MURDER

Murder Offences Lecture

Definition of Murder
The definition of murder, although adapted to be relevant in a modern context, remains
as that set out by Sir Edward Coke. Murder occurs, therefore, where a person unlawfully
kills any reasonable creature in rerum natura under the Queen’s peace with malice
aforethought (Coke’s Institutes, 3 Co Inst 47).

Examination Consideration

It is likely that this definition would be required in almost all questions on murder. It is a
good idea to learn it.

The actus reus of murder therefore requires the unlawful killing of any reasonable
creature in rerum natura under the Queen’s peace. The mens rea, malice aforethought.

Unlawful Killing
Killing means causing death and the approach in establishing the existence of this
element is the same as that discussed in relation to causation. The killing will be
unlawful unless there is some justification for it, such as self-defence.

Case in focus - Airedale NHS Trust v Bland [1993] AC 789

In this judgment, permission of the court was sought for the withdrawal of life saving
treatment from a patient. It was held that there is a distinction between withdrawing
treatment that may sustain life in the patient’s best interest and actively administering a
drug that might bring about the patient’s death. The latter would be murder, the former
would not.

R v Inglis [2011] 1 WLR 1110

In this case, a mother deliberately killed her terminally ill son by injecting him with
heroin. Following Bland the fact that the mother saw her actions as an act of mercy was
irrelevant. Mercy killing was and is unlawful and therefore the mother was liable for her
son’s murder.
It used to be the case that where death occurred beyond a year and a day following the
acts of the defendant, no conviction for murder could be brought. This was known as
the ‘year and a day rule’ and was abolished by the provisions of the Law Reform (Year
and a Day Rule) Act 1996 for all acts committed after 17 th June 1996. However, section 2
of the 1996 Act provides that permission must be obtained from the Attorney-General
before a prosecution can be brought where the act of the defendant occurred more
than three years before the death of the victim.

Any Reasonable Creature in Rerum Natura

This element is most simply defined as any human being. A baby does not fulfil these
requirements until it has been fully born. Unborn foetuses, however advanced in their
development and close to birth, cannot be murdered (A-G’s Ref (No 3 of 1994) [1997] 3
WLR 421). Although murder can occur if it is possible to show that the defendant
intended to kill the mother and that they also intended that the child should die soon
after being born. In R v Poulton (1832) 5 C & P 329 it was held that a baby would not
satisfy the requirement of being born until fully expelled from it mother. It is however
necessary that, even if fully expelled, the baby must exist separate from its mother, even
if just briefly (R v Crutchley (1837) 7 C & P 814). In other words, the baby must be alive
as a distinct individual before it can be murdered. However, as mentioned above, the act
that causes the baby’s death can occur whilst it is still in utero providing that it lives
independently briefly before dying.

Under the Queen’s Peace

It is recognised that this term may have had a specific meaning in Coke’s time that has
been lost in the subsequent period (R v Page [1954] 1 QB 170). In a modern context,
section 9 of the Offences Against the Person Act 1861 provides that where a person is
killed, whether or not they are one of the Queen’s subjects, by a subject of the Queen
outside of Her jurisdiction - that is anywhere other than England or Wales - they can be
tried and convicted in England or Wales. This section applies to where the entire actus
reus takes place abroad (the act causing the death and the death itself). Where only one
part of the actus reus takes place abroad, section 10 of the 1861 Act applies. This section
removes the requirement for the defendant to be a subject of the Queen. Although the
provision suggests that an act committed by a foreigner abroad may render them liable
to the English courts if the death occurs in England, it seems that this is not the case (R v
Lewis (1857) Dears & B 182), although it does seem that an act committed in England
and a subsequent death abroad makes the defendant liable in England.

Malice Aforethought
Malice aforethought means an intention to kill or cause grievous bodily harm (R v
Cunningham [1982] AC 566, A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421). On the basis of
the proper definition, the term malice aforethought is misleading because it suggests
elements of both ill will against a victim and some degree of premeditation; neither are
required.

The requirements of intention have been discussed in detail in relation to mens rea in
general and will not be repeated here. It should be noted that because murder is an
offence of specific intent, the discussions in relation to virtual certainty for intention are
extremely relevant. It is murder cases where the greatest likelihood of a jury being asked
to consider whether intention can be found is likely to arise.

Grievous bodily harm is given the same meaning as under section 20 of the Offences
Against the Person Act 1861. This means that an intention to cause really serious harm
(DPP v Smith [1961] AC 290) is required. It is not necessary for the harm foreseen or
intended by the defendant to be harm that may endanger life. Therefore, a defendant
who intends to break a victim’s arm, but holds no intention to kill, will be liable for
murder (Cunningham). It has been suggested that this is an overly harsh approach (see
Lord Edmund-Davies in Cunningham at 582 - 583; and see also R v Powell and
English [1997] 3 WLR 959 where it was held that a person who only intended to cause
grievous bodily harm, whilst being a murderer for the purposes of conviction, was not
really one), but the position remains good law.

It is not necessary for a defendant to intend to kill the particular victim; the doctrine of
transferred malice applies to murder. Furthermore, where a defendant does not intend
the death of any particular victim, but simply intends to kill a random group of
individuals in a terrorist attack, for example, they will be liable under what is known as
general malice and will satisfy the mens rea for murder (A-G’s Ref (No 3 of 1994)).

The Mandatory Life Sentence

The mandatory sentence for murder is life imprisonment (Murder (Abolition of the
Death Penalty) Act 1965, s 1(1)). Whilst this reflects the fact that murder is a very serious
offence, it should be noted that numerous judgments have suggested that the sentence
should be more open to judicial discretion. In R v Howe [1987] AC 417, for example, Lord
Hailsham suggested that whilst murder was indeed a heinous offence, the mandatory
sentence failed to recognise the possible degrees of culpability of the defendant,
ranging from brutal or repeat offenders to offences that are nothing more than mercy
killings of a loved one.

Examination Consideration
It is possible that you may be asked to consider the nature of murder as a general
offence in relation to the efficacy of the particular elements. You should be aware of the
limitations placed on the ability to find intent, and the process of doing so, previously
considered in the chapter on mens rea. You should also consider the position in respect
of grievous bodily harm being sufficient to make a defendant liable for murder, and
whether you think that this is appropriate. It may also be relevant in respect of mens
rea that limitations should be placed on finding intent because of the mandatory life
sentence. Is it important, in this context, that a defendant should only face a life
sentence where they intended to kill, or is an intention to cause grievous bodily harm
sufficient? Is simply being virtually certain of the harm enough?

Partial Defences to Murder

There are three specific defences that apply only to murder: loss of control (which now
replaces the common law defence of provocation); diminished responsibility; and killing
in pursuance of a suicide pact. Although these are termed defences, they are not
defences in an absolute sense, in that they only provide a partial defence to murder and
will make the defendant liable in voluntary manslaughter. It is appropriate to discuss
these offences/defences here because of their relationship to murder, but it is important
to note that they are technically defined as manslaughter, although they are not stand
alone defences. In other words, a defendant cannot be liable for voluntary
manslaughter, but may be found liable if the circumstances allow, following a charge of
murder and a subsequent plea to manslaughter. If the plea is accepted, sentence is
passed on the basis of manslaughter (and avoids the mandatory life sentence for
murder). If the prosecution does not accept the plea, the matter becomes one for the
jury.

It is important to be aware that for cases prior to 4 th October 2010 a different regime
existed in respect of loss of control and diminished responsibility. Whilst it is possible
that cases may still pass through the courts where the crime was committed prior to this
date, the passage of time makes it increasingly less likely that the old law would be
examined unless it has been expressly studied. The discussion here, therefore, will deal
only with the law post 4th October 2010.

Diminished Responsibility
Section 2 of the Homicide Act 1957 provides that:

1. A person (‘D’) who kills or is a party to the killing of another is not to be

convicted of murder if D was suffering from an abnormality of mental functioning
which -
 1. arose out of a recognised medical condition,
2. substantially impaired D’s ability to do one or more of the things
mentioned in subsection (1A), and
3. provides an explanation for D’s acts and omissions in doing or being a
party to the killing.

(1A) Those things are -

1. the understand the nature of D’s conduct;

2. to form a rational judgment;
3. to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning

provides an explanation for D’s conduct if it causes, or is a significant contributory factor
in causing, D to carry out that conduct.

The effect of the section is to require four elements to be made out by the defendant if
they wish to demonstrate diminished responsibility:

 The defendant must be suffering from an abnormality of mental functioning;

 The abnormality must arise from a recognised medical condition;
 The abnormality must substantially impair the defendant’s ability to understand
the nature of their conduct, form a rational judgment or exercise self-control;
 The abnormality will provide an explanation for the defendant’s conduct if it is a
substantial contributory factor.

Abnormality of Mental Functioning - Recognised Medical Condition

Although the abnormality of mental functioning must arise from a recognised medical
condition, it does not follow that the existence of a recognised medical condition will be
accepted as demonstrating the existence of an abnormality of mental functioning. In R v
Dowds [2012] 3 All ER 154, it was stated that certain conditions that fall within the
description of medically recognised would be unlikely to be accepted by the courts as a
basis for a plea of diminished responsibility. Unhappiness, irritability and anger, and
paedophilia were cited in judgment as examples of such conditions (at paragraph [31]).
Furthermore, although alcohol intoxication is a recognised medical condition in a
technical sense, it cannot be the basis of a diminished responsibility plea (R v
Wood [2008] EWCA Crim 1305) unless the defendant suffers from alcoholism or alcohol
dependency (R v Stewart [2009] EWCA Crim 593).
It appears that in the context of both requirements (save for alcohol dependency) that
the matter will always be a question of fact. It is firstly necessary to consider whether, as
a question of fact, the condition is a medically recognised one. This will be relatively
simple in most cases. It is then necessary to consider whether this condition gave rise to
an abnormality of mental functioning. This is a question that is likely to require expert
evidence in order to be determined. The question of whether this expert evidence is
accepted, of course, is ultimately one for the jury. Therefore, even if the trial judge is
uncomfortable with a particular medical condition being cited as a basis for the defence,
if the jury accept that the condition gave rise to an abnormality of mental functioning,
the defence will satisfy the required elements.

Substantial Impairment

The existence of the abnormality of mental functioning must have the effect of
substantially impairing the defendant’s ability to understand the nature of their conduct,
form a rational judgment or exercise self-control. This, once again, is a question of fact
and will almost inevitably require medical evidence to demonstrate whether one of the
three requirements is in fact substantially impaired (R v Bunch [2013] EWCA Crim 2498).

The issue in respect of what constitutes a substantial impairment is not settled. It was
initially considered that the term substantial, in line with much of the criminal law,
meant anything more than minimal (R v Brown [2011] EWCA Crim 279). However, in R v
Golds [2014] 4 All ER 64 it was held that this was not the case, and that the matter of
what was or was not substantial was a question for the jury, but that if some form of
direction was required this should be more restrictive on the basis that whilst a minimal
impairment might exist, it may be the case that such an impairment was not something
that made any really great difference. The question of whether a direction was required
at all and, if it was, whether the jury should be directed that ‘substantial’ meant more
than minimal or whether it meant something else was heard by the Supreme Court on
14th June 2016. At the time of writing (August 2016) judgment has not been given and
therefore, the issue remains unanswered.

Examination Consideration

Any answer given in relation to diminished responsibility is likely to be coloured by the

Supreme Court decision in R v Golds. It is imperative, because the impact of this
judgment will not be found in any textbooks for a period of time, that the legal
databases are checked prior to answering the question in order to ascertain the full
extent of the law. If the judgment has not been given at the time of any examination or
coursework question, marks will invariably be gained by being aware of it and by stating
that the position is unclear. It should be noted however, until the Supreme Court
judgment is given, that the Court of Appeal judgment in R v Golds is good law - no
explanation of the term substantial need be given to the jury.

Provides an Explanation for the Defendant’s Acts or Omissions

This provision, once again, appears purely as a question for the jury but, although the
matter has yet to be litigated in isolation, it seems possible that difficulties in
interpretation may occur. This is because section 2(1B) allows for the abnormality of
mental functioning to be a significant contributory factor in causing the defendant’s
conduct. It does not therefore to be a sole contributing factor. Therefore, where other
factors will inevitably contribute, the issue of the degree of contribution that should be
attributed to the abnormality of mental functioning, as an explanation for the
defendant’s conduct, is unclear. In other words, where the defendant would have killed
without the abnormality of mental functioning, even if this caused a substantial
impairment, a plea of diminished responsibility is unlikely to succeed. However, where
they may have still killed, but might not have done so, and where the abnormality of
mental functioning provides a partial or potential reason why they have killed, the issue
is far less clear. In this context, it is open for the jury to decide by degree whether they
believe that the impairment caused by the abnormality is sufficiently substantial to
provide an explanation.

Loss of Control
Section 54 of the Coroners and Justice Act 2009 provides that:

1. Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be
convicted of murder if -
1. D’s acts and omissions in doing or being a party to the killing resulted
from D’s loss of self-control,
2. The loss of self-control had a qualifying trigger, and
3. A person of D’s sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of D, might have reacted in the same or
in a similar way to D.
2. For the purposes of subsection (1)(a), it does not matter whether or not the loss
of control was sudden.
3. In subsection (1)(c) the reference to ‘the circumstances of D’ is a reference to all
of D’s circumstances other than those whose only relevance to D’s conduct is that
they bear on D’s general capacity for tolerance or self-restraint.

Section 55 goes on to provide that:

 2. A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
3. This subsection applies if D’s loss of self-control was attributable to D’s fear of
serious violence from V against D or another identified person.
4. This subsection applies if D’s loss of self-control was attributable to a thing or
things done or said (or both) which -
1. constitute circumstances of an extremely grave character, and
2. caused D to have a justifiable sense of being seriously wronged.
5. This subsection applies if D’s loss of self-control was attributable to a
combination of the matters mentioned in subsections (3) and (4).
6. In determining whether a loss of self-control had a qualifying trigger -
1. D’s fear of serious violence is to be disregarded to the extent that it was
caused by a thing which D incited to be done or said for the purpose of
providing an excuse to use violence;
2. A sense of being seriously wronged by a thing done or said is not
justifiable if D incited the thing to be done or said for the purpose of
providing an excuse to use violence;
3. That fact that a thing done or said constituted sexual infidelity is to be
disregarded.

There are, with certain exceptions, three elements to be satisfied in order for loss of
control to be successfully pleaded:

 The defendant must demonstrate that they killed as a result of a loss of self-
control;
 That the loss of self-control had a qualifying trigger;
 That a person of the same age and sex of the defendant, with an ordinary degree
of tolerance and in the same circumstances as the defendant would have acted as
the defendant did.

Killing Results from the Loss of Self-control

Whilst it appears simple to recognise whether a killing results from a loss of self-control,
two specific elements are a little unclear. In the first instance, section 54(2) provides that
the loss of self-control need not be sudden. This reflects the position under the old law
(R v Ahluwalia [1992] 4 All ER 889) where it was held that ‘sudden’ did not mean
immediate, and therefore a delayed loss of self-control could allow the defence. It is
unclear whether the removal of the requirement of suddenness takes the matter further,
or whether it is simply a reflection of the old law. The difficulty in this context is that a
distinction must be drawn between a non-sudden loss of self-control and a planned
action. Section 54(4) provides that actions motivated by revenge do not fall within the
concept of a loss of self-control (see also R v Clinton [2012] 2 All ER 497), but it is
unclear where the line falls between premeditation and later or subsequent anger that
constitutes a loss of self-control. Under the provisions, it is perfectly possible for the
defence to be pleaded where the loss of self-control occurs a significant period after the
qualifying trigger on the basis that the defendant became angry about the qualifying
trigger only at that time.

It is also unclear from the provisions whether the loss of self-control must be total, or
whether a partial loss will suffice. The Court of Appeal declined to address this point in R
v Gurpinar [2015] 1 Cr App R 464 on the basis that the case could be decided on other
points. Therefore, it is unclear whether a qualifying trigger that diminishes, without total
loss, a defendant’s self-control will allow the defence to be pleaded.

Qualifying Triggers

The first qualifying trigger, the fear of serious violence against the defendant or another,
is relatively self-explanatory and will necessarily be a question of fact. It is of note that
this defence, in contrast to the total defence of self-defence, removes the need for
proportionality from the defendant’s actions. It is implicit in this context that the
defendant’s use of force against the victim was not proportionate because they lost self-
control. Section 55(6) has the practical effect of preventing a defendant from pleading
loss of control where they have incited the violence that causes them to lose self-
control.

The second qualifying trigger has a limiting effect on the ability to be able to plead the
defence in that the thing done or said must be both of an extremely grave character,
and cause the defendant to have a justifiable sense of being seriously wronged. In other
words, the defence requires not only the grave character of the thing said or done but,
additionally, the requirement for the defendant to have a sense of being seriously
wronged, with whether this is justifiable in the circumstances being a question for the
jury. The important point in this context that it is irrelevant that a jury may consider the
thing said and done to be of an extremely grave character if the defendant does not
have a justifiable sense of being seriously wronged; both elements are essential to the
defence. The same limitations in respect of inciting the thing done or said apply to this
trigger as apply in relation to the fear of violence trigger (s. 55(6)(b)).

Examination Consideration

It is possible that an examination question may focus on the provisions of section 55(6)
(c). This is because, in addition to the practical consideration of what exactly constitutes
sexual infidelity, the question of the impact of this section has been subject to
difficulties in interpretation.
Case in focus R v Clinton [2012] 2 All ER 497

The defendant killed his wife after she informed him in graphic detail about her sexual
infidelity with 5 other men. His wife also taunted him about the fact that he was
considering suicide, but had failed to go through with it. She additionally told him that
she no longer wanted their children.

At first instance the defence of loss of control was not put to the jury because it was
held that section 55(6)(c) prevented it from being so because of the presence of the
wife’s sexual infidelity. In the Court of Appeal, the huge difficulty in interpreting section
55(6)(c) was recognised but it was held that the fact that sexual infidelity cannot be
considered a qualifying trigger alone does not prevent it falling within the something
done or said of a grave character qualifying trigger. If for example, the type of infidelity
was sufficiently grave to satisfy section 55(4), section 55(6)(c) would not automatically
preclude the defence. Where sexual infidelity provided the context for the loss of control
based on another qualifying trigger, the presence of sexual fidelity should not remove
the defence. It is only if sexual infidelity was the only reason for the loss of self-control
that the limitation would apply. If another reason existed, providing this satisfied the
qualifying trigger requirements, the fact that sexual infidelity was also a reason would
not prevent the defence from being pleaded.

Normal Degree of Tolerance and Self-restraint

The test that is applied under this provisions is both objective and subjective. The first,
objective, element is a consideration of the degree of tolerance and self-restraint of a
normal person of the same age and sex as the defendant. Then the subjective
circumstances of the defendant must be applied. Section 54(3) provides that these
circumstances cannot relate to the defendant’s general capacity for tolerance or self-
restraint. This means that a defendant cannot attempt to assert that they are just more
short tempered than an ordinary person and therefore more likely to lose self-control.
However, this section does not preclude the application of the circumstances to the
other elements of the defendant’s character. Therefore, if an action is likely to have a
graver impact on the defendant than an ordinary person without a particular
characteristic of the defendant, the defendant’s loss of self-control may be reasonable in
that circumstance. This means that it is not only the defendant’s age and sex that is a
relevant characteristic, but any particular characteristic, save a general incapacity for
tolerance, may be relevant.

The final requirement under this head, is that the jury must be satisfied that an ordinary
person would have acted as the defendant did in these circumstances. This suggests
that the type of action carried out by the defendant is relevant. In other words, once it
has been established that the defendant reasonably lost self-control in the
circumstances, the defence may still fail if the jury believes that the defendant’s actions,
despite the loss of self-control, are beyond what a reasonable person would have done
in the circumstances. The existence of the loss of self-control, even if reasonable, is not
sufficient to allow the defence to succeed.

Burden of Proof

The initial burden lies with the defendant to provide sufficient evidence that the defence
may arise. The burden then shifts to the prosecution to demonstrate on the usual
criminal standard (the jury must be sure) that the defendant did not kill as a result of a
loss of self-control subject to the provisions of the Act.

Examination Consideration

It is clear to see that there is a great deal of scope for discussion in the area of these two
partial defences. Problem questions may simply focus on whether a defence is available
on the facts, but it is also possible that they will be left open to interpretation regarding
the relatively new provisions and therefore a more discursive approach may be
necessary. The difficulties in respect of sexual infidelity as a qualifying trigger being of
particular relevance to this point.

Killing Subject to a Suicide Pact

Section 4 of the Homicide Act 1957 provides that a person will be guilty of
manslaughter, not murder, if they are able to demonstrate that they killed another or
caused another to be killed in pursuance of a suicide pact. A suicide pact is defined by
section 4(3) as an agreement between 2 or more people that the result of their actions
should be the death of all of them.

In order for this defence to be successfully pleaded, not only must the defendant prove
on the ordinary criminal standard, that they were part of a suicide pact, but also that at
the time that they killed the victim they intended to die. The effect is clearly very
limiting. However, a defendant who, for example, administers an overdose to another,
then takes one themselves, but lives may be able to succeed in this defence.
 MURDER
Sir Edward Coke:
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 (the person)
under the King's peace, with malice aforethought, either expressed by the party or
implied by law, [so as the party wounded, or hurt, etc. die of the wound or hurt, etc.
within a year and a day after the same].
ACTUS REUS
The actus reus of murder requires that a person is killed unlawfully in times of peace rather than
war time and there must be no lawful excuse or justification.
1. There must be a killing which must be unlawful.
2. The killing must be of a living human being and;
3. Death within a year and a day
4. The defendant must have killed the victim - Causation must be established.
 Intervening acts or events
 Combination of causes
 Natural consequences of the defendant's act
 Characteristic of the victim
 Death caused by medical treatment
 Escape cases

Airedale National Health Service Trust v Bland [1993] AC 789

Medical treatment – Ending treatment in absence of informed consent

Facts: Bland was injured in the Hillsborough disaster when he was seventeen and a half years old
and was left in a persistent vegetative state. He remained in this state for over two years with no
sign of improvement, whilst being kept alive by life support machines. Bland could breathe by
himself but required feeding via a tube and received full care. The doctors that were treating
Bland were granted approval to remove of the tube that was feeding him. This decision was then
appealed to the House of Lords by the Solicitor acting on Bland’s behalf.
Issues: A patient that is in a persistent vegetative state cannot withhold or offer consent for
treatment. This requires the doctors to act in the best interests of the patient, which in this case
was whether the continuation of Bland being on life support was in his best interests. It was
important to understand whether life support can ever be withdrawn from an individual who
cannot provide medical professionals with informed consent on a specific issue.
Decision/Outcome: Doctors have a duty to act in the best interests of their patients but this does
not necessarily require them to prolong life. On the basis that there was no potential for
improvement, the treatment Bland was receiving was deemed not to be in his best interests. It is
not lawful to cause or accelerate death. However, in this instance, it was lawful to withhold life-
extending treatment which in this instance was the food that Bland was being fed through a tube.
Appeal dismissed.

A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421

Child born alive then dying after pregnant mother stabbed – mens rea insufficient for murder but
sufficient for manslaughter

Facts: B stabbed his pregnant girlfriend, who then prematurely gave birth to S. S was wounded in
the stabbing and died after 121 days after being born prematurely. B was charged with murder of
S, but was acquitted after it was held that he could not in law be convicted of murder or
manslaughter as a result of harm done to a child in utero, and that there could be no transferred
malice of the intent to harm from the mother to the foetus.
Issues: Under the Criminal Justice Act 1972 section 36 the Attorney General (AG) referred the
case to the House of Lords for a ruling on two issues, pertaining to the mens rea required by B to
be guilty of the child’s murder or manslaughter. The AG firstly asked whether unlawful injury
deliberately inflicted on a mother carrying a child in utero could constitute murder or
manslaughter when the child was born but subsequently died and the injuries inflicted caused or
contributed to death. Secondly, the AG asked whether death caused as a result of injury directed
not to the foetus but to the mother negatived liability for murder or manslaughter.
Decision / Outcome: B could be convicted of manslaughter but not of murder. B did not have
the mens rea for murder and the concept of transferred malice was inapplicable to the
circumstances of this case. However, B satisfied the three elements of unlawful act
manslaughter: (1) he had the sufficient mens rea of intention to do an unlawful and dangerous act
of stabbing the mother, (2) all reasonable people would recognise the risk that some harm would
result, and (3) death was caused by the act. The fact that the injury was not directed at the person
who died as a result did not negate liability for manslaughter.

Re A (Children) (Conjoined Twins: Medical Treatment) (No 1)

[2001] Fam 149
The availability of necessity with regards to the separation of conjoined twins.

Facts: The parents of conjoined twins, M and J, appealed against a decision to allow an operation
to surgically separate them which would result in the death of M. M had severe brain
abnormalities, no lungs and was supplied with blood by her sister. J however was normally
functioning in all relevant respects. At first instance the judge held that allowing the operation
would be in the best interests of both children on the basis that it would allow J a relatively
normal life and would prevent further suffering to M as J grew. It was held, on the basis
of Airedale NHS Trust v Bland [1993] AC 789, that the death of M could be justified by
analogy to a doctor removing life sustaining treatment from a patient with no hope of recovery.
Issues: The parents appealed on the basis that the judge had erred in finding that the operation
was in the best interests of both children. The Court of Appeal was asked to consider whether
this was the case, but addressed both this and the result of liability should the operation proceed
(whether necessity would provide a defence).
Decision / Outcome: It was held that
(1) whilst the views of the parents should be given significant respect, the court must address the
matter purely on the welfare of the children.

(2) In this respect, the trial judge had erred in suggesting that the separation would be of benefit
to both children because all life had equal value. M’s life was as valuable as J’s in these
circumstances and the operation could not therefore, be in her best interest.

(3) The court was then required to balance the interests of the children against one another and
concluded that the balance fell in favour of J.

(4) The operation would not constitute murder because the three elements required to raise a
defence of necessity were present:
-(a) the act was required to avoid an irreparable evil;
-(b) the steps went no more than was reasonably required to achieve this; and
-(c) the evil caused was not disproportionate to the evil avoided.

The appeal was refused.

R v Poulton (1832) 5 C & P 329

Murder – Unborn foetus

Facts: A mother strangled her newborn baby, and was charged with the murder. Three medical
men testified before a jury that a child can die during the delivery, thus the fact that a child
breathes when it is born before it its whole body is delivered does not mean that it is born alive:
“It frequently happens that a child is born as far as the head is concerned, and breathes, but death
takes place before the whole delivery is complete. My opinion in this case is, that the child had
breathed; but I cannot take upon myself to say that it was wholly born alive.”

Issues: The issue in question was when a foetus becomes a ‘human being’ for the purposes of
murder and manslaughter.
Decision/Outcome: An unborn child is incapable of being killed. A child is born only when the
whole body is brought into the world, but it is not sufficient that the child breathes in the
progress of the birth, as the child may die before the whole delivery takes place. For a murder or
manslaughter conviction, a child must be killed after it has been fully delivered alive from the
mother’s body. In this case the jury found the child not to be born alive, and therefore the mother
could not be guilty of murder. The case of A-G’s Ref (No 3 of 1994) [1997] 3 WLR
421 confirmed that an unborn foetus is not capable of being murdered, but a manslaughter
conviction can stand where the foetus was subsequently born alive but dies afterwards from
injuries inflicted whilst in the womb.

R v Malcherek and Steel [1981] 2 All ER 422

Victim requiring medical treatment – Act breaking chain of causation

Facts
Malcherek: Malcherek stabbed his wife in the abdomen. She was treated for the wound and a
few days later she collapsed in hospital. She subsequently had surgery to remove a blood clot
during which her heart stopped beating for thirty minutes before it was restarted by the doctors
again. This thirty minute period had caused the victim to suffer irretrievable brain damage and as
a result, she was placed on a life support machine. A day later, the life support machines were
disconnected as there was no chance of her condition improving.

Steel: Steel attacked a girl and caused serious head injuries. She was taken to hospital and put on
a life support machine almost immediately, shortly afterwards it was concluded that her brain
had stopped working and the machine was disconnected.

Issues: In each case, the medical treatment that was given was considered normal and in line
with approved medical practice. Both Malcherek and Steel were charged with murder. In both
instances, the trial judges withdrew the issue of causation from the jury as it was clear the initial
injuries inflicted were the cause of death. This direction was appealed by Malcherek and Steel.
Decision / Outcome: Appeal dismissed. The fact that the treatment was in line with medical
opinion could not prevent the defendants having their guilt absolved. There was no evidence that
the original injuries inflicted stopped being the operative cause of death. On this basis, it was
held that the Issue was properly and appropriately withdrawn from the jury by the trial judges.

R v Page [1954] 1 QB 170

Courts-martial – foreigner killed abroad by British soldier – Extraterritorial jurisdiction

Facts: A British soldier, Harry Richard Page (HRP), killed an Egyptian national in Egypt and
was convicted of murder of an Egyptian national by a court-martial. HRP was convicted under
section 9 of the Offences against the Person Act 1861 (1861 Act) which stated that where a
British national commits murder of a person of any nationality, and commits it anywhere outside
of the United Kingdom, whether within the Queen’s dominions or not, the offence can be dealt
with in any place where that person is apprehended or in custody, as if it had been committed in
England. This act was applied by a court-martial under section 41 of the Army Act 1881 (1881
Act), which allows trial by court-martial of a person subject to military law who commits
murder. HRP appealed against his conviction.
Issues: HRP claimed that a court-martial did not have jurisdiction to try and convict a British
solider of murder where the murder was not on British soil or the victim was not British.
Decision/Outcome: The conviction was upheld. There is a general rule of English law that
offences committed by British nationals outside of England are not punishable by the English
criminal law. However, the combined effect of section 9 of the 1861 Act and section 41 of
the 1881 Act was that where a person is subject to military law, they can be tried abroad by a
court-martial for any offence, wherever committed and whatever nationality the victim, which
would be an offence against the law of England, including murder.

R v White [1910] 2 KB 124

CAUSATION – ATTEMPT

Facts: The defendant put poison into the evening drink of the victim, his mother, with the
intention of killing her. The victim drank a few sips of the drink and then fell asleep. She did not
wake up, however the medical evidence was that she had died of a heart attack rather than as a
result of the poison. The defendant also gave evidence that he had not intended to kill her by a
single dose but had planned to deliver multiple doses over a longer period of time. The defendant
was convicted of attempted murder.
Issues: On appeal, the question arose as to whether the defendant could be liable for murder
given that his actions had not factually caused the death. A second issue was whether having
delivered a single dose was a sufficient ‘attempt’ to ground the conviction in light of the
evidence that the defendant had intended the victim to die as a result of later doses which were
never administered.
Decision/Outcome: The court established the ‘but for’ test of causation, according to which the
defendant could not be convicted unless it could be shown that ‘but for’ his actions the victim
would not have died. On the facts of this case the test was not met, therefore the defendant could
not be convicted of murder.
On the issue of attempt, the court held that it was sufficient that the attempted murder had been
begun, notwithstanding that the defendant had not completed his plan. The conviction for
attempted murder was therefore upheld.

R v Smith [1959] 2 QB 35
CAUSATION

Facts: The defendant was a soldier who stabbed one of his comrades during a fight in an army
barracks. The victim was taken to receive medical attention, but whilst being carried to the
hospital was dropped twice by those carrying him. Once at the hospital, he received negligent
medical treatment; the medics failed to diagnose a puncture to his lung. The victim died of his
injuries, and the defendant was charged with murder and convicted at first instance. The
defendant appealed on the basis that the victim would have survived but for the negligence of
those treating him. He also argued that his confession had been obtained under duress and was
therefore inadmissible.
Issues: The issue was whether the negligence on the part of the doctors was capable of breaking
the chain of causation between the defendant’s action in stabbing the victim, and his ultimate
death.
Decision/Outcome: The court held that the stab wound was an operating cause of the victim’s
death; it did not matter that it was not the sole cause. In order to break the chain of causation, an
event must be:
“…unwarrantable, a new cause which disturbs the sequence of events [and] can be described as
either unreasonable or extraneous or extrinsic” (p. 43).

The chain of causation was not broken on the facts of this case.

With respect to the issue of duress, the court held that as the threat was made some time before
the relevant confession and was no longer active at the time of the defendant’s statement, it did
not render the evidence inadmissible. The conviction for murder was therefore upheld.

R v Dalloway (1847) 2 Cox CC 273

Summary: Causation – negligence causing death – murder and manslaughter

Facts: Dalloway was standing on a horse and cart as it drove along a public road. Dalloway was
not holding on to the reins as they were resting on the horse’s back. During his journey, a small
child ran out in to the road in front of the cart and was killed by one of the wheels as it moved
along. Dalloway was charged for driving his cart in a negligent fashion and subsequently causing
the death of the child.
Issues: One of the key issues in this case was whether the result of Dalloway’s action had
actually caused the death of the child. Justice Erle directed the jury that a negligent party,
causing the death of another would be found to be guilty of manslaughter. On this basis, for
Dalloway to be found guilty, the consequences of failing to hold the reins during his journey
must have been considered to cause the death of the child.
Decision / Outcome: During the trial, expert evidence was produced which demonstrated that if
Dalloway had been holding on to the reins tightly, he would not have been able to stop the cart
before it collided with and killed the child. On this basis, the act Dalloway was culpable for (not
holding the reins), was not the cause of the death of the child. As a result of this, the jury decided
to acquit Dalloway, as they were satisfied that the child’s death could not have been avoided.
The decision in this case was that Dalloway was not guilty.

R v Pagett (1983) 76 Cr App R 279

CAUSATION – NOVUS ACTUS INTERVENIENS – SELF DEFENCE
Facts: The appellant shot at a police officer who was trying to arrest him, and subsequently
attempted to use a pregnant teenage girl standing nearby as a human shield to defend himself
against retaliation by the officer. The officer returned fire, killing the girl. At trial the defendant
was acquitted of murder but convicted of manslaughter, which he appealed.
Issues: The issue before the Court of Appeal was whether the officer’s action in shooting at the
defendant constituted a novus actus interveniens such as to break the chain of causation between
the defendant’s actions and the death of the victim.
Decision/Outcome: It was held that a neither a reasonable act taken for the purpose of self-
preservation, nor an act done in the execution of a legal duty, could not constitute a novus actus
interveniens for the purposes of the causal chain. The Court suggested that in a homicide case it
is rarely necessary to give the jury more than a simple direction on the issue of causation; a
direction that the defendant’s act need not be the sole cause of death is usually sufficient. In this
case, the defendant had done two dangerous acts which a sober and reasonable person would
realise were likely to cause harm, firstly by firing at the officer and secondly by forcing the
victim to shield him from return fire. Both of these acts had in fact contributed significantly to
the victim’s death. The conviction of manslaughter was therefore upheld.

R v Hayward (1908) 21 Cox CC 692

Unlawful Act Manslaughter – Causation – Egg Shell Skull Rule – Pre-Existing Medical
Condition.

Facts: A husband and wife had an argument that led to the husband chasing his wife out into the
street. The wife collapsed during this altercation and died. Whist the husband did not physically
touch her, he did shout threats at her. The wife was found to have been suffering from an
abnormality of the thyroid gland that neither was aware of that meant that fright or shock could
cause death if combined with physical exertion. The husband was charged with manslaughter.
Issue: Did the wife’s medical condition mean that the husband’s action caused the wife’s death
or did the the wife’s condition break the chain of causation.
Decision/Outcome: The husband was found guilty of manslaughter. No actual proof of violence
was necessary as long as the defendant’s unlawful act, which was the threat of violence, caused
her fright leading to her death. The criminal law acknowledges that an assailant must take their
victim as they find them. The victim’s state of health did not affect the question of whether or
not the defendant’s unlawful act accelerated the victim’s death. It was irrelevant to the issue of
causation whether or not the fright was one which would have caused the effect it did on a
reasonable person as it did on one of exceptional timidity. Provided the defendant had the
requisite mens rea the victim’s pre-existing medical condition did not break the chain of
causation. This is sometimes known as the ‘egg-shell skull’ rule.

R v Blaue [1975] 1 WLR 1411

Chain of Causation – Manslaughter – Novus Actus Interveniens – Victim’s Own Act – Egg shell
Skull Rule

Facts: After the victim refused the defendant’s sexual advances the defendant stabbed the victim
four times. Whist the victim was admitted to hospital she required medical treatment which
involved a blood transfusion. The victim was a Jehovah’s Witness whose religious views
precluded accepting a blood transfusion. She was informed that without a blood transfusion she
would die but still refused to countenance treatment as a result of her religious conviction. The
victim subsequently died and the defendant was charged with manslaughter by way of
diminished responsibility. The defendant appealed.
Issue: Did the victim’s refusal to accept medical treatment ritute a novus actus interveniens and
so break the chain of causation between the defendant’s act and her death? Whether the test laid
down in R v Roberts (1971) 56 Cr App R 95 was to be applied because of an omission on behalf
of the victim.
Decision / Outcome: The appeal was dismissed. The stab wound and not the girl’s refusal to
accept medical treatment was the operating cause of death. The victim’s rejection of a blood
transfusion did not break the chain of causation. The defendant must take their victim as they
find them and this includes the characteristics and beliefs of the victim and not just their physical
condition. Unlike in R v Roberts (1971) 56 Cr App R 95 the victim’s decision was an omission
and not a positive act and so the test was not of whether the omission was reasonably
foreseeable. In the case of omissions by the victim ‘egg-shell skull’ rule was to be applied.
Even if R v Roberts (1971) 56 Cr App R 95 is applied the victim’s response was foreseeable
taking into account their particular characteristics.

R v Ryan [1996] Crim LR 320; (1996) 120 JP 610

Burglary – must entry be effective under Theft Act 1968.

Facts: The defendant, Ryan, was discovered in the early hours of the morning stuck inside the
window of an elderly person’s house and had to be removed by the fire brigade. He had managed
only to get his head and one arm inside the window. He was convicted with burglary and
subsequently appealed against his conviction to the Court of Appeal.
Issues: Under s.9(1)(a) Theft Act 1968 a person commits burglary if they enter a building or part
of a building as a trespasser with intent to steal anything from the building, inflict grievous
bodily harm on any person therein, or damage the building or anything therein. The defendant
argued that he had not been capable of stealing anything from the building because he was firmly
stuck in the window. He also argued that he had not ‘entered’ a building as he was partially
outside it.
Decision / Outcome: The fact that nothing was stolen was only because he had gotten stuck. In
any case it was irrelevant whether anything was actually stolen or not. The defendant’ partial
presence within the building amounted to entry under s.9(1) of the 1968 Act. The court applied R
v Brown [1985] Crim LR 212 and stated that a person could enter a building if only a part of his
body with actually inside the premises. The court agreed with the trial judge’s finding that it was
up to a jury to decide whether there was entry or not based on the facts of the case.

R v Jordan (James Clinton) (1956) 40 Cr. App R 152

Medical evidence was to the cause of death – new evidence regarding the cause of death

Facts of R v Jordan: Jordan, who worked for the United States Air Force, stabbed a man as the
result of a disturbance. The victim died in hospital eight days later. The post-mortem found that
the victim died of broncho-pneumonia following the abdominal injury sustained. The court in the
first instance found Jordan guilty. The doctor who treated the victim contacted the United States
Air Force authorities as he took a different view as to the cause of death. Leave was approved for
the gathering of further evidence.
Issues in R v Jordan: A key issue in this case was whether and under what circumstances could a
court listen to additional evidence. One of the pre-requisites for such an application was that it
must be shown the evidence was not available at the initial trial stage. The appellant had also
raised various defences including provocation, self-defence and the fact that it was an accident.
Decision/Outcome of R v Jordan: The court held that the additional evidence was of a nature that
would probably have affected the jury’s verdict. The additional evidence opined that the death
was not caused by the wound at all but that the medical treatment was inappropriate. The victim
was intolerant to terramycin which was noticed and initially stopped before being continued the
following day by another doctor. They had also introduced abnormal quantities of fluid which
waterlogged the victim’s lungs. This evidence was not available at the initial trial and it was
believed that a jury would listen to opinion of two doctors that had the standing the experts did in
this case. On this basis, the conviction was quashed.

R v Cheshire (David William) [1991] 1 WLR 844

Chain of causation – Death in hospital following shooting

Facts: Cheshire shot a man during the course of an argument. The victim was taken to hospital to
have surgery and shortly after developed respiratory issues. The doctors inserted a tracheotomy
tube, which remained in place for four weeks and initially improved the victim’s condition.
Several days later the victim complained of respiratory issues, his condition soon worsened and
he died shortly afterwards. The post-mortem found that the victim’s windpipe had narrowed near
the location where the tracheotomy pipe had been inserted. Cheshire was subsequently charged
with murder and convicted. The decision was appealed.
Issue: A key issue in this case was whether the accused’s acts of shooting the victim had caused
the death or whether the chain of causation was broken by the negligent medical treatment that
the victim had received following being injured by the shooting. The judge in this case directed
the jury to decide whether Cheshire’s acts could have made a ‘significant contribution’ to the
victim’s death. Importantly, the judge directed the jury that the acts need not be the sole or even
main cause of death.
Decision/Outcome: Appeal dismissed. The jury was not required to evaluate the competing
causes of death and therefore the judge was right to direct them as he did in the first instance. It
was clear that the negligent medical treatment in this case was the immediate cause of the
victim’s death but that did not absolve the accused unless the treatment was so independent the
accused’s act to regard the contribution as insignificant.

R v Lewis (1857) Dears & B 182

Murder – High Seas – English jurisdiction where both the victim and the perpetrator are not
British citizens

Facts: John Lewis (J), a French-American seaman, injured a German man (G) on board an
American ship on the high seas. G died in hospital in England after arrival of the ship in
Liverpool. J was convicted by the last Liverpool Assizes for manslaughter under section 8 of
the Offences Against the Persons Act 1828 (the 1828 Act) which provided that where a person
is ‘feloniously stricken’ on the high seas and dies in England, England has jurisdiction over the
case. The case was reserved and stated for the consideration and decision of the Court of
Criminal Appeal.
Issues: The issue in question before the Court of Criminal Appeal was whether, under the
circumstances of this case, the offence committed was cognizable by English law; whether the
Liverpool Assizes had jurisdiction to try and convict J, where neither J nor the victim, G, were
subjects of the Queen and the offence was committed on the high seas.
Decision/Outcome: The offence was not cognizable by English law. England had no jurisdiction
in the circumstances of this case where a foreigner injured another foreigner on the high seas,
leading to that person’s death, albeit in England. Section 8 of the 1828 Act was read in
conjunction with section 7 of the same act, which provided that British subjects can be tried in
England for murder or manslaughter committed abroad. Upon reading these sections in
conjunction, the words ‘feloniously stricken’ under section 8 of the 1828 Act therefore had to be
read as ‘felonious’ only where the perpetrator was a British citizen, which J was not. The 1828
Act being inapplicable to J, the conviction was quashed.

MENS REA
The mens rea for murder is malice aforethought. Malony and Matthews&alleyne
1. Intention to kill woollin
2. Intention to cause G.B.H vickers

R v Moloney [1985] 1 AC 905

Murder – Mens Rea – Intention – Foresight

Facts: The defendant and his stepfather who had a friendly and loving relationship were engaged
in a drunken competition to see which of them could load a shotgun faster than the other.
Moloney won, and was then challenged by his stepfather to fire the gun. He did, killing his
stepfather instantly. Moloney was charged with murder and convicted. He appealed and the
Court of Appeal allowed appeal to the House of Lords.
Issue: Did the mens rea of murder require direct intent to kill or cause serious bodily harm, or
was foresight of a serious likelihood of harm occurring sufficient? Whether the jury was to infer
intent if they were satisfied that the accused foresaw that death or serious injury was a natural
consequence of his act?
Decision/Outcome: The House of Lords allowed Moloney’s appeal. He had not intended to kill
his stepfather. Knowledge of foresight of the consequences of an action were to be considered at
best material from which a crime of intent may be inferred. Where the defendant’s purpose was
other than to cause serious bodily harm or death to another then the jury may infer intent if the
consequence of the defendant’s act was a natural consequence, and the defendant foresaw that
this was a natural consequence of his act. The jury in such a circumstance should be directed
that they may infer intent, but were not bound to infer intent, if both these circumstances are
satisfied. Foresight of the natural consequences of an act is no more than evidence of the
existence of intent.

R v Woollin [1999] AC 82
Relates to: Indirect Intention

Introduction
Murder is a common law offence. The actus reus elements are an act or omission resulting in the
unlawful killing of a reasonable person under the Queen’s peace, and the two alternative mens
rea elements are either an intention to kill or an intention to cause grievous bodily harm (GBH) 1.
Whilst the actus reas elements are normally easy to establish, there has been much debate over
the mens rea elements – specifically the meaning of intention2. On occasions where a defendant
argues that killing or causing GBH was not his main intention and he therefore does not fulfil the
mens rea requirements for murder, the courts must consider the surrounding case law concerning
indirect or oblique intention3.

In R v Moloney4, the court directed that a defendant who foresaw death or serious injury as
‘natural consequences’ had oblique intention, yet in Hancock v Shankland5 it was held that a jury
should consider the ‘probability of a consequence’ when establishing if a defendant had intent.
Furthermore, it was held in R v Nedrick6 that the court should consider two questions; did the
jury consider that death or serious injury was virtually certain to occur as a result of the
defendants actions, and did the defendant foresee the death or injury as virtually certain? If the
jury answered ‘yes’ to both these questions, there would be enough evidence from which
intention could be inferred7.

These decisions left the legal meaning of intention and the correct approach to giving directions
to a jury unclear8, however the position was clarified in R v Woollin9.

Facts in Woollin
The facts of Woollin10 comprised of the defendant throwing his three month old baby to the
ground in frustration when it would not stop crying, leading to the baby dying from a fractured
skull. The court accepted that the defendant did not intend to cause death or harm to the child but
that the defendant foresaw there was a risk of causing serious harm to the baby as a result of his
actions.

The original trial judge directed the jury that oblique intention exists if there is ‘an appreciation
of a substantial risk of injury’, which resulted in the jury deciding that exposing somebody to a
risk of harm was sufficient to amount to intention11. The case was referred to the Court of Appeal
and then the House of Lords to consider whether this was the correct way to define intention.

Held in Woollin
The Court of Appeal upheld the murder conviction; however upon appeal, the House of Lords
overturned the conviction for murder and substituted it for manslaughter, holding that the
original trial judge had enlarged the mens rea element for murder by introducing the question of
whether the defendant foresaw a substantial risk12. The term ‘substantial risk’ blurred the lines
between intention and recklessness, and as recklessness is not a state of mind sufficient to
convict a defendant of murder it is important to keep them distinct13. The House of Lords
confirmed that the ‘virtual certainty’ test introduced in Nedrick14 should instead be used when
considering oblique intention15.

However the House of Lords also amended one word in the Nedrick test; rather than intention
being inferred by a positive answer to the two questions, it only allows the jury to find
intention16. This has been presumed to mean that whilst a jury are able to find that the defendant
had intention, they are not obliged to find that the defendant actually acted with intent when the
offence was committed17. It has been suggested that this is to allow juries some ‘moral elbow-
room’ when considering complex cases18; however Ashworth19 argues that, for serious offences
such as murder, the courts should be aiming to introduce a tighter definition for intention, and
allowing the more complex cases to be dealt with by way of defences or partial defences.

Direction in Woollin
It has been said that the direction in Woollin20 does not provide a definition of intention and the
law still remains slightly unclear21. In Matthews and Elleyne22, Rix LJ stated, ‘we do not regard
Woollin as yet reaching or laying down a substantive rule of law’23. The ruling has also been
criticised by Kaveny24, who believes the difficulties in establishing a defendant’s foresight means
that the jury should instead be focusing on the defendant’s purpose when carrying out the action.

Woollin25 was recently followed in Smith v Criminal Injuries Compensation Authority26, in

which a cyclist who had been riding dangerously fast through a busy pedestrian area argued that
it wasn’t his intention to injure the victim. The court held that the defendant foresaw it was a
‘virtual certainty’ that a pedestrian would be injured; he had saw pedestrians using a crossing,
but rather than stopping at the red light he sped up and this amounted to oblique intention.
Similarly, in R v Royle27 the defendant attempted to argue his intention was to steal a handbag
rather than cause death or injury to the victim, however the court held that by stamping on the
elderly victims head it was a ‘virtual certainty’ that serious harm would be caused.

However in R v Hales28, the court gave different direction to that established in Woollin, instead
suggesting that the jury should consider the defendant’s actions before, at the time of, and after
the alleged offence. There was no need to establish foresight because a jury could infer from the
defendant deliberately reversing into the officer that there was clearly evidence he intended to
kill29.This has been distinguished from Woollin on the basis that the defendant had previous
admitted that, although it was not his motive to kill the officer, he was ‘prepared to kill in order
to escape’30.

Despite the criticisms discussed above, it is clear that Woollin31 remains the leading precedent
used when the courts and juries are considering oblique intention; Norrie32 states that that
‘Woollin constitutes the last word on the indirect intention for murder’.

Hancock and Shankland [1986] 1 All ER 641

The defendants were striking miners who threw a concrete block from a bridge onto the
motorway below. It struck a taxi that was carrying a working miner and killed the driver. The
defendants argued that they only intended to block the road but not to kill or cause grievous
bodily harm. The trial judge directed the jury on the basis of Lord Bridge’s statements
in Moloney (ie, was death or grievous bodily harm a natural consequence of what was done, and
did the defendants foresee that consequence as a natural consequence?) and the defendants were
convicted of murder. On appeal a verdict of manslaughter was substituted by the House of Lords
who reaffirmed that the prosecution has to establish an intention to kill or do grievous bodily
harm on the part of the defendant. Lord Scarman felt that the Moloney guidelines on the
relationship between foresight and intention were unsatisfactory as they were likely to mislead a
jury. Lord Scarman expressed the view that intention was not to be equated with foresight of
consequences, but that intention could be established if there was evidence of foresight. The jury
should therefore consider whether the defendant foresaw a consequence. It should be explained
to the jury that the greater the probability of a consequence occurring, the more likely that it was
foreseen, and the more likely that it was foreseen, the more likely it is that it was intended. In
short, foresight was to be regarded as evidence of intention, not as an alternative form of it.

R v Nedrick [1986] 1 WLR 102

Murder – Mens Rea – Foresight – Intention – Inferred Intent

Facts: The defendant Nedrick held a grudge against a woman. In the middle of the night he
drove to her house before pouring petrol through her letter box and igniting it. The defendant,
without warning anyone in the house then drove home. As a result of the fire a child died and
Nedrick was charged with murder. The trial judge directed the jury that if the defendant knew it
was highly probable that the act would result in serious bodily harm to someone, even if he did
not desire that result, he would be guilty of murder. Nedrick was convicted of murder and
appealed.
Issues: Whether a jury is entitled to infer intent if they consider a defendant’s actions highly
likely to cause death or serious bodily harm. Whether the defendant’s foresight of the likely
consequences of his act is sufficient to satisfy the mens rea of murder as intent. Whether the trial
judge’s direction to the jury that the defendant could be guilty of murder if he knew it was highly
probable that serious bodily harm would occur as a result of his act was a misdirection.
Decision/Outcome: The appeal was allowed. The trial judge’s direction was a mis-direction.
Modifying R v Moloney [1985] 1 AC 905, the Court of Appeal held that the jury should be
directed that they are not entitled to infer intention unless they are satisfied that they felt sure that
death or serious bodily injury was a virtual certainty of the defendant’s actions and that the
defendant knew this.

DPP v Smith [1961] AC 290

Whether mens rea for murder is subjective or objective

Facts: Jim Smith (S) was ordered by a police constable to stop his car which contained stolen
goods, however S accelerated instead. The police constable jumped onto the car, but fell off and
was killed by another oncoming car after S violently swerved the car. S was convicted of murder
and appealed to the Court of Criminal Appeal.
Issue: The issue in question was whether the mens rea of intent for murder is a subjective or an
objective test. S claimed that he could not be convicted of murder because he did not have the
requisite mens rea of intention to kill or to cause grievous bodily harm. He claimed that the mens
rea for murder is subjective, and the trial judge had misdirected the jury in stating that the mens
rea test for murder was whether a reasonable man would have contemplated that grievous bodily
harm was a likely result from J’s actions.
Decision/Outcome: The Court of Criminal Appeal, finding the test to be subjective and the trial
judge to have misdirected the jury, allowed the appeal and substituted a verdict of manslaughter.
The case was then appealed by the prosecution to the House of Lords. The House of Lords held
that an objective test was applicable to the mens rea of intent for murder, therefore there was no
misdirection and the murder conviction was to be reinstated. Where the accused is capable of
forming an intent in that he is not insane nor suffering from diminished responsibility, any actual
intention is immaterial, and the mens rea test for a conviction of murder is what in all the
circumstances the ordinary reasonable man would have contemplated to be the natural and
probable result of the grievous bodily harm done.

R v Cunningham [1957] 2 QB 396

Intention and the meaning of malice in s.23 OAPA 1861

Facts: The appellant removed a gas meter in order to steal the money inside. The meter however
was connected to the neighbouring house which was occupied by the appellant’s future mother-
in-law. At the time he did this, she was in her property asleep. The removal of the meter caused
gas to leak into her property, which in turn lead to her being poisoned by the gas. The defendant
was charged with unlawfully and maliciously endangering his future mother-in-law’s life
contrary to the Offences Against the Person Act (OAPA) 1861, section 23. The appellant was
convicted at trial, with the judge instructing the jury that for the meaning of “malice” in this
context is “wicked” or otherwise “–
“something which he has no business to do and perfectly well knows it” (p.3).

The case was appealed by the appellant on the basis of this instruction to the jury in addition to
arguing for a lack of mens rea to cause harm.

Issue: The issue in the case was whether the trial judge had erred in his instruction to the jury and
what is the correct meaning of malice. The broader issue in the case was what amounts to
intention for the purposes of s.23 of OAPA 1861.
Decision / Outcome: appellant’s conviction was quashed on the grounds that the judged had
erred in describing the meaning of “malicious” as “wicked” – this was an incorrect definition and
the trial judge misled the jury into believing that if the appellant had acted wickedly he had also
acted maliciously. The correct test for malice was whether the defendant had either actual intent
to cause harm or was reckless as to the possibility of causing foreseeable harm. This is known as
“Cunningham Recklessness”. The jury should have been left to decide whether, even without
intending to cause harm, the appellant removed the gas meter despite foreseeing that its removal
could cause harm to his future mother-in-law.

R v Latimer (1886) 17 QBD 359

Doctrine of Transferred Malice

Facts: The defendant was in an argument with another in a pub. The argument escalated and the
defendant attempted to hit the other man with his belt, but missed. While only marginally hitting
his intended victim, the defendant’s blow was instead redirected and hit a woman standing next
to the intended victim. The woman was severely injured. The defendant was prosecuted for
unlawful and malicious wounding, contrary to the Offences Against the Person Act 1861,
section 20.
Issues: The issue in the case was whether it was possible to convict the defendant of the s.20
OAPA 1861 offence in a situation where he had intended to harm another and only accidently
harmed his actual victim. In effect, the question was whether the mens rea of the offence could
be transferred from the intended victim to the actual victim (with the actus reus) being already
directed at the actual victim.
Decision / Outcome: The court held that it is possible to use the doctrine of transferred malice
outside of the bounds of murder cases. It was therefore possible to rely upon in in cases such as
for a s.20 OAPA situation of inflicting of bodily injury. Pembliton ((1874) LR 2 CCR 119 was
distinguished on the grounds that it applied only to a particular kind of malice – malicious injury
to property (there transferring malice was not allowed, but this was because there was an attempt
to transfer malice from an offence against property to an offence against the person, which are
completely different offences). Therefore, the Defendant was held to be liable for the injuries of
his actual victim despite having no intention to injure her.

R v Pembliton (1874) LR 2 CCR 119

Transferred Malice in cases of damage to property
Facts: The defendant was ejected from a pub and became engaged in a physical altercation in the
street. This escalated until he threw a large stone at his opponents. His throw was inaccurate
however and instead of hitting then, he hit a nearby window, breaking it and causing over £5
worth of damage. The defendant was prosecuted under section 51 of the Malicious Damage Act
1861 c.97. This stated that:
“Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon
any real or personal property whatsoever ….. the damage, injury, or spoil being to an amount
exceeding five pounds, shall be guilty of a misdemeanour” (MDA 1861, s.51).

The defendant was convicted even though the jury acknowledged that he had no intention of
breaking the window and causing damage.

Issues: Could the doctrine of transferred malice operate in this case to transfer the malice to hurt
another person into malice to damage property?
Decision/Outcome: The court held that it was not possible to transfer the malice to strike a
person to the situation of maliciously damaging property. The court viewed the term
“maliciously” to generally require that intention be proved, although it was allowed that reckless
disregard for risk which the defendant had contemplated could suffice. As this was in any event
not the case, the conviction was quashed.
“… it seems to me that what is intended by the statute is a wilful doing of an intentional act.”
(Lord Coleridge CJ, p.122).

R v Taaffe [1984] AC 539

Drug importation – Requirement of actual knowledge of drugs

Facts: Paul Desmond Taafe (T) was enlisted by a third party in Holland to import cannabis into
England, which was prohibited to import under the Misuse of Drugs Act 1971. T, however, had
mistakenly believed the substance to be currency, which T had believed was prohibited to import
but was in fact not. T was charged under section 170(2) of the Customs and Excise
Management Act 1979 (1979 Act) of having been knowingly concerned in the fraudulent
evasion of the prohibition on the importation of cannabis. T was convicted and appealed.
Issues: The issue in question was whether T’s version of events in which he had erroneously
believed the prohibited substance to be currency, if accepted by the jury, should entitle him to be
acquitted.
Held: ‘Knowingly concerned’ under section 170(2) of the 1979 Act had to be read as actual
knowledge that the substance in question was one the importation of which is prohibited. T was
not knowingly concerned in the fraudulent evasion of the prohibition on the importation of
cannabis when he mistakenly believed that the substance he was importing was currency. For an
offence of which the ingredients are the defendant’s state of mind and knowledge, the defendant
must be judged on the facts as he believed them to be. T’s mens rea for the impossible offence of
smuggling currency could not be imported to the smuggling of drugs. The Court of Appeal
allowed T’s appeal and his conviction was quashed. The House of Lords dismissed the
prosecution’s appeal.
R v Mowatt [1968] 1 QB 421
Does a charge under s. 18 require that intent or reckless to the injuries caused be proven.

Facts: The defendant and a friend were out late at night, and came across the victim, at which
point the defendant knocked the victim unconscious whilst the defendant’s friend proceeded to
steal money from the victim. The victim then chased the friend but could not find him and so
returned to the defendant, and insisted that he inform of the friend’s whereabouts. The defendant
claimed to have felt endangered by the victim’s aggressive demeanour and so punched the
victim, and proceeded to violently attack him. He was later charged with malicious wounding
under s. 18 of the 1861 Offences Against the Person Act.
Issues: Whilst a jury has the option of returning a guilty verdict for the lesser charge of s. 20
when contemplating a charge under s. 18, did a judge err in failing to emphasise the distinction
of malicious intent between the two crimes.
Decision/Outcome: The Court deemed it irrelevant that the first instance judge had not explicitly
elaborated on the word ‘malicious’ as the defendant’s actions could be taken as indicative of his
intent to intentionally cause serious harm. As Diplock LJ commented:
‘It is quite unnecessary that the accused should have foreseen that his unlawful act might cause
physical harm of the gravity described in the Section, i.e. a wound or serious physical injury. It is
enough that he should have foreseen that some physical harm to some person, albeit of a minor
character, might result.’ [(426)]

Subsequently the defendant was deemed guilty of an offence of wounding under s. 18.

R v Evans (Gemma) [2009] EWCA Crim 650

Manslaughter by gross negligence – duty of care

Facts: Evans purchased heroin and gave it to her half-sister who later self-ingested the drug.
Evans recognised that the victim had symptoms akin to those of an overdose and remained with
her mother and the victim, without calling for medical assistance as they feared getting into
trouble. They checked on the victim at intervals throughout the evening and when they awoke
the following morning the victim was dead. The cause of death was poisoning from heroin. The
primary dispute in the first instance was whether the supply of drugs to her half-sister had
created a duty of care between Evans and her half-sister. The jury agreed that there was a duty
owed and Evans was convicted. Evans subsequently appealed.
Issues: Evans submitted that the judge had erred in his instruction to the jury regarding duty of
care in the circumstances and that it was inconsistent with previous authority to do so. Further,
she argued that the judge was wrong to leave the question of duty of care to the jury and that
doing so conflicted the European Convention on Human Rights 1950 Article 6 and 7.
Decision/Outcome: Appeal dismissed. It was held that none of the previous authority Evans
referred to had dealt with manslaughter. Applying R v Adomako [1994] 3 All ER 79, R v
Miller [1983] 2 AC 161 and R v Kennedy [2007] All ER (D) 247 (Oct), it was held that in
cases of gross negligence manslaughter, if an individual caused or contributed to creating a life-
threatening situation; a consequent duty would normally arise to take reasonable steps to save the
person’s life. On the facts of this case, Evans created such a situation by providing the heroin to
her half-sister and had not taken subsequent steps to negate the danger created.