would have acted as the defendant did in these circumstances. This suggests that the type of action carried out by the defendant is relevant. In other words, once it has been established that the defendant reasonably lost self-control in the circumstances, the defence may still fail if the jury believes that the defendant’s actions, despite the loss of self-control, are beyond what a reasonable person would have done in the circumstances. The existence of the loss of self-control, even if reasonable, is not sufficient to allow the defence to succeed.
Burden of Proof
The initial burden lies with the defendant to provide sufficient evidence that the defence may arise. The burden then shifts to the prosecution to demonstrate on the usual criminal standard (the jury must be sure) that the defendant did not kill as a result of a loss of self-control subject to the provisions of the Act.
It is clear to see that there is a great deal of scope for discussion in the area of these two partial defences. Problem questions may simply focus on whether a defence is available on the facts, but it is also possible that they will be left open to interpretation regarding the relatively new provisions and therefore a more discursive approach may be necessary. The difficulties in respect of sexual infidelity as a qualifying trigger being of particular relevance to this point.
Killing Subject to a Suicide Pact
Section 4 of the Homicide Act 1957 provides that a person will be guilty of manslaughter, not murder, if they are able to demonstrate that they killed another or caused another to be killed in pursuance of a suicide pact. A suicide pact is defined by section 4(3) as an agreement between 2 or more people that the result of their actions should be the death of all of them.
In order for this defence to be successfully pleaded, not only must the defendant prove on the ordinary criminal standard, that they were part of a suicide pact, but also that at the time that they killed the victim they intended to die. The effect is clearly very limiting. However, a defendant who, for example, administers an overdose to another, then takes one themselves, but lives may be able to succeed in this defence.
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