Actus Reus
The actus reus for all homicide offences is the ‘unlawful killing a reasonable person who is in being and under the King’s Peace’. [1]
In Wallace, V and D were in a relationship. Evidence suggested that D had been violent to V in the past. V and D split up and V entered into another relationship. V went to D’s flat at their request and after an argument, V remained in the flat and went to bed. D poured acid into a glass as V was sleeping and threw it at his face when he woke. V left severely disfigured, injured and paralysed. V returned to Belgium and was lawfully euthanised according to Belgian law. D charged with murder after V committed suicide. A retrial was ordered.
‘In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life’. [2]
Prior to 1957, if a person died while another was committing a crime (EG: death during a rape), the criminal's charge would automatically be elevated to murder. The Homicide Act 1957 s1 changed this.
In R v Vickers, V killed while inflicting grievous bodily harm. Held to still be murder.
In R v Cunningham, C broke V’s arm by hitting him with a chair. V died in hospital. The House of Lords held that if GBH causes death, even if death is not expected, the fault is for murder.
Mens Rea [4]
‘The present definition of the mental element in murder results in defendants being classified as murderers who are not in truth murderers.’ [3]
Direct Intention: Desire to kill or cause serious harm and taking steps to achieve it.
Indirect / Oblique Intention: Virtually certain foresight of death or serious harm with a disregard of risk / consequence. [5]
In Cox, C was a doctor who had treated V for over 13 years. V asked C to end her life when arthritis made life unbearable, and she was terminal. C injected her with potassium chloride, and it is unclear as to whether V died of her condition or the injection. C charged with attempted murder.
C argued that he merely had the intention to relieve pain, not to kill. C relying on doctrine of double effect (immunity where death is accelerated by relieving pain). Jury found C guilty.
‘Serious’ Harm:
The Law Commission rejected that ‘serious harm’ should be defined as ‘life threatening harm’. If the prosecution had to prove that the harm was life threatening for it to be considered serious harm, then both sides would be engaging with too many experts.
The jury is left to use its own common sense to determine what serious harm is, possibly leading to inconsistent application.
In Bollom, B was convicted of GBH for injuring partner’s young child. B appealed, stating that the jury should have been instructed that age of V is irrelevant as to whether the harm was serious. Appeal held that the jury could examine characteristics of V to determine the extent of harm. This significantly expands scope of murder to protect more vulnerable people.
Sentence:
Murder carries a mandatory life sentence, with a minimum term set by the judge based on terms of the Criminal Justice Act. Generally, this is a 15-year minimum.
After their minimum term, the offender may be released on licence (parole) if they pose no further danger to society. They are still liable to recall and subject to conditions.
Law Commission Proposals (Not Implemented):
The Law Commission proposed to separate the charge of murder into first- and second-degree murder.
First Degree Murder:
Intention to kill or to do serious injury where D is aware of the serious risk of causing death.
Mandatory life sentence.
Second Degree Murder:
Intention to kill or do serious harm while under duress, loss of control or diminished responsibility.
Intention to cause injury or fear of / risk of injury with an awareness of the serious risk of causing death.
Sentence to the digression of the judge and statutes.
Resources:
References:
[1] Coke’s Institutes, 3 Co Inst 47 [2] R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38 [para. 255] [3] R v Powell and English [1997] UKHL 50, [1997] 3 WLR 959 (Steyn LJ) [4] see Criminal Justice Act 1967 s8 [5] R v Woollin [1999] AC 82
Cases Mentioned:
R v Vickers [1957] 2 QB 664
R v Cunningham [1982] AC 566 (HL)
R v Wallace [2018] EWCA Crim 690
R v Cox (1992) BLMR 38
R v Bollom (2004) 2 Cr App R 6
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