What is Murder?

The unlawful killing of a human being with deliberate intent to kill: (1) murder in the first degree is characterized by premeditation; (2) murder in the second degree is characterized by a sudden and instantaneous intent to kill or to cause injury without caring whether the injury kills or not.

Statutes of Jamaica

The Coroners Act

The Resident Magistrate for a parish is ex officio the Coroner for that parish. The Coroners Act provides that where it appears to the Coroner that there is reason to suspect that: (a) A deceased has come to his death by murder, manslaughter or infanticide; or (b) that the death occurred in circumstances which, if continued, would be prejudicial to public health or safety, the Coroner shall summon a jury to determine how, when and where the deceased came by his or her death, and whether anyone should be charged with murder or manslaughter. If the jury finds that someone is to be charged, the Coroner issues a warrant for the arrest of such person who is then brought before the next sitting of the Circuit Court for that parish. However, where the Resident Magistrate is sitting as a Resident Magistrate and conducting a preliminary examination in a charge of murder or manslaughter, no jury is required at that stage, and the Resident Magistrate (sitting alone) commits straight to the Circuit Court, if satisfied that a prima facie case has been made out. So, the question arises: why is a jury stipulated for a Coroners Court in these cases? Why cant the Coroner sit alone at all times and do the same thing that he or she does when sitting as Resident Magistrate, that is, commit to the Circuit Court? After all, there is the constant complaint that inquests are not being held quickly enough due to problems with jurors.

The Actus Reus of murder Actus reus Actus reus, same for murder and manslaughter Who may be killed? Any reasonable creature, this is taken to mean the 'human' being there is no such thing as a monstrous birth Re A (Children)(2000) It is not essential that a child draw breath prior to an act which caused its death. If a child were caused to be born prematurely and as a consequence the child died then that would be murder. A foetus Is not a human being for the purposes of the law of homicide. A child is not considered in law to be in being until the whole body of the child is extruded from the womb and has an existence independent of the mother. Whether the child has an independent existence turns upon whether it has an independent circulation, and has breathed or had a capacity for independent breathing. A child may have an independent existence, however, even though it has not drawn breath and even though the umbilical cord is not severed. A person continues in being until his being is extinguished by death. Queens Peace All persons are "under the Queen's peace" except foreign enemies killed in war. The defendant did the act or omitted to do a legally recognised duty. (an act or omission) The act was deliberate. 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.

The actus reus for both murder and manslaughter is the same. The difference between the two crimes is found in the mens rea.

"Kills", what is death?

Disconnection of a life support machine causes death unless death has already occurred because the brain is dead Malcherek and Steel (1981)

However, Airedale NHS Trust v Bland (1993) has allowed the previous brain death decision to be questioned. In many respects Bland was 'alive' in that he was in a state of Persistent Vegetative State (PVS). Any right to die for someone in this live brainstem state must be sanctioned by the courts.

a person causes the death of another where by any act or omission he accelerates the death of that other

Prosecution must establish that D's act was both a factual and a legal cause of the result. Factual causation Ds act must be more than a de minimis cause (trifling, trivial connection with the result). Death is inevitable to all of us and murder is an acceleration of V's death, it is immaterial if the victim is already suffering from a fatal disease. The 'but for' test used in White [1910] is not very sophisticated and may not predict the result where more than one cause is involved in the death. Causation in law Ds act does not have to be the sole or even the main cause, provided it is a substantial and operating cause of death or was a significant contribution to the death (Smith; Pagett). Substantial means that is not trifling or trivial. It does not require proof that Ds act was largely to blame. The act or omission must be one of the causes for example in R v Dalloway (1847) the driver of a cart was not guilty of manslaughter where his negligent driving did not contribute to death of child who ran into the path of vehicle. and one that is more than

minimal. It is therefore possible to have two or more independent operative causes of death, and any person whose conduct constitutes a cause may be convicted of an offence in respect of the death. The defendant's act must be more than a minimal cause of the death. It was said by Robert Goff LJ in Pagett [1983] that "the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result." Other causes which contribute to the death may be the actions of others, (eg the acts of the police in Pagett), or of the victim himself Williams [1992] (but see Roberts (1971)). These other causes do not of themselves relieve D of liability where D's act was asubstantial and operating cause. The civil law notion of novus actus also arises here; the chain of causation may be broken where the intervention was free, deliberate and informed. In English civil law that you must take your victim as you find him, this principle applies in criminal law: for example. This principle, known as the egg-shell skull rule, is not confined to the victim's physical condition Blaue [1975]. It is not of universal application, however, as seen in Roberts (1971). An act which constitute a novus actus interveniens breaking the chain of causation between D's act and the resulting death relieves D of liability). Rarely will the courts admit the new act to be improper or negligent medical treatment.

The Mens Rea of murder Malice aforethought Malice aforethought is the same as Intent. Vickers (1957) Therefore intention is a key to proving murder.

Not ill-will, wickedness or premeditation.

"Malice aforethought" (intention) does not require ill will towards the victim nor premeditation nor has it anything to do with wickedness. It can be either: (a) an intention to kill; or (b) an intention to cause grievous bodily harm.

Motive is not intention

If I kill you for your money, my intention is to kill you but my motive is to obtain your money. If I kill you from the motive of compassion mercy killing - I still intend to kill you and the crime is one of murder. However, motive is relevant in cases and these appear to be an exception to the rule, see Airedale NHS Trust v Bland[1993] HL Also, three specific and partial defences to murder; suicide pact, provocation and diminished responsibility are in effect relevant to motivation, because the defendant is agreeing he intended to kill, but he had a reason.

Lord Mustills concept of "indiscriminate malice"

"I pause to distinguish the case of indiscriminate malice from ... [grievous bodily harm and transferred malice rules] ... although even now it is sometimes confused with them. The terrorist who hides a bomb in an aircraft provides an example. This is not a case of "general malice" where under the old law any wrongful act sufficed to prove the evil disposition which was taken to supply the necessary intent for homicide. Nor is it

transferred malice, for there is no need of a transfer. The intention is already aimed directly at the class of potential victims of which the actual victim forms part. The intent and the actus reus completed by the explosion are joined from the start, even though the identity of the ultimate victim is not yet fixed. So also with the shots fired indiscriminately into a crowd. No ancient fictions are needed to make these cases of murder."

Intention may not be a desired outcome The outcome may not be D's Wish Nedrick, R v (1986) CA "Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may havedesired or wished it to happen" per Lord Lane Want Moloney, R v (1985) HL "I didn't want to kill him. It was kill or be killed. I loved him, I adored him." Moloney (and below) Nedrick, R v (1986) CA "I didn't want anyone to die, I am not a murderer..." Nedrick Desire Hyam v DPP (1975) HL [A] man may desire to blow up an aircraft in flight in order to obtain insurance moneys. But if any passengers are killed he is guilty of murder, as their death will be a moral certainty if he carries out his intention. Nedrick, R v (1986) CA (above)

Motive

Moloney, R v (1985) HL "A man who at London Airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit." per Lord Bridge

Indirect or oblique intention Section 8 Criminal Justice Act 1967 S.8 requires that a jury shall not be bound to infer whether a defendant intended or foresaw a result of actions by reason only of its being a natural and probable consequence but shall decide by reference to all the evidence. This has been interpreted as requiring a jury to consider only the subjective state of mind of the accused. Reference to the consequences being "natural and probable" met with disapproval by Lord Bridge in Moloney). It is straightforwardly subjective and must be put to the jury in such terms - what did the defendant intend? The wording of s.8 prohibits drawing a conclusion about the accused's mental state only by reason of it being the natural and probable consequence. The word "only" seems to suggest that the jury can follow a line of reasoning that entitles them to draw a conclusion about the accused's mental state from the objective view of the reasonable man. If they reason that the reasonable person might have intended the consequence they must, nevertheless, be satisfied that the defendant did.

Moloney, Hancock and Shankland, and Nedrick

Referred to as the 'line of cases' are the main Mens Rea cases in murder, they tell us

Confirmed by Woollin

what intention, particularly indirect/oblique means.

Moloney, R v (1985) HL

Tells us about the relationship between foresight of consequence and proof of intention. The significance of the case is that a prudent jury might well argue that Moloney had foresight of consequences. Did Moloney foresee that the death of his stepfather was a "natural consequence" of his actions? The answer seems not. If D did not wish or desire the consequences of his actions the judge will have to direct on oblique intention.

Hancock and Shankland (1986) HL

Murder convictions overturned, manslaughter substituted, because the defendants had not intended to bring about death. Though death was a probability it was not a "natural consequence".

Nedrick (1986) CA supports Hancock and Shankland

The facts of which were essentially the same as in Hyam, but paraffin this time. The principles coming from it being: Lord Lane approved Lord Scarman's speech in Hancock where he said: "... the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended." In other words, evidence of foresight, is evidence of intent. When determining whether the defendant had the necessary intent, it may therefore be helpful to ask

(1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? "Natural consequence" becomes virtual certainty which is a matter for the jury to consider in seeking whether death was intended.

Can we forget every case except Nedrick then?

No. The rules in Hyam, Moloney, and Hancock and Shankland have been developed and we need to extract from them the meaning of Nedrick. In Nedrick Lord Lane gave a model direction a Judge should use when instructing a jury in the rare event a direction on oblique intent is necessary.

What about Woollin

Made slight amendments to the direction in Nedrick.

Defendant's wish different from outcome

If the evidence is that the defendants wish may have been something other than to cause the result in question then R v Nedrick and R v Walter and Hayles apply.

The specific defences to a murder charge (and only a murder charge, nothing else) Referred to as "specific and partial" defences. Diminished responsibility S2 "Specific" because they are available only to a charge of murder, "partial" because the defendant is not totally acquitted, simply convicted of manslaughter. The defence is that the killer was suffering from an abnormality of the mind at the time of the crime that impaired the mental responsibility for committing the act or omission. If accepted, the conviction would be for manslaughter.

more in voluntary manslaughter, here Provocation S3 A defendant must show that the actions and behaviour of the dead person was such that any reasonable person would lose control of the mind, and that the loss of self-control was sudden and temporary. R v Richens (1993). If accepted, the conviction would be for manslaughter. The defence is not available to a defendant who has time to think and reflect before committing the murder. R v Thornton (1992) CA. more in voluntary manslaughter, here "Suicide pact" means a common agreement between two or more persons for them all to die. It does not make any differencewhether they take their own life, or kill each other. There must be a settled intention by each party to die in pursuance of the pact. Suicide is no longer an offence of self-murder at common law, since the Suicide Act 1961. Where a person, acting in pursuance of a suicide pact between himself and another, kills the other or is a party to the other being killed by a third party, he is guilty of manslaughter. Needless to say, this is only relevant if one or more of the parties survives the suicide pact. more in voluntary manslaughter, here The above defences, introduced by the Homicide Act 1957, reduce the charge of murder to manslaughter. The effect is that murder carries the minimum of life imprisonment, manslaughter the maximum of life imprisonment.

Suicide Pact S4

Homicide Act 1957

The below appear not to be part of your syllabus Infanticide is where a child under the age of 12 months is killed: (a) By its mother, and (b) At the time of the killing, the mother was mentally disturbed because of not fully recovering from the effects of the child's birth. The maximum punishment the same as for manslaughter. Causing death by reckless driving

Committed by a motorist who drives recklessly and causes the death of another. Maximum punishment 5 years imprisonment and/or a fine.

Extra:
Murder The classic definition of murder is "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 that the wounded party shall die of the wound or hurt, (within a year and a day of the same)." This last sentence removed by The Law Reform (Year and a Day Rule) Act 1996 17th Century rule - Coke's Institutes. Even today, murder is still a common law offence, the offence not enacted by parliament. The Law Reform (Year and a Day Rule) Act 1996 3 years after attack If the 'cause' of death occurs more than 3 years before the victim died or D has already been convicted of some other offence (e.g. grievous bodily harm) in relation to the acts that caused the death the consent of the Attorney General must be secured before prosecution can be brought. Otherwise, the normal rules of causation apply.

Committed anywhere Only one punishment for murder

British citizen can be tried in a British court for murder or manslaughter committed anywhere in the world: Offences Against the Person Act 1861. The Murder (Abolition of Death Penalty) Act 1964, says that a person convicted of murder must be sentenced to life imprisonment. "Sentenced" to life does not mean "serve" a sentence of imprisonment for the rest of their life. In practice, most are released after 10 - 15 years "on licence" which means they can be recalled to prison for a many reasons. So, part of the life sentence is served in prison, and the remainder served not in prison.

Death during sporting games.

Sportsmen indulging in their sporting past times consent to those inevitable injuries that occur as a result of contact sports.

R v Bruce (1847) established that a murder charge would result if the death were caused by above average violence in the 'game' or non-adherence to the rules of the game. Euthanasia is murder. The mercy killing of a terminally ill patient does not provide any defence, no matter how compassionate. Doctors who kill are murderers. Cox, R v (1992) Winchester Crown Court, Ognall J . They may be immune from liability if the treatment is to ease pain but incidentally accelerates death, as shown by the Annie Lindsellcase 1997.

Double Effect

MURDER CASES
1. Vickers, R v (1957) CA [Murder - intention constructive malice] During Ds burglary of Vs shop, V discovered D whereupon D struck V with several blows. V eventually died from shock due to general injuries. Held: Lord Goddard CJ because he has killed a person with the necessary malice aforethought being implied from the fact that he intended to do grievous bodily harm ... in considering the construction of s 1(1) [Homicide Act 1957], it is impossible to say that the doing of grievous bodily harm is the other offence which is referred to in the first line and a half of the subsection [i.e. which abolishes constructive malice]. It must be shown that independently of the fact that the accused is committing another offence, that the act which caused the death was done with malice aforethought as implied by law D guilty of murder Meli v R [1954] PC (South Africa)

2.

[Murder - intention actus and mens to coincide at some point] 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. Held: 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. 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 Guilty of murder 3. Re A (Children) (2000) CA

[Murder - intention can be inferred] "Conjoined 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. The twins parents opposed the application for religious reasons. Held: 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.

4. Smith, DPP v [1960] HL [Murder - intention intention to kill or GBH intention can be formed instantly intention can be inferred] D trying to escape from the police in a car was signalled to stop. He did not do so. A PC jumped onto the cars bonnet. D drove at high speed, swerving from side to side, until the officer was thrown off and killed. Held: It was clear that he had intended to cause grievous bodily harm, which meant no more and no less than really serious injury. Viscount Kilmuir LC; "I can find no warrant for giving the words grievous bodily harm a meaning other than that which the words convey in their ordinary and natural meaning. Bodily harm needs no explanation and grievous means no more and no less than really serious." Guilty murder 5. Moloney, R v (1985) HL [Murder - intention includes knowledge or foresight] D and V (Ds stepfather of whom D was very fond) had a contest as to loading and firing a shotgun. D a serving soldier shot V without aiming. V taunted D to fire the gun. Incident occurred during a late night of drinking. Held: Lord Bridge: foresight of consequences, as an element bearing on the issue of intention in murder, or indeed any other crime of specific intent, belongs, not to the substantive law, but to the law of evidence ... In the rare cases in which it is necessary for the judge to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendants voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence. D was not guilty of murder 6.