Murder

AR + MR + DEFENCE ( Partial defences )

Homicide offences:
- murder
- Voluntary manslaughter ( has a partial defence )
- Involuntary manslaughter ( the crime cannot be proven because d lacks a mr )

Criminal responsibility :
Age = 1o + over

● AR murder - the unlawful killing of a human being under the queens / kings peace

● MR - intention to kill or cause bodily harm ( GBH ) a ‘malice aforethought’

Direct intent - D intends to kill where her conduct is carried out in order to bring the result

As soon as D intends any harm her position changes and she is blamed for all the consequences that
follow.

The typical period for a single murder is 15y imprisonment

Common law offence

MR process in murder:

- Conduct: voluntary
- Circumstance : knowledge + lack of belief
- Consequence : having the intention to kill

AR:
● unlawful killing ( doesn’t include self defence ) case:
● Any conduct that causes the death of a person

Inglis [2010] EWCA Crim 2637

- The appellant, Frances Inglis (F), was convicted of murdering her son Thomas (T).
- T was in a vegetative state due to serious head injuries. T’s family were advised that T may be
able to live an independent life.
- F, who suffered from depression and post-traumatic stress disorder, did not believe the medical
opinion and wished to end her son’s suffering.
- F made two attempts to kill her son by injecting him with heroin, the second succeeded. She
appealed against her conviction and sentence.

F maintained that she had performed an act of mercy to end T’s suffering, which was her duty as his
mother. F also claimed the partial defence of provocation. This was the first case of murder involving a
mercy killing before the Court of Appeal.
 - Mercy killing is murder. Both the actus reus and the mens rea for murder are satisfied and the
motivation, whether for malevolent reasons or familial love, is irrelevant.
- There was no defence of provocation, as F lost no self-control and the murder was
premeditated.
- The conviction was upheld.
- The fact that the appellant subjectively believed that the murder was an act of mercy was only
relevant at the sentencing stage under Schedule 21 of the Criminal Justice Act 2003. Schedule
21, paragraph 11 provides that a belief by the offender that the murder was an act of mercy
would be a mitigating factor in sentencing. As such, certain aggravating factors under Schedule
21 which are present in virtually every mercy killing should not be taken into account where the
individual was motivated by mercy.
- F’s appeal against her sentence was allowed, and her minimum term was reduced to five years.

Omissions

D may also commit murder by omission

Gibbins and Proctor
- A couple that failed to feed their child resulted in the death of the child. They acted with an
intention to cause bodily harm.

- Crown court: convicted for murder

- Criminal appeal: conviction upheld on appeal. D1 was held liable for his omission to feed based
on a familial duty owed to his child + D2 based on her assumption of a duty ( charge of buying
the food )

Eg. Bland case wasn’t considered an unlawful killing as to withdraw medical treatment as no duty was
imposed on the staff to act
Re B (Consent to treatment: capacity) [2002] 2 All ER 449: if V has capacity, artificial respiration
against her wishes is unlawful

Adults with decision-making capacity have the right to decide what can be done to their bodies. This
means they can consent to medical treatment or refuse it. An adult who has capacity is said to be
'competent'.

- B suffered a haemorrhage of the spinal column in her neck. After further treatment and
relapses, she became paralysed from the neck down and required a ventilator to live.
- B later requested the ventilator be removed.

- The Court noted this case was only about B’s capacity to decide whether the ventilator should
be removed.
- It was not about whether she should live or die, or her best interests.
- The Court found that B had capacity for the decision. Her capacity was assessed based on her
decision-making process and not the outcome of her decision.
- Underpinning this conclusion was that B could give a clear explanation of her decision-making
process, and demonstrated understanding of her condition and its consequences.
– foetus is not a human being until fully born ‘expelled from the womb’ & alive: D kills an unborn child
she may commit offences of child destruction or procuring a miscarriage
Handley (1874) 13 Cox CC 79: last reported case

Vo v France [2004] 2 FCR 577: the question of when life begins for purposes of Art 2, ECHR, within
states’ ‘margin of appreciation

End of life:
Malcherek [1981] 1 WLR 690:

Malcherek

- Malcherek stabbed his wife in the abdomen.

- She was treated for the wound and a few days later she collapsed in hospital. She subsequently
had surgery to remove a blood clot during which her heart stopped beating for thirty minutes
before it was restarted by the doctors again.
- This thirty minute period had caused the victim to suffer irretrievable brain damage and as a
result, she was placed on a life support machine.
- A day later, the life support machines were disconnected as there was no chance of her
condition improving.

Steel
- Steel attacked a girl and caused serious head injuries.
- She was taken to hospital and put on a life support machine almost immediately, shortly
afterwards it was concluded that her brain had stopped working and the machine was
disconnected.

- In each case, the medical treatment that was given was considered normal and in line with
approved medical practice.
- Both Malcherek and Steel were charged with murder.
- In both instances, the trial judges withdrew the issue of causation from the jury as it was clear
the initial injuries inflicted were the cause of death.
- This direction was appealed by Malcherek and Steel.

- Appeal dismissed.
- The fact that the treatment was in line with medical opinion could not prevent the defendants
having their guilt absolved.
- There was no evidence that the original injuries inflicted stopped being the operative cause of
death.
- On this basis, it was held that the Issue was properly and appropriately withdrawn from the
jury by the trial judges.

brain stem deathàdead

- No right to assistance with suicide under Art 2, ECHR: R (Pretty) v DPP [2002] 1 All ER 1

Under the king's peace:

- Protects anyone in the uk except from those in war
 - R v Adebolajo [2014] EWCA Crim 2779: Queen’s peace goes only to status of V, not D (Lee
Rigby case)

- D’s argued it was their reasonable belief that they were fighting a war and as such at war with
the queen.
- The court held this was a completely hopeless defence and the appeals were rejected.
- The court further held that to be under the queen’s peace means: D is a British Subject or, if D
is not a British subject, the offence occurred in England and Wales So,
- under Queen's Peace = D a British citizen or the murder happened in the UK

- On 22nd May 2013, Fusilier Lee Rigby, a British Army soldier, was attacked and killed near the
Royal Artillery Barracks in Woolwich, Southeast London. The attackers were identified as
Michael Adebolajo and Michael Adebowale
- The two men drove a car into Fusilier Rigby, knocking him to the ground. They then attacked
him with knives and a cleaver, causing fatal injuries. After the attack, they dragged his body
into the road and waited for the police to arrive. During this time, they spoke to bystanders and
made statements justifying their actions as a response to British foreign policy.

- The trial took place at the Old Bailey, and both men were charged with the murder of Lee
Rigby.
- They were also charged with attempted murder of a police officer and conspiracy to murder a
police officer. Both men were found guilty of the murder of Lee Rigby but were acquitted of the
attempted murder of a police officer.

Sentence
- In February 2014, Adebolajo was given a whole-life tariff, meaning he will spend the rest of his
life in prison without the possibility of parole. Adebowale was sentenced to life imprisonment
with a minimum term of 45 years.

- Adebolajo appealed against his whole-life tariff, arguing that it was a breach of his human
rights. However, in December 2014, the Court of Appeal rejected his appeal, ruling that the
sentence was justified given the severity of the crime.

Courts also have jurisdiction over:

- homicide by British nationals overseas (s9 OAPA 1861 and s3 British Nationality Act
1948)
- homicide by anyone on a British ship or aircraft

Year and a day rule:

- Year and a day rule no longer applies: Law Reform (Year and a Day Rule) Act 1996
- s1: “The rule known as the “year and a day rule” (that is, the rule that, for the purposes of offences
involving death and of suicide, an act or omission is conclusively presumed not to have caused a
person's death if more than a year and a day elapsed before he died) is abolished for all purposes.”
- s2: AG’s consent required if death 3+ years after injury

MR: malice
- Intention to kill etc
- Direct intention: Moloney [1985] AC 905
- Indirect/oblique intention: Nedrick [1986] 1 WLR 1025 and Woollin [1999] 1 AC 82
GBH
- Vickers [1957] 2 All ER 741: Malice aforethought includes

- The appellant was burgling a house when the elderly house owner confronted him. To avoid
being recognised, the appellant struck her many times. She died as a result of her injuries.
- The appellant was convicted of murder.
- He appealed his conviction on the basis that he never intended to kill the woman, and so could
only be guilty of manslaughter. He relied on s.1(1) of the Homicide Act 1957, which abolished
the notion of ‘constructive malice’:

‘Where a person kills another in the course or furtherance of some other offence, the killing shall not
amount to murder unless done with the same malice aforethought (express or implied) as is required
for a killing to amount to murder when not done in the course or furtherance of another offence.’

What is the MR of murder?

- The Court of Appeal upheld the conviction.

- The defendant intended to inflict grievous bodily harm, which was sufficient to establish the
mens rea of murder. This was not the same as the abolished ‘constructive malice’, which
allowed even minor violence in the pursuit of a separate felony offence (such as burglary or
rape) to amount to murder if the victim unexpectedly died.

- intention to commit GBH Cunningham [1981] 2 All ER 863: GBH rule

Meaning of GBH:
● DPP v Smith [1961] AC 290: grievous = really serious

- Jim Smith (S) was ordered by a police constable to stop his car which contained stolen goods,
however S accelerated instead.
- The police constable jumped onto the car, but fell off and was killed by another oncoming car
after S violently swerved the car.
- S was convicted of murder and appealed to the Court of Criminal Appeal.

- The issue in question was whether the mens rea of intent for murder is a subjective or an
objective test.
- S claimed that he could not be convicted of murder because he did not have the requisite mens
rea of intention to kill or to cause grievous bodily harm. He claimed that the mens rea for
murder is subjective, and the trial judge had misdirected the jury in stating that the mens rea
test for murder was whether a reasonable man would have contemplated that grievous bodily
harm was a likely result from J’s actions.

- The Court of Criminal Appeal, finding the test to be subjective and the trial judge to have
misdirected the jury, allowed the appeal and substituted a verdict of manslaughter. The case
was then appealed by the prosecution to the House of Lords. The House of Lords held that an
objective test was applicable to the mens rea of intent for murder, therefore there was no
misdirection and the murder conviction was to be reinstated. Where the accused is capable of
forming an intent in that he is not insane nor suffering from diminished responsibility, any
actual intention is immaterial, and the mens rea test for a conviction of murder is what in all
the circumstances the ordinary reasonable man would have contemplated to be the natural and
probable result of the grievous bodily harm done.

● Ireland; Burstow [1998] AC 147: bodily harm includes recognisable psychiatric illness
 - The defendant and victim were engaged in a short romantic relationship, which the victim
ended. Unhappy with this decision, the defendant proceeded to harass the victim over several
months, making repeated phone calls, delivering hate mail, appearing unexpectedly, harassing
her neighbours, inter alia, causing her to sustain psychiatric injury (severe depression).

- Whether psychiatric injury could be classified as bodily harm, as per s. 18, s. 20 and s. 47 of the
1861 Offences Against the Person Act. Further, whether it would be possible to bring a charge of
actual bodily harm under s. 20, which requires that harm be ‘inflicted’, where there had been
no physical force applied or damage caused by the defendant being charged.

- The House of Lords held that psychiatric injury did suffice to be considered ‘bodily harm’,
building on the obiter dicta in R v Chan Fook (1994) 1 WLR 689 in which it was determined
that psychiatric injury could be classified as ABH under s. 20.
- Lord Steyn extended the Chan Fook judgement, stating that in considering whether psychiatric
illness can amount to bodily harm for s. 18, s. 20 and s. 47 of the OAPA, ‘the answer must be the
same’ ([156]).
- Notably, it was viewed as necessary for public policy reasons that the law ought to provide
recourse to women suffering from malicious harassment by former and unrequited lovers.
Moreover, in interpreting the word ‘inflict’ in s. 20, the Court determined it did not require the
application of physical force, but instead could be understood as simply meaning the
defendant’s actions had been causative of the injury. Subsequently, the defendant was found
guilty of assault.

Defences

1. Doctors

● The doctor satisfies the AR of murder as they conduct is prescribing drugs that accelerate the
patient's death ( causing death includes doing acts that accelerates the death )
● The shortening of life is a virtually certain consequence of that conduct and the doctors
knowledge of this is likely to amount to an oblique intention to kill

Adams ( 1957 ) crim LR 365

- A doctor was charged with murder having eased the passing of several patients including V with
strong pain relief drugs

- Crown court: not guilty. No defence for doctors but that he entitled to do all that is proper to
relieve pain and suffering even if measures he takes may shorten life
- The doctrine of double effect ( intentionally causing a harmful result can be morally defensible
where it is a side effect of promoting a good end as the dominant aim )

Partial defences

● If satisfied liability will be reduced to voluntary manslaughter

● Loss of self control: D kills V out of control owing to fear of serious violence / other circumstances
giving her a justifiable sense of being seriously wronged where a reasonable person would have
done the same
● Diminished responsibility: D’s recognised condition led to an abnormality of mental functioning
and impaired her capacity to understand the nature of her conduct causing her to kill
● Suicide pact: D kills V in pursuance of an agreement that they will both die together
Criticism:
● Death penalty removed but should be replaced with some comparable level of punishment ( life
sentence etc )
● Narrowing the definition of murder
● ‘Goff’ it seems strange that a man should be called a murderer even though not only did he not
intent to kill V but he may even have intended that he should not die

Levels of murder: recommendations

1. First degree: where D kills with the intention to kill to cause injury where D knows that the
conduct may cause death
2. Second degree: where D kills with the intention to cause injury or with the intention to cause
injury or fear where D was aware that her conduct involved a serious risk of causing death
3. Manslaughter: involuntary manslaughter