Homicide Notes

CRIMINAL LAW — TOPIC 3 — HOMICIDE

MURDER

Definition:

• Actus Reus: the unlawful killing of another person in the Queen’s peace.

• Mens Rea: an intention to cause death or GBH to V.

A person convicted of murder must be given a life sentence.

ACTUS REUS

Issue 1: defining a person:

When does life begin? The law regards life as beginning at birth — fetuses cannot be victims of murder because they are not considered to be ‘alive’. However, a person can be injured in the womb and then die after they have been born alive. Fetuses are protected by the offences of ‘procuring a miscarriage’ and ‘child destruction’ under the Offences Against the Person Act 1861, both of which carry a maximum sentence of life in prison.

When does life end? The law accepts the medical definition of death (i.e. when V has stopped breathing, the heart stops pumping and the brain ceases to function —brain death).

Issue 2: unlawfully

If the D is able to rely on self-defense, then he has not killed unlawfully.

Further, it must be shown that the killing took place under the Queen’s peace; therefore, killing during warfare is not murder (an English court can try a British citizen for murder / manslaughter committed in any country).

Issue 3: killed

It must be shown that D has caused the death of the V (see notes on causation). In the context of murder, it must be shown that the D accelerated V’s death by more than a negligible amount. This is interpreted in a context specific way —so a doctor administering drugs to a dying man does not kill him.

The ‘year and a day’ rule was abolished in the Law Reform (Year and a Day Rule) Act 1996.

MENS REA

The MR of murder is intention to kill / cause GBH — this was established in the following:

Cunningham [1982]

Facts: D killed V by hitting him repeatedly on the head with a chair (unprovoked attack motivated by sexual jealousy). D denied intent to kill. But there was evidence from which the jury inferred intention to cause GBH. D is convicted of murder. CA upholds this. He appeals

Lord Hailsham:

• Upholds GBH rulethat the mens rea of murder is an intention to kill or cause grievous bodily harm – malice aforethought for murder can be implied where D intended by voluntary act to cause GBH and person then dies as a result.

• “At the time when the defendant inflicted the injuries on Kim . . . did he intend to do him really serious harm? ' If the answer to that question is ' yes,' you find him guilty of murder. If the answer to the question is ' no,' then you find him not guilty of murder, but guilty of manslaughter." This direction was rightly characterised by Lord Lane C.J

Lord Edmund-Davies in dissent:

• A broken arm is a “really serious” injury, but intending this should not allow murder conviction. (so, doesn’t like the GBH rule):

• “There should be no conviction for murder unless an intent to kill is established, the wide range of punishment for manslaughter being fully adequate to deal with all less heinous forms of homicide. I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another's arm, an 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.”

• “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.”

NB Lord Mustill in Attorney-General’s Reference (No 3 of 1994) said “the grievous harm rule is an outcropping of old law from which the surrounding strata of rationalisations have weathered away”.

Herring: the ‘correspondence principle’ is that the only appropriate mens rea for murder is intent to kill. Some people are a bit more flexible e.g. Steyn in Powell says it should be an “intention to kill or an intention to cause really serious harm coupled with awareness of the risk of death.” Others, though, reject the correspondence principle and see intention to cause serious harm as “crossing a moral threshold, at which point the defendant is responsible for creating his own bad luck.”

The following statutory provision makes it clear that constructive malice is no longer good law.

s.1 Homicide Act 1957: “where a person kills 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.

MANSLAUGHTER

There are two main kinds of manslaughter:

1. Voluntary manslaughter: killings which would be murder but for the existence of defined extenuating circumstances. Here the law is acknowledging that in certain circumstances even though the D had the MR and AR for murder, he or she does not deserve that label. This category includes:

   1. D who pleads loss of control charge to murder.

   2. D who pleads diminished responsibility for murder

   3. D who pleads suicide pact to murder.

2. Involuntary manslaughter: these are killings where the D does not intend to kill / cause GBH but there is sufficient fault to justify criminal liability. The difficulty the courts have found is in defining how little fault is sufficient to justify a manslaughter conviction.

   1. D convicted of reckless manslaughter

   2. D convicted of gross negligence manslaughter

   3. D convicted of constructive / unlawful act manslaughter.

LOSS OF CONTROL

Definition:

• This is a defence only to murder, and if successful will lead to a manslaughter conviction. The D must show:

  1. He lost self control

  2. This was caused by a ‘qualifying trigger’

  3. A person of the D’s age / sex with a normal degree of tolerance / self-restraint would have acted in the same way.

FOR PQs: don’t consider this defence if there hasn’t been a killing; it does not apply to...

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