The Law Bank

Homicide Murder
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Introduction
There is no statutory defnition of murder, but Sir Edward Coke in 1644 laid down a common law
defnition still generally accepted today:
Murder is committed when a man of sound memory [that is, one who is not insane], and of
the age of discretion [over the age of 10], unlawfully killeth within any county of the realm
[anywhere in the UK, or on any British ship or aircraft, or by a British citizen anywhere
in the world] any reasonable creature in rerum natura [a human being] under the Kings
peace [anyone except foreign enemies killed in the heat of battle], with malice aforethought
either expressed by the party or implied by law [an intention to kill or cause grievous bodily
harm], so as the party wounded or hurt die of the wound or hurt within a year and a day
after the same [that rule having now been rescinded].
The Law Reform (Year And A Day Rule) Act 1996, which came into effect in August 1996,
abolished the time limitation not just for murder but for all offences in which death is an element
of the actus reus. However, no prosecution may be brought without the consent of the Attorney-
General where the interval between the defendants act and the victims death was greater than
three years, unless the defendant has already been convicted of some other offence (e.g. grievous
bodily harm) in relation to the acts alleged to have caused the death.
Actus Reus
The victim must be a human being when attacked (i.e. the victim must have been born before
being killed). Therefore killing a feotus is not murder, abortion is not murder (other offences can
be applied to these situations but not murder). For the purposes of homicide the child must be
wholly expelled from the mothers body and alive (R v Poulton 1832) and must have an exisitence
independent of the mother (i.e. independent circulation and breathing). Animals are not human
beings.
Attorney-Generals Reference (No.3 of 1994) [1996] 2 All ER 10, CA
A man D stabbed his pregnant girlfriend V in the abdomen; she gave birth prematurely, and the
baby B died some four months later as a result of its immaturity. D was acquitted of murder at the
judges direction, and the Attorney-General referred various points of law to the Court of Appeal.
Lord Taylor CJ said the elements of the actus reus of murder are that the defendant did an act,
that was intentional rather than accidental, that was unlawful, that was a substantial cause of
the death of a person in being, and (as the law then stood) that the death occurred within a year
and a day of the act. The mens rea is that at the time of the act the defendant intended either to
kill or to cause really serious injury to the victim or (subject to the extent of transferred malice) to
some other person. The House of Lords subsequently reversed Lord Taylors judgment as to the
applicability of transferred malice in this case, and disagreed with his suggestion that the foetus
could be regarded as part of the mother, but this defnition of murder appears to be sound.
Philosophically, it may be wrong to speak of causing death, since everyone will die eventually.
The courts recognise this fact, and consider it equally culpable to accelerate death. Mercy-killing,
in which a person brings forward the death of another who is dying slowly and painfully, is no
different in law from any other deliberate murder.
What is a human being?
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When does someone die?
This situation was clarifed in R v Malcherek (1981). The body dies with the death of the brain
stem that controls the basic functions of the body. When this has happened the victim is dead
even though they may be kept alive through mechanical means.
There must be causation, if there is an intervening act that breaks the chain of causation, D cannot
be guilty of murder (but of course they could be guilty of attempted murder or assault).
R v Dyson [1908] 2 KB 454, CCA
A man D seized his baby son, threw him down, and beat him until the child was unconscious,
fracturing his skull; some months later died from that injury. Lord Alverstone said ... the proper
question ... was whether the prisoner accelerated the childs death by the injuries which he inficted
... the fact that the child was already suffering from meningitis from which it would in any event
have died before long would afford no answer.
R v Adams [1957] Crim LR 365, Devlin J
A doctor was charged with easing the passing of a number of elderly patients (some of whom
had left bequests to him in their wills) by giving drugs calculated to hasten their deaths. Devlin J
directed the jury that a doctor has no special defence, but added that he is entitled to do all that is
proper and necessary to relieve pain even if the measures he takes may incidentally shorten life.
Direct and Indirect causation
Death may be caused directly or indirectly. In particular, where a victim dies while attempting to
escape from a threat, the death may be laid at the door of the person making the threat.
The Harlots Case (1560) 1 Hale PC 432
A prostitute D left her newly-born baby in an orchard and covered it over with leaves. A kite struck
the child with its talons and it died. D was convicted of murder, since she had intended the childs
death, and executed.
R v Hayward (1908) 21 Cox CC 692, Ridley J
D threatened his wife with violence and chased her out of the house, where she died from an
unsuspected medical condition aggravated by violent exercise and fright. Ridley J told the jury
that death from fright alone, caused by an illegal act such as a threat of violence, was enough to
sustain a charge of manslaughter.
R v Mackie (1973) 57 Cr App R 453, CA
D threatened his three-year-old stepson with a severe thrashing for some minor misbehaviour.
The boy tried to run away but fell downstairs, dislocated his neck, and died. D was charged with
manslaughter, and his conviction was upheld by the Court of Appeal. The judge had put four
questions to the jury: Was the boy in fear of D? Did that fear cause him to try to escape? Was that
fear well- founded? Was it caused by Ds unlawful conduct, allowing for the fact that D was in loco
parentis and could lawfully administer reasonable punishment? These were the right questions,
and the jury had evidently answered each of them affrmatively.
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Omissions
R v Corbett [1996] Crim LR 594, CA
D and V became involved in a fght. V ran away from D, fell in the gutter (probably because he was
drunk), and received fatal injuries when he was struck by a passing vehicle. Ds appeal against his
conviction for manslaughter was dismissed; following Roberts, if Vs response had been within the
range of foreseeable responses, Ds attack was a cause of his death.
The law generally requires a positive act - an omission will not do - but there are a few special
duty situations where a failure to act may be enough if the mens rea of murder is present.
R v Gibbins & Proctor (1918) 13 Cr App R 134, CCA
G and his mistress P were convicted of the murder of Gs seven-year-old daughter Nelly; they had
starved the child to death and the jury found this to have been their intention (though P, who hated
Nelly, was clearly the moving force). The Court of Criminal Appeal upheld the convictions: where
there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens
rea is present.
Airedale Health Authority v Bland [1993] 1 All ER 821, HL
A young man was badly injured in the crush at the Hillsborough football ground, and was taken to
hospital. Some eighteen months later he was still in a persistent vegetative state and the doctors
(with the agreement of his family) sought leave of the court to discontinue artifcial feeding so that
he might die peacefully of malnutrition. Lord Goff said the law draws a crucial distinction between
cases in which a doctor decides not to provide treatment which might prolong a patients life, and
those in which he decides actively to bring the patients life to an end. The former might be lawful
if it was no longer in the patients best interests (and thus no longer the doctors duty) to keep him
alive, but the latter never is. It would be lawful for Blands doctors not to go on feeding him (an
omission), intending him thereby to die, but it would be murder if they took positive steps to bring
about the same result.
R v Kouao & Manning (2001) unreported
A couple DD were convicted of the murder of D1s great-niece Victoria (or Anna) Climbi, aged
8, who died from multiple organ failure caused by hypothermia and malnutrition. Victoria had
been subjected to serious physical abuse over a period of almost a year in their care, but the
immediate cause of her death was neglect rather than any positive act on DDs part.
Factual Causation
If the prosecution cannot prove a causal link between the defendants act and the victims death,
there can be no conviction for murder.
R v White [1910] 2 KB 124, CCA
Meaning to kill his mother, D put a few drops of cyanide into her lemonade. Soon afterwards,
before drinking the lemonade, his mother died of a heart attack. He was acquitted of murder on the
grounds that he had not actually caused his mothers death, but convicted of attempted murder.
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R v Dyos [1979] Crim LR 660, Cautley J
D and V were involved in a fght at a community centre, in the course of which D struck V on the
D struck V on the head with a brick. V died nine days later, and the pathologist found two
substantial head wounds (one caused by D, the other of unknown origin), one or both of which
was the cause of death, but from either of which V might have recovered. Cautley J withdrew the
murder charge from the jury, saying the Crown had failed to prove beyond reasonable doubt that
Ds act was the cause of death.
R v Armstrong [1989] Crim LR 149, Owen J
A drug addict D supplied another man V with heroin and equipment. V (who had already drunk a
large amount of alcohol) injected himself with heroin and died shortly afterwards. At Ds trial for
manslaughter, there was conficting evidence as to whether the heroin contributed to Vs death or
whether V would have died from the alcohol alone. The judge directed an acquittal: if the experts
were not sure as to the cause of death, he said, the jury could not possibly be.
R v Cox (1992) 12 BMLR 38, Ognall J
B was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval
of her family, she asked D to end her suffering by hastening her death. D gave her an injection of
the lethal drug potassium chloride, and shortly afterwards she died comparatively peacefully. D
could not be charged with murder, because B had been cremated before any suspicion arose and
the cause of her death could not conclusively be proved, but the jury found him guilty of attempted
murder and the judge passed a suspended prison sentence.
R v Corbett [1996] Crim LR 594, CA
A man D was convicted of manslaughter: following an argument he had head-butted V, causing V
to fall into the gutter where he was struck and killed by a passing car. The Court of Appeal affrmed
the conviction and said this was a foreseeable result of Ds assault.
Legal Causation - Substantial and operating cause
Even where there is factual causation, there may not be causation in law. If Neil invites Emma to
a party, and on the way to the party Emma is knocked down by a bus, Neils invitation is a factual
cause of Emmas injuries (because but for the invitation she would not have been on that road at
that time). But Neils action is not the legal cause of Emmas injuries: the road accident was not a
consequence for which Neil should be held responsible.
Bush v Kentucky (1880) 78 Ky 268, CA (Kentucky)
A man D shot and injured a woman V; V was taken to hospital, where she caught scarlet fever
from a doctor and subsequently died of the fever. Ds conviction for murder was reversed on
appeal: although his act had been a factual cause of Vs death (because V would not have been in
hospital but for the injury) it was not the legal cause.
R v Pagett (1983) 76 Cr App R 279, CA
Pagett was convicted of manslaughter following the death of his girl friend, who had been hit and
killed by police bullets while Pagett was using her as a shield. The court said Pagetts act was only
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a factual cause of Gails death but a legal cause too: it was an unlawful and dangerous act, and
the police return of fre was a foreseeable consequence.
Airedale Health Authority v Bland [1993] 1 All ER 821, HL
A young man was in a persistent vegetative state after being seriously injured at the Hillsborough
football ground, and doctors sought leave from the court to discontinue artifcial feeding so that
he could die with dignity. Lord Goff said that where a doctor gives lawful treatment (e.g. by
administering drugs to relieve pain) the patients subsequent death (as a side-effect, even if it was
a very likely one) will be regarded in law as exclusively caused by the injury or disease.
Thin Skull
The defendants act must have been an operating and substantial cause of the victims death,
even though other causes (such as the victims eggshell skull) may also have been operating.
R v Malcherek [1981] 2 All ER 422, CA
D stabbed his wife; she was taken to hospital and put on a life support machine, but suffered two
heart failures. After ten days she had suffered irretrievable brain damage and the doctors switched
off the machine. The trial judge in each case directed the jury that Ds act could be regarded as
the cause of Vs death, and Dwas convicted of murder. The Court of Appeal upheld this direction,
saying the doctors decision did not break the chain of causation.
R v Ruby (1988) 86 Cr App R 186, CA
In a fght outside a night club, D knocked V down with a single blow of his fst and gave a half-
hearted kick to his head; V had a very thin skull and died from the kick. D was found guilty of
manslaughter - a rare literal application of the eggshell skull rule - but the Court of Appeal
took into account that a normal person would not have died in such a situation and reduced Ds
sentence from fve to three years imprisonment.
Intervening Acts - Medical Treatment
The chain of causation is most often in issue where injury is followed by medical treatment which
in turn is followed by (and perhaps causes) death. Where the medical treatment given is the best
available, there can be little argument about such a principle, but it has been extended to cover
treatment which is clearly defcient. There are obvious policy considerations here: the judges do
not want wrongdoers to escape the consequences of their crimes, nor do they want the courts
clogged with endless medical debates as to whether the treatment given in a particular case was
the best possible.
R v Jordan (1956) 40 Cr App R 152, CCA
D stabbed V, who died from bronchopneumonia in hospital about a week later. D was convicted
of murder, but the conviction was quashed by the Court of Criminal Appeal. New evidence not
available at the trial indicated that the bronchopneumonia was probably caused by Vs unusual
reaction to terramycin (which had been given even after his allergy had been discovered) and/
or by an excess dose of intravenous fuids. In the light of this evidence, said the Court, the jury
should have been given the opportunity of deciding whether death had or had not been caused by
the original injury, and would almost certainly have had a reasonable doubt. . [This decision has
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been widely doubted, and is now generally regarded as being applicable only to its own facts.]
R v Smith [1959] 2 All ER 193, CMAC
Smith and Creed were involved in a fght in barracks, in which Smith stabbed Creed with his
bayonet. Creeds friend took him to the frst aid post, but on the way he tripped over and dropped
Creed twice. When they got there, the medical offcer was busy and took some time to get to
Creed. Creed died about two hours after the stabbing, but had he been given proper treatment he
would probably have recovered. Smith was charged with murder, and his conviction was upheld.
The treatment he was given was thoroughly bad and might well have affected his chances of
recovery, said Lord Parker CJ, but medical treatment correct or not does not break the chain of
causation. If at the time of death the original wound is still an operating cause and a substantial
cause, then death can be said to be a result of the wound albeit that some other cause is also
operating. Only when the second cause of death is so overwhelming as to make the original
wound merely part of the history can it be said that death does not fow from the wound.
R v Cheshire [1991] 3 All ER 670, CA
D shot V in an argument, and V was taken to hospital where a tracheotomy was performed. Six
weeks later, V suffered breathing problems as a result of the tracheotomy scar and died. The
hospital had been negligent - perhaps even reckless - in not recognising the likely cause of Vs
problems and responding to them, but the Court of Appeal said this did not break the chain of
causation from the shooting. Ds actions need not be the sole or even the main cause of death
as long as they contributed signifcantly to that result; medical negligence did not exclude Ds
liability unless it was so independent of his acts and so potent as to make his own contribution
insignifcant. When the victim of a criminal attack is treated by doctors or other medical staff
attempting to repair the harm done, 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 as to make it in law
the cause of the victims death to the exclusion of the accuseds acts.
R v McKechnie (1991) 94 Cr App R 51, CA
D and others attacked an elderly man V with whom he had a long-standing disagreement,
causing him brain damage. While V was being treated in hospital, the doctors discovered he had
a stomach ulcer but decided they could not operate safely because of the head injuries. About
a month later, the ulcer burst and V died. The Court of Appeal upheld the trial judges ruling that
the original injury had caused the death, and D was found guilty of manslaughter by reason of
provocation. He was unlucky: he did not cause the stomach ulcer, and had V not gone to hospital
after the attack his ulcer would probably never have been discovered and he would have died
anyway. But those who use violence on others must take their victims as they fnd them.
R v Mellor [1996] 2 Cr App R 245, CA
D was convicted of the murder of V, who had died in hospital two days after receiving injuries
inficted by D. Dismissing his appeal, Schiemann LJ said that as long as the prosecution proved
the injuries inficted by D were at least a signifcant cause, if not the only cause, of death, that was
suffcient. There is no onus on the prosecution to show the absence of medical negligence.
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Intervening Acts - Acts of the victim
Even the victims own actions following an injury do not necessarily break the causal chain.
R v Holland (1841) 174 ER 313, Maule J
D assaulted V and injured one of his fngers. V was advised to have the fnger amputated but
refused, and subsequently died of tetanus; D was held to have caused the death.
California v Lewis (1899) 124 Cal 551, Sup Ct (California)
D shot a victim who then cut his own throat and died within minutes rather than hours: Ds
shooting was held to be an operative and substantial cause of death, and he was convicted of
manslaughter.
R v Blaue [1975] 3 All ER 446, CA
D stabbed an 18-year-old woman V and punctured her lung. At the hospital, V was told she would
need a blood transfusion to save her life, but refused this as contrary to her religious beliefs. She
died next day, and D was charged with murder, subsequently reduced to manslaughter by reason
of diminished responsibility. His appeal against conviction was dismissed. It has long been the
policy of the law, said Lawton LJ, that those who use violence on other people must take their
victims as they fnd them. This principle clearly applies to the mental as well as the physical
characteristics of the victim, and the courts will rarely make a judgement as to whether the victims
response was reasonable.
R v Dear [1996] Crim LR 595, CA
A man D attacked another man V who had allegedly molested Ds 12-year-old daughter, cutting
him repeatedly and deeply with a Stanley knife. V died two days later and D was charged with
murder; his plea of provocation was rejected by the jury and he was convicted. On appeal, D
argued that V had in fact committed suicide by reopening his healing wounds, or alternatively by
failing to stem the bleeding them after they had reopened themselves. The Court of Appeal said
this would not break the chain of causation even if true, and affrmed the conviction.

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Mens Rea
The mens rea of murder is traditionally described as malice aforethought, but this can be
misleading because (as Lord Hailsham LC pointed out) neither word takes its usual meaning.
Malice need not be truly malicious - euthanasia for reasons of compassion is still murder - and no
more than a split seconds premeditation is necessary. All that is needed is an intention to kill or
cause really serious injury to any person.
Woolmington v DPP [1935] AC 462, HL
D was charged with murdering his wife; he admitted shooting her but claimed the gun had gone
off accidentally. The House of Lords overruled the trial judges direction that it was for D to prove
his lack of intent: it is for the prosecution to prove beyond reasonable doubt every element of both
actus reus and mens rea, subject to a few (almost all statutory) exceptions.
DPP v Smith [1960] 3 All ER 161, HL
D was the driver of a car containing stolen property, and a police offcer M signalled him to stop. D
drove on with M clinging to the car; he accelerated and swerved from side to side to throw M off.
M fell into the path of another vehicle and was killed, and D was charged with murder. The trial
judge told the jury that if they were satisfed that as a reasonable man D must have contemplated
that grievous bodily harm was likely to result, they should convict, and this direction was ultimately
upheld by the House of Lords. [The decision was subsequently doubted on the grounds that
objective likelihood is not proof of intention, but the intention to cause grievous bodily harm (that is,
really serious injury) is still suffcient to establish murder.]
R v Cunningham [1981] 2 All ER 863, HL
D was convicted of murder after striking his victim repeatedly with a chair, though he claimed
he had not intended death. The Court of Appeal and the House of Lords upheld the trial judges
direction that an intention to cause really serious harm was suffcient mens rea to sustain a
conviction for murder if the victim dies of his injuries.
R v Janjua & Choudhury (1998) Times 8/5/98, CA
DD appealed against their conviction for murder, the victim having been stabbed several times
with a knife at least fve inches long. Affrming the convictions, Curtis J said the judge had directed
the jury in terms of an intent to cause just serious harm, but in the circumstances there was no
risk that they would think anything less than really serious harm was meant.
R v Huntley (2003) unreported
A school caretaker was found guilty of murdering two young girls. He claimed their deaths had
been accidental, but the jurys verdict indicated that (in their view) he had intended to kill them.
In R v Powell [1998] 1 Cr App R 261, Lord Steyn said the present defnition of the mental element
of murder results in defendants being classifed as murderers who are not in truth murderers. He
referred to the assessment of Lord Windlesham (an experienced Home Offce minister) that only a
minority of convictions for murder are based on an intention to kill, and suggested that the
Malice aforethought
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Intention versus motive
requirement should be either an intention to kill, or an intention to cause serious injury plus
foresight of the risk of death.
In 2006 the Law Commission echoed this suggestion, and recommended just two kinds of frst
degree murder: killing with the intention to kill, or killing with the intention to cause serious injury
and foresight of a serious risk of death.
Note in any case that attempted murder requires an intention to kill: for this offence, an intention to
cause grievous bodily harm is not enough.
The defendants intention is not necessarily the same as his motive. The following cases show a
wide variety of motives but a common intention to kill.
R v Dudley & Stephens (1884) LR 14 QBD 273, CCR
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from
land. After they had been eight days without food, and six without water, DD decided that their
only chance of survival was to kill the cabin boy and eat him, and this they did. Their motive was
survival, but their intention was clearly to kill, and they were convicted of murder.
R v Gibbins & Proctor (1918) 13 Cr App R 134, CCA
D1 and his mistress D2 starved D1s seven-year-old daughter Nelly to death. D2s motive was
clearly hatred of Nelly; D1s motive was presumably to keep D2 happy. The jury found that they
had both intended to kill, and they were convicted of murder.
R v Craig & Bentley (1953) unreported
A youth D1 shot and killed a police offcer who tried to arrest him during the course of a burglary.
His motive was to escape, but his intention was to kill, and he and his accomplice D2 were
convicted of murder.
R v Brady & Hindley (1966) unreported
A young couple kidnapped, tortured and murdered several children for no apparent reason other
than sadism. They were convicted of murder and sentenced to life imprisonment. [Hindley died in
prison in 2003; at the time of writing, Brday is still in custody.]
R v Magee (1985) unreported
A bomb planted at the Grand Hotel in Brighton during the Conservative Party Conference killed
four people and injured many others. The IRA man responsible was convicted of murder and
sentenced to life imprisonment. [He was released in 1999 as part of the Good Friday agreement.]
R v Cox (1992) 12 BMLR 38, Ognall J
B was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval
of her family, she asked her doctor to end her suffering, and he gave her a lethal injection. He was
convicted of attempted murder, there being no conclusive evidence of the actual cause of death.
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Direct versus oblique intention
The defendant may have had a direct intention to kill (or to cause grievous bodily harm) if that
was his purpose, or an oblique intention if death or serious injury was an inevitable consequence
of achieving some other purpose. He may even hope most sincerely that death will not occur, but
still intend to kill in the legal sense. But where a doctor acting in good faith gives proper medical
treatment that he knows will probably lead to the patients death, the jury may decide that he did
not intend to kill. This is a matter of semantics (or sophisticated moral philosophy), but can clearly
be an important safeguard.
R v Dudley & Stephens (1884) LR 14 QBD 273, CCR
Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from
land. After they had been eight days without food, and six without water, DD decided that their only
chance of survival was to kill the cabin boy and eat him, and this they did. When they cut the boys
throat they had a direct intention to kill, and they were convicted of murder.
R v Adams [1957] Crim LR 365, Devlin J
A doctor was charged with easing the passing of a number of elderly patients (some of whom
had left bequests to him in their wills) by giving drugs calculated to hasten their deaths. Devlin J
directed the jury that a doctor has no special defence, but added that he is entitled to do all that is
proper and necessary to relieve pain even if the measures he takes may incidentally shorten life.
R v Cox (1992) 12 BMLR 38, Ognall J
B was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval
of her family, she asked D to end her suffering by hastening her death. D gave her an injection
of the lethal drug potassium chloride, and shortly afterwards she died comparatively peacefully.
D could not be charged with murder, because B had been cremated before any suspicion arose
and the cause of her death could not conclusively be proved, but the jury found him guilty of
attempted murder - the treatment could have had no purpose except to kill - and the judge passed
a suspended prison sentence.
Re A (Children) [2000] 4 All ER 961, CA
Conjoined (Siamese) twins Jodie and Mary were joined in such a way that Jodies heart and
lungs were providing oxygenated blood for both; medical opinion broadly agreed that both would
die in three to six months - or possibly slightly more - if nothing was done. Doctors sought the
leave of the court to separate the twins, giving Jodie a good chance of a fairly normal life but
causing the immediate death of Mary. In the Court of Appeal, Brooke LJ said there could be no
doubt that in English law, a surgeon who performed the separation knowing that it would inevitably
hasten Marys death would be held to have caused that death and to have done so intentionally,
even though that would not have been his primary motive. So far as the law was concerned, the
doctrine of double effect did not apply here because Marys death would not be a side-effect of
treatment that was in her best interests overall. [The Court of Appeal authorised the separation,
however, relying on an argument based on self-defence.]
Victims consent to death is no defence
But the victims consent (to the risk of death or even to the actual killing) is no defence to murder if
the actus reus and mens rea are satisfed. Euthanasia and duelling are both regarded as murder.
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R v Taverner (1619) 81 ER 144, KB
A man D killed another in a duel instigated by the victim. Affrming Ds conviction for murder and
passing sentence of death, Coke CJ said it is not material in the law who begins the quarrel: if one
duellist kills the other while in possession of his self-control, it is murder.
R v Cocker [1989] Crim LR 740, CA
Ds wife suffered from an incurable disease and was severely incapacitated. At her request, he
suffocated her with a pillow and was charged with murder. He argued that he had been provoked
by her repeated pleas to end her life, but the trial judge ruled this could not amount to provocation
because there had been no loss of self-control. Ds conviction was upheld by the Court of Appeal.
Role of the jury
Where the defendant denies any intention of causing death or serious injury, the jury may have to
reach a verdict based on circumstantial evidence of intention. The appropriate direction to be given
to the jury in such cases has caused the courts not a little trouble.
DPP v Smith [1960] 3 All ER 161, HL
D was the driver of a car containing stolen property, and a police offcer M signalled him to stop. D
drove on with M clinging to the car; he accelerated and swerved from side to side to throw M off.
M fell into the path of another vehicle and was killed, and D was charged with murder. The trial
judge told the jury that if they were satisfed that as a reasonable man D must have contemplated
that grievous bodily harm was likely to result, they should convict, and this direction was ultimately
upheld by the House of Lords. [This decision is now disapproved.]
Criminal Justice Act 1967 s.8
A court or jury, in determining whether a person has committed an offence, shall not be bound in
law to infer that he intended or foresaw a result of his actions by reason only of its being a natural
and probable consequence of those actions, but shall decide whether he did intend or foresee
that result by reference to all the evidence, drawing such inferences as appear proper in the
circumstances.
Hyam v DPP [1974] 2 All ER 41, HL
D was the lover of J, and became suspicious of his relationship with another woman B. She
went to Bs house, poured petrol through the letter-box, and lit it, causing a serious fre. Bs
two daughters died in the fre, and D was charged with their murder. Her defence was that she
intended only to frighten B into breaking off her relationship with J, and had not intended to kill
anyone. The House of Lords by a majority dismissed Ds appeal against conviction. Lord Hailsham
LC said it was suffcient for murder that D knew there was a serious risk of death or grievous bodily
harm and went on to commit the acts with the intention of exposing a potential victim to such a
risk. Lords Diplock and Kilbrandon dissented as to the suffciency of grievous bodily harm, but all
agreed that foresight was as good as intention. [This decision fies in the face of s.8 of the Criminal
Justice Act 1967 (above), and is now generally regarded as having been wrongly decided.]
R v Moloney [1985] 1 All ER 1025, HL
D and his stepfather V, each of whom had been drinking, got into an argument as to which could
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load and fre a shotgun more quickly. They decided to test their respective claims by practical
experiment, in the course of which D shot V in the face at a range of about six feet, killing him
instantly. D claimed that he had not deliberately aimed the gun, and had simply pulled the trigger
in response to Vs taunts, but the jury found him guilty of murder. The House of Lords were
highly critical of a statement in Archbold that a man intends the consequence of his action when
he foresees that it will probably happen; they allowed Ds appeal and substituted a verdict of
manslaughter. Lord Bridge suggested that where a special direction was necessary the jury might
be invited to consider (i) whether death or serious injury was a natural consequence of Ds
actions, and (ii) whether D foresaw that consequence, and to infer the appropriate intention if and
only if they could answer yes to both questions.
R v Hancock & Shankland [1986] 1 All ER 641, HL
During a strike, two strikers DD decided they would try to stop non-strikers from getting to work.
They stood on a bridge over the motorway, and when they saw a taxi approaching in which a
blackleg was travelling, they pushed over a lump of concrete meaning for it to land on the road
in front of the taxi. In fact, the concrete hit the taxi itself and killed the taxi-driver, and DD were
charged with murder. Their conviction based on the trial judges Moloney direction was quashed
by the Court of Appeal, and a further appeal by P to the House of Lords was dismissed. The
House said Lord Bridges dictum was erroneous and misleading. The greater the probability of a
consequence, said Lord Scarman, the more likely it is that is was foreseen; and if it was foreseen,
the more likely it is that it was intended. But it is entirely up to the jury to decide what degree of
foresight is required for an inference of intention, and no simple formula can replace the jurys right
and duty to make its own decision.
R v Nedrick [1986] 3 All ER 1, CA
D set fre to a house belonging to a woman against whom he had a grudge, and the womans child
died in the fre. The trial judge (before the judgments in Moloney and Hancock & Shankland had
been published) directed the jury as to intention in a way that was now clearly inappropriate, and
the Court of Appeal quashed Ds conviction for murder and substituted manslaughter. Where the
charge is murder, said Lord Lane CJ, and in the rare cases where a simple direction as to intention
is not enough, the jury should be directed that they are not entitled to infer the necessary intention
unless they feel sure that death or serious bodily harm was a virtual certainty - barring some
unforeseen intervention - as a result of the defendants actions, and that the defendant realised
such was the case. Where a man realises that it is for all practical purposes inevitable that his
actions will result in death or serious harm, the inference might be irresistible that he intends that
result, however little he might desire or wish it to happen, but the decision is one for the jury, to be
reached on a consideration of all the evidence.
Frankland & Moore v R [1987] AC 576, PC (Isle of Man)
DD were charged with murder in the Isle of Man, and the trial judge (following DPP v Smith above)
directed the jury that the test was what a reasonable man would have foreseen as the probable
consequence of DDs acts. The Privy Council allowed DDs appeal against conviction, strongly
disapproving DPP v Smith and declaring that no such objective test had ever been part of the
common law so far as murder was concerned.
R v Donnelly [1989] Crim LR 739, CA
A man V was killed by the accidental discharge of a shotgun being used by D as a club. At Ds trial
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for murder the judge told the jury to consider the likelihood of such a discharge as an indication of
possible intention. The Court of Appeal quashed Ds conviction for murder and substituted a verdict
of manslaughter. There was no evidence, they said, that such a likelihood had been anywhere
near a virtual certainty, and if D had intended to cause death or serious injury he could simply
have pulled the trigger.
R v Walker & Hayles (1990) 90 Cr App R 226, CA
During a fght with a man V, DD dropped him from a third-foor balcony; V survived, but DD were
charged with attempted murder. The trial judge told the jury that they might infer an intention to
kill V if they were satisfed DD knew there was a very high degree of probability that he would
be killed, and the jury convicted. The Court of Appeal dismissed DDs appeal, saying the abolition
of any objective test meant that no specifc form of words was required. The judge might use the
phrase a very high degree of probability as broadly synonymous with virtual certainty, so long
as the line between intention and foresight was not blurred. [But see now Woollin below.]
R v Woollin [1998] 4 All ER 103, HL
A man D lost his temper with his three-month-old son and threw the child onto a hard surface,
causing head injuries from which the child died. D was charged with murder and the judge directed
the jury that they might infer the necessary intention if they were satisifed that D realised there
was a substantial risk of serious injury. Allowing Ds appeal against conviction and substituting
a verdict of manslaughter, the House of Lords said this would enlarge the scope of murder and
blur the distinction between that and manslaughter. The jury, said Lord Steyn, should be directed
that they are not entitled to fnd the necessary intention unless they feel sure that death or serious
bodily harm was a virtual certainty - barring some unforeseen intervention - as a result of the
defendants actions, and that the defendant realised such was the case, but should be reminded
that the decision is one for them on a consideration of all the evidence.
R v Matthews & Alleyne [2003] 2 Cr App R 30 (461), CA
DD 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 affrmed 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 defendants
foresight of virtually certain death does not automatically require the jury to fnd that he intended
that result: it is merely evidence (albeit often very strong evidence) from which the jury may draw
that conclusion.
Murder is a specifc intent crime
Murder is a crime of specifc intent. If for any reason (including self-induced intoxication) the killer
does not form the necessary intent, he cannot be convicted of murder.
R v Lipman [1969] 3 All ER 410, CA
D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his trip, D
imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in
doing so, he actually killed V by cramming eight inches of sheet down her throat. He was acquitted
of murder because the jury were not sure that he had the necessary intention, being intoxicated,
but convicted of manslaughter.
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R v Sheehan & Moore [1975] 2 All ER 960, CA
In revenge for a minor theft, and in a drunken state, D1 (assisted by D2) poured petrol over a man
V and burned him to death. Allowing their appeals against a murder conviction and substituting
manslaughter, the Court of Appeal said the jury should not have been asked to consider whether
DD were so drunk as to have been incapable of forming the intention to cause death or serious
injury. The question was not whether DD were capable of forming the necessary intention but
whether they had in fact done so, and the onus of proving that was on the prosecution.
R v OConnor [1991] Crim LR 135, CA
In a drunken state, D killed another man in a fght. The Court of Appeal quashed his conviction for
murder and substituted a verdict of manslaughter; the trial judge should have instructed the jury to
consider Ds specifc intent or lack of intent in the light of his intoxication, and had failed to do so.
Coincidence
As for any crime, the actus reus and the mens rea of murder must normally coincide in time, but
the courts are prepared to take a broad view.
Meli v R [1954] 1 All ER 373, PC (South Africa)
Thabo Meli and his friends took their victim to a small hut and beat him over the head intending to
kill him. Thinking they had succeeded, they rolled his body over a cliff to make the death appear
accidental. In fact, the victim survived both the beating and the rolling, but died from exposure
shortly afterwards. Meli and the others were convicted of murder. The Privy Council, dismissing
their appeal, said that where the actus reus consists of a series of linked acts, it is enough that
the mens rea existed at some time during that series, even if not necessarily at the time of the
particular act which caused the death.
Attorney-General of Northern Ireland v Gallagher [1961] 3 All ER 299, HL
A man D determined to kill his wife, and drank a substantial amount of whiskey to give himself
Dutch courage before going upstairs and stabbing her to death. Affrming his conviction for
murder, the House of Lords said it was enough that he had the intention to kill before he became
intoxicated, and did not clearly abandon that intention. It was not necessary to prove that he had
the necessary intention at the time of the actual stabbing.
Transferred malice
The doctrine of transferred malice applies here as elsewhere: an intention to kill one person can
be transferred to another if the second is the one who actually dies from the defendants act.
Agnes Gores Case (1611) 77 ER 853, KB
A woman put poison into a medicine that had been prescribed for her husband. Her husband
and her father took some of the medicine and became ill, but both recovered. The apothecary,
anxious to show that their illness was not his fault, took a dose of the medicine himself (having frst
stirred it well) and died. The judges agreed that the womans intention to kill her husband could be
transferred to the apothecary, and she was convicted of murder.
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R v Mitchell [1983] 2 All ER 427, CA
D and another man S became involved in a scuffe in a Post Offce; D pushed S, who fell onto
an elderly lady C, causing C injuries from which she later died. The Court of Appeal upheld Ds
conviction for manslaughter; his intention to assault S was transferred to C.
Attorney-Generals Reference (No.3 of 1994) [1997] 3 All ER 936, HL
A man D stabbed his pregnant girlfriend V in the abdomen; she gave birth prematurely, and the
baby B died some four months later as a result of its immaturity. D admitted wounding V with intent
to cause grievous bodily harm, but there was no evidence that he intended to harm B. D was
acquitted of Bs murder on the judges direction, and the Attorney-General referred the case to the
Court of Appeal for a legal ruling. On a further appeal to the House of Lords, Lord Mustill said the
transferred malice rule is a remnant of the old common law, not based on any sound principle:
he was willing to follow such laws until they were overturned, he said, but not to extend them to
make new law on a basis for which there was no principle. In particular, a double transfer from
the mother to the foetus (which was not in law a human being), and then from the foetus to the
subsequent living baby, would be a step too far. D could not be guilty of Bs murder under these
circumstances.
Conditional intention can still be intention
Note that a conditional intention - an intention to kill or cause serious injury if and only if certain
conditions are met - still counts as an intention. The illustrative cases come from burglary but (it is
assumed) apply equally to murder.
R v Collins [1972] 2 All ER 1105, CA
In the early hours of the morning, a young man D decided he was going to have sex with a certain
young woman V whom he knew slightly. Under questioning, he admitted that while he hoped she
would consent, he intended to have sex with her whether she consented or not. In fact the young
woman (mistaking him for her boyfriend) invited him into her bedroom, and his conviction for
burglary with intent to rape was quashed on the grounds that he had not entered as a trespasser,
but the Court of Appeal said obiter that his conditional intent (to rape her if she did not consent)
would have been enough.
Attorney-Generals Reference (Nos.1 & 2 of 1979) [1979] 3 All ER 143, CA
The Court of Appeal declared that a person who enters a house intending to steal only if he fnds
money (or other valuable items) in the house can be convicted of burglary contrary to s.9(1) of the
Theft Act 1968 (which requires an intention to steal) notwithstanding that his intention to steal is
conditional.
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Abortion
Even at common law, abortion is not murder because the defnition of murder requires the victim
to have been born alive and wholly expelled from the mothers body, though it need not yet
be breathing nor need the umbilical cord have been cut. Where a child is injured in the womb,
however, and dies from those injuries soon after being born alive, it can be the victim of murder.
Attorney-Generals Reference (No.3 of 1994) [1997] 3 All ER 936, HL
A man D stabbed his pregnant girlfriend V in the abdomen; she gave birth prematurely, and the
baby B died some four months later as a result of its immaturity. D was acquitted of Bs murder
on the judges direction, and the Attorney-General referred the case for a legal ruling. The Court
of Appeal, and subsequently the House of Lords, said that a person who does an act that leads
directly to the death of a human being (even though that human being may not have existed as
such at the time of the act) can be convicted of murder or manslaughter according to his mens rea.
However, it is a separate offence punishable with life imprisonment under s.58 of the Offences
Against the Person Act 1861 for a pregnant woman to take any noxious substance or use any
instrument with intent to procure a miscarriage, or for any other person to do so whether or not
the woman is actually pregnant. It is not necessary that a miscarriage should actually occur: the
attempt is the complete offence. [S.59 creates a separate offence of supplying substances or
instruments knowing that they will be used for such a purpose.]
The intentional killing of a foetus or baby capable of being born alive but not yet fully born, is the
crime of child destruction under the Infant Life (Preservation) Act 1929, unless the act was done in
good faith to preserve the life of the mother. Any foetus of at least 28 weeks conception is legally
presumed capable of being born alive in the absence of evidence to the contrary, and in Rance v
Mid-Downs HA [1991] 1 All ER 801, Brooke J held that once the foetus has developed to such a
state that it would if born be capable of breathing through its own lungs and independently of its
mother, its destruction would be unlawful even before the 28th week.
However, the Abortion Act 1967 makes abortion legal in certain circumstances. No offence is
committed when a pregnancy of under 24 weeks duration (reduced from 28 weeks by s.37 of
the Human Fertilisation and Embryology Act 1990) is terminated by or under the supervision of a
doctor, provided that two doctors have formed the opinion that the continuance of the pregnancy
would endanger the life or health of the woman or her existing children more than its termination,
or that there is a substantial risk that if the child were born it would be seriously handicapped,
either mentally or physically. Beyond 24 weeks, an abortion may be performed only if the
two doctors agree that the termination is necessary to prevent grave permanent injury to the
mothers health, or that continuation of the pregnancy would involve risk to the mothers life, or
that there is a substantial risk that the child would be born seriously handicapped. In exceptional
circumstances, one doctor alone may terminate a pregnancy if he thinks it immediately necessary
to save the mothers life or to prevent serious permanent injury to her health.
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Child neglect
Section 5 of the Domestic Violence Crime & Victims Act 2004 creates an offence of failing to
prevent the death of a child. Where a child under 16 (or a vulnerable adult) is unlawfully killed by
a member of her family, any adult member of the family who knew (or should have known) the risk
of such an event, and did not do what he reasonably could to prevent it, is guilty of an offence and
liable to imprisonment for up to 14 years: the prosecution is not required to prove who actually
killed the child. (This offence is intended to meet the situation where a child has been killed by one
of its parents, each of whom exercises the right to remain silent as to the circumstances of the
death.)
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Critical evaluation
In an A Level examination, candidates may be asked to comment on the law of murder and the
reforms that might be desirable. This clearly gives room for the expression of personal views -
lawyers and others disagree as to the problems and the solutions - but the following are among
the points that might reasonably be made.
At the beginning of its report on the Partial Defences to Murder (Law Com 290, 2004), the
Law Commission says expressly that it has long considered that the law of murder is in need of
review.
Cokes classic defnition is clearly out of date, and should arguably be replaced by a modern
(statutory) defnition in modern language.
The mandatory life sentence is inherently unfair, even with the judges power to set the minimum
term. Some murderers (such as terrorists, contract killers and sadistic child-killers) may deserve to
be imprisoned for life, but those who perform euthanasia (Cocker) or use excessive force in self-
defence (Martin) deserve much less.
Alternatively, the mandatory life sentence is inadequate, because most murderers are released
after serving only 20-30 years. Many people think murderers should be given a whole life
sentence, or should forfeit their own lives and suffer death as retribution for the life they have
taken.
The mandatory life sentence thus distorts the law by making necessary the special defences
of provocation and diminished responsibility, discussed later. Different degrees of murder (as
in the USA), carrying different penalties or allowing judicial discretion, would make these special
defences unnecessary.
The actus reus of murder involves the death of a person in being, and excludes the death of
a foetus. Extending the defnition of murder to cover some or all abortions would be popular with
some people and very unpopular with others, and would involve redefning of the point at which life
begins.
The victims consent, however clear, is irrelevant to murder. Many people believe euthanasia
should no longer be treated as murder (or as a crime at all), and should be made legal under
certain carefully defned conditions.
Killing by omission can very occasionally amount to murder (Gibbins & Proctor), but is
this right? Killing by neglect is different from killing by a positive act, and should be treated
differently. Alternatively, some would say that the scope of murder should be extended to include
any deliberate killing (by omission as well as by action) even when there is no specifc duty
relationship.
The rules of causation might be challenged: should an assailant be held legally responsible for
a death whose immediate cause was medical negligence (Cheshire) or even the victims refusal of
life-saving treatment (Blaue)?
The phrase malice aforethought is misleading and should be abandoned.
It is often very diffcult to prove what a defendant actually intended, and it might be better to
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replace the existing Nedrick (which leaves the decision to the jury) with a statutory test based on
observable facts.
The mens rea of murder includes intention to kill (which is uncontroversial) but also intention to
cause grievous bodily harm - should the latter be enough? The Law Commission point out that a
person who intended no more than (say) a broken arm could fnd himself convicted of murder if
medical negligence led to the victims death.
On the other hand, the English defnition of murder excludes recklessness as to death (e.g. in
Nedrick or Woollin), which is enough in Scotland. Should foresight of death as a highly probable
consequence (or even as a possible result) be enough?
Murder is a crime of specifc intent, so that a person who kills while voluntarily intoxicated may
escape conviction if the prosecution is unable to prove mens rea.
In their report on Murder and Manslaughter (Law Com 304, November 2006) the Law Commission
proposed a new structure. First degree murder (carrying a mandatory life sentence) would
cover killing with the intention to kill (including cases of oblique intention), and killing intending
to cause serious injury and foreseeing a serious risk of death. Second degree murder (carrying
a discretionary life sentence) would cover killing with the intention to cause serious injury, Killing
intending to cause some injury and foreseeing a serious risk of death, and killing with diminished
responsibility, under provocation or in a suicide pact. Manslaughter (carrying a discretionary life
sentence) would cover killing with foresight of some injury, or through gross negligence. It remains
to be seen when (and whether) any of these proposals fnd their way into legislation.