CRIMINAL LAW 2

Offence of Murder
 FATAL OFFENCES

• The first topic we would be considering under Fatal

Offences  is the offence of Murder. 
• The offence of murder is the most culpable form of
homicide, and occurs where any ‘reasonable
creature in rerum natura’ unlawfully kills any person
under the Queen’s (King's) peace with malice
aforethought. 
• It also overlaps with the offence of manslaughter, in
sharing a common actus reus.
• At the completion of the lecture, you should be
comfortable with being able to define and identify the
actus reus and mens rea of the offence of murder. 
• You should have an understanding of the ‘partial
defences’ that allow the defendant to escape liability for
murder, but renders them liable under voluntary
manslaughter.
• This section begins by giving a comprehensive
explanation of the various components of the offence of
murder. It then explores the three partial defences:
Diminished Responsibility; Loss of Control; and
Killing Subject to a Suicide Pact.
 GOALS OF THE SECTION

1. To understand the various actus reus and mens

rea components of the offence of murder.
2. To appreciate the mandatory life sentence
imposed for the offence of murder.
3. To understand the various partial defences to the
offence of murder.
 OBJECTIVES OF THIS SECTION

• To be able to define murder.

• To be able to separate and understand the actus reus requirements of the
offence.
• To be able to understand the mens rea requirement of the offence.
• To be able to discuss the mandatory sentence for murder as being life
imprisonment.
• To be able to understand the partial defence of diminished responsibility and
the four elements required to be shown by the defendant.
• To be able to understand the partial defence of loss of control and the three
elements required to be shown by the defendant.
• To be able to understand the partial defence of killing subject to a suicide pact.
 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 (in the nature of
things) under the Queen’s (King'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 (King's) peace. The mens rea is malice
 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.
• In AIREDALE NHS TRUST V. BLAND [1993] AC 789, 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.
• In that case, Bland was injured in a disaster when he was seventeen and a half
years old and was left in persistent vegetative state, which he remained for
over two years with no sign of improvement. He was kept alive by life
support machines.
• He could breathe by himself but required feeding via a tube and received
full care. The doctors treating him were granted approval to remove his
feeding tube. This decision was then appealed to the House of Lords by
the Solicitor acting on Bland’s behalf.
• On appeal, the court held that doctors have a duty to act in the best
interests of their patients, but this does not necessarily require them to
prolong life on the basis that there was no potential for improvement.
• The treatment Bland was receiving was deemed not to be in his best
interests. Although, it is not lawful to cause or accelerate someone’s
death, in this instance, it was seen as lawful to withhold life-extending
treatment which in this case was the food that Bland was being fed with
through a tube. The appeal was therefore dismissed.
• In R V. INGLIS [2011] 1 WLR 1110, a mother deliberately killed her
terminally ill son by injecting him with heroin. Following Bland's
case, 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

• 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 its 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, provided that it lives
independently briefly before dying.
• Under the UK law a foetus doesn't have rights. An unborn baby
doesn't become a separate person with legal rights until they are born
and draw breath by themselves.
• In England, Scotland and Wales, a pregnant woman can legally have
an abortion at up to 23 weeks and 6 days of pregnancy, in line with
the Abortion Act 1967. If such person live in Northern Ireland, or
anywhere else where abortion care may be restricted, she can legally
travel to receive treatment in places where abortion is legal.
 UNDER THE QUEEN'S (KING'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 King or Queen’s
subjects, by a subject of the King or Queen outside of his/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 King
or Queen. Here, 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. This was held in R V. CUNNINGHAM [1982] AC 566, A-G’s Ref
(No 3 of 1994) [1997] 3 WLR 421 where D attacked V in a pub wrongly
believing that the victim had had sexual relations with his fiancé. V
suffered a fractured skull and a subdural haemorrhage from which he died
7 days later.
• 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.
• Because murder is an offence of specific intent, virtual certainty for
intention is extremely relevant. A jury is likely to be asked to consider
whether intention can be found. 
• An intention to cause really serious harm (DPP V. SMITH [1961] AC 290)
is required (grievous bodily harm is given the same meaning as under section
20 of the Offences Against the Person Act 1861). In that case D was woken up
by girlfriend when he was asleep. D climbed over her and forcefully cut off her
hair. D was convicted under S47 for assault occasioning actual bodily harm.
• It is not necessary for the harm foreseen or intended by the defendant to be
harm that may endanger life (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.
• It is not necessary for a defendant to intend to kill the particular victim; even if
s/he doesn’t intend, 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,
he/she 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
 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 4th 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. That is, instead of strictly relying on the previous provision of
Section 2 of the Homicide Act, we shall look at Section 52(1) of the
Coroners and Justice Act 2009. It provides:
 DIMINISHED RESPONSIBILITY
• (1) In Section 2 of the Homicide Act 1957:
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 -
a. arose out of a recognised medical condition,
b. substantially impaired D’s ability to do one or more of the things mentioned in
subsection (1A), and
c. provides an explanation for D’s acts and omissions in doing or being party to the
killing.
• (1A) Those things are –
a. to understand the nature of D’s conduct;
b. to form a rational judgment;
c. 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 s/he wishes to demonstrate diminished responsibility:
i. The defendant must be suffering from an abnormality of mental
functioning;
ii. The abnormality must arise from a recognised medical condition;
iii. The abnormality must substantially impair the defendant’s ability to
understand the nature of their conduct, form a rational judgment or
exercise self-control;
iv. 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. 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. 
 PROVIDE AN EXPLANATION FOR THE
DEFENDANT’S ACTS OR OMISSION

• 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, constitute 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.
 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 -
a. D’s acts and omissions in doing or being a party to the killing
resulted from D’s loss of self-control,
b. The loss of self-control had a qualifying trigger, and
c. 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.
4.Subsection (1) does not apply if, in doing or being a party to
the killing, D acted in a considered desire for revenge.
• 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 -
a. constitute circumstances of an extremely grave character, and
b.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 -
a. 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;
b.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;
c.The 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:
i. The defendant must demonstrate that they killed as a
result of a loss of self-control;
ii. That the loss of self-control had a qualifying trigger;
iii. 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
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 is 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 it applies in relation
to the fear of violence trigger (s. 55(6)(b)).
 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
something done or said of a grave character qualifying as
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.
 NORMATIVE DECREE 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, would not be
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.
 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 the same themselves, but lives, may be able to
succeed in this defence.