3.1.3 Murder Lecture – Hands on Example
The following scenario is intended to test your knowledge of the issues that may arise in relation to the offence of murder. The issue in this context is whether the potential defendant is likely to be found liable for murder.
It is usual in questions relating to murder for a set of facts to be set out and the question simply posed as to whether a potential defendant will be liable for any offences. In other words, the question may not specify whether the particular offence is murder. It is important, when addressing this type of question, to consider whether the facts fit both the actus reus and mens rea of the offence and also consider whether any defences might be available to the defendant.
Peter, a keen cyclist who, after being made redundant recently, now works part time in a petrol station. Rachel is the managing director of a successful London accountancy firm. Peter and Rachel have been married for 7 years and have no children of their own, but Peter has a son, Chris, from a previous relationship. Chris is 17 and studying for A levels with a view to studying accountancy at university. He does not live with Peter and Rachel, but visits often to get advice from Rachel, especially on maths, as well as to spend time with his father.
On his way to work on Tuesday morning Peter is cycling along a busy main road when Julie pulls out of a side junction in her car directly in front of Peter and knocks him off his bicycle. Peter is furious with Julie because he has been knocked off his bicycle by inconsiderate car drivers several times over the last two years and once, 18 months ago, was badly injured when he fell awkwardly from his bicycle. Peter suffered minor brain damage which causes him to have a pathological hatred of what he considers to be inconsiderate road users. Peter, in a rage, decides to show Julie how it feels to be hurt, picks up a brick that is lying at the side of the road and throws it through the windscreen of Julie’s car intending to break her arm. Unfortunately, the brick misses Julie’s arm and hits her in the head. Julie is taken to hospital but dies several hours later from her injuries.
Peter flees the scene and, because he is too upset to go to work, returns home. When he arrives at home he thinks it is odd that Rachel’s car and Chris’s bicycle are on the driveway. Rachel should be at work and Chris should be at school. On entering the house, Peter finds Rachel and Chris engaged in sexual intercourse on the living room floor. Peter shouts at Rachel and Rachel responds by telling Peter that he is a pathetic little man who can’t even get a proper job, and that Chris is already more of a man that his father will ever be. Angry and upset, Peter grabs an ornamental Japanese dagger from the fireplace and stabs Rachel through the heart. She dies instantly.
Discuss Peter’s liability for the murder of Julie and Rachel.
There are numerous issues here and therefore you will need to break the question down into elements. You should consider the victims individually.
- Firstly, consider whether all of the elements actus reus and mens rea of murder are present.
- Actus reus – Peter kills Julie (a person), the killing is unlawful and therefore this element is satisfied.
- Mens rea –Peter does not intend to kill Julie, but he does intend to break her arm. This would be considered grievous bodily harm. Peter’s actions undoubtedly cause Julie’s death and therefore the mens rea of the offence will be satisfied.
- You should be aware that for all questions of this nature, it will be necessary for you to discuss in a certain amount of detail the nature of the elements of the offence. It is not sufficient to simple state that the facts fit the elements without explaining what the elements are.
- Now consider whether there is any partial defence open to Peter in this context.
- The facts here allow for consideration of both diminished responsibility and loss of self-control as partial defences to murder.
- Diminished Responsibility
- Peter suffered brain damage which will be a recognised medical condition.
- Whether this results in an abnormality of mental functioning is a question of fact, but it seems reasonable to suggest that it may do – especially since it creates a pathological hatred.
- The next consideration is whether the abnormality of mental functioning substantially impaired Peter’s ability to understand the nature of his conduct (this is unlikely, because he appears completely aware of what he intends to do), form a rational judgment (this is possible because it produces an irrational hatred), exercise self-control (this is not entirely clear from the facts – the fact that Peter hates Julie does not necessarily mean that he lacks self-control.) It certainly seems that his intention to harm her was a controlled and thought out one.
- It can be seen that even with a relatively clear example the position is often unclear. In order to answer this question properly, it is necessary to address all of the points, but point out that the matter would almost certainly rest on expert evidence.
- Loss of Control
- Is there a loss of self-control? This is a possibility, depending on the degree of weight that is given to Peter’s choice of actions. If they are considered thought out, there may be no loss. If not, Peter’s anger may be sufficient.
- Is there a qualifying trigger? The only relevant trigger is a thing done of a grave character causing Peter to have a justifiable sense of being seriously wronged. If Julie was indeed inconsiderate, it seems that this may be the case.
- Would a person of Peter’s sex and age have acted as Peter did in these circumstances? This is where this part becomes more difficult. It seems unlikely that an ordinary person would have acted as Peter did, but if the fact that Peter has been previously injured is taken into account (irrespective of his irrational hatred), it could be suggested that the circumstances surrounding Peter’s actions are relevant to his degree of self-control and tolerance, and that a normal person with those particular characteristics might in this circumstance have acted as Peter did. It does not seem that Peter’s characteristics bear on his general capacity, so they could fall outside the exception.
- Once again the position is unclear; Peter may have a defence, but only if his characteristics can be included in the considerations.
- It is again necessary to look at the elements of murder.
- Peter kills Rachel (the actus reus is satisfied).
- He intended to kill her, or at least must have been virtually certain that her death would occur, or alternatively he intended to cause her grievous bodily harm (the mens rea is satisfied)
- Peter is liable for murder.
- The only potential partial defence here is loss of control.
- It is not necessary to set out all of the elements again in this context because you have dealt with them above. It will be necessary however to refer to them and state that they are the same as previously mentioned.
- Rachel’s sexual infidelity cannot be a qualifying trigger (s. 55(6)(c)).
- But the manner of the sexual infidelity might be. Rachel is having sexual intercourse with Peter’s 17-year-old son. This in itself may be considered sufficient to create a thing done of grave character sufficient to cause Peter to have a justifiable sense of being seriously wronged. The fact that sexual infidelity occurs is not an absolute bar to the defence if some other trigger can be found.
- Rachel’s comments to Peter may also fall within the grave circumstance trigger, given Peter’s redundancy. The matter is a question of balance.
- The next issue is whether an ordinary person would have acted as Peter did. This is perhaps more easily addressed than in respect of Julie because it is suggested that an ordinary person is more likely to have acted as Peter did in these circumstances than in those relating to Julie. The matter is clearly a question for the jury and, therefore, whilst the defence is available, it is impossible to state with certainty whether it will succeed.
- In all problem questions where the substantive issue is a jury question, it is important to clarify that whilst a particular outcome is likely or unlikely to occur, the jury may decide differently.
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