D- Defendant
V- Victim
AR: Actus Reus
MR: Mens Rea
HOMICIDE
Generally, depending on the availability of defences and the requisite MR, the prosecution
can charge the D either with the offence of murder, voluntary manslaughter or involuntary
manslaughter in the circumstance of an unlawful killing of a human being.
HOMICIDE
MURDER VOLUNTARY INVOLUNTARY
MANSLAUGHTER MANSLAUGHTER
MURDER
Murder is an extremely culpable offence under homicide which holds a punishment
of life imprisonment. Unlike most other offences, murder is inherently wrong and thus
execution of such offence irrespective of one’s consent will be guilty of it. Therefore,
euthanasia is unlawful; R v Nicklinson.
However, one could lawfully refuse any medication or procedures which could
preclude one’s death; St George’s Healthcare NHS Trust v S.
Murder was defined by Lord Coke as ‘unlawfully killing a reasonable person who is in
being and under the King’s Peace with malice aforethought, express or implied’.
AR
The AR of murder is the unlawful killing of a human being.
Hence, the AR of murder necessitates death of a human being to establish the
offence which often raises the question as to when life begins which according to the
law is instigated at birth. Therefore, the fetus is not regarded as a human being in
this context, however, as per Attorney-General’s Reference (No 3 of 1994) (1997),
one may be charged with murder or manslaughter, if the injuries caused to the fetus
results in the death of the child post childbirth. As per the case of R v Poulton, the
umbilical cord of the child need not be cut as long as the child is outside of the
mother (R v Reeves).
Moreover, an individual can be killed through either an omission or commission
(Gibbins and Proctor) and one cannot kill someone who is already dead.
The definition of death for the purpose of murder is a medical one (Re A (A Minor),
and a person’s death is affirmed with one’s brain death (Malcherek and Steel) which
therefore excludes the liability of doctor’s who due to medical reasons unplug life
support machines. This was further elaborated as obiter in the case of Airedale NHS
Trust v Bland which upheld the brain-stem death test, thus, in other words removal of
the life support machine from a person who is not brain dead will be unlawful.
The prosecution must also prove that the D caused the death of the V and provide
requisite evidence of such causal link (‘but for’ test – R v White). In a situation where
one’s death would have occurred naturally despite the D’s wrongful conduct, the D
could still be liable if the D had significantly accelerated one’s death; R v Dyson.
, note:No direct act of violence need be shown. One can kill by exposing an elderly,
vulnerable or sick person to the elements, by frightening a person to death, by lacing
food with poison, by giving a defective map, by providing an unsafe vessel, or
system of work, and so on. But not, apparently, by committing perjury.
MR
The MR of murder is malice aforethought which can be satisfied either expressly or
impliedly; intention to kill (express) and intention to cause GBH (implied); Vickers
and Cunningham. However, in Attorney-General’s Reference (No 3 of 1994) (1997),
intention to cause GBH was regarded as an obvious anomaly.
The MR element of intention can be either a direct intention or an indirect one and
thus, if there’s more evidence to prove the D foresaw the death of the V or GBH as a
result of his conduct or omission, it is more likely the jury would conclude the D to be
guilty; R v Hancock and Shankland.
The test for indirect intention formulated in Nedrick and affirmed in Woollin was that if
the D foresaw such consequence (in this context death or GBH) by the execution of
his conduct or omission as one which is virtually certain and performed it regardless,
he will undoubtedly have an indirect intention.
One would possess direct intention if the non-occurrence of death or GBH of another
individual is regarded as a failure of his conduct (Duff).
Moreover, an intention to kill as a result of compassion would still make an individual
guilty as evident in the recent case of Iglis(2011).
note: in a situation where the D tried to save his son from a fire and throws him out of
the window but results in his death would not be guilty of murder despite the
satisfaction of the Woollin test for indirect intention. WHY- The jury would be entitled
not to convict because of two aspects of the direction. The first, dealt with above, is
that the direction does not instruct the jury that it is bound to find intention where
there is foresight of certainty, only that it is entitled to. The second is that the
direction tells the jury to reach its decision on the basis of all the evidence. Taking
into account D’s motive, this form of words sends a pretty clear message to the jury
that ‘foresight of certainty’ is not conclusive. With this message, the jury’s natural
humanity can be relied upon to reach the common-sense verdict of not guilty.
Note: Although the mens rea for murder requires the defendant to intend to kill or
cause grievous bodily harm to the victim, there is no difficulty in establishing a
murder conviction if the defendant intends to kill one person, but in fact kills another.
This is because the doctrine of transferred mens rea operates and the defendant can
be guilty of murder. However, the doctrine of transferred mens rea cannot apply in
murder if the defendant intended to kill an animal or damage a piece of property, but
in fact killed the victim. In such a case there is no murder, although there may be
manslaughter.
VOLUNTARY MANSLAUGHTER
In the context of murder, in addition to the availability of general defenses, it carries 3
other partial defenses which will apply in extenuating circumstances. However, in
contrast to the exercise of general defences, when a partial defense is successfully
established, it will not result in an acquittal but rather a reduced sentence.
Justification for such mitigation is the fact that a punishment of life imprisonment in
the presence of evidence to prove the partial defenses, namely, loss of control,
diminished responsibility or suicide pact(The Homicide Act 1957) would be unjust.
Thus, the defence could use such partial defenses to reduce the offence of murder
to voluntary manslaughter with a lesser punishment.
