Murder carries a mandatory sentence of life imprisonment, which is 15 years. Sound memory—the person responsible must not be insane. Age of discretion — a child less than 10 years old is not criminally responsible for his/her actions. Since S. 34 of the Crime and Disorder Act of 1998 the presumption of doli incapax has been abolished and consequently any child over 10 years has potentially full legal capacity. Unlawfully kills — the act must be an unlawful killing. The law recognises that in certain circumstances the killing may be either justified or authorised eg.
xecution or self defence. Living human being — a foetus is not deemed in law to be a living human being. However, a murder conviction may be possible if a foetus is injured and, after birth, dies as a result of injuries sustained whilst in the womb. Attorney-General’s Reference (No 3, 1994) 1996. A defendant cannot be convicted of the murder of someone who is already dead at the time of the attack. R v Maicherek and Steel 1981 The accused had seriously wounded the victim who was then artificially maintained on a respirator.
When it was discovered that irreversible brain damage had occurred the respirator was turned off M was found guilty of murder and his appeal was dismissed when he claimed the doctor had caused death. It was his act which caused death. The court appeared to favour the approach that death occurs when the victim is brain-dead. Queen’s Peace — killing an enemy during wartime is not murder. Malice aforethought — since the case of R v Moloney the mens rea of murder is the intention to kill or cause grievous bodily harm.
ACTUS REUS The actus reus of murder is that the killing is unlawful, causation must be stablished (A caused B’s death) and the victim must be a human being. (see causation notes from AS). MENS REA DIAGRAM MENS REA The mens rea of murder is malice aforethought which is the intention to kill or cause grievous bodily harm (GBH). There are two forms of intent: • Direct intent — this is what D desires, eg. pointing a gun at someone and shooting them because you want to kill them. It was their aim or purpose to kill. • Indirect or oblique intent — this is not necessarily what D desires but what he foresees will almost certainly happen, eg.
D sets fire to a building and killed someone, did he foresee the risk that death might occur? Four important cases must be looked at. R v Moloney 1985 A soldier shot and killed his stepfather in response to a drunken challenge. He claimed that he had not aimed the gun at the victim and had, at the time, no idea that firing it would cause injury. The judge directed the jury that intention included both desire and foresight of probable consequences and the defendant was convicted of murder. Held (HL) Appeal allowed, manslaughter substituted.
Lord Bridge did state that it was possible to intend a result which you do not actually want. He gave the example of a man who is trying to escape, who boards a plane to Manchester. Even though he may have no desire to go to Manchester — he may even hate the place — it is clearly where he intends to go. However, the appeal was allowed because foresight of consequences can only be evidence of intention — it is up to the jury to decide. R v Hancock and Shankland 1986 Two striking miners pushed concrete from a bridge onto a road, killing a taxi driver.
They claimed only to intend to block the road or frighten the taxi passenger and not to kill or cause GBH. They were convicted of murder but successfully appealed, a manslaughter conviction was substituted by the Court of Appeal and confirmed by the House of Lords. The House of Lords looked at risk and probability. A slight risk of death is not enough to infer intention: Lord Scarman stated the greater the probability that death or GBH would occur; the more likely that intention can be inferred, eg. if A cut B’s little finger is would not be very probable that death would occur, therefore A is unlikely to have intention.
However, if A stabbed B in the chest, it is much more likely that death would result, therefore it is more likely that A had intention. In both cases the defendants were convicted by the juries and appealed, first to the Court of Appeal and then to the House of Lords. In each case the House of Lords quashed the convictions for murder and substituted a verdict of manslaughter. The reason being the trial judges had misdirected the jury. The following case established the Virtual Certainty test which should always be used in indirect intention situations..
R v Nedrick 1986 The defendant set fire to a house, killing a child. He claimed that his intention was to frighten the child’s mother and not to kill or cause GBH. Convicted of murder. Held (CA) Appeal allowed, manslaughter substituted. Where direct intention is not present then the following test should be put to the jury. A jury should return a verdict of murder only where they find that the defendant foresaw death or serious injury as a virtual certain consequence of his or her voluntary actions. R v Woolin 1998 (HL)
D shook his 3-month-old son when he choked on his food and then threw him across the room, the child died, D had lied to the ambulance men and the police before admitting what happened. He claimed that he did not want his son to die. He was originally convicted of murder but the House of Lords reduced his conviction to manslaughter. The trial judge had misdirected the jury on the test to infer intention. The case has now confirmed the Nedrick test. It must now always be used when dealing with indirect intent situations. R v Matthew and Alleyne 2003 (CA)
The defendants appealed against their conviction for murder following the death of a young man (a non-swimmer) whom they had thrown from a bridge into a river. The Court of Appeal affirmed the conviction, which it did not consider unsafe in the light of the evidence, but expressed concern that the Nedrick/Woollin evidential rule should not be treated as if it were a rule of law. A defendant’s foresight of virtually certain death does not automatically require the jury to find that he intended that result: it is merely evidence from which the jury may draw that conclusion.