Definition

 

The definition for murder derives for the esteemed jurist Sir Edward Coke who exposited the definition as:

 

" Murder occurs where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace and, does so with malice aforethought.

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Who is a person of sound mind?

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Every person is considered sane until proven otherwise (R v Layton (1849) 4 Cox 149).

 

Likewise, under section 50 of the Children and Young Persons Act 1933: it is "conclusively presumed that no child under the age of ten years can be guilty of any offence."

 

Who is a ‘reasonable creature’?

 

A person is a human being when they are independent from their mother. Although it is not murder to kill a foetus, it may be construed as child destruction, providing that there was intent to kill or cause serious harm to the foetus.

In Attorney-General’s Reference (No.3 of 1994), the Court of Appeal held that there is no requirement that the person who died had to be in being when the act which caused the death was perpetrated; once a child is living an independent from their mother, the concept of a human being is satisfied for the purposes of a homicide offence.

 

Example: Sophia is pregnant. Martin knows this and is unhappy that she did not tell him about the pregnancy while he was away on holiday. As a result, Martin plots to kill the unborn child by poisoning the child. The child is born and 24 hours after its birth, dies as a result of the poisoning.

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As the child was independent from the mother, it is therefore protected by the law of homicide. It is irrelevant that the injuries occurred when the child is in the womb; it is the time of death that is relevant.

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‘Year and a day' rule

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The former common law requirement that the death has to occur within one year and one day of the injury was abolished by the Law Reform (Year and a day rule) Act 1996.

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Sentence

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Murder carries a mandatory sentence of life imprisonment under s. 1(1) of the Murder
(Abolition of the Death Penalty) Act 1965.

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Causation

 

Factual Causation

Factual causation refers to the ‘but for test, i.e. ‘but for the defendant’s acts, would the victim have died? Did the defendant’s conduct accelerate death significantly If the answer is yes, then the defendant is not liable (as ‘yes’ would mean the victim would have died anyway [but for] the acts). Furthermore, if the defendant’s conduct accelerated death significantly, then is must be more that minimal (the de minimis rule).

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Legal Causation

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Factual causation alone is not enough to render a defendant liable. Instead, it must be demonstrated that the defendant’s acts were sufficient in law. This can be done in two ways: (i) where the injury/injuries are the operative and significant cause of death; of (ii) by applying the think skull test.

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In R v Pagett (1983) 76 Cr App R 279, the Court of Appeal stated that:

 

… in law, the defendant’s act need not be the sole cause, or even the main cause, of the victims death, it being enough that his act (or omission) contributed significantly to the result…

 

Medical negligence

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In R v Cheshire [1991] 1 WLR 844, the defendant shot a man, who underwent surgery, including a tracheotomy, as a result of gunshot wounds. The victim dies two months later due to scar tissue at the tracheotomy site obstructing his breathing. The defendant argued that he should not be liable for the victim’s death as the medical treatment broke the chain of causation. This issue was considered by the Court of Appeal, where Lord Bedlam held at p.82,

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‘it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts.’ Therefore, even where the medical staff’s treatment is the cause of the death, it may be concluded that it was not ‘so independent of the acts of the accused’ and would not therefore succeed in breaking the chain of causation.

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In R v Jordan (1956) 40 Cr. App. R 152, the defendant stabbed the victim, who died eight days later. The defendant was convicted of murder. There was, however, evidence that the victim had received poor medical treatment and, that at the time of his death, the initial wound had healed. On appeal, the defendant’s conviction was quashed and the court held that the treatment was ‘palpably wrong.’

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In R v Smith [1959] 2 All ER 193, a solider was stabbed. As he was being taken to the medical officer, the was dropped twice and there way a delay before the doctor could see him, as the doctor believed (albeit mistakenly) that it was not urgent. The treatment he subsequently received was not appropriate for the soldier’s injuries and he died.  However, the court took the view that these factors had not broken the chain of the chain of causation from the original injuries and the defendant was convicted of murder. 

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Foreseeability

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The original approach is that if a novus actus interveniens is so extraordinary that it is unforeseeable, then this will break the chain of causation.

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In R v Roberts (1971), the defendant had given a lift to a young woman. During the journey, the defendant touched her clothes which caused the victim to panic. As a result of the panic, she jumped out of the moving car injuring herself. The court held that as her reaction was foreseeable and not daft as to be extraordinary, he was liable.

 

In R v Corbett (1996), a mentally handicapped man, who was heavily intoxicated, got into an argument with the defendant, who started to hit and head-butt the victim. The victim ran away, but in doing so, fell and was struck and killed by a car. At trial, the judge directed that the defendant was the cause of the victim’s death if the victim’s conduct of running away was a foreseeable response to the defendant’s behaviour.

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Pre-existing condition

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If the defendant suffers from some weakness, the defendant must take him or her as he or she finds him. For example, Alan punches Steve, who has an unusually thin skull which causes the defendant to die. Although Alan did not have knowledge of the thin skull, he must take his victim as he finds him; he is thus liable for Steve’s death.

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In R v Blaue [1975] 1 WLR 1411 and the Court of Appeal stated that as the wound was still an operative cause of the death, the victim’s refusal to accept a blood transfusion due to religious reasons did not render it a break in the chain of causation, nor exonerate liability from the defendant. The defendant must take his victim as he finds him.

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In R v McKenchie [1992] Crim LR 194, the defendant was found to have caused the victim’s death and was convicted of manslaughter. On appeal to the Court of Appeal, the Court upheld the conviction. The defendant argued that as the victim had a pre-existing condition (a duodenal ulcer), he was not responsible for the death. However, the Court held that the chain of causation was intact: the defendant’s acttack had prevented an operation on the ulcer which would have saved the victim’s life. The decision not to operate was held not to be unreasonable and was not ‘so independent of the fact that it could be regarded in law as the cause of the death. Again,this is based on the principle that the defendant ‘must take his victim as he finds him’.

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Example of the principles of causation

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Question: Christine and Steve are the new proprietors of a restaurant. Their head chef, Fazeem, burns a dish badly one day and Steve, in a fit of rage, hits Fazeem over the head with a frying pan, knocking him unconscious. Christine and Steve, realising the severity of the situation carry Fazeem to his car. As Steve is new to the area he gets lost on his way to the hospital and takes 20 minutes longer than drive than it would have for a reasonable person to drive straight there.

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On arriving at the hospital, Fazeem is examined by Doctor Lamont, who fails to notice that Fazeem has a fractured skull. He discharges Fazeem saying that he has concussion and that he should take pain killers to numb the pain. Fazeem dies three days later as a result of the fractured skull.

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Answer: The first principle of causation to consider is that of factual causation. On the facts, it is clear that had Steve not hit Fazeem over the head, he would not have a fractured skill. His contribution to Fazeem’s death is significant in the sense that it is more that de minimis. However, Steve may contend that Dr Lamont’s actions amounted to a novus actus interveniens which subsequently broke the chain of causation. As medical negligence is involved, the tests of R v Cheshire [1991] 1 WLR 844 and R v Jordan (1956) 40 Cr. App. R 152 need to be applied. In application of Cheshire, can it be said that Dr Lamont’s actions were significant in causing the death or were so independent from the original acts that they render them insignificant? On this basis, it is unlikely that the chain of causation is broken. The contribution of Steve is still highly significant as it is the fractured skull that kills Fazeem. There is nothing on the facts relating to R v Jordan (1956) can be applied; the original injuries are the operative and substantial cause of death.

 

As regards Dr Lamont’s liability, however, it may be contended that he has also caused the death of Fazeem. His failure to diagnose the fractured skill and give appropriate treatment accelerated Fazeem’s death significantly. It is irrelevant that it is an omission; as there is a special-relationship between the parties (doctor and patient), a failure to act may render Dr Lamont liable. Therefore, it is likely, on the facts presented, that both Steve and Dr Lamont are liable for the death of Fazeem – there can be more than one cause of death if the contribution is more than minimal.

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Mens Rea

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The mens rea for manslaughter is ‘malice aforethought.’ This does not mean ill-will or premeditation, rather, it means, simply, an intention to kill or cause grievous bodily harm. ‘Grievous’ in this sense means ‘really serious’ – DPP v Smith (1961) AC 290. However, it has been held that the courts may omit to use the word ‘really’ when directing, and instead focus on ‘serious harm’ – R v Janjua and Choudhury [1999] 1 Cr App R 91.

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It should be noted that intention is purely subjective; that is, it is not what the reasonable person would have foreseen or intended in those circumstances, but what the defendant did actually foresee and intend.

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Direct Intent

 

Direct intent means that the defendant desired something to happen or it was his or aim, purpose or goal. In other words, the word ‘intention’ is given its ordinary meaning.

 

Oblique intent (indirect intent)

 

This is where the defendant’s aim was not the forbidden consequence but the jury decides that death or serious injury is virtually certain to occur and that the defendant saw that consequence as virtually certain.

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In R v Maloney [1985] AC 905, the defendant and his stepfather drank heavily at a wedding anniversary. After the guests had gone, Maloney and his stepfather got two shotguns and cartridges. Maloney loaded the gun first. The stepfather dared Maloney to fire. He did and his stepfather was killed. The defendant argued that he did not have the intention to injury anybody, nor did he foresee that it was. Although he did not want to kill his stepfather, the question was, did he intend to do so? Lord Bridge stated that it was quite possible to intend a result which you do not actually want. He gave the example of a man who, in an attempt to escape pursuit, boards a plane to Manchester. Even though he may have no desire to go to Manchester – he may even hate the place for some reason – that is clearly where he intends to go.

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In R v Nedrick [1986] 1 WLR 1025, the Court of Appeal stated that the jury may infer intent if
they decide that death or grievous bodily harm were virtually certain to result from what
the defendant did, and the defendant foresaw that that was the case.

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Example: Mary plants an incendiary device in Bob’s home hoping that his house will burn down due to a long-running dispute which has turned nasty. Although Mary’s direct intention appears to be criminal damage, if the jury conclude that death or serious injury was virtually certain to occur as a result of Mary’s actions, the jury may find that she intended by virtue of indirect intent.

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