Topic 2

MurderTopic 2

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.