Murder
- Murder: unlawfully causing the death of a Person in Being under the Queen's Peace with intention to kill or intention to cause grievous bodily harm.
- Murder is defined by common law.
- Mens rea: requires there either to be an intention to kill, or an intention to cause GBH.
- Murder is never caused by recklessness - there must be intention.
- It must be unlawful.
- Causation: 'but for' test for factual causation (case: White - cyanide); intervening act for legal causation (case: Cheshire) or thin skull rule (Blau)
- There is no legal definition of death, this is problematic (permanent coma, vegetative state: still alive even though it is only by life-support machine. This is because there is a chance; albeit a small one that they could wake up or that there can be medical advances that mean that 'dead' people now could potentially be brought back to life.)
- Brain stem death: they are regarded as being dead as it is irreversible - no chance of recovery.
- 'Person in being': must be alive before they are murdered: not dead, and born.
- 'Taken independent existence from their mother.' Independent respiration, can be artificially generation, but must have been born.
- AG Reference No. 3 1994: D stabbed girlfriend, knowing he was pregnant. She went into premature labour. Baby was born, died because it was born prematurely. D's conviction was overturned, as there had been a double-transfer of intention (mother - foetus - child). Guilty instead of unlawful act manslaughter (still a double-transfer!)
- Renee Gibbs: pregnant, stillborn child because of her cocaine habit. Convicted of murder.
- Must occur 'in the Queen's Peace': wartime killing
- Mens rea: Intention to kill/do GBH
- Direct intention: aim/purpose to kill/do GBH
- Indirect intention: oblique intention (Woollin) - virtually certain that death or GBH will occur, and D knows this.
- There must be no defence.
- Some defences are available exclusively to murder: loss of control (previously provocation); diminished responsibility; and killing in pursuance of a suicide pact.
- One is that it is too broad: it can be committed with the intention to do GBH. Commission has proposed that it must be only intention to kill (1st degree murder). This is because there are people convicted under a label that doesn't reflect their mens rea.
- One is that it is too narrow: definition of indirect intention from Woollin. Someone on the evidence available may have considered it to be a possibility, or have a reckless disregard for V's life, without considering it virtually certain. Someone who killed someone without giving it proper thought may escape culpability.
- Law commission 2006: "The offence of murder is too wide."
- D punches V in the face, V falls, hits head and dies. Should D be guilty of murder?
- D would be guilty, but it shouldn't be a top-tier offence.
- It arguably doesn't reflect Parliament's actual intention.
- Barry Mitchell and Julian Roberts' article on sentencing for murder
- Mercy killings: Frances Inglis 2011 killed son "with love in her heart" to end his suffering
- Tony Nicklinson: Paralysed person wanted to die but could not end his own life. Wanted his wife to end it for him but she would be convicted of murder.
- Barry Mitchell and Julian Roberts' 2011 report
- Law Commission proposed a three-tier hierarchy of homicide offences: First Degree murder; Second Degree murder; manslaughter.
- First degree murder: must be an intentional killing or killing through an intention to do serious injury with an awareness of a serious risk of causing death.
- "A serious risk" - too open-ended?
- Second degree murder: killing through an intention to do serious injury (even without an awareness of a serious risk of causing death; or killing where there was an awareness of a serious risk of causing death, coupled with an intention to cause either some injury, a fear of injury, or a risk of injury.
- Second degree murder would also be the result when a partial defence of provocation, diminished responsibility or killing pursuant to a suicide pact is successfully pleaded to first degree murder.
- The Law Commission's proposals to reform the structure of homicide were not adopted with the Government indicating that these wider reforms may be considered at a later stage.
- Provocation was however abolished and diminished responsibility reformed.
Q: V and D are in the pub drinking orange juice, and start to argue. V pushes D. D stabs V. An ambulance is called for V. At the hospital, V is given too little blood due to low supplies, and dies a week later. Discuss.
How would your answer differ, if at all, if D had been drinking beer for several hours?
A:
Has there been a novus actus interveniens (legal causation) from the blood supply? It does not render his actions insignificant, so no.
Person in Being? Yes.
Queen's Peace? Yes.
Intention to do (at least) GBH? Yes.
If he had been drinking? Only in a specific intent offence (only intention and not recklessness) can intoxication be used as a defence. He would have to be SO drunk that he did not have the mens rea.
Q: Jake, Eddie and Humphrey were at a party. Jake started an argument with Eddie. Eddie became offended and punched Jake in the face. Jake suffered a broken nose. Humphrey, who was standing nearby, walked over and Eddie smashed a broken beer bottle into Humphrey's throat. An ambulance was called, but its arrival was delayed because the driver got lost. It was delayed further by a tyre puncture. Humphrey died. Discuss.
A:
Eddie caused Jake's GBH.
Novus actus with Humphrey? If H's injury was not life-threatening, it may have been a novus actus. Eddie's actions were still significant.
Person in Being? Yes
Queen's Peace? Yes
Intention to do GBH? Yes