Professional Documents
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Homicide (Murder) W3
Homicide (Murder) W3
Homicide
Homicide can be divided into:
Murder – The legal definition of murder is 'the unlawful killing of a human being in
the Queen's peace, with malice aforethought'
Manslaughter – Manslaughter is the act of killing another human being in a way that
is less culpable than murder
[i.e., This is because both the above SHARE the SAME ACTUS REUS] As per the Law
Commission’s 2005 Report: Homicide offences are a “rickety
structure set upon shaky foundations.”
Actus Reus
Act element = Anything that causes the result
Circumstance element = That the victim is a person under the Queens peace
Result element = death
Mens Rea
Intentional or voluntary
Knowledge intention/no men’s rea
Intention to kill or cause serious harm
Mens Rea support – R vs Cunningham 1981
The defendant attacked the victim in a pub believing (wrongly) that the victim
had had sexual relations with his fiancé. The defendant knocked him to the ground
and repeatedly struck him on the head with a bar stool. The victim suffered a
fractured skull and a subdural haemorrhage from which he died 7 days later.
The jury convicted the defendant of murder having found that he intended serious
harm at the time of the attack. The defendant appealed contending that the law of
murder should be confined to those who intend to kill and thus the decision in R v
Vickers was wrongly decided. [i.e., The defendant relied upon dissenting judgment of
Lord Diplock in Hyam]
The men’s rea (established in R v Cunningham) is the intention either to kill the
victim or at least to cause him some serious bodily injury—grievous bodily harm as it
used to be called, GBH for short.
Defences to murder
General, COMPLETE defences (except duress) *
Complete defences WILL ACQUIT the defendant for the charge of murder.
*Specific defences for doctors*
How do courts deal with doctors prescribing pain-killing drugs which shorten?
the lives of patients as there were an issue which argued this CONSTITUTED
MURDER.
R v Adams
The defendant doctor was charged with murder because he eased the passing
of victims with the use of strong drugs.
The defendant argued: That he was acting in the best interests of the patients
Courts held: The defendant was found NOT GUILTY as “there could not be liability
here because a doctor is entitled to do all that is necessary to ease pain & Suffering
EVEN IF it lead to the shortening of life.”
[The doctrine of double effect: The defendant’s GOOD INTENTIONS can overwhelm
the NEGATIVE SIDE EFFECTS.]
R v Cox
The doctor recommended non-therapeutic drugs to patients to end their lives.
He had injected a lethal dose of potassium chloride into his patient who shortly
afterwards died comparatively peacefully. The victim was an elderly lady who
was terminally ill and in constant pain. With the knowledge and approval of her
family, she had asked the defendant doctor to end her suffering by hastening her
death.
Courts held: Liability for attempted murder was found by the jury because the
victim was cremated before any suspicion arose and the cause of her death
could not be conclusively proven. [The case in Bland was referred to as there is a
“special defence” available to doctors.]
Partial defences
They are considered NON-COMPLETE DEFENCES as the defendant’s conviction
of murder will be mitigated for a manslaughter charge instead.
Murder reform
Lord Goff: The Mental Element of Murder (1988) 104 LQR 30. He recommended
narrowing the mens rea of murder BUT expanding it by including “wicked
recklessness.”
[This approach has been criticized by Professor Glanville Williams]
The 2006 Law Commission recommendations
First degree murder: The defendant must intend to kill or to cause GBH with
the awareness of a likelihood of death.
Second degree murder: (no mandatory sentence)
•Killing with intent to do serious injury
•Killing with intent to do injury (not serious) but with knowledge of the
risk of death.
•Killing where there is a partial defence.
Manslaughter: Risk taking rather than intentional harm.
Murder? No homicide
No offence has been
Actus Reus: Has D unlawfully killed a person? committed.
Yes
Murder? Mens Rea: Did D act with the intention to kill or cause GBH?
Yes No
D satisfies the actus reus and mens rea of D satisfies the actus reus but not the mens rea
murder. of murder.
Does D satisfy the elements of a partial Does D satisfy the elements of an involuntary
defence? manslaughter offence?
No Yes Yes No