Murder in English law
Encyclopedia
Murder is an offence under the common law
of England and Wales
. It is considered the most serious form of homicide
, in which one person kills another either intending
to cause death or intending to cause serious injury (originally termed malice aforethought
even though it requires neither malice
nor premeditation).
(Latin
for "wrongful act") of murder most usually cited is that by Edward Coke
:
There are conflicting authorities on the above point, R v Jordan and R v Smith
In short, any contingency that is foreseeable, will maintain the chain. Put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon will break the chain.
of a reasonable creature in rerum natura (the whole phrase is usually translated as "a life in being", i.e. where the umbilical cord
has been severed and the baby has a life independently of the mother
). This was most recently considered in AG's Reference (No. 3 of 1994) where the Law Lords
reversed the Court of Appeal
decision. The defendant had stabbed
a pregnant woman in the face, back and abdomen. Some days after she was released from hospital in an apparently stable condition, she went into labour and gave birth to a premature child
, who died 121 days later. The child had been wounded in the original attack but the more substantial cause of death was her prematurity. According to Lords Mustill and Hope, a fetus
(unborn child
), although human
and protected by the law in a number of different ways, is not a separate person from its mother. So, if the cause of death had been more clearly the antenatal injuries, this could have been a homicide, but there would have been no liability if the child had been miscarried
or stillborn
because it would not have had a life independent of the mother. This case also holds that the doctrine of transferred malice
cannot apply to transfer intent from the mother to the baby after it is born.
Compare the situation in St George's Healthcare NHS Trust v S; R v Collins & Ors, ex parte S where it was held a trespass when a hospital terminated a pregnancy involuntarily because the mother was diagnosed with severe pre-eclampsia
. The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse consent
to treatment, whether her own life or that of her unborn child depends on it (see a discussion in omission).
In the United States
, there has been statutory
intervention in the form of the Unborn Victims of Violence Act
in 2004, a federal law
to clarify the criminal law
at a federal level. Several states have passed, or are considering, similar legislation. The federal government
has jurisdiction
over crime
s only in limited circumstances (when committed on federal property, against certain federal officials or employees, or by members of the armed forces
). State government
s have jurisdiction over all other crimes. The act provides that the mens rea
from the initial assault is transferred to the fetus without having to prove actual knowledge or intent with respect to the child, or even knowledge of the pregnancy. Such death or injury
to the child is charged as a separate offence whether the accused acted with or without knowledge of the pregnancy, and the penalty is the same as if the death or injury had been caused to the woman. English law, by contrast, does not accept the fetus as a separate person for these purposes.
" operates to exclude the killing of an enemy combatant
during a time of war or other international conflict. In the case of R v Clegg, a soldier in Northern Ireland
was convicted of murder after shooting and killing a joyrider
who had broken through the checkpoint. He was released after political pressure from the Attorney General
. The important principle of the case is the requirement that the government officially considered the place in question to be a war zone, and therefore not under the Queen's peace. In more general terms it refers to the normal peacable conditions which all citizens are entitled to enjoy, as usually encountered in the sense of a lesser offender breaching the Queen's peace
.
of any injury was abolished by the Law Reform (Year and a Day Rule) Act 1996
.
(Latin for "guilty mind") of murder is either an intention to kill (per the 2004 binding case of R v Matthews & Alleyne) or an intention to cause grievous bodily harm
(R v Moloney, R v Hancock & Shankland, and R v Woollin). In Moloney, Lord Bridge was clear that, for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury
is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or cause grievous bodily harm
(direct intent), but when death or grievous bodily harm is a virtually certain consequence of the defendant's act (indirect or 'oblique' intent). Also note that, in Moloney, Lord Bridge held that the mens rea of murder need not be aimed at a specific person so, if a terrorist
plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the terrorist might claim justification for the act through a political agenda. How or why one person kills could only have relevance in the sentencing
phase of a trial
.
s did not have the intention to kill, the conviction
was confirmed.
on the insanity defense (now also including diminished responsibility
) and infancy
. Hence, if any of the general defences such as self-defence
apply, an accused will be acquitted of murder, and if any of the partial defences introduced under the Homicide Act 1957
apply, the liability will be reduced to manslaughter
. The defence in the 1860 Eastbourne manslaughter
case was that the schoolteacher Thomas Hockey was acting under parental authority in using corporal punishment (he was charged with murder but found guilty of manslaughter). If a partial defence is successful, it will allow the sitting judge full discretion as to the sentence given to the offender, these can range from a conditional discharge to a life sentence (which accounts for around 10 percent of voluntary manslaughter sentences).
Another defence in medical cases is that of double effect. As was established by Judge Devlin
in the 1957 trial of Dr John Bodkin Adams
, causing death through the administration of lethal drugs to a patient, if the intention is solely to alleviate pain, is not considered murder.
The defences of duress
and necessity
are not available to a person charged with murder. The statutory defence of marital coercion
is not available to a wife charged with murder.
.
The date which is specified in the indictment is the date on which the deceased died, because the offence is not complete until that date.
Joinder of counts
A count of murder may be joined with a count charging another offence of murder, or a count charging a different offence. A count of conspiracy to murder may be joined with a count of aiding and abetting murder.
See also R v Greatrex (David Anthony), The Times, 2 April 1998, CA
.
A person found not guilty of murder on such an indictment may be found guilty of any of the offences listed below, but not any other offence:
For this purpose each count is considered to be a separate indictment.
may be charged with murder wherever the killing took place and no matter what the nationality
of the victim.
In any other case, where a person aged under twenty-one is convicted of murder the court must sentence him to custody for life.
In any other case, a person convicted of murder must be sentenced to imprisonment for life.
The tariff sets the minimum time that must be spent in prison
before an offender can be considered for parole. Following the decision of the European Court of Human Rights
in T v UK and the consequent statutory change in Criminal Justice and Court Services Act 2000 s 60, the judge
must now indicate in open court
the appropriate tariff for an offender aged under 18 who is convicted of murder. The period specified by the judge
is a 'sentence', which may be appeal
ed or be the subject of an Attorney General's Reference. Criminal Justice Act 2003 s 271 sets the same rule for adults. The Practice statement (Life sentences for murder) (2000) 2 Cr. App. R. 457 set the tariff for adults, i.e. one aged 18 or over at the time of the offence, with a starting point of 14 years as the minimum term for a case with no aggravating or mitigating factor
s, and lists the factors which might suggest either a higher or a lower than normal minimum term in an individual case. Mitigating factors include a mental illness
, battered woman syndrome
, using excessive force in self-defence
or mercy killing
. Assassination
, contract killing
, killing to subvert the justice system (such as killing a witness, etc.) will be aggravating factors.
The general tariffs are available from the Sentencing Advisory Panel http://www.sentencing-guidelines.gov.uk/advice/#mintermmurder.
The trial judge has always been expected to make a recommended minimum term, and in 1983 the Home Secretary
began amending (and usually increasing) the minimum term which was recommended by the trial judge. But this system was declared illegal in 2002 by both the High Court
and the European Court of Human Rights
following a successful challenge by convicted murderer Anthony Anderson
. Anderson had been convicted of a double murder in 1988 and the trial judge recommended that he should serve at least 15 years before being considered for parole, but six years later his tariff was increased to 20 years by the Home Secretary
Michael Howard
.
Since then, trial judges have been obliged to recommend a minimum term and only the Lord Chief Justice has the power to make any amendments; either through an appeal by the Attorney General
to increase a sentence which is seen as unduly lenient, or an appeal by the prisoner to have his or her minimum term reduced.
Life imprisonment has been the only option that judges have had when sentencing murderers since the death penalty was abolished in 1965, and the average life sentence prisoner spends 14 years behind bars. More serious cases, which included aggravating factors such as a rape or robbery, have seen murderers spend as much as 20 or even 30 years in prison. A handful of notorious multiple murderers have remained in prison until their deaths; these include Myra Hindley and Ronnie Kray. An estimated 20 prisoners in Britain have been recommended for lifelong imprisonment; these include Mark Hobson
, Donald Neilson
, Dennis Nilsen
, Jeremy Bamber
and Steve Wright
. Lengthy minimum terms have also been imposed on high profile killers including Ian Huntley (40 years) and Robert Black
(35 years).
See the Crown Prosecution Sentencing Manual for statutory guidelines and case law on sentencing.
was formerly a partial defence to murder. See also the 1 Jac 1 c 8 and the Murder Act 1751
.
Indictment
Section 4 of the Criminal Procedure Act 1851 (14 & 15 Vict c 100) provided that in any indictment for murder preferred after the coming into operation of that Act, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased. That Act came into operation of the 1 September 1851.
That section was replaced by section 6 of the Offences against the Person Act 1861
provided that in any indictment for murder, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in any indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased. That section was repealed by the Indictments Act 1915
.
The following specimen count was formerly contained in paragraph 13 of the Second Schedule to the Indictments Act 1915 before it was repealed.
Sentence
See sections 1 to 3 of the Offences against the Person Act 1861
and Parts II and III of the Homicide Act 1957
.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. It is considered the most serious form of homicide
Homicide
Homicide refers to the act of a human killing another human. Murder, for example, is a type of homicide. It can also describe a person who has committed such an act, though this use is rare in modern English...
, in which one person kills another either intending
Intention in English law
In English criminal law, intention is one of the types of mens rea that, when accompanied by an actus reus , constitutes a crime.-The standard definitions:...
to cause death or intending to cause serious injury (originally termed malice aforethought
Malice aforethought
Malice aforethought is the "premeditation" or "predetermination" that was required as an element of some crimes in some jurisdictions, and a unique element for first-degree or aggravated murder in a few.-Legal history:...
even though it requires neither malice
Malice (legal term)
Malice is a legal term referring to a party's intention to do injury to another party. Malice is either expressed or implied. Malice is expressed when there is manifested a deliberate intention unlawfully to take away the life of a human being...
nor premeditation).
Actus reus
The definition of the actus reusActus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "wrongful act") of murder most usually cited is that by Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
:
- "Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought, either expressed by the party or implied by law, so as the party wo, or hurt etc. die of the wound or hurt etc.within a year and a day of the same.
Unlawfully
"Unlawfully" means against law whether civil or criminal. "Malice" is one of the elements which can commonly distinguish a civil wrong (for which the wrongdoer is usually only liable to make financial reparation) from a criminal act (for which the wrongdoer is liable in the matter of murder to imprisonment for life); a death can still be "unlawful" (e.g. one caused by an act of negligence) even if no specific criminal offence is proved.Kill (causation)
At the time of death, the defendant's acts or omissions must be the operating and most substantial cause of death with no novus actus interveniens (Latin for "new act breaking in") to break the chain of causation. Thus, the defendant cannot choose how the victim is to act, nor what personality to have. No matter whether brave or foolish, the defendant must expect the victim to:- try to escape and if he or she dies in that attempt, the chain of causation is not broken; or
- try to fight back and so escalate the extent of the violence between them; or
- seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death.
There are conflicting authorities on the above point, R v Jordan and R v Smith
In short, any contingency that is foreseeable, will maintain the chain. Put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon will break the chain.
Life in being
The defendant must cause the deathDeath
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
of a reasonable creature in rerum natura (the whole phrase is usually translated as "a life in being", i.e. where the umbilical cord
Umbilical cord
In placental mammals, the umbilical cord is the connecting cord from the developing embryo or fetus to the placenta...
has been severed and the baby has a life independently of the mother
Mother
A mother, mum, mom, momma, or mama is a woman who has raised a child, given birth to a child, and/or supplied the ovum that grew into a child. Because of the complexity and differences of a mother's social, cultural, and religious definitions and roles, it is challenging to specify a universally...
). This was most recently considered in AG's Reference (No. 3 of 1994) where the Law Lords
Lord of Appeal in Ordinary
Lords of Appeal in Ordinary, commonly known as Law Lords, were appointed under the Appellate Jurisdiction Act 1876 to the House of Lords of the United Kingdom in order to exercise its judicial functions, which included acting as the highest court of appeal for most domestic matters...
reversed the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
decision. The defendant had stabbed
Stabbing
A stabbing is penetration with a sharp or pointed object at close range. Stab connotes purposeful action, as by an assassin or murderer, but it is also possible to accidentally stab oneself or others.Stabbing differs from slashing or cutting in that the motion of the object used in a stabbing...
a pregnant woman in the face, back and abdomen. Some days after she was released from hospital in an apparently stable condition, she went into labour and gave birth to a premature child
Premature birth
In humans preterm birth refers to the birth of a baby of less than 37 weeks gestational age. The cause for preterm birth is in many situations elusive and unknown; many factors appear to be associated with the development of preterm birth, making the reduction of preterm birth a challenging...
, who died 121 days later. The child had been wounded in the original attack but the more substantial cause of death was her prematurity. According to Lords Mustill and Hope, a fetus
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
(unborn child
Child
Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...
), although human
Human
Humans are the only living species in the Homo genus...
and protected by the law in a number of different ways, is not a separate person from its mother. So, if the cause of death had been more clearly the antenatal injuries, this could have been a homicide, but there would have been no liability if the child had been miscarried
Miscarriage
Miscarriage or spontaneous abortion is the spontaneous end of a pregnancy at a stage where the embryo or fetus is incapable of surviving independently, generally defined in humans at prior to 20 weeks of gestation...
or stillborn
Stillbirth
A stillbirth occurs when a fetus has died in the uterus. The Australian definition specifies that fetal death is termed a stillbirth after 20 weeks gestation or the fetus weighs more than . Once the fetus has died the mother still has contractions and remains undelivered. The term is often used in...
because it would not have had a life independent of the mother. This case also holds that the doctrine of transferred malice
Transferred intent
Transferred intent describes the fact that intent can be transferred between victims, between torts, or both. In tort law, there are generally five areas in which transferred intent is applicable: battery, assault, false imprisonment, trespass to land, and trespass to chattels...
cannot apply to transfer intent from the mother to the baby after it is born.
Compare the situation in St George's Healthcare NHS Trust v S; R v Collins & Ors, ex parte S where it was held a trespass when a hospital terminated a pregnancy involuntarily because the mother was diagnosed with severe pre-eclampsia
Pre-eclampsia
Pre-eclampsia or preeclampsia is a medical condition in which hypertension arises in pregnancy in association with significant amounts of protein in the urine....
. The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse consent
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
to treatment, whether her own life or that of her unborn child depends on it (see a discussion in omission).
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, there has been statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
intervention in the form of the Unborn Victims of Violence Act
Unborn Victims of Violence Act
The Unborn Victims of Violence Act of 2004 is a United States law which recognizes a "child in utero" as a legal victim, if he or she is injured or killed during the commission of any of over 60 listed federal crimes of violence...
in 2004, a federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...
to clarify the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
at a federal level. Several states have passed, or are considering, similar legislation. The federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
has jurisdiction
Criminal jurisdiction
Criminal jurisdiction is a term used in constitutional law and public law to describe the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime...
over crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
s only in limited circumstances (when committed on federal property, against certain federal officials or employees, or by members of the armed forces
Military law
Military justice is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use...
). State government
State government
A state government is the government of a subnational entity in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or be subject to the direct control of the federal government...
s have jurisdiction over all other crimes. The act provides that the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
from the initial assault is transferred to the fetus without having to prove actual knowledge or intent with respect to the child, or even knowledge of the pregnancy. Such death or injury
Injury
-By cause:*Traumatic injury, a body wound or shock produced by sudden physical injury, as from violence or accident*Other injuries from external physical causes, such as radiation injury, burn injury or frostbite*Injury from infection...
to the child is charged as a separate offence whether the accused acted with or without knowledge of the pregnancy, and the penalty is the same as if the death or injury had been caused to the woman. English law, by contrast, does not accept the fetus as a separate person for these purposes.
Queen's peace
Among other things, the phrase "under the Queen's peaceQueen's peace
The Queen's peace is the term used in the Commonwealth realms to describe the protection the monarch, in right of each state, provides to his or her subjects...
" operates to exclude the killing of an enemy combatant
Combatant
A combatant is someone who takes a direct part in the hostilities of an armed conflict. If a combatant follows the law of war, then they are considered a privileged combatant, and upon capture they qualify as a prisoner of war under the Third Geneva Convention...
during a time of war or other international conflict. In the case of R v Clegg, a soldier in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
was convicted of murder after shooting and killing a joyrider
Joyride (crime)
To joyride is to drive around in a stolen car, boat, or other vehicle with no particular goal, a ride taken solely for pleasure.In English law, joyriding is not considered to be theft, because the intention to "permanently deprive" the owner of the vehicle cannot be proven...
who had broken through the checkpoint. He was released after political pressure from the Attorney General
Law Officers of the Crown
The Law Officers of the Crown are the chief legal advisers to the Crown, and advise and represent the various governments in the United Kingdom and the other Commonwealth Realms. In England and Wales, Northern Ireland and most Commonwealth and colonial governments, the chief law officer of the...
. The important principle of the case is the requirement that the government officially considered the place in question to be a war zone, and therefore not under the Queen's peace. In more general terms it refers to the normal peacable conditions which all citizens are entitled to enjoy, as usually encountered in the sense of a lesser offender breaching the Queen's peace
Breach of the peace
Breach of the peace is a legal term used in constitutional law in English-speaking countries, and in a wider public order sense in Britain.-Constitutional law:...
.
Year and a day
The requirement that death occur within a year and a dayYear and a day rule
The year and a day rule has been a common traditional length of time for establishing differences in legal status. The phrase "year and a day rule" is most commonly associated with the former common law standard that death could not be legally attributed to acts or omissions that occurred more...
of any injury was abolished by the Law Reform (Year and a Day Rule) Act 1996
Law Reform (Year and a Day Rule) Act 1996
The Law Reform Act 1996 is a short Act of Parliament which abolished the year and a day rule in English law.The year and a day rule was an ancient rule of the common law which created a conclusive presumption that a death was not murder if it occurred more than a year and a day since the act ...
.
Mens rea
The mens reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(Latin for "guilty mind") of murder is either an intention to kill (per the 2004 binding case of R v Matthews & Alleyne) or an intention to cause grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
(R v Moloney, R v Hancock & Shankland, and R v Woollin). In Moloney, Lord Bridge was clear that, for the defendant to have the mens rea of murder, there must be something more than mere foresight or knowledge that death or serious injury
Injury
-By cause:*Traumatic injury, a body wound or shock produced by sudden physical injury, as from violence or accident*Other injuries from external physical causes, such as radiation injury, burn injury or frostbite*Injury from infection...
is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or cause grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
(direct intent), but when death or grievous bodily harm is a virtually certain consequence of the defendant's act (indirect or 'oblique' intent). Also note that, in Moloney, Lord Bridge held that the mens rea of murder need not be aimed at a specific person so, if a terrorist
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the terrorist might claim justification for the act through a political agenda. How or why one person kills could only have relevance in the sentencing
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
phase of a trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
.
Contemporaneity
The actus reus and mens rea must coincide in point of time. The so-called single transaction principle allows a conviction where the defendant has both actus reus and mens rea together during the sequence of events leading to death. In Thabo Meli v R the defendants thought they had already killed their victim when they threw him over a cliff and abandoned the "body". Thus, although the act actually causing death was performed when the defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s did not have the intention to kill, the conviction
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
was confirmed.
Defences
The first words Coke's definition refer to the M'Naghten RulesM'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
on the insanity defense (now also including diminished responsibility
Diminished responsibility in English law
In English law, diminished responsibility is one of the partial defences that reduce the offence from murder to manslaughter if successful . This allows the judge sentencing discretion, e.g. to impose a hospital order under section 37 Mental Health Act 1983 to ensure treatment rather than...
) and infancy
Defense of infancy
The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an "infant" are excluded from criminal liability for their actions, if at the relevant time, they had not reached an age of criminal responsibility...
. Hence, if any of the general defences such as self-defence
Self-defence in English law
Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...
apply, an accused will be acquitted of murder, and if any of the partial defences introduced under the Homicide Act 1957
Homicide Act 1957
The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice , reforming the partial defence of provocation, and by introducing the partial defences...
apply, the liability will be reduced to manslaughter
Manslaughter in English law
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...
. The defence in the 1860 Eastbourne manslaughter
Eastbourne manslaughter
The Eastbourne manslaughter was an 1860 legal case in Eastbourne, England, concerning the death of 15-year-old Reginald Cancellor at the hands of his teacher, Thomas Hopley...
case was that the schoolteacher Thomas Hockey was acting under parental authority in using corporal punishment (he was charged with murder but found guilty of manslaughter). If a partial defence is successful, it will allow the sitting judge full discretion as to the sentence given to the offender, these can range from a conditional discharge to a life sentence (which accounts for around 10 percent of voluntary manslaughter sentences).
Another defence in medical cases is that of double effect. As was established by Judge Devlin
Patrick Devlin, Baron Devlin
Patrick Arthur Devlin, Baron Devlin, PC was a British lawyer, judge and jurist. He wrote a report on Britain's involvement in Nyasaland in 1959...
in the 1957 trial of Dr John Bodkin Adams
John Bodkin Adams
John Bodkin Adams was an Irish-born British general practitioner, convicted fraudster and suspected serial killer. Between the years 1946 and 1956, more than 160 of his patients died in suspicious circumstances. Of these, 132 left him money or items in their will. He was tried and acquitted for...
, causing death through the administration of lethal drugs to a patient, if the intention is solely to alleviate pain, is not considered murder.
The defences of duress
Duress in English law
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises in both English criminal law, and in civil law, where it is relevant to English...
and necessity
Necessity in English law
In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded...
are not available to a person charged with murder. The statutory defence of marital coercion
Marital coercion
Marital coercion is a statutory defence to most crimes under English criminal law and under the criminal law of Northern Ireland. It is similar to duress.-Legislation:The defence is contained in of the Criminal Justice Act 1925:...
is not available to a wife charged with murder.
Restriction on institution of proceedings
Proceedings against a person for murder, if the injury alleged to have caused the death was sustained more than three years before the death occurred, or the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death, may only be instituted by or with the consent of the Attorney GeneralAttorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
.
Indictment
A count charging a single principal offender with murder will now be in the following form:The date which is specified in the indictment is the date on which the deceased died, because the offence is not complete until that date.
Joinder of counts
A count of murder may be joined with a count charging another offence of murder, or a count charging a different offence. A count of conspiracy to murder may be joined with a count of aiding and abetting murder.
See also R v Greatrex (David Anthony), The Times, 2 April 1998, CA
Alternative verdict
On the trial of an indictment for murder, the jury cannot return an alternative verdict to the offence charged in that indictment under section 6(3) of the Criminal Law Act 1967Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
.
A person found not guilty of murder on such an indictment may be found guilty of any of the offences listed below, but not any other offence:
- Manslaughter
- Causing grievous bodily harm with intent to do so, contrary to section 18 of the Offences against the Person Act 1861Offences Against The Person Act 1861The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
- Any offence of which a person found not guilty of murder may be found guilty under an enactment specifically so providing, namely:
- Child destructionChild destructionChild destruction is the name of a statutory offence in England and Wales, Northern Ireland and Hong Kong. The offence of that name has been abolished and replaced in Victoria....
, contrary to section 1(1) of the Infant Life (Preservation) Act 1929Infant Life (Preservation) Act 1929The Infant Life Act 1929 is an Act of the Parliament of the United Kingdom. It creates the offence of child destruction.It also amended the law so that an abortion carried out in good faith, for the sole purpose of preserving the life of the mother, would not be an offence.-Parliamentary... - InfanticideInfanticideInfanticide or infant homicide is the killing of a human infant. Neonaticide, a killing within 24 hours of a baby's birth, is most commonly done by the mother.In many past societies, certain forms of infanticide were considered permissible...
, contrary to section 1(1) of the Infanticide Act 1938 - Aiding, abetting, counselling or procuring suicide or an attempt to commit suicide, contrary to section 2(1) of the Suicide Act 1961Suicide Act 1961The Suicide Act 1961 is an Act of the Parliament of the United Kingdom. It decriminalised the act of suicide so that those who failed in the attempt would no longer be prosecuted....
- Child destruction
- Any offence of which a person found not guilty of murder may be found guilty under section 4(2) of the Criminal Law Act 1967Criminal Law Act 1967The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. - Attempted murderAttempted murderAttempted murder is a crime in England and Wales and Northern Ireland.-Today:In English criminal law, attempted murder is the crime of more than merely preparing to commit unlawful killing and at the same time having a specific intention to cause the death of human being under the Queen's Peace...
, or an attempt to commit any other offence of which a person found not guilty of murder may be found guilty, contrary to section 1(1) of the Criminal Attempts Act 1981Criminal Attempts Act 1981The Criminal Attempts Act 1981 is an Act of the Parliament of the United Kingdom. It applies to England and Wales and creates criminal offences pertaining to attempting to commit crimes...
.
For this purpose each count is considered to be a separate indictment.
Jurisdiction
A British subjectBritish subject
In British nationality law, the term British subject has at different times had different meanings. The current definition of the term British subject is contained in the British Nationality Act 1981.- Prior to 1949 :...
may be charged with murder wherever the killing took place and no matter what the nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
of the victim.
Sentence
Where a person convicted of murder appears to the court to have been aged under eighteen at the time the offence was committed, the court must sentence him to be detained during Her Majesty’s pleasure.In any other case, where a person aged under twenty-one is convicted of murder the court must sentence him to custody for life.
In any other case, a person convicted of murder must be sentenced to imprisonment for life.
Tariff System
The mandatory life sentence for murder comprises three elements:- A minimum term representing retributionRetributive justiceRetributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society....
without any prospect of parole; - This starts on the expiry of the first and runs until the parole board decides that the person safely may be released on licence;
- At any time during the remainder of his or her life, the licence may be revoked and the offender will then be detained until it is considered safe to release him or her again on licence. This element does, in a real sense, represent a life sentence.
The tariff sets the minimum time that must be spent in prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
before an offender can be considered for parole. Following the decision of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
in T v UK and the consequent statutory change in Criminal Justice and Court Services Act 2000 s 60, the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
must now indicate in open court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
the appropriate tariff for an offender aged under 18 who is convicted of murder. The period specified by the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
is a 'sentence', which may be appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
ed or be the subject of an Attorney General's Reference. Criminal Justice Act 2003 s 271 sets the same rule for adults. The Practice statement (Life sentences for murder) (2000) 2 Cr. App. R. 457 set the tariff for adults, i.e. one aged 18 or over at the time of the offence, with a starting point of 14 years as the minimum term for a case with no aggravating or mitigating factor
Mitigating factor
A mitigating factor, in law, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence.-Death penalty in the United States:...
s, and lists the factors which might suggest either a higher or a lower than normal minimum term in an individual case. Mitigating factors include a mental illness
Mental illness
A mental disorder or mental illness is a psychological or behavioral pattern generally associated with subjective distress or disability that occurs in an individual, and which is not a part of normal development or culture. Such a disorder may consist of a combination of affective, behavioural,...
, battered woman syndrome
Battered woman defence
The battered woman defense is a defense used in court that the person accused of an assault / murder was suffering from battered person syndrome at the material time. Because the defense is most commonly used by women, it is usually characterised in court as battered woman syndrome or battered wife...
, using excessive force in self-defence
Self-defence in English law
Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...
or mercy killing
Euthanasia
Euthanasia refers to the practice of intentionally ending a life in order to relieve pain and suffering....
. Assassination
Assassination
To carry out an assassination is "to murder by a sudden and/or secret attack, often for political reasons." Alternatively, assassination may be defined as "the act of deliberately killing someone, especially a public figure, usually for hire or for political reasons."An assassination may be...
, contract killing
Contract killing
Contract killing is a form of murder, in which one party hires another party to kill a target individual or group of people. It involves an illegal agreement between two parties in which one party agrees to kill the target in exchange for consideration, monetary, or otherwise. The hiring party may...
, killing to subvert the justice system (such as killing a witness, etc.) will be aggravating factors.
The general tariffs are available from the Sentencing Advisory Panel http://www.sentencing-guidelines.gov.uk/advice/#mintermmurder.
The trial judge has always been expected to make a recommended minimum term, and in 1983 the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
began amending (and usually increasing) the minimum term which was recommended by the trial judge. But this system was declared illegal in 2002 by both the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
and the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
following a successful challenge by convicted murderer Anthony Anderson
Anthony Anderson (murderer)
Anthony Anderson is a convicted British murderer.He is most notable for successfully challenging the Home Secretary's powers to set minimum terms for life sentence prisoners...
. Anderson had been convicted of a double murder in 1988 and the trial judge recommended that he should serve at least 15 years before being considered for parole, but six years later his tariff was increased to 20 years by the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
Michael Howard
Michael Howard
Michael Howard, Baron Howard of Lympne, CH, QC, PC is a British politician, who served as the Leader of the Conservative Party and Leader of the Opposition from November 2003 to December 2005...
.
Since then, trial judges have been obliged to recommend a minimum term and only the Lord Chief Justice has the power to make any amendments; either through an appeal by the Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
to increase a sentence which is seen as unduly lenient, or an appeal by the prisoner to have his or her minimum term reduced.
Life imprisonment has been the only option that judges have had when sentencing murderers since the death penalty was abolished in 1965, and the average life sentence prisoner spends 14 years behind bars. More serious cases, which included aggravating factors such as a rape or robbery, have seen murderers spend as much as 20 or even 30 years in prison. A handful of notorious multiple murderers have remained in prison until their deaths; these include Myra Hindley and Ronnie Kray. An estimated 20 prisoners in Britain have been recommended for lifelong imprisonment; these include Mark Hobson
Mark Hobson
Mark Richard "Hobo" Hobson is a British spree killer who killed four people in North Yorkshire, England in July 2004. He was arrested after an eight-day nationwide manhunt involving more than 500 police officers and 12 police forces, during which time he was Britain's "most wanted man"...
, Donald Neilson
Donald Neilson
Donald Neilson is a British multiple murderer and armed robber...
, Dennis Nilsen
Dennis Nilsen
Dennis Andrew Nilsen also known as the Muswell Hill Murderer and the Kindly Killer is a British serial killer who lived in London....
, Jeremy Bamber
Jeremy Bamber
Jeremy Nevill Bamber was convicted in England in 1986 of murdering five members of his adoptive family—his father, mother, sister, and her six-year-old twin sons—at his parents' home at White House Farm, Tolleshunt D'Arcy, Essex, in the early hours of 7 August 1985...
and Steve Wright
Steve Wright (serial killer)
Steven Gerald James Wright is an English serial killer, also known as the Suffolk Strangler. He is currently serving life imprisonment for the murder of five women who worked as prostitutes in Ipswich, Suffolk...
. Lengthy minimum terms have also been imposed on high profile killers including Ian Huntley (40 years) and Robert Black
Robert Black (serial killer)
Robert Black is a Scottish paedophile serial killer convicted of the kidnap and murder of four girls between the ages of 5 and 11 between 1981 and 1986 in the United Kingdom. He was convicted of sexually assaulting one of the girls and of raping the other three...
(35 years).
See the Crown Prosecution Sentencing Manual for statutory guidelines and case law on sentencing.
History
ProvocationProvocation in English law
In English law, provocation was a mitigatory defence alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It does not apply to any other offence. It was abolished on 4 October 2010 by of the...
was formerly a partial defence to murder. See also the 1 Jac 1 c 8 and the Murder Act 1751
Murder Act 1751
The Murder Act 1751 was an Act of the Parliament of the Kingdom of Great Britain.-Provisions:The Murder Act included the provision "for better preventing the horrid crime of murder" "that some further terror and peculiar mark of infamy be added to the punishment", and that "in no case whatsoever...
.
Indictment
Section 4 of the Criminal Procedure Act 1851 (14 & 15 Vict c 100) provided that in any indictment for murder preferred after the coming into operation of that Act, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased. That Act came into operation of the 1 September 1851.
That section was replaced by section 6 of the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
provided that in any indictment for murder, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in any indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased. That section was repealed by the Indictments Act 1915
Indictments Act 1915
The Indictments Act 1915 was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centuries and became lengthy, confusing and highly technical to the point...
.
The following specimen count was formerly contained in paragraph 13 of the Second Schedule to the Indictments Act 1915 before it was repealed.
Sentence
See sections 1 to 3 of the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
and Parts II and III of the Homicide Act 1957
Homicide Act 1957
The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice , reforming the partial defence of provocation, and by introducing the partial defences...
.