Criminal Law; Homocide - Murder and Voluntary Manslaughter
Murder;
- Murder is a common Law Offence
- Historical origin
“Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of
the realm of any reasonable creature in rerum natura under the kings reace, with malice aforethought…”
(Edward Coke, Chief Justice (1549 - 1633)
Elements of murder;
- Unlawful
- Killing
- Person in being
- Under the queen's peace
- Malice aforethought (Intention to kill - intention to commit GBH)
Murder carries a mandatory life sentence.
Actus Reus
- Unlawfully cause death
- Need to be able to establish both legal and factual causation
- Person in being
- Raises questions about the beginning and end of life
- Under the queen's peace
Spotlight on “person in being”
When does life begin
Established by the ECtHR that life begins at birth
However, killing a foetus may amount to another offence
Attorney generals reference (No.3 of 1994) [1997]
Defendant stabbed a pregnant woman which caused her to give birth prematurely to baby S
Baby dies after 4 months - had been wounded by stabbing, but not clear if would contribute to their death
Could not be charged with murder of foetus. But could constitute involuntary manslaughter
When does life end?
- Law accepts medical definition of death
Additional points from AG’s reference (No.3 of 1994)
1) It is enough that the defendant carried out an act that caused death with the intention to kill or cause
GBH
2) If a defendant carries out this act against X, but is unintentionally applied to Y, the doctrine of
transferred malice applies (Cited R v Latimer)
3) A Foetus cannot be a murder victim and killing a foetus in the womb is not murder
4) The delay between the defendants act and the death does not prevent prosecution, as long as
causation can be established
5) Violence towards a foetus that has subsequently been born and died as a result can still give rise to
criminal liability
Murder and Omission - Causation
A defendant is not liable for his omissions, BUT there are exceptions to this
- R v Gibbons and Proctor (19118)
- R v Pagett (1983)
The actus reus can also happen indirectly
- R v Michael (1840)
You need to discuss and apply the normal causation rules to establish murder, this includes;
, - Factual causation
- Legal causation and novus actus interveniens
Certain omissions can be considered a defence for medical professions
Think of Airedale NHS Trust v Bland [1993]
- Doctors’ application to turn off life support machine for patient who had been in persistent vegetative
state for more than two years
- HL held - was within the doctors power to decide what was in the best interests of the patient
- Found that doctors withholding life saving treatment was lawful
- The doctors actions were an omission
- Court application made their actions lawful
- This demonstrates some of the grey areas surrounding life and death, and positive act and omission.
Mens Rea - Malic Aforethought
Only an intention to kill or cause GBH will suffice
Intention;
- Direct intention
The action/ consequences was the defendants aim and purpose
- Indirect intention
The defendant did not have the aim and purpose of carrying out the prohibited actions/achieving prohibited
consequences
BUT
The prohibited outcome was virtually certain (Woolin , Nedrick)
Murder and unintended outcomes
R v Maloney (1985)
Defendant shot stepfather dead after consuming a lot of alcohol - shot him in a drunken contest, believing he
was going to miss.
Question; did the defendant have indirect intention to kill?
The judge needs to leave issues of intention to the jury
Where direction is needed, two questions need to be asked in order to find intention
Was the death a natural consequence of the defendant's voluntary act?
Did the defendant see the consequences as a natural result of their actions?
In this case, the murder conviction was substituted for manslaughter.
Inevitable consequences; Re A (children) (Conjoined Twins; Surgical Separation) [2001]
- Conjoined twins - joined at the lower abdomen
- One twin was bright and alert but the other incapable of independent living
- Parents refused to consent to separation operation - it would save twin one, but end the life of twin two
- Doctors’ actions would be lawful, even though the operation would inevitably end the life of one of the
children
- Held - The medical staff did not have a guilty intention (Could rely on the defence of necessity)
Voluntary Manslaughter - A Background
- Situation arises where the defendant has satisfied requirements of murder, but circumstances lessen
culpability
- Important - removes mandatory life sentence
- Prior to the coroners and justice act 2009, defendants could rely on partial defence - Provocation OR
diminished responsibility
- Coroners and justice act 2009 abolished provocation and replaced with loss of control
- These defences are specific to murder
- R v Dunbar [1958] - burden of proof is reversed.
Murder;
- Murder is a common Law Offence
- Historical origin
“Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of
the realm of any reasonable creature in rerum natura under the kings reace, with malice aforethought…”
(Edward Coke, Chief Justice (1549 - 1633)
Elements of murder;
- Unlawful
- Killing
- Person in being
- Under the queen's peace
- Malice aforethought (Intention to kill - intention to commit GBH)
Murder carries a mandatory life sentence.
Actus Reus
- Unlawfully cause death
- Need to be able to establish both legal and factual causation
- Person in being
- Raises questions about the beginning and end of life
- Under the queen's peace
Spotlight on “person in being”
When does life begin
Established by the ECtHR that life begins at birth
However, killing a foetus may amount to another offence
Attorney generals reference (No.3 of 1994) [1997]
Defendant stabbed a pregnant woman which caused her to give birth prematurely to baby S
Baby dies after 4 months - had been wounded by stabbing, but not clear if would contribute to their death
Could not be charged with murder of foetus. But could constitute involuntary manslaughter
When does life end?
- Law accepts medical definition of death
Additional points from AG’s reference (No.3 of 1994)
1) It is enough that the defendant carried out an act that caused death with the intention to kill or cause
GBH
2) If a defendant carries out this act against X, but is unintentionally applied to Y, the doctrine of
transferred malice applies (Cited R v Latimer)
3) A Foetus cannot be a murder victim and killing a foetus in the womb is not murder
4) The delay between the defendants act and the death does not prevent prosecution, as long as
causation can be established
5) Violence towards a foetus that has subsequently been born and died as a result can still give rise to
criminal liability
Murder and Omission - Causation
A defendant is not liable for his omissions, BUT there are exceptions to this
- R v Gibbons and Proctor (19118)
- R v Pagett (1983)
The actus reus can also happen indirectly
- R v Michael (1840)
You need to discuss and apply the normal causation rules to establish murder, this includes;
, - Factual causation
- Legal causation and novus actus interveniens
Certain omissions can be considered a defence for medical professions
Think of Airedale NHS Trust v Bland [1993]
- Doctors’ application to turn off life support machine for patient who had been in persistent vegetative
state for more than two years
- HL held - was within the doctors power to decide what was in the best interests of the patient
- Found that doctors withholding life saving treatment was lawful
- The doctors actions were an omission
- Court application made their actions lawful
- This demonstrates some of the grey areas surrounding life and death, and positive act and omission.
Mens Rea - Malic Aforethought
Only an intention to kill or cause GBH will suffice
Intention;
- Direct intention
The action/ consequences was the defendants aim and purpose
- Indirect intention
The defendant did not have the aim and purpose of carrying out the prohibited actions/achieving prohibited
consequences
BUT
The prohibited outcome was virtually certain (Woolin , Nedrick)
Murder and unintended outcomes
R v Maloney (1985)
Defendant shot stepfather dead after consuming a lot of alcohol - shot him in a drunken contest, believing he
was going to miss.
Question; did the defendant have indirect intention to kill?
The judge needs to leave issues of intention to the jury
Where direction is needed, two questions need to be asked in order to find intention
Was the death a natural consequence of the defendant's voluntary act?
Did the defendant see the consequences as a natural result of their actions?
In this case, the murder conviction was substituted for manslaughter.
Inevitable consequences; Re A (children) (Conjoined Twins; Surgical Separation) [2001]
- Conjoined twins - joined at the lower abdomen
- One twin was bright and alert but the other incapable of independent living
- Parents refused to consent to separation operation - it would save twin one, but end the life of twin two
- Doctors’ actions would be lawful, even though the operation would inevitably end the life of one of the
children
- Held - The medical staff did not have a guilty intention (Could rely on the defence of necessity)
Voluntary Manslaughter - A Background
- Situation arises where the defendant has satisfied requirements of murder, but circumstances lessen
culpability
- Important - removes mandatory life sentence
- Prior to the coroners and justice act 2009, defendants could rely on partial defence - Provocation OR
diminished responsibility
- Coroners and justice act 2009 abolished provocation and replaced with loss of control
- These defences are specific to murder
- R v Dunbar [1958] - burden of proof is reversed.
