Murder in English law
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In English law, murder is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury (originally termed malice aforethought even though it requires neither malice nor premeditation). Following the Murder (Abolition of the Death Penalty) Act 1965, the mandatory sentence is life imprisonment.
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[edit] Actus Reus
The definition of the actus reus (Latin for "wrongful act") of murder most usually cited is that by Edward Coke:
- "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, . . . so as the party wounded, or hurt, et cetera, die of the wound or hurt, et cetera, within a year and a day after the same."
It should be noted it is no longer the case that the death of the victim must occur within a year and a day of the crime, according to the Law Reform (Year and a Day Rule) Act 1996.
[edit] Unlawfully
The reference to "unlawfully" indicates that some killings may be justifiable homicides.
[edit] Jurisdiction
The current rule of criminal jurisdiction is that a British subject may be charged with murder wherever the killing took place and no matter what the nationality of the victim (see s9 Offences Against The Person Act 1861).
[edit] Queen's peace
The phrase "under the [Queen's] peace" operates to exclude the killing of an enemy combatant during a time of war or other international conflict. In the case of R v Clegg[1], a soldier in Northern Ireland was convicted of murder after shooting and killing a joyrider who had broken through the checkpoint. He was released after political pressure from the Attorney General. The important principle of the case is the requirement that the government officially considered the place in question to be a war zone, and therefore not under the Queen's peace.
[edit] Life in being
The defendant must cause the death of a reasonable creature in rerum natura (the whole phrase is usually translated as "a life in being", i.e. where the umbilical cord has been severed and the baby has a life independently of the mother). This was most recently considered in AG's Reference (No. 3 of 1994)[2] where the Law Lords reversed the Court of Appeal decision.[3] However, if the woman is pregnant the charges will be dropped. The defendant had stabbed a pregnant woman in the face, back and abdomen. Some days after she was released from hospital in an apparently stable condition, she went into labour and gave birth to a premature child, who died 121 days later. The child had been wounded in the original attack but the more substantial cause of death was her prematurity. According to Lords Mustill and Hope, a fetus (unborn child), although human and protected by the law in a number of different ways, is not a separate person from its other. So, if the cause of death had been more clearly the antenatal injuries, this could have been a homicide, but there would have been no liability if the child had been miscarried or stillborn because it would not have had a life independent of the mother. This case also holds that the doctrine of transferred malice cannot apply to transfer intent from the mother to the baby after it is born.
Compare the situation in St George's Healthcare NHS Trust v S; R v Collins & Ors, ex parte S[4] where it was held a trespass when a hospital terminated a pregnancy involuntarily because the mother was diagnosed with severe pre-eclampsia. The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse consent to treatment, whether her own life or that of her unborn child depends on it (see a discussion in omission).
In the United States, there has been statutory intervention in the form of the Unborn Victims of Violence Act in 2004, a federal law to clarify the criminal law at a federal level. Several states have passed, or are considering, similar legislation. The federal government has jurisdiction over crimes only in limited circumstances (when committed on federal property, against certain federal officials or employees, or by members of the armed forces. State governments have jurisdiction over all other crimes. The act provides that the mens rea from the initial assault is transferred to the fetus without having to prove actual knowledge or intent with respect to the child, or even knowledge of the pregnancy. Such death or injury to the child is charged as a separate offence whether the accused acted with or without knowledge of the pregnancy, and the penalty is the same as if the death or injury had been caused to the woman. English law, by contrast, does not accept the fetus as a separate person for these purposes.
[edit] Year and a day
The requirement that death occur within a year and a day of any injury was abolished by the Law Reform (Year and a Day Rule) Act 1996 but, if the lapse of time exceeds three years, the consent of the Attorney General must be obtained before a prosecution can be undertaken.
[edit] Defences
The first words Coke's definition refer to the M'Naghten Rules on the insanity defense (now also including diminished responsibility) and infancy. Hence, if any of the general defences such as self-defence apply, an accused will be acquitted of murder, and if any of the partial defences introduced under the Homicide Act 1957 apply, the liability will be reduced to manslaughter. If a partial defence is successful, it will allow the sitting judge full discretion as to the sentence given to the offender, these can range from a conditional discharge to a life sentence (which accounts for around 10 percent of voluntary manslaughter sentences).
[edit] Causation
At the time of death, the defendant's acts or omissions must be the operating and most substantial cause of death with no novus actus interveniens (Latin for "new act breaking in") to break the chain of causation. Thus, the defendant cannot choose how the victim is to act, nor what personality to have. No matter whether brave or foolish, the defendant must expect the victim to:
- try to escape and if he or she dies in that attempt, the chain of causation is not broken; or
- try to fight back and so escalate the extent of the violence between them; or
- seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death.
There are conflicting authorities on the above point, R v Jordan[5] and R v Smith[6] In short, any contingency that is foreseeable, will maintain the chain. Put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon will break the chain.
[edit] Contemporaneity
The actus reus and mens rea (Latin for "guilty mind") must coincide in point of time. The so-called single transaction principle allows a conviction where the defendant has both actus reus and mens rea together during the sequence of events leading to death. In Thabo Meli v R[7] the defendants thought they had already killed their victim when they threw him over a cliff and abandoned the "body". Thus, the act actually causing death was performed when the defendants did not have the intention to kill, the conviction was confirmed.
[edit] Mens rea
The mens rea of murder is either an intention to kill (per the 2004 binding case of R v Matthews & Alleyne[8]) or an intention to cause grievous bodily harm (R v Moloney[9], R v Hancock & Shankland[10], and R v Woollin[11]). In Moloney, Lord Bridge was clear that, for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or cause grievous bodily harm, but when death or grievous bodily harm is a virtually certain consequence of the defendant's act. Also note that, in Moloney, Lord Bridge held that the mens rea of murder need not be aimed at a specific person so, if a terrorist plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the terrorist might claim justification for the act through a political agenda. How or why one person kills could only have relevance in the sentencing phase of a trial.
[edit] Life Sentence Tariff System
The mandatory life sentence for murder comprises three elements:
- A minimum term representing retribution without any prospect of parole;
- This starts on the expiry of the first and runs until the parole board decides that the person safely may be released on licence;
- At any time during the remainder of his or her life, the licence may be revoked and the offender will then be detained until it is considered safe to release him or her again on licence. This element does, in a real sense, represent a life sentence.
The tariff sets the minimum time that must be spent in prison before an offender can be considered for parole. Following the decision of the European Court of Human Rights in T v UK[12] and the consequent statutory change in Criminal Justice and Court Services Act 2000 s 60, the judge must now indicate in open court the appropriate tariff for an offender aged under 18 who is convicted of murder. The period specified by the judge is a 'sentence', which may be appealed or be the subject of an Attorney General's Reference.[13]Criminal Justice Act 2003 s 271 sets the same rule for adults. The Practice statement (Life sentences for murder) (2000) 2 Cr. App. R. 457 set the tariff for adults, i.e. one aged 18 or over at the time of the offence, with a starting point of 14 years as the minimum term for a case with no aggravating or mitigating factors, and lists the factors which might suggest either a higher or a lower than normal minimum term in an individual case. Mitigating factors include a mental illness, battered woman syndrome, using excessive force in self-defence or mercy killing. Assassination, contract killing, killing to subvert the justice system (killing a witness, etc., will be aggravating factors.
The general tariffs are available from the Sentencing Advisory Panel [1].
The trial judge has always been expected to make a recommended minimum term, and in 1983 the Home Secretary began amending (and usually increasing) the minimum term which was recommended by the trial judge. But this system was declared illegal in 2002 by both the High Court and the European Court of Human Rights following a successful challenge by convicted murderer Anthony Anderson. Anderson had been convicted of a double murder in 1988 and the trial judge recommended that he should serve at least 15 years before being considered for parole, but six years later his tariff was increased to 20 years by the Home Secretary Michael Howard.
Since then, trial judges have been obliged to recommend a minimum term and only the Lord Chief Justice has the power to make any amendments; either through an appeal by the Attorney General to increase a sentence which is seen as unduly lenient, or an appeal by the prisoner to have his or her minimum term reduced.
Life imprisonment has been the only option that judges have had when sentencing murderers since the death penalty was abolished in 1965, and the average life sentence prisoner spends 14 years behind bars. More serious cases, which included aggravating factors such as a rape or robbery, have seen murderers spend as much as 20 or even 30 years in prison. A handful of notorious multiple murderers have remained in prison until their deaths; these include Myra Hindley, Harold Shipman and Ronnie Kray. An estimated 20 prisoners in Britain have been recommended for lifelong imprisonment; these include Mark Hobson, Donald Neilson, Dennis Nilsen, Jeremy Bamber and Steve Wright. Lengthy minimum terms have also been imposed on high profile killers including Ian Huntley (40 years) and Robert Black (35 years).
