There are three types of unlawful homicide: murder, voluntary manslaughter and involuntary manslaughter. The degree of seriousness applied to each offence is essentially a reflection of the defendant’s state of mind with regard to the killing. Murder in UK law is the most serious category of unlawful homicide. And is designed to apply to those killings which society regards as most abhorrent.
Table of Content
- Defination
- Mens rea
- Intention is purely subjective
- Direct intention
- Indirect intention
- Foresight in merely evidence of intention
- Sentence
Defination
The definition of murder in uk law is traditionally traced back to Sir Edward Coke who was a highly influential writer on criminal law in the eighteenth century. His definition referred to the killing being ‘under the King’s peace’ which during the reign of Queen Elizabeth II is today referred to as ‘under the Queen’s peace’. The academic Michael Hirst (2008) has pointed out that it is not really clear whether this adds anything to the definition of the offence. It may be a reminder that the offence is not committed when an enemy soldier is killed at war, or simply a reminder that the killing is only murder if it is unlawful. In other words if the defendant does not have a defence, such as that he was acting in self-defence.
The offence of murder in uk law is not defined in any statute. It is committed under common law where a person causes the death of a human being, with malice aforethought. Thus the actus reus comprises the common elements of all homicide offences discussed above. And the mens rea is malice aforethought.
Mens rea
The mens rea for murder in uk law is defined as malice aforethought, which has come to mean either an intention to kill or an intention to cause grievous bodily harm ‘Grievous’ simply means ‘really serious’ – DPP v Smith (1961). When directing a jury, the judge can sometimes miss out the word ‘really’ and simply talk about the requirement that the defendant intended ‘serious bodily harm’ In R v Janjua and Choudury (1998) a young man was stabbed to death with the five-and-a-half-inch blade of a knife. The trial judge merely referred to a requirement that the defendants needed to have intended ‘serious bodily harm’ in order to be liable for murder. They were convicted and appealed on the basis of a misdirection because the word ‘really’ had been omitted.
The Court of Appeal dismissed the appeal stating that, given the nature of the weapon and the injuries caused. The use of the word ‘really’ in this case was not required. It was a matter for the trial judges in the light of the factual situations with which they were confronted to decide whether or not to use the word ‘really’ before the word ‘serious’. The term ‘malice aforethought’ is actually deceptive the defendant’s motives need not be malicious, and are in fact irrelevant. Deliberate euthanasia prompted by motives of compassion satisfies the mens rea requirement just as well as shooting someone because you hate them.
Nor, despite the word ‘aforethought’, is premeditation a necessary requirement. As long as the required intention is there, it is perfectly possible for a murder to be committed on the spur of the moment. For these reasons, the mens rea of murder in uk law is best thought of as intention to kill or cause grievous bodily harm.
Intention is purely subjective
The test of what the defendant foresaw and intended is always a subjective one, based on what the jury believes the defendant actually foresaw and intended, and not what he or she should have foreseen or intended, or what anyone else might have foreseen or intended in the same situation. In DPP v Smith, a police officer tried to stop a car that had been involved in a robbery, by clinging to its bonnet as the car drove off, and was killed. The defendant said he did not want to kill the police officer; he had simply wanted to get away. The House of Lords appeared to say that a person intended death or grievous bodily harm if a reasonable person would have foreseen that death or grievous bodily harm would result from the act of the defendant, even if the defendant did not actually foresee this.
However, this objective test was considered bad law and s. 8 of the Criminal Justice Act 1967 was passed to change it. This provides that a person is not to be regarded as having intended or foreseen the natural and probable consequences of an act simply because
they were natural and probable. Although this may be evidence from which the jury may infer that it was intended. The crucial issue is what the defendant actually foresaw and intended, not what he or she should have foreseen or intended.
Direct intention
Direct intention murder in uk law corresponds with the everyday definition of intention, and applies where the accused actually wants the result that occurs, and sets out to achieve it. An obvious example of direct intention to kill would be deliberately pointing a gun at someone you want to kill and shooting them.
Indirect intention
Indirect intention (sometimes known as oblique intention) is less straightforward. It applies where the accused did not desire a particular result but in acting as he or she did, realised that it might occur for example, a mother wishes to frighten her children and so starts a fire in the house. She does not want to kill her children, but she realises that there is a risk that they may die as a result of the fire. The courts are now quite clear that oblique intention can be sufficient for murder people can intend deaths that they do not necessarily want. But in a line of important cases of murder in uk law, they have tried to specify the necessary degree of foresight required in order to provide evidence of intention.
In R v Moloney (1985) the defendant was a soldier who was on leave at the time of the
incident that gave rise to his prosecution. He was staying with his mother and stepfather, with whom he was apparently on very good terms. The family held a dinner party, during which the appellant and his stepfather drank rather a lot of alcohol. They stayed up after everyone else had left or gone to bed; shortly after 4.00 am a shot was fired and the appellant was heard to say, ‘I have shot my father’ The court was told that Moloney and his stepfather had had a contest to see who could load his gun and be ready to fire first. Moloney had been quicker, and stood pointing the gun at his stepfather, who teased him that he would not dare to fire a live bullet; at that point Moloney, by his own admission, pulled the trigger. In evidence he said, ‘I never conceived that what I was doing
might cause injury to anybody. It was just a lark.’ Clearly he did not want to kill his stepfather, but could he be said to have intended to do so? Lord Bridge pointed out that it was quite possible to intend a result which you do not actually want. He gave the example of a man who, in an attempt to escape pursuit, boards a plane to Manchester. Even though he may have no desire to go to Manchester – he may even hate the place for some reason – that is clearly where he intends to go.
Foresight in merely evidence of intention
Moloney established that a person can have intention where they did not want the result but merely foresaw it, yet the courts are not saying that foresight is intention. Foresight is merely evidence from which intention can be found. Before Moloney, in the case of Hyam v DPP (1975), it had looked as though foresight was actually intention, though the judgment in that case was not very clear.
The defendant, Pearl Hyami, put blazing newspaper through the letterbox of the house of a Mrs Booth, who was going on holiday with Pearl Hyam’s boyfriend; Mrs Booth’s two children were killed in the fire. On the facts it appeared that Pearl Hyam did not want to kill the two children; she wanted to set fire to the house and to frighten Mrs Booth. The court held that she must have foreseen that death or grievous bodily harm were highly likely to result from her conduct, and that this was sufficient mens rea for murder. In Moloney, the House of Lords held that Hyam had been wrongly decided, and that nothing less than intention to kill or cause grievous bodily harm would constitute malice aforethought merely foreseeing the victim’s death as probable was not intention, though it could be evidence of it.
Lord Bridge suggested that juries might be asked to consider two questions: was death or really serious injury a ‘natural consequence’ of the defendant’s act, and did the defendant foresee that one or the other was a natural consequence of their act? If the answer was ‘Yes’ the jury might infer from this evidence that the death was intended. This guidance for juries in turn proved to be problematic. In R v Hancock and Shankland (1986), the defendants were striking miners who knew that a taxi, carrying men breaking the strike to work, would pass along a particular road. They waited on a bridge above it, and dropped
a concrete block which hit the taxi as it passed underneath, killing the driver.
At their trial the judge had given the direction suggested by Lord Bridge in Moloney and they were convicted of murder On appeal, the House of Lords held that this had been incorrect, and a verdict of manslaughter was substituted. Their Lordships agreed with Lord Bridge that conviction for murder could result only from proof of intention, and that foresight of consequences was not in itself intention; but they were concerned that the question of whether the death was a ‘natural consequence’ of the defendants’ act might suggest to juries that they need not consider the degree of probability.
The fact that there might be a ten-million-to-one chance that death would result from the defendants’ act might still mean that death was a natural consequence of it, in the sense that it had happened without any interference, but, with this degree of likelihood, there would seem to be little evidence of intention. Lord Scarman suggested that the jury should be directed that:… the greater the probability of a consequence, the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended… But juries also need to be reminded that the decision is theirs to be reached upon a consideration of all the evidence.
Thus if a person stabs another in the chest, it is highly likely this will lead to death or grievous bodily harm, and since most people would be well aware of that, it is likely that they would foresee death or serious injury when they acted. If they did foresee this then that is evidence of intention, from which a jury might conclude that the death was intended. But if you cut someone’s finger, that person could die as a result – from blood poisoning for example – but since this is highly unlikely, the chances are that you would not have foreseen that they might die when you cut the finger, and your lack of foresight would be evidence that you did not intend the death.
Sentence
Murder in UK law carries a mandatory sentence of life imprisonment under s. 1(1) of the Murder (Abolition of the Death Penalty) Act 1965. In practice, most murderers are not required to stay in prison for the rest of their life but are released on licence after spending some time in custody. They can then be returned to prison if their behaviour upon release gives rise to concern. In the recent past, the final decision as to when murderers should be released on licence lay with a politician, the Home Secretary. This was found to be in breach of the European Convention on Human Rights in the case of R (Anderson) v Secretary of State for the Home Department (2002).
NThe Home Secretary, however, seems anxious to retain some control in this area. Provisions were added to the Criminal Justice Act 2003 under which the Home Secretary, through Parliament, lays down an appropriate sentence for different types of murderer. The aim is to achieve consistency in the sentencing of murderers. Under these provisions, judges are required to slot offenders into one of three categories according to the severity of their crime.
For the first category, actual life will be served by those convicted of the most serious and heinous crimes: multiple murderers, child killers and terrorist murderers. For the second category, there is a starting point of 30 years. This category will include murders of police and prison officers and murders with sexual, racial or religious motives. For the third category, the starting point is 15 years. In addition, there are 14 mitigating and aggravating factors which can affect the sentence imposed. There are presently 22 people serving whole-life tariffs in England and Wales. None in Europe and 25,000 in the United States (along with 3,500 people under sentence of death).