In
English law, 'murder' is considered the most serious form of
homicide where one person kills another either
intending to cause death or intending to cause serious injury in a situation where death is virtually certain (originally termed
malice aforethought even though it requires neither malice nor premeditation). Following the
Murder (Abolition of Death Penalty) Act 1965, the mandatory sentence is life imprisonment.
Actus Reus
The definition of the ''
actus reus'' (
Latin for "guilty act") murder most usually cited is that by
Edward Coke:
:"When a man of sound memory and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in ''rerum natura'' under the King's Peace, . . . so as the party wounded, or hurt, ''et cetera'', die of the wound or hurt, ''et cetera'', within a year and a day after the same."
It should be noted it is no longer the case that the death of the victim must occur within a year and a day of the crime, according to the
Law Reform (Year and a Day Rule) Act 1996
Unlawfully
The reference to "unlawfully" indicates that some
killings may be
justifiable homicides.
Jurisdiction
The current rule of
criminal jurisdiction is that a
British subject may be charged with murder wherever the
killing took place and no matter what the
nationality of the victim (see s9
Offences Against The Person Act 1861).
Queen's peace
The phrase "under the
[Queen's] peace" operates to exclude the
killing of an enemy
combatant during a time of war or other international conflict. In the case of ''R v Clegg''
[1], a
soldier in
Northern Ireland was convicted of murder after shooting and
killing a
joyrider who had broken through the checkpoint. He was released after political pressure from the
Attorney General. The important principle of the case is the requirement that the government officially considered the place in question to be a warzone, and therefore not under the Queen's peace
Life in being
Main articles: born alive rule
The defendant must cause the
death of a reasonable creature ''in rerum natura'' (the whole phrase is usually translated as "a life in being", i.e. where the umbilical cord has been severed and the baby has a life independently of the
mother). This was most recently considered in ''AG's Reference (No. 3 of 1994)''
[2] where the
Law Lords reversed the
Court of Appeal decision.
[3] How ever, if the person is
pregnant the charges will be dropped. The defendant had
stabbed a
pregnant woman in the face, back and abdomen. Some days after she was released from hospital in an apparently stable condition, she went into labour and gave birth to a premature child, who died 121 days later. The
child had been
wounded in the original attack but the more substantial cause of
death was her prematurity. According to Lords Mustill and Hope, an
unborn child, although
human and protected by the
law in a number of different ways, is not a separate person from its
mother. So, if the cause of death had been more clearly the antenatal injuries, this could have been a
homicide, but there would have been no liability if the child had been miscarried or still-born because it would not have had a life independent of the
mother. This case also holds that the doctrine of
transferred malice cannot apply to transfer intent from the
mother to the baby after it is born. Compare the situation in ''St George's Healthcare NHS Trust v S; R v Collins & Ors, ex parte S''
[4] where it was held a trespass when a hospital terminated a
pregnancy involuntarily because the
mother was diagnosed with severe
pre-eclampsia. The
court held that an unborn
child's need for medical assistance does not prevail over the
mother's autonomy and she is entitled to refuse
consent to treatment, whether her own
life or that of her unborn
child depends on it (see a discussion in
omission).
In the
United States there has been
statutory intervention in the form of the
Unborn Victims of Violence Act 2004 to clarify the
criminal law at a federal level, and several states have passed, or are considering, similar legislation. The
Federal Government of the United States has
jurisdiction over
crimes only in limited circumstances: for example, when committed on federal property, against certain federal officials or employees, or by members of the
armed forces.
State governments have jurisdiction over all other crimes. The Act offers formal legal protection for the uterine child by specifying that the ''
mens rea'' from the initial assault is transferred to the foetus without having to prove actual knowledge or intent with respect to the child, or even knowledge of the pregnancy. Such death or
injury to the child is charged as a separate offence whether the accused acted with or without knowledge of the pregnancy, and the penalty is the same as if the death or injury had been caused to the woman. There is no indication that
English law is prepared to accept the uterine child as a separate person for these purposes.
Year and a day
The requirement that death occur within a
year and a day of any
injury was abolished by the
Law Reform (Year and a Day Rule) Act 1996 but, if the lapse of time exceeds three years, the
Attorney General's consent must be obtained before a
prosecution can be undertaken.
Defences
The first words of
Coke's definition refer to the
excuses of
insanity (now also including
diminished responsibility) and
infancy. Hence, if any of the general defences such as
self-defence apply, an accused will be acquitted of murder, and if any of the partial defences introduced under the
Homicide Act 1957 apply, the liability will be reduced to
manslaughter. If a partial defence is successful, it will allow the sitting judge full discretion as to the sentence given to the offender, these can range from a conditional discharge to a
life sentence (which accounts for around 10% of voluntary manslaughter sentences).
Causation
:''For the full page, see
causation (law)
At the time of death, the defendant's acts or omissions must be the operating and most substantial cause of death with no ''novus actus interveniens'' (Latin for "new act breaking in") to break the chain of causation. Thus, the defendant cannot choose how the victim is to act, nor what personality to have. No matter whether brave or foolish, the defendant must expect the victim to:
:try to escape and if he or she dies in that attempt, the chain of causation is not broken; or
:try to fight back and so escalate the extent of the violence between them; or
:seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death.
There are conflicting authorities on the above point, ''R v Jordan''
[5] and ''R v Smith''
[6]
In short, any contingency that is foreseeable, will maintain the chain. Put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon will break the chain.
Contemporaneity
For the full page, see
concurrence
The ''actus reus'' and ''
mens rea'' (Latin for "guilty mind") must coincide in point of time. The so-called single transaction principle allows a conviction where the defendant has both ''actus reus'' and ''mens rea'' together during the sequence of events leading to death. In ''Thabo Meli v R''
[7] the defendants thought they had already killed their victim when they threw him over a cliff and abandoned the "body". Thus, the act actually causing death was performed when the
defendants did not have the intention to
kill, the
conviction was confirmed.
''Mens rea''
The ''mens rea'' of murder is either an intention to kill (per the 2004 binding case of ''R v Matthews & Alleyne''
[8]) or an intention to cause
grievous bodily harm (''R v Moloney''
[9], ''R v Hancock & Shankland''
[10], and ''R v Woollin''
[11]). See
intention (criminal) for a general discussion, and
intention in English law. In ''Moloney'', Lord Bridge was clear that, for the defendant to have the ''mens rea'' of murder, there must be something more than mere foresight or knowledge that death or serious
injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to
kill or cause
grievous bodily harm, but when death or grievous bodily harm is virtually certain occur and the defendant foresees death or
grievous bodily harm as the virtually certain consequence of his act. Also note that, in ''Maloney'', Lord Bridge held that the ''mens rea'' of murder need not be aimed at a specific person so, if a terrorist plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the
terrorist might claim justification for the act through a political agenda. How or why one person
kills could only have relevance in the
sentencing phase of a
trial.
Life Sentence Tariff System
The mandatory
life sentence for murder comprises three elements:
#A minimum term representing
retribution without any prospect of parole;
#This starts on the expiry of the first and runs until the parole board decides that the person safely may be released on licence;
#At any time during the remainder of his or her life, the licence may be revoked and the offender will then be detained until it is considered safe to release him or her again on licence. This element does, in a real sense, represent a
life sentence.
The tariff sets the minimum time that must be spent in
prison before an offender can be considered for parole. Following the decision of the
European Court of Human Rights in ''T v UK''
[12] and the consequent statutory change in Criminal Justice and Court Services Act 2000 s 60, the
judge must now indicate in open
court the appropriate tariff for an offender aged under 18 who is convicted of murder. The period specified by the
judge is a 'sentence', which may be
appealed or be the subject of an
Attorney's General's Reference.
[13]Criminal Justice Act 2003 s 271 sets the same rule for adults. The ''Practice statement (Life sentences for murder)'' (2000) 2 Cr. App. R. 457 set the tariff for adults, i.e. one aged 18 or over at the time of the offence, with a starting point of 14 years as the minimum term for a case with no aggravating or mitigating factors, and lists the factors which might suggest either a higher or a lower than normal minimum term in an individual case. Mitigating factors include a
mental illness,
battered woman syndrome, using excessive force in
self-defence or
mercy killing. Professional or contract killings, political motivations, killing to subvert the
justice system, e.g.
killing a witness, etc., will be aggravating factors.
The general tariffs are available from the Sentencing Advisory Panel
[1].
The trial judge has always been expected to make a recommended minimum term, and in
1983 the
Home Secretary began amending (and usually increasing) the minimum term which was recommended by the trial judge. But this system was declared illegal in
2002 by both the
High Court and the
European Court of Human Rights following a successful challenge by convicted murderer
Anthony Anderson. Anderson had been convicted of a double murder in
1988 and the trial judge recommended that he should serve at least 15 years before being considered for parole, but six years later his tariff was increased to 20 years by the
Home Secretary Michael Howard.
Since then, trial judges have been obliged to recommend a minimum term and only the
Lord Chief Justice has the power to make any amendments; either through an appeal by the
Attorney General to increase a sentence which is seen as unduly lenient, or an appeal by the prisoner to have his or her minimum term reduced.
Life imprisonment has been the only option that judges have had when sentencing murderers since the death penalty was abolished in
1965, and the average life sentence prisoner spends 14 years behind bars. More serious cases, which included aggravating factors such as a rape or robbery, have seen murderers spend as much as 20 or even 30 years in prison. A handful of notorious multiple murderers have remained in prison until their deaths; these include
Myra Hindley,
Harold Shipman and
Ronnie Kray. An estimated 20 prisoners in
Britain have been recommended for lifelong imprisonment; these include
Mark Hobson,
Donald Neilson,
Dennis Nilsen and
Jeremy Bamber. Lengthy minimum terms have also been imposed on high profile killers including
Ian Huntley (40 years) and
Robert Black (35 years).
References
1. [1995] 1 All ER 334.
2. [1998] AC 245
3. [1996] 2 WLR 412
4. [1998] 3 All ER
5. (1956) 40 Cr App R 152
6. [1950]
7. [1954[ 1 All ER 373; [1954] 1 WLR 288
8. [2003] EWCA Crim 192
9. (1985) 1 AER 1025
10. (1986) 1 AC 455
11. [1999] AC 82
12. (2000) 30 EHRR 121
13. ''McBean'' (2002) 1 Cr. App. R. (S) 98
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