Murder is obviously a big issue when it comes to criminal law and you may be asked about it in several guises. For example, you might be asked to identify defences to a murder and discuss issues such as self-defence. Alternatively, you could be asked about the definition of murder and murder’s place within homicide offences.
Definition of murder
Cast your mind back to your earliest criminal law lectures and you may remember a chap called Coke, who provides the classical definition of murder. “Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought”.
Actus reus & mens rea
The actus reus of murder “requires proof that the defendant unlawfully cause the death of the victim within the Queen’s peace”. The mens rea is ‘malice aforethought’ “which is more commonly expressed today as intention to kill or cause GBH”, as established in R v Vickers 1957.
With this in mind, let’s consider a hypothetical case, provided by the lovely folks at Pearson, who published Nicola Monaghan’s Criminal Law (Q&A Revision Guide).
“Five years ago, Gareth’s wife, Sandra, was diagnosed as suffering from a terminal illness. Gareth is devastated at this and becomes extremely distressed while watching his wife’s health deteriorate and seeing her suffer in pain. He decides that he should end her suffering and he kills her.”
Is Gareth criminally liable for the murder of his wife? The actus reus is there insofar that there is no evidence of self-defence, and the victim is a person in being. When applying the tests for causation, factual causation is established because if it were not for Gareth’s actions, Sandra would not have died. With legal causation, Gareth’s actions are the sole cause of death.
However, there is an issue when it comes to the mens rea. It can be argued that Gareth didn’t intend to kill Sandra or cause GBH. Rather, his aim was to end her suffering; there is no direct intention. Unfortunately for Gareth, R v Inglis 2011 established that mercy killings is not a defence to a charge of murder. Additionally, there could have been oblique intention. A person has oblique intent when the event is a virtual certainty of a voluntary act, and they foresee this to be the case. It’s clear that Gareth foresaw Sandra’s death as virtual certainty of his actions and therefore the mens rea is present too.
Coke’s definition ensures that there is a defence to the charge of murder on the grounds of insanity and infancy. Additionally, self-defence is a defence to murder, and in medical cases, double effect is also considered a defence. R v Adams 1957 established this precedent; if death is caused through the administration of lethal drugs such as morphine that is solely intended to remove pain, then this is not murder.
Murder can also be reduced to manslaughter if there is a loss of control, under sections 54 and 55 of the Coroners and Justice Act 2009. Additionally, diminished responsibility is a partial defence. Diminished what?! Allow us to explain.
The Homocide Act 1957 outlines that a person “shall not be convicted of murder if he was suffering from an abnormality of mental functioning” which can arise from a medical condition. It can also be the result of something that impairs a person’s ability to understand the nature of their conduct, to form rational judgement and to exercise self-control. Additionally, it’s manslaughter, not murder, if death is the result of a suicide pact. This is covered under section 4 of the Homocide Act 1957.
That’s that! Obviously there is loads more to discuss on murder, such as its relationship with manslaughter, but we wouldn’t want to tell you everything for the exam, would we?