Murder Lecture

Definition of Murder

The definition of murder, although adapted to be relevant in a modern context, remains as that
set out by Sir Edward Coke. Murder occurs, therefore, where a person unlawfully kills any
reasonable creature in rerum natura under the Queen’s peace with malice aforethought (Coke’s
Institutes, 3 Co Inst 47).

The actus reus of murder therefore requires the unlawful killing of any reasonable creature in
rerum natura under the Queen’s peace. The mens rea, malice aforethought.

Unlawful Killing

Killing means causing death and the approach in establishing the existence of this element is the
same as that discussed in relation to causation. The killing will be unlawful unless there is some
justification for it, such as self-defence.

Airedale NHS Trust v Bland [1993] AC 789

In this judgment, permission of the court was sought for the withdrawal of life saving treatment
from a patient. It was held that there is a distinction between withdrawing treatment that may
sustain life in the patient’s best interest and actively administering a drug that might bring about
the patient’s death. The latter would be murder, the former would not.

R v Inglis [2011] 1 WLR 1110

In this case, a mother deliberately killed her terminally ill son by injecting him with heroin.
Following Bland the fact that the mother saw her actions as an act of mercy was irrelevant.
Mercy killing was and is unlawful and therefore the mother was liable for her son’s murder.

It used to be the case that where death occurred beyond a year and a day following the acts of the
defendant, no conviction for murder could be brought. This was known as the ‘year and a day
rule’ and was abolished by the provisions of the Law Reform (Year and a Day Rule) Act 1996
for all acts committed after 17th June 1996. However, section 2 of the 1996 Act provides that
permission must be obtained from the Attorney-General before a prosecution can be brought
where the act of the defendant occurred more than three years before the death of the victim.

Any Reasonable Creature in Rerum Natura (in nature)

This element is most simply defined as any human being. A baby does not fulfil these
requirements until it has been fully born. Unborn foetuses, however advanced in their
development and close to birth, cannot be murdered (A-G’s Ref (No 3 of 1994) [1997] 3 WLR
421). Although murder can occur if it is possible to show that the defendant intended to kill the
mother and that they also intended that the child should die soon after being born. In R v
Poulton(1832) 5 C & P 329 it was held that a baby would not satisfy the requirement of being
born until fully expelled from it mother. It is however necessary that, even if fully expelled, the
baby must exist separate from its mother, even if just briefly (R v Crutchley(1837) 7 C & P 814).
In other words, the baby must be alive as a distinct individual before it can be murdered.
However, as mentioned above, the act that causes the baby’s death can occur whilst it is still in
utero providing that it lives independently briefly before dying.
Under the Queen’s Peace

It is recognised that this term may have had a specific meaning in Coke’s time that has been lost
in the subsequent period (R v Page [1954] 1 QB 170). In a modern context, section 9 of the
Offences Against the Person Act 1861 provides that where a person is killed, whether or not they
are one of the Queen’s subjects, by a subject of the Queen outside of Her jurisdiction - that is
anywhere other than England or Wales - they can be tried and convicted in England or Wales.
This section applies to where the entire actus reus takes place abroad (the act causing the death
and the death itself). Where only one part of the actus reus takes place abroad, section 10 of the
1861 Act applies. This section removes the requirement for the defendant to be a subject of the
Queen. Although the provision suggests that an act committed by a foreigner abroad may render
them liable to the English courts if the death occurs in England, it seems that this is not the case
(R v Lewis(1857) Dears & B 182), although it does seem that an act committed in England and a
subsequent death abroad makes the defendant liable in England.

Malice Aforethought

Malice aforethought means an intention to kill or cause grievous bodily harm (R v

Cunningham [1982] AC 566, A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421). On the basis of the
proper definition, the term malice aforethought is misleading because it suggests elements of
both ill will against a victim and some degree of premeditation; neither are required.

The requirements of intention have been discussed in detail in relation to mens rea in general
and will not be repeated here. It should be noted that because murder is an offence of specific
intent, the discussions in relation to virtual certainty for intention are extremely relevant. It is
murder cases where the greatest likelihood of a jury being asked to consider whether intention
can be found is likely to arise.

Grievous bodily harm is given the same meaning as under section 20 of the Offences Against the
Person Act 1861. This means that an intention to cause really serious harm (DPP v Smith [1961]
AC 290) is required. It is not necessary for the harm foreseen or intended by the defendant to be
harm that may endanger life. Therefore, a defendant who intends to break a victim’s arm, but
holds no intention to kill, will be liable for murder (Cunningham). It has been suggested that this
is an overly harsh approach (see Lord Edmund-Davies in Cunningham at 582 - 583; and see
also R v Powell and English [1997] 3 WLR 959 where it was held that a person who only
intended to cause grievous bodily harm, whilst being a murderer for the purposes of conviction,
was not really one), but the position remains good law.

It is not necessary for a defendant to intend to kill the particular victim; the doctrine of
transferred malice applies to murder. Furthermore, where a defendant does not intend the death
of any particular victim, but simply intends to kill a random group of individuals in a terrorist
attack, for example, they will be liable under what is known as general malice and will satisfy
the mens rea for murder (A-G’s Ref (No 3 of 1994)).

The Mandatory Life Sentence

The mandatory sentence for murder is life imprisonment (Murder (Abolition of the Death
Penalty) Act 1965, s 1(1)). Whilst this reflects the fact that murder is a very serious offence, it
should be noted that numerous judgments have suggested that the sentence should be more open
to judicial discretion. In R v Howe [1987] AC 417, for example, Lord Hailsham suggested that
whilst murder was indeed a heinous offence, the mandatory sentence failed to recognise the
possible degrees of culpability of the defendant, ranging from brutal or repeat offenders to
offences that are nothing more than mercy killings of a loved one.

Examination Consideration

It is possible that you may be asked to consider the nature of murder as a general offence in
relation to the efficacy of the particular elements. You should be aware of the limitations placed
on the ability to find intent, and the process of doing so, previously considered in the chapter
on mens rea. You should also consider the position in respect of grievous bodily harm being
sufficient to make a defendant liable for murder, and whether you think that this is appropriate. It
may also be relevant in respect of mens rea that limitations should be placed on finding intent
because of the mandatory life sentence. Is it important, in this context, that a defendant should
only face a life sentence where they intended to kill, or is an intention to cause grievous bodily
harm sufficient? Is simply being virtually certain of the harm enough?

Partial Defences to Murder

There are three specific defences that apply only to murder: loss of control (which now replaces
the common law defence of provocation); diminished responsibility; and killing in pursuance of
a suicide pact. Although these are termed defences, they are not defences in an absolute sense, in
that they only provide a partial defence to murder and will make the defendant liable in voluntary
manslaughter. It is appropriate to discuss these offences/defences here because of their
relationship to murder, but it is important to note that they are technically defined as
manslaughter, although they are not stand alone defences. In other words, a defendant cannot be
liable for voluntary manslaughter, but may be found liable if the circumstances allow, following
a charge of murder and a subsequent plea to manslaughter. If the plea is accepted, sentence is
passed on the basis of manslaughter (and avoids the mandatory life sentence for murder). If the
prosecution does not accept the plea, the matter becomes one for the jury.

It is important to be aware that for cases prior to 4 th October 2010 a different regime existed in
respect of loss of control and diminished responsibility. Whilst it is possible that cases may still
pass through the courts where the crime was committed prior to this date, the passage of time
makes it increasingly less likely that the old law would be examined unless it has been expressly
studied. The discussion here, therefore, will deal only with the law post 4th October 2010.

Diminished Responsibility

Section 2 of the Homicide Act 1957 provides that:

1. A person (‘D’) who kills or is a party to the killing of another is not to be convicted of
murder if D was suffering from an abnormality of mental functioning which -

1. arose out of a recognised medical condition,

2. substantially impaired D’s ability to do one or more of the things mentioned in subsection
(1A), and
3. provides an explanation for D’s acts and omissions in doing or being a party to the
killing.

(1A) Those things are -

1. the understand the nature of D’s conduct;

2. to form a rational judgment;
3. to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning

provides an explanation for D’s conduct if it causes, or is a significant contributory factor in
causing, D to carry out that conduct.

The effect of the section is to require four elements to be made out by the defendant if they wish
to demonstrate diminished responsibility:

 The defendant must be suffering from an abnormality of mental functioning;

 The abnormality must arise from a recognised medical condition;
 The abnormality must substantially impair the defendant’s ability to understand the
nature of their conduct, form a rational judgment or exercise self-control;
 The abnormality will provide an explanation for the defendant’s conduct if it is a
substantial contributory factor.
Abnormality of Mental Functioning - Recognised Medical Condition

Although the abnormality of mental functioning must arise from a recognised medical condition,
it does not follow that the existence of a recognised medical condition will be accepted as
demonstrating the existence of an abnormality of mental functioning. In R v Dowds [2012] 3 All
ER 154, it was stated that certain conditions that fall within the description of medically
recognised would be unlikely to be accepted by the courts as a basis for a plea of diminished
responsibility. Unhappiness, irritability and anger, and paedophilia were cited in judgment as
examples of such conditions (at paragraph [31]). Furthermore, although alcohol intoxication is a
recognised medical condition in a technical sense, it cannot be the basis of a diminished
responsibility plea (R v Wood [2008] EWCA Crim 1305) unless the defendant suffers from
alcoholism or alcohol dependency (R v Stewart [2009] EWCA Crim 593).

It appears that in the context of both requirements (save for alcohol dependency) that the matter
will always be a question of fact. It is firstly necessary to consider whether, as a question of fact,
the condition is a medically recognised one. This will be relatively simple in most cases. It is
then necessary to consider whether this condition gave rise to an abnormality of mental
functioning. This is a question that is likely to require expert evidence in order to be determined.
The question of whether this expert evidence is accepted, of course, is ultimately one for the
jury. Therefore, even if the trial judge is uncomfortable with a particular medical condition being
cited as a basis for the defence, if the jury accept that the condition gave rise to an abnormality of
mental functioning, the defence will satisfy the required elements.

Substantial Impairment

The existence of the abnormality of mental functioning must have the effect of substantially
impairing the defendant’s ability to understand the nature of their conduct, form a rational
judgment or exercise self-control. This, once again, is a question of fact and will almost
inevitably require medical evidence to demonstrate whether one of the three requirements is in
fact substantially impaired (R v Bunch [2013] EWCA Crim 2498).

The issue in respect of what constitutes a substantial impairment is not settled. It was initially
considered that the term substantial, in line with much of the criminal law, meant anything more
than minimal (R v Brown [2011] EWCA Crim 279). However, in R v Golds [2014] 4 All ER 64
it was held that this was not the case, and that the matter of what was or was not substantial was
a question for the jury, but that if some form of direction was required this should be more
restrictive on the basis that whilst a minimal impairment might exist, it may be the case that such
an impairment was not something that made any really great difference. The question of whether
a direction was required at all and, if it was, whether the jury should be directed that ‘substantial’
meant more than minimal or whether it meant something else was heard by the Supreme Court
on 14th June 2016. At the time of writing (August 2016) judgment has not been given and
therefore, the issue remains unanswered.

Examination Consideration

Any answer given in relation to diminished responsibility is likely to be coloured by the Supreme
Court decision in R v Golds. It is imperative, because the impact of this judgment will not be
found in any textbooks for a period of time, that the legal databases are checked prior to
answering the question in order to ascertain the full extent of the law. If the judgment has not
been given at the time of any examination or coursework question, marks will invariably be
gained by being aware of it and by stating that the position is unclear. It should be noted
however, until the Supreme Court judgment is given, that the Court of Appeal judgment in R v
Golds is good law - no explanation of the term substantial need be given to the jury.
Provides an Explanation for the Defendant’s Acts or Omissions

This provision, once again, appears purely as a question for the jury but, although the matter has
yet to be litigated in isolation, it seems possible that difficulties in interpretation may occur. This
is because section 2(1B) allows for the abnormality of mental functioning to be a significant
contributory factor in causing the defendant’s conduct. It does not therefore to be a sole
contributing factor. Therefore, where other factors will inevitably contribute, the issue of the
degree of contribution that should be attributed to the abnormality of mental functioning, as an
explanation for the defendant’s conduct, is unclear. In other words, where the defendant would
have killed without the abnormality of mental functioning, even if this caused a substantial
impairment, a plea of diminished responsibility is unlikely to succeed. However, where they may
have still killed, but might not have done so, and where the abnormality of mental functioning
provides a partial or potential reason why they have killed, the issue is far less clear. In this
context, it is open for the jury to decide by degree whether they believe that the impairment
caused by the abnormality is sufficiently substantial to provide an explanation.

Loss of Control

Section 54 of the Coroners and Justice Act 2009 provides that:

1. Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be
convicted of murder if -

1. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of
self-control,
2. The loss of self-control had a qualifying trigger, and
3. A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in
the circumstances of D, might have reacted in the same or in a similar way to D.

2. For the purposes of subsection (1)(a), it does not matter whether or not the loss of control
was sudden.
3. In subsection (1)(c) the reference to ‘the circumstances of D’ is a reference to all of D’s
circumstances other than those whose only relevance to D’s conduct is that they bear on
D’s general capacity for tolerance or self-restraint.

Section 55 goes on to provide that:

2. A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
3. This subsection applies if D’s loss of self-control was attributable to D’s fear of serious
violence from V against D or another identified person.
4. This subsection applies if D’s loss of self-control was attributable to a thing or things
done or said (or both) which -

1. constitute circumstances of an extremely grave character, and

2. caused D to have a justifiable sense of being seriously wronged.

5. This subsection applies if D’s loss of self-control was attributable to a combination of the
matters mentioned in subsections (3) and (4).
6. In determining whether a loss of self-control had a qualifying trigger -

1. D’s fear of serious violence is to be disregarded to the extent that it was caused by
a thing which D incited to be done or said for the purpose of providing an excuse
to use violence;
2. A sense of being seriously wronged by a thing done or said is not justifiable if D
incited the thing to be done or said for the purpose of providing an excuse to use
violence;
3. That fact that a thing done or said constituted sexual infidelity is to be
disregarded.

There are, with certain exceptions, three elements to be satisfied in order for loss of control to be
successfully pleaded:
  The defendant must demonstrate that they killed as a result of a loss of self-control;
 That the loss of self-control had a qualifying trigger;
 That a person of the same age and sex of the defendant, with an ordinary degree of
tolerance and in the same circumstances as the defendant would have acted as the
defendant did.

Killing Results from the Loss of Self-control

Whilst it appears simple to recognise whether a killing results from a loss of self-control, two
specific elements are a little unclear. In the first instance, section 54(2) provides that the loss of
self-control need not be sudden. This reflects the position under the old law (R v
Ahluwalia [1992] 4 All ER 889) where it was held that ‘sudden’ did not mean immediate, and
therefore a delayed loss of self-control could allow the defence. It is unclear whether the removal
of the requirement of suddenness takes the matter further, or whether it is simply a reflection of
the old law. The difficulty in this context is that a distinction must be drawn between a non-
sudden loss of self-control and a planned action. Section 54(4) provides that actions motivated
by revenge do not fall within the concept of a loss of self-control (see also R v Clinton [2012] 2
All ER 497), but it is unclear where the line falls between premeditation and later or subsequent
anger that constitutes a loss of self-control. Under the provisions, it is perfectly possible for the
defence to be pleaded where the loss of self-control occurs a significant period after the
qualifying trigger on the basis that the defendant became angry about the qualifying trigger only
at that time.

It is also unclear from the provisions whether the loss of self-control must be total, or whether a
partial loss will suffice. The Court of Appeal declined to address this point in R v
Gurpinar [2015] 1 Cr App R 464 on the basis that the case could be decided on other points.
Therefore, it is unclear whether a qualifying trigger that diminishes, without total loss, a
defendant’s self-control will allow the defence to be pleaded.

Qualifying Triggers

The first qualifying trigger, the fear of serious violence against the defendant or another, is
relatively self-explanatory and will necessarily be a question of fact. It is of note that this
defence, in contrast to the total defence of self-defence, removes the need for proportionality
from the defendant’s actions. It is implicit in this context that the defendant’s use of force against
the victim was not proportionate because they lost self-control. Section 55(6) has the practical
effect of preventing a defendant from pleading loss of control where they have incited the
violence that causes them to lose self-control.

The second qualifying trigger has a limiting effect on the ability to be able to plead the defence
in that the thing done or said must be both of an extremely grave character, and cause the
defendant to have a justifiable sense of being seriously wronged. In other words, the defence
requires not only the grave character of the thing said or done but, additionally, the requirement
for the defendant to have a sense of being seriously wronged, with whether this is justifiable in
the circumstances being a question for the jury. The important point in this context that it is
irrelevant that a jury may consider the thing said and done to be of an extremely grave character
if the defendant does not have a justifiable sense of being seriously wronged; both elements are
essential to the defence. The same limitations in respect of inciting the thing done or said apply
to this trigger as apply in relation to the fear of violence trigger (s. 55(6)(b)).

Examination Consideration

It is possible that an examination question may focus on the provisions of section 55(6)(c). This
is because, in addition to the practical consideration of what exactly constitutes sexual infidelity,
the question of the impact of this section has been subject to difficulties in interpretation.

Case in focus R v Clinton [2012] 2 All ER 497

The defendant killed his wife after she informed him in graphic detail about her sexual infidelity
with 5 other men. His wife also taunted him about the fact that he was considering suicide, but
had failed to go through with it. She additionally told him that she no longer wanted their
children.
At first instance the defence of loss of control was not put to the jury because it was held that
section 55(6)(c) prevented it from being so because of the presence of the wife’s sexual
infidelity. In the Court of Appeal, the huge difficulty in interpreting section 55(6)(c) was
recognised but it was held that the fact that sexual infidelity cannot be considered a qualifying
trigger alone does not prevent it falling within the something done or said of a grave character
qualifying trigger. If for example, the type of infidelity was sufficiently grave to satisfy section
55(4), section 55(6)(c) would not automatically preclude the defence. Where sexual infidelity
provided the context for the loss of control based on another qualifying trigger, the presence of
sexual fidelity should not remove the defence. It is only if sexual infidelity was the only reason
for the loss of self-control that the limitation would apply. If another reason existed, providing
this satisfied the qualifying trigger requirements, the fact that sexual infidelity was also a reason
would not prevent the defence from being pleaded.

Normal Degree of Tolerance and Self-restraint

The test that is applied under this provisions is both objective and subjective. The first, objective,
element is a consideration of the degree of tolerance and self-restraint of a normal person of the
same age and sex as the defendant. Then the subjective circumstances of the defendant must be
applied. Section 54(3) provides that these circumstances cannot relate to the defendant’s general
capacity for tolerance or self-restraint. This means that a defendant cannot attempt to assert that
they are just more short tempered than an ordinary person and therefore more likely to lose self-
control. However, this section does not preclude the application of the circumstances to the other
elements of the defendant’s character. Therefore, if an action is likely to have a graver impact on
the defendant than an ordinary person without a particular characteristic of the defendant, the
defendant’s loss of self-control may be reasonable in that circumstance. This means that it is not
only the defendant’s age and sex that is a relevant characteristic, but any particular characteristic,
save a general incapacity for tolerance, may be relevant.

The final requirement under this head, is that the jury must be satisfied that an ordinary person
would have acted as the defendant did in these circumstances. This suggests that the type of
action carried out by the defendant is relevant. In other words, once it has been established that
the defendant reasonably lost self-control in the circumstances, the defence may still fail if the
jury believes that the defendant’s actions, despite the loss of self-control, are beyond what a
reasonable person would have done in the circumstances. The existence of the loss of self-
control, even if reasonable, is not sufficient to allow the defence to succeed.

Burden of Proof

The initial burden lies with the defendant to provide sufficient evidence that the defence may
arise. The burden then shifts to the prosecution to demonstrate on the usual criminal standard
(the jury must be sure) that the defendant did not kill as a result of a loss of self-control subject to
the provisions of the Act.

Examination Consideration

It is clear to see that there is a great deal of scope for discussion in the area of these two partial
defences. Problem questions may simply focus on whether a defence is available on the facts, but
it is also possible that they will be left open to interpretation regarding the relatively new
provisions and therefore a more discursive approach may be necessary. The difficulties in respect
of sexual infidelity as a qualifying trigger being of particular relevance to this point.

Killing Subject to a Suicide Pact

Section 4 of the Homicide Act 1957 provides that a person will be guilty of manslaughter, not
murder, if they are able to demonstrate that they killed another or caused another to be killed in
pursuance of a suicide pact. A suicide pact is defined by section 4(3) as an agreement between 2
or more people that the result of their actions should be the death of all of them.

In order for this defence to be successfully pleaded, not only must the defendant prove on the
ordinary criminal standard, that they were part of a suicide pact, but also that at the time that they
killed the victim they intended to die. The effect is clearly very limiting. However, a defendant
who, for example, administers an overdose to another, then takes one themselves, but lives may
be able to succeed in this defence.