11/10/2021

Week 3 – Homicide Murder

Homicide
 Homicide can be divided into:
Murder – The legal definition of murder is 'the unlawful killing of a human being in
the Queen's peace, with malice aforethought'
Manslaughter – Manslaughter is the act of killing another human being in a way that
is less culpable than murder
 [i.e., This is because both the above SHARE the SAME ACTUS REUS] As per the Law
Commission’s 2005 Report: Homicide offences are a “rickety
structure set upon shaky foundations.”

As per Section 269, Schedule 21 of the Criminal Justice Act 2003

 The sentence for homicide comes with a mandatory life sentence. Mandatory life
sentence consists of 2 main terms
 Minimum tariff period – The defendant must serve a minimum PERIOD
 of time in prison.
 Release on license – After this minimum tariff period, the defendant will be released
BUT monitored for his/her entire life. [If the terms of the license a breached, the
defendant can be brought back into prison WITHOUT having to go to court.

Actus Reus
 Act element = Anything that causes the result
 Circumstance element = That the victim is a person under the Queens peace
 Result element = death

Actus Reus support - AG Reference (No. 3 of 1994)

 The defendant stabbed his pregnant girlfriend several times with intention to
 kill her. Because of the injuries suffered, she gave birth prematurely and the baby
died.
 Issue for a court: Was there liability for the murder of the child?
 Court of first instance: Convicted for murder.
 House of Lords: Conviction for murder was quashed because there was a
 double transfer of malice. [i.e. The defendant intended to harm to mother and NOT
THE BABY]
 HOWEVER, there was liability for manslaughter because in the end, the baby
 died. (i.e. The baby was considered a person in law when it was expelled)

Mens Rea
 Intentional or voluntary
 Knowledge intention/no men’s rea
 Intention to kill or cause serious harm
Mens Rea support – R vs Cunningham 1981
 The defendant attacked the victim in a pub believing (wrongly) that the victim
 had had sexual relations with his fiancé. The defendant knocked him to the ground
and repeatedly struck him on the head with a bar stool. The victim suffered a
fractured skull and a subdural haemorrhage from which he died 7 days later.
 The jury convicted the defendant of murder having found that he intended serious
harm at the time of the attack. The defendant appealed contending that the law of
murder should be confined to those who intend to kill and thus the decision in R v
Vickers was wrongly decided. [i.e., The defendant relied upon dissenting judgment of
Lord Diplock in Hyam]
 The men’s rea (established in R v Cunningham) is the intention either to kill the
victim or at least to cause him some serious bodily injury—grievous bodily harm as it
used to be called, GBH for short.

Defences to murder
 General, COMPLETE defences (except duress) *
 Complete defences WILL ACQUIT the defendant for the charge of murder.
 *Specific defences for doctors*
 How do courts deal with doctors prescribing pain-killing drugs which shorten?
 the lives of patients as there were an issue which argued this CONSTITUTED
MURDER.

How is LIABILITY avoided in these kinds of cases?

 •Rely on the defence of necessity
 •Rely on the 3rd limb of R v Woolin test (i.e. Jury not finding intention)

R v Adams
 The defendant doctor was charged with murder because he eased the passing
 of victims with the use of strong drugs.
 The defendant argued: That he was acting in the best interests of the patients
 Courts held: The defendant was found NOT GUILTY as “there could not be liability
here because a doctor is entitled to do all that is necessary to ease pain & Suffering
EVEN IF it lead to the shortening of life.”
 [The doctrine of double effect: The defendant’s GOOD INTENTIONS can overwhelm
the NEGATIVE SIDE EFFECTS.]

DISTINGUISHED BY THE CASE OF.

R v Cox
 The doctor recommended non-therapeutic drugs to patients to end their lives.
 He had injected a lethal dose of potassium chloride into his patient who shortly
 afterwards died comparatively peacefully. The victim was an elderly lady who
 was terminally ill and in constant pain. With the knowledge and approval of her
family, she had asked the defendant doctor to end her suffering by hastening her
death.
 Courts held: Liability for attempted murder was found by the jury because the
  victim was cremated before any suspicion arose and the cause of her death
 could not be conclusively proven. [The case in Bland was referred to as there is a
“special defence” available to doctors.]

Partial defences
 They are considered NON-COMPLETE DEFENCES as the defendant’s conviction
 of murder will be mitigated for a manslaughter charge instead.

Murder reform
 Lord Goff: The Mental Element of Murder (1988) 104 LQR 30. He recommended
narrowing the mens rea of murder BUT expanding it by including “wicked
recklessness.”
 [This approach has been criticized by Professor Glanville Williams]
 The 2006 Law Commission recommendations
 First degree murder: The defendant must intend to kill or to cause GBH with
 the awareness of a likelihood of death.
 Second degree murder: (no mandatory sentence)
 •Killing with intent to do serious injury
 •Killing with intent to do injury (not serious) but with knowledge of the
 risk of death.
 •Killing where there is a partial defence.
 Manslaughter: Risk taking rather than intentional harm.

Structure of homicide offences

Murder? No homicide
No offence has been
Actus Reus: Has D unlawfully killed a person? committed.

Yes

Murder? Mens Rea: Did D act with the intention to kill or cause GBH?

Yes No

Voluntary manslaughter? Involuntary manslaughter?

D satisfies the actus reus and mens rea of D satisfies the actus reus but not the mens rea
murder. of murder.

Does D satisfy the elements of a partial Does D satisfy the elements of an involuntary
defence? manslaughter offence?

No Yes Yes No

D is liable for murder D is not liable for

D is liable for
(unless she satisfies one murder or manslaughter.
manslaughter.
of the general defences). Consider other offences.