Offences Against the Person (0.5):

MurderBy the end of this unit, you will be able to (AO1):

Describe the scope of ‘murder’ in the criminal law. Understand the relationship between murder and manslaughter in the criminal law. Explain the issues caused by Lord Coke’s definition and how they have been developed over the years. Describe the key proposals for change under the Law Commission’s 2006 report.

You will also be able to (AO2): Evaluate whether the current meaning of ‘malice aforethought’ is justified in the law Critically explore the proposals for change from the Law Commission, to determine whether they all for a

fairer approach to the law on murder and manslaughter Apply your understanding of the rules on murder to a series of scenarios, allowing you to conclude on D’s

liability.

HomeworkThis homework will ask you to explore the changes to the law on murder proposed in the 2006 Law Commission paper. Each of you will be asked to look at the work of the Law Commission and produce an A4 summary of the proposals for that area.

You may also choose to explore the impact of the case of Clinton 2012 on the meaning of the new law on loss of control.

AssessmentYou will be assessed on your understanding of this topic, once we have looked at the next two parts (diminished responsibility and loss of control). You will also produce a written response to the question below:

“Despite recent reforms to the Law, the offence of murder remains inappropriate and outdated in the 21st Century”

Discuss how far this statement reflects the current law on murder [50]

Key Terms:Term Means Term Means

Murder Express malice

Voluntary Manslaughter Implied malice

Involuntary Manslaughter Malice aforethought

What do you already know?Task: What are they liable for… if anything?

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All of you will decide who you think is liable for the death of their victim. Most of you will decide, for those you think are liable, which are manslaughter and which murder using the

table below. Some of you will be able to work out some of the basic elements of murder and manslaughter by looking at

what each group of cases has in common.

Who’s liable for muder? Who’s liable for Manslaughter? Nothing?

Why? What have the cases got in common?

Murder: The Beginner’s Guide.

Murder is a result crime, which means….

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David is arguing with Graham. David loses his temper and hits Graham,

killing him instantly.

Louis is furious to see Lois, his wife, meeting Dave for

coffee. He follows them and sees them go into a hotel. He

follows them in and, in a rage, stabs Lois to death

Jane has suffered a concealed pregnancy. She

suffers from post-natal depression as a result. She stabs her mother to death.

Joe and Lewis are messing about with guns. Joe tells

Lewis that the gun is rusted close, and doesn’t work.

Lewis, laughing, picks it up and points it at Joe, pulling the trigger. The gun fires,

killing Joe.

Debra is furious with Dave for not doing the washing up for the 12th time. She wants to punish him by setting fire

to his beloved shed. Unknown to her, he is in the shed and

dies

Brenda has been in a relationship with Kenton for five years. He has regularly

hit her and told her how useless she is. One night she waits until he is asleep and

hits him over the head with a lamp, killing him

James is a sexual psychopath who has been resisting his

urges. However, one day he kidnaps and kills Helen.

Tom plans to scare Chris at Halloween. He jumps out at him dressed as a gnome.

Chris, known to Tom, suffers from a weak heart and dies.

Laura buys drugs for her friend Sheila. Sheila injects

them and becomes ill. Laura recognises that she is

overdosing, but is scared of getting in trouble and doesn’t

do anything. Sheila dies.

Tony drives his car at James, a policeman, wanting to

seriously harm him and stop him chasing the car. He hits

him, killing him instantly.

Liz plans to kill Nigel and buys a knife. She waits till late that night and then

creeps into his room, stabbing him 17 times.

Unknown to her, Nigel has already died of a heart

attack.

Sophie decides to kill her husband. To work up the courage, she drinks half a

bottle of vodka and then kills Dave.

Romeo and Juliet decide to end their lives together. Romeo connects exhaust pipe of his car to the inside of the car.

Juliet dies. Romeo is rescued by passing motorist.

Murder is a crime of specific intent which means…

Unlike other offences, murder has some partial defences, known as ‘voluntary manslaughter’ under the Homicide Act 1957 and Coroners and Justice Act 2009 .

In these instances, even though all the elements of murder are present, if the plea is accepted, the charge is reduced to manslaughter:

Task: Look back at your introductory scenarios. Can you identify at least one for each of these? Write the name of the defendant underneath.

However, if D has caused the death, but did not have the intent to kill or cause GBH, he may be charged with ‘involuntary manslaughter’…

Task: Can you illustrate two of these with a case example you have come across elsewhere in the course?

What happens if D is convicted of murder?

Task: Linking AS & A2.

1. What is a ‘tariff’ and how do they work for the crime of murder?

2. Why might a defendant want to be found liable for manslaughter instead of murder?

Murder: The Actual Law

Murder is a common law offence, which means that the courts are able to develop the definition and the crime itself through case law using . This allows them to update the law as necessary.

However, this can also be a problem because it means that the definition is constantly changing and it can be a little tricky to work out the exact meaning of the law. Remember all that confusion over oblique intention!

The legal definition of murder comes from Coke LJ in 1797:3

Gross negligence Unlawful Act Reckless Act

Got the essentials::

Actus reus Mens rea

Actus ReusSo there are three elements of the actus reus of murder:

Rather than going over all this again, we are going to look at the criticism [AO2].

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Unlawful killing Human being Queen’s peace

(Year and A Day)

“Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in

rerum natura under the King’s peace, with malice aforethought, either expressed by the party or

implied by law, so as the party wounded or hurt die of the wound or hurt within a year and a day after

the same.”

“Sound memory and age of discretion”

“Country of the Realm”

“Reasonable creature ”

“unlawfully killeth”

“Malice aforethought… express or implied”

“die of the wound or hurt within a year and a day”

Task: Using your understanding of the current meaning of actus reus in murder, explain whether or not you think this definition is suitable for the 21st century. What problems do you think these terms can cause? What changes have the courts had to make?

Success Criteria: All of you will give a clear reason for deciding whether or not the law is suitable for the 21st Century Most of you will be able to use at least two cases to back up your conclusions Some of you will be able to consider the impact of at least one of the recent reforms on the law on

murder

Mens ReaNow, remember that Lord Coke used the phrase “either express malice or implied by law”. Well, you need to be confident explaining what these odd phrases actually mean.

Let’s start with the most straightforward…

1. Express Malice

Simply put, this means intention to kill (remember all those lovely cases from mens rea) So, this includes direct and oblique intention.

Student Task: To show your understanding, complete the table below with the correct definitions, cases and tests!

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Type of intent Means? What evidence? Case? Facts?

Direct

Oblique

2. Implied Malice

This is the more controversial term, and really means that if D intends GBH and V dies, D may be liable for his murder.

R v Cunningham (1981)

What does GBH mean?

Developing AO2: Is this approach fair? Complete the table below to identify two arguments for each side, using your own understanding of the topic.

Yes, intent to commit GBH should be sufficient for a charge of murder

No, intent to commit GBH should not be sufficient for a charge of murder

Because...

Because...

Because...

Because...

Got it?Task One: Complete the flow diagram below, filling in the gaps with the correct offence (or partial defence)!

Task Two: Look at the following short problems and apply your learning. Are they liable for the murder of their victim?

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Facts: Ratio:

Scenario Murder? Why, using a case to support.James stabs Lewis, a British citizen, to death in Brazil.

Susan, who hears voices telling her that teachers are the work of the devil, pushes Miss Hart out of the window, killing her.

Bob discovers that his brother is being sexually abused by his uncle and kills him.

Sam punches Jemima who falls and hits her head, causing her thin skull to break, killing her.

Dr Bobby gives Louise an overdose of a pain relieving drug. Louise is dying of cancer.

Jane plots to get revenge on Paul, who has been physically bullying her for years. She ties him up and beats him. He dies of his injuries.

Lucy points a gun at Gemma and pulls the trigger. Gemma ducks and the bullet hits Emily, killing her.

Putting it all together… Using all you have learnt in the last few units, you are going to have a go at answering the following question.

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Sam wants to get rid of Olive, the old lady next door as he thinks she is the reason his house won’t sell. Despite being warned of the dangers by his friends, Sam decides to put a firework through her letterbox. The firework explodes and starts a fire in Olive’s house. Olive manages to escape unhurt but her husband Bert is taken to hospital. While there, his injuries are assessed and are so severe that he is put on a life-support machine. After 3 years, the doctors decide there is no hope of recovery and switch off his life-support.

Discuss Sam’s criminal liability for the death of Bert and the attempted murder of Olive.

Absolutely successful response because…

Better if…. Confidence in answering…

Homework:Improving the Law?

In 2006, the Law Commission produced a report on reform in the area of murder and manslaughter

This is a hugely important document in the criminal law, and we will keep coming back to it! The better you know it now... the easier it will be for you later!

Interestingly, this is not just one of those ‘they wrote this and no-one listened’ stories. A lot of their suggestions on provocation (now loss of control) and diminished responsibility have actually become law under the Coroners and

Justice Act 2009.

Homework Task:Using your own research skills, produce your own summary of the proposed reform. You should ensure that you cover at least the questions below.

There is one article included here to start you off, but you will need to do your own further research. You should aim to use at least three further sources to help you. You must cite these at the end of your report.

Suggestions: The Law Commission’s Report! The Law Review over the last couple of years had had some articles on the subject (most of the content pages

are available on FROG)

1. Identify three problems with the ‘old’ law on murder

2. What were the key proposals from the Law Commission?

3. How would these proposals change the current law? Explain at least two ways.

4. How did the government respond to the proposals?

5. Identify three changes to the law under the Coroners and Justice Act 2009

6. Do you think they are effective changes to the law? Why? Why not?

7. What problems can you still spot with the remaining law?

8. Which element of the law on murder did the report not touch, and why do you think this is?8

Stretch Yourself: R v Clinton [2012] a recent case from the Court of Appeal, which is all about the changes to the law on loss of control, and what they might actually mean. Read the article and then:

a. Summarise the facts of the case.

b. Explain what the key issue of the case was

c. Explain what the court decided and why

d. Describe how this decision has affected the interpretation and ‘reform’ of the law on loss of control

From The Times From times.co.uk

First and second-degree murder charges will snare more killers Scores of killers who at present are charged with manslaughter will no longer be able to escape a murder charge under plans outlined yesterday for new categories of first and second- degree murder.

Jealous husbands who kill and plead provocation, or terrorists who plant bombs but give warnings could be convicted of murder, not manslaughter, under the radical shake-up.

Children who kill could be convicted of a new, lower category of crime if it is proved that they are developmentally “immature”.

And violent street robbers who take part in an assault where the victim is killed by another member of the gang will be guilty of manslaughter, not robbery as now.

The proposals, from the Government’s law reform watchdog, the Law Commission, represent the biggest overhaul of the homicide law for 50 years.

The reforms would bring many more killers into the category of murder which at present is reserved for those who intend to kill or cause serious injury.

But women who kill violent and abusive husbands would be able to plead provocation and be convicted of second-degree murder.

The plans, expected to be taken forward by the Home Office, also signal an end to the mandatory life sentence for all murderers. Instead, the judge in a case of second-degree murder would have discretion to impose a shorter sentence.

Professor Jeremy Horder, the law commissioner who led the project, insisted, however, that the proposals would toughen the law.

“In our review we agreed that the law of murder is in a mess. The law can be unclear, unfair, or too generous to killers.”

Juries, he said, also had too few choices between verdicts to reflect how blameworthy the offender really was. If juries brought in a manslaughter verdict, judges were obliged to reflect that in “considerably lower” sentences, he said.

Ending mandatory life for all murderers would change a law dating back to the abolition of the death penalty more than 40 years ago.

Under yesterday’s plans, first-degree murder with the automatic mandatory life sentence is retained for those who intend to kill or do serious harm, as now. But killers who intend to cause serious harm, but not to kill, would be convicted of second-degree murder, not manslaughter as now. The new category of second-degree murder would catch terrorists who plant a bomb or

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poison supermarket food but give a warning, saying they did not intend to kill. At present they would be convicted of manslaughter as there is no intent to kill.

In 2004-05, 155 killers were convicted of murder and 142 of manslaughter. Professor Horder said: “This is the big change — upgrading some instances of what are manslaughter and calling them second-degree murder, with the expectation that they will be treated with the appropriate degree of sentencing.”

There was a “very big gap” between murder and manslaughter that could not always be met through sentencing, he said.

Victims’ families also “rightly object to the excessive breadth of the different kinds of manslaughter, as compared with the single offence of murder”, he added.

The Home Office is to begin a consultation process next year on how each category should be punished.

Commander Dave Johnson told The World at One programme on BBC Radio 4 that the Association of Chief Police Officers was pleased that some of its concerns had been taken into account but was concerned that criminals may try to reduce murder charges against them from first-degree to second-degree murder by claiming that they were carrying guns “under duress” because of the threat of violence from other gangsters. Rose Dixon, of Support after Murder and Manslaughter, which works with victims’ families, told The World at One: “I would be a little bit a bit concerned over whether some first-degree murders will be downgraded to second-degree . . . some of my members have said to me: ‘Does that mean my loved one is only second-degree dead?’.”

The proposals

First-degree murder, where the offender intends to kill

Second-degree murder — where the defendant intends serious harm but actually causes death

Manslaughter — carrying a jail term to be decided by the judge — for where defendant is negligent or intends some harm, but not serious harm, which results in death

Mothers who kill babies while suffering from post-natal depression should not be convicted of murder, commission recommends. Verdict should be infanticide

Mercy-killing: commission calls for review to focus on whether this should be reduced from first to second-degree murder

New defence of duress for both first and second-degree murder if defendant faced threats of death or life-threatening injury

The law in action

City financier John Monckton was murdered in a botched burglary attempt last year. One of his attackers, Elliot White, escaped with a manslaughter conviction

Under present law, a defendant saying he just intended to frighten or injure can escape a murder conviction

Under present law, prosecutors must prove an intentiont to kill or inflict serious harm knowing there is a serous risk it could result in death to secure a murder conviction

Under the commission's proposals, a new category of second degree murder would apply to those who kill even though they only intended some injury

Jon Venables and Robert Thompson, the boys who killed James Bulger in Liverpool in 1993, might have escaped with a lighter sentence under a new defence of “developmental immaturity” proposed for offenders under the age of 18

If a jury concluded that a murderer under 18 years was mentally abnormal, they could return a verdict of second-degree murder

Although first and second-degree murders carry a life sentence, under the Law Commission’s proposals the first is a mandatory life sentence, with a minimum time to be served recommended by the judge; and the second is discretionary, with the possibility of release at a half-way point

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