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.’

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.

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.

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.

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.

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.

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.

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.

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.

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.