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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).

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.

Unlawful Killing

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.

In Airedale NHS Trust v Bland [1993] AC 789, 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.

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 abolished by the provisions of the Law Reform (Year and a Day Rule) Act 1996 for all acts committed after 17th June 1996.

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) [1997] 3 WLR 421).

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. In other words, the baby must be alive as a distinct individual before it can be murdered. However, 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

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, removing the requirement for the defendant to be a subject of the Queen.

Malice Aforethought

Malice aforethought means an intention to kill or cause grievous bodily harm (R v Cunningham [1982] AC 566, A-G’s Ref (No 3 of 1994) [1997] 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.

Because murder is an offence of specific intent, virtual certainty for intention is extremely relevant. A jury is likely to be asked to consider whether intention can be found. An intention to cause really serious harm (DPP v Smith [1961] AC 290) is required (grievous bodily harm is given the same meaning as under section 20 of the Offences Against the Person Act 1861). It is not necessary for the harm foreseen or intended by the defendant to be harm that may endanger life (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 [1997] 3 WLR 959.

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, 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 (R v Howe [1987] AC 417 as per Lord Hailsham).

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 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. The discussion here will deal only with the law post 4th October 2010.

Diminished Responsibility

Section 2 of the Homicide Act 1957 provides that four elements must be made out by the defendant if they wish to demonstrate diminished responsibility:

  1. The defendant must be suffering from an abnormality of mental functioning;
  2. The abnormality must arise from a recognised medical condition;
  3. The abnormality must substantially impair the defendant’s ability to understand the nature of their conduct, form a rational judgment or exercise self-control;
  4. The abnormality will provide an explanation for the defendant’s conduct if it is a substantial contributory factor.

(1 + 2) 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 [2012] 3 All ER 154, it was stated that certain conditions that fall within the description of medically recognised, such as unhappiness, irritability and paedophilia, would be unlikely to be accepted by the courts as a basis for a plea of diminished responsibility. 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 [2008] EWCA Crim 1305) unless the defendant suffers from alcoholism or alcohol dependency (R v Stewart [2009] EWCA Crim 593).

In the context of both requirements (save for alcohol dependency) that the matter will always be a question of fact. It 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.

(3) Substantial Impairment

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 [2013] EWCA Crim 2498).

What constitutes a substantial impairment is not settled. It was initially considered that the term substantial meant anything more than minimal (R v Brown [2011] EWCA Crim 279). However, in R v Golds [2014] 4 All ER 64 it was held that this was not the case. The question of 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.

(4) Provides an Explanation for the Defendant’s Acts or Omissions

This provision appears purely as a question for the jury but it seems possible that difficulties in interpretation may occur. 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 need to be a sole contributing factor. 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 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 and 55 of the Coroners and Justice Act 2009 provides that there are, with certain exceptions, three elements to be satisfied in order for loss of control to be successfully pleaded:

  1. The defendant must demonstrate that they killed as a result of a loss of self-control;
  2. That the loss of self-control had a qualifying trigger;
  3. 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.

(1) Killing Results from the Loss of Self-control

Section 54(2) provides that the loss of self-control need not be sudden. Under the old law (R v Ahluwalia [1992] 4 All ER 889) 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. 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 [2012] 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.

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 [2015] 1 Cr App R 464 on the basis that the case could be decided on other points.

(2) Qualifying Triggers

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. There is no need for proportionality from the defendant’s actions. 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 is 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. Whether the sense of being wronged is justifiable in the circumstances is a question for the jury. 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)).

In R v Clinton [2012] 2 All ER 497, the defence of loss of control was not, at first instance, put to the jury because it was held that section 55(6)(c) prevented it from being so because it regarded the defendant’s wife’s sexual infidelity. In the Court of Appeal, 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.

(3) Normal Degree of Tolerance and Self-restraint

The objective element of this test is a consideration of the degree of tolerance and self-restraint of a normal person of the same age and sex as the defendant. The subjective element relates to the circumstances of the defendant. These circumstances, provided by section 54(3), cannot relate to the defendant’s general capacity for tolerance or self-restraint. However, any particular characteristic, save a general incapacity for tolerance, may be relevant.

The final requirement is that the jury must be satisfied that an ordinary person would have acted as the defendant did in these circumstances. 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 are beyond what a reasonable person would have done in the circumstances.

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.

Killing Subject to a Suicide Pact

Section 4 of the Homicide Act 1957 provides that a person will not be guilty of 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.


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