HOMICIDE 1: MURDER AND THE MANDATORY LIFE
SENTENCE
1. Some definitions
• ‘Homicide’ – generic term means the act of a human being killing another
• …but not all homicides are unlawful
• Two principal homicide offences:
• Murder (most serious - where D kills V and at the time D either intends to kill V or
intends to cause V GBH)
• Manslaughter (where D kills V but D had no intention to kill or cause GBH – or
where it is an alternative lesser offence through operation of a specific defence)
• Manslaughter:
• voluntary – killings that would be murder but for existence of extenuating
circumstances
• involuntary – killings where D does not intent to kill / cause GBH, but sufficient fault
to justify criminal liability
2. MURDER
• Common law offence
Sir Edward Coke, Chief Justice from the early 1600s:
“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, either expressed by the party or implied by
law …” Coke, E, Institutes of the Laws of England, vol. 3, 47 (1641)
• Recall the criminal equation:
• AR + MR + no defence = guilt
• Translate Coke’s definition:
• AR – unlawfully causing the death + of a person + ‘in being’ + in peacetime
• MR – with an intention to kill OR to cause GBH
• Absence of defence – must be ‘unlawful’
3. The actus reus for murder:
(i) D unlawfully causes V’s death
• ‘Unlawfully’
• No legal justification or excuse (e.g. self defence)
• ‘Causing’
, • See previous lectures on causation
• Factual causation: but for D’s actions, V would not have died (R v Whyte)
• Legal causation: Key Q - were D’s acts a ‘substantial and operating cause’
of V’s death
• Chain of causation can be broken by actions of a third party (if ‘free,
voluntary and informed’) or actions of V himself
• Caselaw on causation:
• Smith [1959] 2 QB 35 (fight in barracks: D stabbed V multiple times, V dropped on
way to medical treatment, which was delayed…wouldn’t have died had he been
treated promptly. Guilty: wounds substantial and operating cause of death)
• Jordan (1956) 40 Cr App R 152 (D stabbed V, nearly recovered in hospital, but died
after allergic reaction to antibiotics and wrongly given excessive fluids: NOT Guilty,
medical treatment ‘palpably wrong’…death not caused by D’s actions)
• Cheshire [1991] 3 All ER 670 (D shot V in a chip shop. Tracheotomy performed
poorly, 6 weeks later D suffered breathing probs, died: Guilty: D’s actions need not
be sole or even main cause of death – as long as D’s acts significantly contributed.
Medical negligence did not render D’s own actions in shooting V insignificant)
• Blaue [1975] 3 All ER 446 (Jehovah’s witness who refused a blood transfusion
having been stabbed: Conviction for manslaughter upheld on appeal – refusal to
accept transfusion did not break chain of causation: D must take V as he finds her,
wound a substantial and operating cause)
• Malcharek [1981] 1 WLR 690: switching off a life-support machine (on appropriate
medical grounds) to a patient who is already ‘brain dead’ does not render the medical
staff liable for a homicide conviction
See also Re A [2000] 4 All ER 961: whether Article 2 ECHR would be infringed if an
operation to separate conjoined twins would result in the certain death of one of those
twins.
(ii) the victim must be ‘a person in being’
• Capable of independent existence from mother: R v Poulton (183 5 C & P 349)
• End of life (lack of brain stem activity: Re A (A Minor) [1992] 3 Med LR 303)
(iii) The King’s Peace
• Committed in peacetime, not in war
NB: Law Reform (Year and a Day Rule) Act 1996 abolition of earlier rule. No longer
any time limit.
4. The Mens Rea for murder
• Historically – D’s mental state for murder = “malice aforethought”
• BUT now – either intention to kill OR to cause grievous bodily harm
• ‘Intention’ - either be direct or indirect (oblique) - key cases…
SENTENCE
1. Some definitions
• ‘Homicide’ – generic term means the act of a human being killing another
• …but not all homicides are unlawful
• Two principal homicide offences:
• Murder (most serious - where D kills V and at the time D either intends to kill V or
intends to cause V GBH)
• Manslaughter (where D kills V but D had no intention to kill or cause GBH – or
where it is an alternative lesser offence through operation of a specific defence)
• Manslaughter:
• voluntary – killings that would be murder but for existence of extenuating
circumstances
• involuntary – killings where D does not intent to kill / cause GBH, but sufficient fault
to justify criminal liability
2. MURDER
• Common law offence
Sir Edward Coke, Chief Justice from the early 1600s:
“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, either expressed by the party or implied by
law …” Coke, E, Institutes of the Laws of England, vol. 3, 47 (1641)
• Recall the criminal equation:
• AR + MR + no defence = guilt
• Translate Coke’s definition:
• AR – unlawfully causing the death + of a person + ‘in being’ + in peacetime
• MR – with an intention to kill OR to cause GBH
• Absence of defence – must be ‘unlawful’
3. The actus reus for murder:
(i) D unlawfully causes V’s death
• ‘Unlawfully’
• No legal justification or excuse (e.g. self defence)
• ‘Causing’
, • See previous lectures on causation
• Factual causation: but for D’s actions, V would not have died (R v Whyte)
• Legal causation: Key Q - were D’s acts a ‘substantial and operating cause’
of V’s death
• Chain of causation can be broken by actions of a third party (if ‘free,
voluntary and informed’) or actions of V himself
• Caselaw on causation:
• Smith [1959] 2 QB 35 (fight in barracks: D stabbed V multiple times, V dropped on
way to medical treatment, which was delayed…wouldn’t have died had he been
treated promptly. Guilty: wounds substantial and operating cause of death)
• Jordan (1956) 40 Cr App R 152 (D stabbed V, nearly recovered in hospital, but died
after allergic reaction to antibiotics and wrongly given excessive fluids: NOT Guilty,
medical treatment ‘palpably wrong’…death not caused by D’s actions)
• Cheshire [1991] 3 All ER 670 (D shot V in a chip shop. Tracheotomy performed
poorly, 6 weeks later D suffered breathing probs, died: Guilty: D’s actions need not
be sole or even main cause of death – as long as D’s acts significantly contributed.
Medical negligence did not render D’s own actions in shooting V insignificant)
• Blaue [1975] 3 All ER 446 (Jehovah’s witness who refused a blood transfusion
having been stabbed: Conviction for manslaughter upheld on appeal – refusal to
accept transfusion did not break chain of causation: D must take V as he finds her,
wound a substantial and operating cause)
• Malcharek [1981] 1 WLR 690: switching off a life-support machine (on appropriate
medical grounds) to a patient who is already ‘brain dead’ does not render the medical
staff liable for a homicide conviction
See also Re A [2000] 4 All ER 961: whether Article 2 ECHR would be infringed if an
operation to separate conjoined twins would result in the certain death of one of those
twins.
(ii) the victim must be ‘a person in being’
• Capable of independent existence from mother: R v Poulton (183 5 C & P 349)
• End of life (lack of brain stem activity: Re A (A Minor) [1992] 3 Med LR 303)
(iii) The King’s Peace
• Committed in peacetime, not in war
NB: Law Reform (Year and a Day Rule) Act 1996 abolition of earlier rule. No longer
any time limit.
4. The Mens Rea for murder
• Historically – D’s mental state for murder = “malice aforethought”
• BUT now – either intention to kill OR to cause grievous bodily harm
• ‘Intention’ - either be direct or indirect (oblique) - key cases…
