Topic 2
Topic
2
Murder
Murder
Topic 2
Murder
Coke’s definition
‘Murder is 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, with malice aforethought, either expressed
by the party or implied by law, so as the party wounded or
hurt die of the wound or hurt, within a year and a day
after the same.’
Topic 2
Murder
Actus reus
• Murder is committed when a person unlawfully kills a
human being under the queen’s peace.
• The victim must be a human who is born and not dead.
• The rules on factual and legal causation apply – the
defendant must cause the death of the victim.
• The old rule that the victim must die within a year and a
day was abolished by the Law Reform (Year and a Day
Rule) Act 1996.
Topic 2
Murder
Mens rea
The mens rea of murder is malice aforethought. This
means that the defendant must intend either to kill or to
cause grievous bodily harm. The phrase is misleading,
since in this context ‘malice’ does not mean ill will, and
premeditation is not necessary.
The defendant may have direct or indirect intention.
Topic 2
Murder
Evaluation (1)
Lack of cohesion
Murder is a common-law offence developed through
decisions in many cases over long periods of time. These
cases have in turn led to uncertainty and ambiguities,
which required further cases to settle.
Critics argue that it is essential to have a clear definition of
murder, as it is the most serious of criminal offences.
Topic 2
Murder
Evaluation (2)
Problems with mens rea: intention
Cases like Hyam, Moloney, Nedrick and Woollin highlight
the difficulties that the courts have faced in establishing
the meaning of intention, and even today there is still no
clear definition. This means juries may make different
decisions in cases with similar facts.
Topic 2
Murder
Evaluation (3)
Problems with mens rea: intention to cause GBH
The mens rea of murder can be satisfied when the
defendant intends only to cause GBH. This means that a
defendant could be convicted of murder when he or she
had no intention of causing death or had not even
considered the possibility that it may occur.
Topic 2
Murder
Evaluation (4)
Life sentence
The mandatory life sentence for murder has been
criticised, as it does not allow judges the flexibility to pass
sentences appropriate to the circumstances of the case.
Topic 2
Murder
Reform (1)
The Law Commission has proposed that the ambiguities
surrounding the law of murder should be resolved through
legislation, namely a new Homicide Act. This would, it
hopes, achieve the certainty that has been lacking in this
area for so long. The new Act would encompass all of the
elements of homicide – murder, voluntary manslaughter
and involuntary manslaughter. The Law Commission
suggests that the offences should be defined according to
a ‘ladder principle’ or hierarchy, which reflects the
seriousness of the various offences.
Topic 2
Murder
Reform (2)
Murder would be divided into ‘first-degree’ and ‘second-degree’
categories:
• First-degree murder would apply to the defendant who
intended to kill, and he or she would receive the mandatory life
sentence.
• Second-degree murder would carry a discretionary life
sentence and would apply to defendants who:
- killed while intending to commit serious harm
- were ‘recklessly indifferent’ to causing death
- rely on provocation, diminished responsibility or duress
The new Act should also include a clear definition of the mens
rea required for murder – particularly regarding intention.
Topic 2
Murder
Reform (3)
It has been suggested that the compulsory nature of the
mandatory life sentence should be changed so that the
maximum sentence remains life imprisonment but judges
are free to sentence according to the circumstances of
each case, rather than being restrained by a mandatory
sentence.