The law of murder is set out in common law. The legal definition of murder is 'the unlawful killing of a human being in the Queen's peace, with malice aforethought'.
this means that an alive human being must be killed in peace time by another person, who intended to kill that person and who is not mentally ill at the time they killed.
if all of the above points cannot be established then the Court would look at Manslaughter as opposed to Murder.
Actus Reus is the Latin term used to describe a criminal act. it means "Guilty Act"
Mens Rea is the Latin term used to describe the metal intent to commit the criminal act. it means "Guilty Mind"
Every crime must be considered in two parts
the physical act of the crime itself - the act (actus reus)
and
the mental intent to do the crime - the intention (mens rea).
What Is The Actus Reus Of Murder?
The actus reus of murder will take into account whether:
The defendant did the act or failed to do something which would be expected - which resulted in death
The act was deliberate or accidental or negligent
The act was unlawful (as opposed to killing in self defence)
The act was a significant cause of death
The death was of a person in being (.e. where the umbilical cord has been severed and the baby has a life independently of the mother.)
A murder verdict will rest on the ‘actus reus’ – that is, the decision that the killing was a wrongful act.
The original description of Murder was by Sir Edward Coke, the 17th century eminent English barrister, he is quoted as saying:
“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 aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day of the same”
in 1996 the “year and a day” rule was disqualified under law due to deaths resulting from the original act occurring after that timescale - due mainly to modern science and medical advances in life support - the original definition by Coke is still used in law today.
What Is The Mens Rea Of Murder?
The verdict of Murder instead of manslaughter will look at the intention to kill – otherwise known as mens rea.
This intention must be proved not just by the defendant’s motive or purpose, but also when their death is pretty much a certain consequence of their act.
A specific victim doesn’t need to be targeted to define it as murder – for example, a terrorist attack, where a bomb is planted in a public place. In this case, no specific person has been targeted, but the intention to kill and maim can be clearly proven.
To murder you must have "malice aforethought" - this is premeditation
A predetermination to commit an act without legal justification or excuse.
A malicious design to injure.
An intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life;
but malice aforethought does not necessarily imply any ill will, spite or hatred towards the individual killed.
MURDER OR MANSLAUGHTER?
once the act of killing has been established the court will look at the intent to kill and may consider the act to be manslaughter
Manslaughter can be committed in one of three ways:
Killing with the intent for murder but where a partial defence applies;
loss of control,
diminished responsibility
killing pursuant to a suicide pact.
Note: Duress is not a defence to a charge of murder or attempted murder.
2. Conduct that was grossly negligent given the risk of death, and did kill ("gross negligence manslaughter")
3. Conduct taking the form of an unlawful act involving a danger of some harm that resulted in death ("unlawful and dangerous act manslaughter").
when the Crown Prosecution Service (CPS) is looking at a case of Murder they must carefully consider the evidence to determine whether sufficient evidence exists for a charge of murder and whether a partial defence may exist or not.
In reviewing the evidence, they must further determine whether the mens rea for murder can be established.
If it cannot, a charge of (unlawful act or gross negligence) manslaughter falls for consideration.
Partial Defences to Murder
Partial defences, are different to complete defences, such as self-defence, as they bear all the ingredients of murder but if successfully argued, reduce the offence to an act of voluntary manslaughter not murder.
They are: diminished responsibility, loss of control and killing in pursuance of a suicide pact.
1. Diminished responsibility
There is a four-stage test, of which all four elements must be proved:
Whether the defendant was suffering from an abnormality of mental functioning
If so, whether it had arisen from a recognised medical condition
If so, whether it had substantially impaired his ability either to understand the nature of his conduct or to form a rational judgment or to exercise self-control (or any combination)
If so, whether it provided an explanation for his conduct
2. Loss of control
there are 3 parts to this and the act is broken down as
firstly the actual Loss of control
the reason qualifying trigger for that loss
and objectively - whether any person of the Defendant's sex and age, with a normal degree of tolerance and self-restraint in the circumstances might have reacted in the same or in a similar way.
3. Suicide Pact
A person, acting in pursuance of a suicide pact between him and another, who kills the other or is a party to the other being killed by a third person, is guilty of manslaughter and not murder
The defence must prove the existence of a suicide pact, and that at the time of the killing the Defendant had the intention of dying himself
Once the killing has been proved, the jury must answer the following two questions:
Was there a suicide pact?
If there was, was the defendant at the time of the killing acting in pursuance of the pact; did he have the settled intention of dying in pursuance of it?
Involuntary Manslaughter
Where an unlawful killing - the Actus Reus has been established without the Mens Rea - the intention to kill or to cause grievous bodily harm, the suspect is to be charged with manslaughter not murder.
Apart from the absence of the requisite intent, all other elements of the offence are the same as for murder.
There are two types of involuntary manslaughter, that caused by the defendant's gross negligence and that caused by his unlawful or dangerous act.
Unlawful Act Manslaughter - The offence is made out if it is proved that the accused intentionally did an unlawful and dangerous act from which death inadvertently resulted.
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