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Criminal Law - Lecture 6 Homicide: Murder

Criminal Law (University of Manchester)

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CRIMINAL LAW

Lecture 6

HOMICIDE:

Murder

Homicide covers the following offences in each of which death results:

• murder,
• ‘voluntary’ manslaughter (produced only by conviction after success
of a partial defence of loss of control or of diminished responsibility
to a charge of murder), and
• involuntary manslaughter (constructive, reckless and gross
negligence).

1.Murder as a Crime at Common Law

‘Murder is when a man of sound memory and of the age of discretion, unlawfully
killeth within any county 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 that the wounded party shall die of the wound or hurt,
within a year and a day of the same]. (Sir Edward Coke, Institutes of the Laws of
England, 1797)

Today murder remains a crime at common law. It is defined as unlawfully killing,

under the Queen’s peace, and with malice aforethought, a human being who was
born alive. The ‘year and a day’ rule has been abolished by the Law Reform
(Year and a Day Rule) Act 1996.

It is a result crime in that the outcome is death. The conduct is killing, or causing
death. The actus reus includes: a) unlawfully, b) killing, c) uder the Queen’s
Peace, d) a human being and e) who was born alive. Thus, we see here
conduct, result and also circumstances (e.g., under the Queen’s Peace).

HUMAN BEINGS – ‘any reasonable creature’

Crutchley (1987) 7 C & P 814, 173 ER 355.

Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245.
Bland [1993] 1 AC 789 (persistent vegetative state; removal of life support)
Abortion Act 1967 (offence of abortion, and exceptions)

UNLAWFUL

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The absence of a defence

KILLING
Death is established upon irreversible death of the brain stem (Malcherek, Steel
1981) 2 All ER 422 CA (Crim Div)

THE QUEEN’S PEACE

Page [1954] 1 QB 170 (no murder if ‘alien enemy’ in ‘heat of war’)
Maria v Hall (1807) 1 Taunt 33, 127 ER 741 1 Hale Pc 433 (this excludes PoWs)

2. Mens Rea: ‘Malice Aforethought’

‘Malice aforethought’ is the formal name for the mens rea of murder. The key
term here is intention and there are two intentions that suffice as MR for murder:

Malice aforethought = (i) intention to kill OR

(ii) intention to do grievous bodily harm (“GBH”) (Moloney).

Definition of Intention:

Moloney [1985] AC905

Woollin [1999] AC 82 (indirect or oblique intent confirmed)
Matthews and Alleyne [2003] 2 Cr App R 30 (Woollin direction is evidential rule)

Intention to Cause Grievous Bodily Harm (GBH): Nature and Sufficiency

Moloney [1985] AC905

DPP v Smith [1961] AC 290 (GBH=’really serious harm’)
Saunders [1985] Crim LR 230 (allows ‘serious injury’ as sufficient direction to the
jury)
Janjua and Chodhury [1999] 1 Cr App R 91 (judge decides whether word ‘really’
needs to the used in direction to jury where intent is to cause gbh and
harm must be serious)
Vickers [1957] 2 QB 664
Cunningham [1982] AC 566
Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245.
Powell, Daniels and English [1999] 1 AC 11 (Lord Mustill), 14-15 (Lord Steyn)
Stringer [2008] EWCA Crim 1222

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3. Should Intent to Cause GBH Suffice as MR for Murder: Correspondence?

On (ii), ‘implied malice’, see Cunningham [1982] AC 566; [1981] 2 All ER 863
(HL).

This second element is highly controversial as some argue that for this most
serious of offences, the fault (or mental state) should correspond directly to the
harm done. What we have here is a form of constructive liability whereby D is
held responsible for the consequences that flow from her or his act whether that
is or is not what they intended.

• See Vickers [1957] 2 QB 664;[1957] 2 All ER 741 CA.

• It is clear that the harm must be really serious.
• In Janjua [1999] Cr App R 91, the Court of Appeal accepted a
description of gbh as ‘serious harm’.
• In Bollom [2003] EWCA Crim 2846, the court established that the
harm need not pose a threat to the life of the victim.
• Lord Mustill in A-G Reference (No. 3 of 1994) [1997] 3 All ER 936,
945-6 (HL)and Lord Steyn in Powell [1997] 4 All ER 545 (HL) have
indicated they would be willing to reconsider the law if an
appropriate case were brought before the House of Lords.
• Lord Mustill in A-G Reference (No 3 of 1994) ([1998] AC 245, 258)
wrote ‘the grievous harm rule is an outcropping of old law from
which the surrounding strata of rationalizations have weathered
away’.

‘Implied malice’ is criticized as breaching the ‘correspondence principle’ which

holds that mens rea and actus reus should correspond to each other. If D
intends only to do serious injury, he doesn’t intend to kill you. Should he then be
guilty of an assault or perhaps manslaughter if V dies? Of course, some argue
that by intending serious injury, D behaved in a way that initiated a dangerous act
and the he must own the consequences if death results.

4. Intention

Intention is subject to the meaning given in Woollin – namely what was D’s
purpose or direct intention or, alternatively, what did D foresee as a virtual
certainty?

Malice aforethought is an archaic term that dates back to medieval times.

Starting in the 19th century, there was a move to strip the law of its more moral
vocabulary and sense, in favour of more ‘technical’ terms like intention. Malice
was historically linked before that to a sense of wickedness and evil (mens mala).
The move away from moralistic language is most clearly evident in the post-war
years under the influence of Glanville Williams and of Smith and Hogan. They

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emphasized subjective mental or psychological states rather than substantive

ethical ones. So intention and foresight became the currency of mens rea. But
was something lost in that process? Many modern writers think there is some
need to return to more morally or ethically oriented terms to help distinguish, for
example, the contract killer from the mercy killer. Both have the mens rea for
murder, yet their crimes are morally very different in their substance.

5. The Moral Context

While we may agree that murder is the most serious of crimes, what
distinguishes different degrees of seriousness? To return to our earlier example,
to what extent does the law distinguish contract and mercy killing? Attention
focuses on the MR here, but the law provides little guidance as to any distinction
in seriousness.

Woollin is a primary case (though, if one intends to cause gbh, one need not
have foresight of a ‘virtual certainty’ of death). In this way, it is easier to be
convicted for murder based on intent to cause gbh than based on oblique intent
to cause death. Beyond distinguishing oblique intent, Woollin does not offer
much help. Some think that the law here is over-inclusive in some situations and
under-inclusive in others. It is over-inclusive in that it sees the doctors in Re A
(Children) as possessing mens rea for murder. It is under-inclusive in that it does
not see cases of indiscriminate malice, where, for example, someone plants a
bomb and gives a warning as cases of murder. In these latter sorts of situations,
it is held, one foresees a risk of death or serious injury, but not as a ‘virtual
certainty’.

6. Types of Intention: Their Application in Murder

The law, as we have seen, distinguish two kinds of intention. These are referred
to as ‘direct’ and ‘indirect’ (or ‘oblique’) intention. You should know, though, that
in practice the cases neither use these terms nor distinguish formally between
‘two kinds’ of intention.

Recall that direct and indirect intention may be understood as follows:

• ‘Direct’ intention = aim or purpose

• ‘Indirect’ intention = what may be inferred from the fact that the defendant
knew that it was a virtual certainty that a circumstance or consequence
would occur, if they went ahead with what it was their aim or purpose
(their direct intent) to do.

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• To illustrate, if my aim is to shoot someone and I know this will make a

loud noise when the gun fires, I may be found to have indirectly intended
to make the noise, despite that not being what I aimed to do in shooting
someone.

7. Indirect Intention

Indirect intention, as we have seen from our study of mens rea and of case law
leading up to Woollin, has two aspects: foresight and virtual certainty.

• First, D must have actually foreseen the side-effect or consequence.

- Previous approach of HL in Smith (1961) that it sufficed that

a reasonable man would have foreseen it was reversed by s.8 of
the Criminal Justice Act 1967.

- It provides that a court or jury in determining whether a person has

committed an offence

a) shall not be bound to infer intent or foresight of a

result by virtue of its being a natural or probable
consequence of his actions

BUT INSTEAD

b) shall decide whether he did intend or foresee that

result by reference to all the evidence drawing such
inferences as appear proper in the circumstances.

• Second, there is the question about how likely or certain the foreseen
side-effect or consequence must be in order to count as being intended.

- English law now seems clear that something, if it was not D’s aim
or purpose, must have been seen by her or him as virtually certain
to occur if it is to count as intended.

- Remember, though, that Woollin leaves at least one major

difficulty. If foresight of virtual certainty counts as intent, why
does the HL say only that the jury are entitled to find intention?

a) Should they be obliged to find intention?

b) Is this because Woollin is telling us when, as a
matter of evidence, intent can be found rather than
defining what, in law, intention is?

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- Yet, the HL by directing our attention in Woollin to the phrase in

Nedrick ‘find’ intent as a replacement for ‘infer’ intent seems to be
suggesting this may be seen to be emerging as a definition of
‘intention’ in law.

Since Woollin (1999), we have had divergent strands of interpretation.

• In Re A (Children) (2000), the majority held, remember, that if the death of

the weaker child, though not sought, was seen as virtually certain, there
was no option but to hold that it was, in law, intended.

• Yet, in Matthews and Alleyne (2003), the court held that Woollin laid down
only a rule about evidence of intention.

• When students arrive at Harvard Law School each autumn, the first thing
they read is a selection from Karl Llewellyn’s The Bramble Bush. In it
Llewellyn proposes an answer to how a precedent-based legal system can
change. He suggests that, like the bramble bush, which grows irregularly
in different directions, the law does the same. Popular decisions may
come to be interpreted and applied more and more broadly over time.
Unpopular ones, on the other hand, may be applied rarely and restrictively
– perhaps confined to the specific facts of the case.

• Will we see the metamorphosis of Woollin from an evidentiary rule to a

legal rule in the style of the bramble bush?

6. Transferred Malice: Murder

The general principle is that if D intends to cause a harm to V but, in trying to do

so, by accident causes the same harm to Z, then he or she is treated in law as if
he intended to cause it to Z.

The authority here is Latimer (1886) 17 QBD 359 (CCCR)

One recent case that vividly raised this issue was Attorney General’s Reference
(No. 3 of 1994).

• Consider the facts: D stabbed V, intending to cause her GBH, V was

pregnant at the time. Shock of the stabbing induced premature birth of
her child, which then died shortly after as a result of its prematurity.

• HL held the D could be convicted only of manslaughter of the child, not of

murder.

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• Given that intent to cause GBH is sufficient mens rea for murder, that D
intended to cause GBH to V and that, by accident, he caused the death of
W (the child), why should the conviction be manslaughter?

• The HL held that, as the child was as yet unborn at time of stabbing, an
element of the actus reus for murder (that V be born) is missing.

- You may counter that ultimately a baby dies.

- HL held that there was still absence of mens rea because D had
meant to inflict GBH on mother, not fetus.
- Stated that transferred malice could not work due to double
transfer – first to fetus and then to baby.
- So D was not guilty of murder but could be guilty of unlawful and
dangerous act constructive manslaughter.

7. Knowledge, Belief and Murder

Much has been written on ‘oblique’ or ‘indirect’ intention. It centers on the

viability of the claim that this is a form of intention. A less commonly argued, but
interesting, alternative is to say that the person who sees death as an inevitable
side-effect of her or his action ‘knows’ or ‘believes’ that the death will occur, even
if she or he does not intend it to occur. Further, such knowledge/belief suffices to
convict for murder: it is a form of ‘malice’ under the Homicide Act 1957.

To decide whether this is an attractive approach, we need to think about the

meaning and implications of ‘knowledge’ and of ‘belief’ in criminal law. (These
are important concepts in other crimes we will study too, for example
conspiracy.) For example, can one ‘know’ the future? See Saik [2007] 1 AC 18;
[2006] 4 All ER 866 (HL). If you close your mind to something’s existence, do
you ‘know’ that this something exists? See Westminster City Council v
Croyalgrange Ltd (1986) 83 Cr App R 155, at 164; [1986] 2 All ER 353 (HL).

The Draft Criminal Code prepared by the Law Commission, clause 18(1)(a),
proposes the following language: a person acts knowingly, ‘with respect to a
circumstance only when she or he is aware that it exists or will exist but also
when she or he avoids taking steps that might confirm his belief that it exists or
will exist.’

Does this alleviate some of the burden of establishing ‘malice’ or intention? What
do you think? Could it enable us to analyse some difficult cases without relying
on ‘oblique intention’?

8. Reform

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‘My lords, murder is widely thought to be the gravest of crimes. One could
expect a developed system to embody a law of murder clear enough to yield an
unequivocal result on a given set of fact, a result which conforms with apparent
justice and has a sound intellectual base. This is not so in England, where the
law of homicide is permeated by anomaly, fiction, misnomer and obsolete
reasoning.’ (Lord Mustill, A-G’s Reference (No. 3 of 1994) [1997] 3 All ER 936)

The Law Commission recently proposed a reform of the law of homicide in its
Report on Murder, Manslaughter and Infanticide, 2006. Earlier the Law
Commission released A New Homicide Act for England and Wales?, 2005.

It recommends that murder would be split into two categories: first-degree

murder and second-degree murder. Only first-degree murder would attract the
mandatory life sentence. Second-degree murder would attract a discretionary
sentence up to a maximum of life.

First degree murder would include:

1) intentional killings, and

2) killings with intent to cause serious injury where the killer was aware that
his or her conduct involved a serious risk of causing death.

Second degree murder would include:

1) killings intended to cause serious injury; or

2) killings intended to cause injury or fear or risk of injury where the killer was
aware that his or her conduct involved a serious risk of causing death; or
3) killings intended to kill or to cause serious injury where the killer was
aware that his or her conduct involved a serious risk of causing death but
successfully pleads ‘provocation’ (now, since reform, ‘loss of control’),
diminished responsibility or that he or she killed pursuant to a suicide pact.

First-degree murder would be narrower than present murder because an intent to

do GBH would not be sufficient unless D was also aware of a serious risk of
causing death. This is very similar to what the Draft Code in 1989 proposed for
murder as a whole except that the this version mentions awareness of a serious
risk of causing death.

Second-degree murder, on the other hand, would be wider than present murder.
Not only would it, in (1), cover intent to do GBH, but, in (2), cases that are
currently classified as involuntary manslaughter, and in (3), ones that are
currently classified as voluntary manslaughter.

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9. Sentencing

Another important consideration is sentencing. The penalty for murder is the

mandatory life sentence per the Murder (Abolition of the Death Penalty) Act
1965. This is subject to release on licence and the possibility of recall to prison.
From 2002, the judge is the only person who can determine the ‘tariff’, which is
the fixed term that the offender must serve. Before then, the Home Secretary
had the final say on this. The government enacted the Criminal Justice Act 2003,
schedule 21, which provided guidelines (but not rules) as to when a life sentence
should mean ‘whole life’ and identified aggravating and mitigating circumstances
in setting the tariff.

The Criminal Justice Act 2003 requires the judge to determine the minimum term
with respect to one of three starting points:

a) ‘whole life’ for cases of exceptional seriousness (D GTE 21)

b) 30 years for cases of high seriousness (D GTE 18)
c) 15 years if neither of the other two apply (D GTE 18)

For children convicted of murder:

a) The Crime and Disorder Act 1998, s. 38, presumes D 10 or over is

capable of criminal intent.
b) According to the Criminal Justice Act 2003, S. 269(5), Sched. 21(7): If
D is 10 or older, but under 18, the starting point for setting the
minimum term is 12 years.

Further Reading:
Ashworth, A. (2007) ‘Principles, Pragmatism and the Law Commission:
Recommendations on Homicide Law Reform’, Crim LR 333.
Goff of Chievely, Lord (1988) ‘The Mental Element in Murder’ 104 LQR 30.
Horder, J. (2008) ‘The Changing Face of the Law of Homicide’ in Horder, ed.,
Homicide Law in Comparative Perspective (2008).
Horder, J. (2006) ‘Transferred Malice and the Remoteness of Unexpected
Outcomes from Intentions’ Crim LR 383.
Norrie, A. (1999) ‘After Woollin’ Crim LR 532.
Norrie, A. (2006) ‘Between Orthodox Subjectivism and Moral Contextualism’
Crim LR 486.
Pedain, A. (2003) ‘Intention and the Terrorist Example’ Crim LR 579.
Price, D. (1997) ‘Euthanasia, Pain Relief and Double Effect’ 17 LS 323.
Rogers (2006) ‘The LC’s Proposed Restructuring of Homicide’ 70 J Crim L 223.
Tadros, V. (2006) ‘The Homicide Ladder’ 69 MLR 601.
Taylor (2007) ‘The Nature of the Partial Defences and the Coherence of (Second
Degree) Murder’ Crim LR 345.
Williams, G. (1987) ‘Oblique Intention’ 46 CLJ 417.

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Wilson, W. (1999) ‘Doctrinal Rationality after Woollin’ 62 MLR 448.

Wilson, W. (2006) ‘The Structure of Criminal Homicide’ Crim LR 471.

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