5

Murder

5.1 Introduction p***

5.2 Defining murder p***
5.3 Actus reus of murder p***
5.3.1 Acts and omissions p***
5.3.2 Necessary circumstances p***
5.3.3 Causing death p***
5.4 Mens rea of murder p***
5.4.1 Other mens rea requirements p***
5.5 Defences to murder p***
5.5.1 General defences p***
5.5.2 Doctors and the treatment of terminally ill patients p***
5.5.3 Partial defences p***
5.6 Reform p***
5.6.1 The mandatory life sentence p***
5.6.2 The mens rea of murder p***
5.7 Eye on assessment p***
5.7.1 Worked problem question example p***

5.1 Introduction

From this point in the text our focus narrows from the general principles and structures of
criminal law, to explore particular offences and defences. We begin with a category of crimes
known as homicide offences in general (offences which involve the killing of a person), and
with the offence of murder in particular.

Terminology...

When we refer to categories of offences such as ‘homicide offences’, we are not referring to
an offence with a distinct actus reus and mens rea. Rather, we are simply referring to a
label that describes a group of offences that share certain characteristics (other categories
include, eg, sexual offences; property offences; etc). Thus, D cannot be liable for homicide
as such, but can be liable for a homicide offence such as murder or manslaughter.

1
D commits murder where she (a person1) unlawfully causes the death of V (a person), with
the intention to kill or cause grievous (serious) bodily harm. Murder is generally considered
the most serious crime. The harm involved (killing) does not simply impinge upon the
interests of V, but undermines V’s potential to experience any future ‘worldly’ interests of
any kind. Even within its class of ‘homicide’ offences, murder is distinguished as most
serious by the requirement of proof of intent: D has not simply killed V, she has done so
intending to kill or cause grievous bodily harm (GBH). It is because of its gravity as an
offence that murder was until relatively recently punished with the death penalty, 2 and
currently with a mandatory life sentence.

Don't be confused...

A mandatory life sentence will rarely equate to a lifetime in prison. Rather, a life sentence
is made up of a tariff period (minimum period in prison reflecting the circumstances of the
killing), followed by a release on license (where D is released from prison, but is monitored
and may be restricted in various ways).3 The sentence is a ‘life sentence’ because the
license period restrictions continue for the life of D. The typical tariff period for a single
murder in unexceptional circumstances is 15 years.

Despite the (perceived) position of murder at the apex of criminal law, however, it remains a
problematic and controversial offence. Indeed, the Law Commission has described it as a
‘rickety structure set upon shaky foundations’.4 This is both a criticism of the offence itself,
which will be discussed below, as well as a criticism of its position and definition in the
context of the other homicide offences (discussed in Chapter 6).

5.2 Defining murder

The Homicide Act 1957, and more recently, the Corporate Manslaughter and Corporate
Homicide Act 2007, have codified several offences and defences within the wider group of
homicide offences. However, crucially, the offence of murder remains a common law (un-
codified) offence.

1
Murder cannot be committed by a corporation or other organisation. See Chapter 6 for the possibility of
corporate manslaughter.
2
Homicide Act 1957 marked the end of a mandatory death sentence for all convicted murderers.
3
Criminal Justice Act 2003, Sch 21. See, Padfield, ‘Tariffs in murder’ (2002) CrimLR 192.
4
Law Commission, A New Homicide Act for England and Wales (Consultation 177, 2005) [1.4].

2
 The definition of murder, still quoted widely by the courts, derives from a seventeenth
century book by Coke:5

Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within
any country of the realm any reasonable creature in rerum natura under the king’s peace, with
malice aforethought, either expressed by the party or implied by law, so as the party wounded, or
hurt, etc die of that wound or hurt, etc within a year and a day after the same.

Despite its continued reference, the archaic and increasingly inaccurate definition contained
in this quotation should not be applied straightforwardly in a modern context. Rather,
although it establishes authority for the offence of murder, a contemporary translation and
clarification of the offence elements is essential.

In modern language, the offence of murder requires D to unlawfully kill another

person under the Queen’s peace, and to do so intending to kill or cause GBH (serious harm).
The elements of murder are set out in table 5.1.

Table 5.1: Murder

Actus Reus Mens Rea

Conduct element Any conduct that causes the result Voluntary
Circumstance element V must be a person; Knowledge
Under the Queen’s peace; Knowledge
Killing must be unlawful Lack of belief in lawfulness
Result element Death of V Intention to kill or cause GBH

This represents the current definition of murder: modernising the language from Coke’s
definition, and also recognising important changes within the law. For example, contrary to
Coke, the modern definition of murder does not include a requirement for V’s death to follow
‘within a year and a day’ of D’s act. This requirement made some sense historically, where a
delay of this kind would make it almost impossible to demonstrate a causal link from V’s
death back to D’s original act. However, not only, with the advancement of medical science,
has demonstrating such a causal link has become easier, but the likelihood of delay before
death (through life support machines, etc) has also increased. The rule was abolished by the
Law Reform (Year and a Day Rule) Act 1996.6 As a result, as long as causation can be
established, D may now be liable for murder regardless of the delay between her original act
and the death of V. The only remaining restriction is that, where there is considerable delay
5
3 Inst 47.
6
Yale, ‘A year and a day in homicide’ (1998) CLJ 202.

3
(over three years) or where D has already been prosecuted for a non-fatal offence relating to
the same incident, the Attorney General must consent to the prosecution.7

Despite the seriousness of murder, it is important to recognise that cases caught within
the definition will not always be morally straightforward. As with other offences, where D
satisfies the actus reus and mens rea elements, she is liable irrespective of her motive. 8 Thus,
murder is committed where D kills due to hatred or spite; but it is also committed in more
morally ambiguous cases such as so-called ‘mercy killings’ (where D intentionally kills,
often with V’s consent, in order to relieve pain or suffering). The moral diversity of these
cases is useful to keep in mind when discussing the precise requirements of the offence. It is
also something that we will return to when we consider potential reforms in this area, not
least the continued application of a mandatory life sentence to all murder cases. 9

5.3 Actus reus of murder

The actus reus of murder is satisfied where D unlawfully kills another person under the
Queen’s peace. We discuss each element in turn.

5.3.1 Acts and omissions

As with other result crimes,10 murder does not specify a certain act that D must complete (eg,
shooting; stabbing; etc), but rather proscribes any conduct that causes the result (any conduct
causing death). Thus, it is necessary to identify an act of D, but (as long as it causes the
result) the type of act is irrelevant. D may also commit murder by omission, as in Gibbins
and Proctor, as long as the requirements of omissions liability are satisfied.11

Gibbins and Proctor (1918) 13 Cr App R 134: D1 (Gibbins) and his lover D2 (Proctor)
failed to feed D1’s seven year old child (V), resulting in V’s death.
 Crown Court: D1 and D2 convicted for murder.
 Court of Appeal: Conviction upheld on appeal. D1 liable for his omission to feed
based on a familial duty owed to V; D2 based on her assumption of a duty (she was
in charge of buying food).
7
Law Reform (Year and a Day Rule) Act 1996, s2.
8
The only exception is where D’s reasons/motives satisfy the elements of a criminal defence.
9
Chapter 5.6.1.
10
For discussion of ‘result crimes’, see Chapter 2.4.2.
11
Chapter 2.6.

4
5.3.2 Necessary circumstances

There are several circumstances that must be present for D to satisfy the actus reus. In most
cases these will be clear and very little discussion will be required. However, problem cases
can arise.

[Link] Under the Queen’s peace

Where soldiers kill alien enemies ‘in the heat of war, and in actual exercise thereof’, 12 this is
not under the Queen’s peace and is not, therefore, murder. This exception is important;
particularly as section 9 of the Offences Against the Person Act 1861 makes any murder or
manslaughter committed by a British citizen, committed on any land outside the United
Kingdom, an offence that can be tried and punished in England. It is, however, a narrow
exception. Where a soldier kills another in a war zone (even an alien enemy), and it is not
done in the heat of battle, this will be considered as having been committed under the
Queen’s peace and D will satisfy the actus reus of murder.13

[Link] Unlawful killing

To say that the killing must be ‘unlawful’ is simply to stress that it must satisfy all actus reus
and mens rea elements, and be done without lawful defence. Thus, for example, where D kills
in self-defence, she is not liable for murder.14

Point to remember...

As we will see in Chapter 14, some defences do not apply to murder (eg, duress and duress
of circumstance).

[Link] V must be a person

12
Hale, I PC, 443.
13
Hirst, ‘Murder under the Queen’s peace’ [2008] CrimLR 541; Rowe, ‘The criminal liability of a British
soldier merely for participating in the Iraq war’ [2010] CrimLR 752.
14
Chapter 5.5.

5
For murder (as with other homicide offences; offences against the person; etc) the victim
must be a human being. This sounds straightforward, and in the vast majority of cases it will
be. However, particularly in relation to murder, the status of the victim as a person will
occasionally require discussion. This discussion focuses on two questions: when does V
begin to be a person, and secondly, when does this status end?

When does V begin to be a person: An unborn child (foetus) is not a person within the
criminal law. Thus, where D kills an unborn child she may commit an offence of child
destruction or procuring a miscarriage, 15 but she cannot commit murder. V only becomes a
person in law when she is ‘fully expelled from the womb’ and alive. 16 Whether the umbilical
cord and/or after birth have been expelled is irrelevant, as long as the whole of the baby’s
body is removed.17 This position may be criticised in pure biological terms, the difference
between a late-term foetus and a neonate is only (as Simester and Sullivan put it) a matter of
location.18 However, it is a divide that has rarely troubled the courts, 19 and the exclusion of
murder from pre-natal deaths is also useful to allow for specific offences that can be more
easily tailored to the unique issues that arise in this area (eg, avoiding any conflict with legal
abortive procedures). Despite Article 2 ECHR protecting the right to life, the ECtHR has left
the issue of when life begins to member states as part of the margin of appreciation.20

The focus on birth gives rise to a notable issue: pre-natal harms that cause post-natal
death. Where D harms a foetus that is subsequently born alive, but later dies as a result of
those injuries, D has caused the death of (at the time it dies) a person. The courts have long
accepted that such cases satisfy the actus reus of murder,21 although, interestingly, this has not
been applied to cases where D injures her own foetus through neglect.22

15
Infant Life (Preservation) Act 1929, s1 or Offences Against the Person Act 1861, s58.
16
Poulton (1832) 5 C&P 329.
17
Reeves (1839) 9 C&P 25.
18
Simester, Spencer, Sullivan, Virgo, Simester and Sullivan’s Criminal Law (5th ed, 2013) 373.
19
The Criminal Law Revision Committee identified the last case where this was directly relevant to have been
in 1874: Handley (1874) 13 CoxCC 79.
20
Vo v France [2004] 2 FCR 577. O’Donovan, ‘Taking a neutral stance on the protection of the foetus’ (2006)
MedLR 115.
21
Senior (1832) 1 MoodCC 346.
22
Knights (1860) 2 F&F 46.

6
 Don't be confused...

Where pre-natal harm causes post-natal death, the actus reus of murder is satisfied.
However, mens rea will often be problematic. This is because, where D acts with the intent
to seriously injure or kill the foetus this is not the mens rea for murder (not an intent to
seriously injure or kill a person); and where D intends to serious injure or kill the mother
then a transfer of malice to the baby is ruled out by the double transaction (from the mother
to the foetus to the baby).23 Thus, murder (as opposed to manslaughter) is only available in
these cases where D intends the foetus to be killed or seriously injured after being born
alive.

When does V stop being a person: As a result of medical advances, the stage where V stops
being a person (dies) can also be problematic. There is no authoritative definition of death
within the criminal law, but courts will often refer to medical definitions to assist them. In
this regard, it is clear that death should not always be assumed where V stops breathing or
even where V’s heart stops, as such occurrences (if treated in good time) can often be
reversed. However, the problem becomes acute where V’s body can be kept ‘alive’ by
medical means despite little or even no chance of recovery. In such cases, V will be
considered medically dead at the point of ‘brain-death’ (complete and irreversible non-
functioning of the brain stem), and this status has been accepted by the House of Lords in
Bland.24 Where V’s condition falls short of brain-death (eg, a persistent vegetative state; a
profound and permanent coma; etc), V will not be considered dead and therefore remains a
‘person’ capable of being murdered.

5.3.3 Causing death

To complete the actus reus of murder, D’s act or omission must cause V’s death. This
requires application of the general rules of factual and legal causation discussed at Chapter
2.7, where many of the cases analysed were murder cases. There is no need to repeat that
discussion here.

One issue that should be highlighted, however, is that ‘causing death’ will include any
‘acceleration of death’. For example, the killing of a terminally ill patient or someone that

23
See discussion of transferred malice and AG’s Reference (No.3 of 1994) [1997] 3 ALL ER 936 at Chapter
[Link].
24
[1993] 1 AC 789.

7
(for whatever reason) has only a short time to live will still satisfy the actus reus of murder.
As death will come to us all at some point, the act of ‘causing death’ must be logically
synonymous with ‘accelerating death’. Thus, where a doctor or family member (or anyone
else) purposefully ends the life V in order to relieve pain or suffering, knowing that V would
not have lived long anyway, D still commits murder. This may be perceived as a problem if
we believe that ‘mercy killing’ should be permissible, and this will lead to a discussion of
reform, but the current law offers no exception of this kind.25

5.4 Mens rea of murder

Coke’s definition describes the mens rea of murder as ‘malice aforethought’, and this term is
still often used. However, malice aforethought is now simply a term of art, with its modern
interpretation baring little resemblance to the original words. For example, it is now clear that
D’s mens rea need not be malicious (ie, need not demonstrate some manner of evil
character26) and need not involve aforethought (ie, as long as D has the mens rea at the
moment of action, there is no requirement of pre-planning). 27 Rather, at the time of acting or
omitting to act causing death, the current law requires D to have an intention to kill or cause
GBH (serious harm).28

The meaning of the term ‘intention’ was discussed at Chapter 3.4.1, and this
definition applies to murder as it does to other offences requiring intention. We will not
repeat the detail of that discussion here. D intends to kill or cause GBH where her conduct is
targeted purposefully at bringing about a certain result (direct intent); and/or where her
conduct is virtually certain to cause that result, she foresees it as a virtual certainty, and the
jury choose to find intention (oblique intent). At one time, the House of Lords expanded the
definition of oblique intention in murder to include cases where D did not foresee a virtual
certainty but a reasonable person in D’s position would have done, creating a form of
objective intention.29 However, this is no longer good law. The current law defining intention
will require subjective purpose or subjective foresight of a virtual certainty in every case.30

25
Inglis [2010] EWCA Crim 2637.
26
For example, so-called ‘mercy’ killing will still constitute murder.
27
Mitchell, ‘Thinking about murder’ (1992) JCrimL 78.
28
Cunningham [1982] AC 566; Moloney [1985] AC 905.
29
DPP v Smith [1961] AC 290.
30
Woollin [1998] 4 All ER 103.

8
 Don't be confused...

As we will see in later chapters, most serious offences require a mens rea of intention or
recklessness as to a certain result. For such offences, the divide between intention and
recklessness is unproblematic: either will suffice for liability. As murder is only satisfied by
an intention to kill or cause GBH (recklessness is insufficient) the divide between these
mens rea terms becomes very important. This is why most of the cases discussed at Chapter
3.4.1, attempting to define intention, were murder cases.

The fact that the mens rea for murder can be satisfied by an intention to cause GBH (as well
as an intention to kill) is very important. D acts or omits to act with the intention to cause
GBH if she intends (directly or obliquely) to cause serious bodily harm: ‘grievous’ being
given its ordinary meaning of ‘serious’ or ‘really serious’. 31 For example, an intention to
break a major bone or severely wound V would amount to an intention to cause GBH. 32 The
jury must assess what D was thinking: they are asking how much harm D intended to cause V
and that is a question of D’s subjective state of mind. The jury must then assess that amount
of harm (as D subjectively intended) to decide for themselves (as reasonable people) whether
they consider that would be an intention to cause GBH. Thus, D cannot avoid liability by
claiming that she would not consider the harm she intended to cause as serious.

Allowing liability for murder where D acts with the intention to cause GBH means
that murder can be committed as a constructive offence. Where D acts with intention to kill,
as in table 5.2, there is uncontroversial correspondence between actus reus (causing death)
and mens rea (intending to do so).

Table 5.2: Murder and intention to kill

Actus Reus Mens Rea

Result element Death of V Intention to kill

However, where D acts with the intention to cause GBH, her intended act of causing GBH is
constructed upon by the additional actus reus element (V’s death) to create the more serious
offence of murder. As with other constructive crimes, this additional element constructs
greater liability despite a lack of corresponding mens rea.33 This is illustrated in table 5.3.

31
Bollom [2003] EWCA Crim 2846.
32
We discuss this further in Chapter 7.6 in relation to offences of causing GBH with intent.
33
Constructive liability is discussed at Chapter [Link].

9
Table 5.3: Murder and intention to cause GBH

Actus Reus Mens Rea

Result element Death of V Intention to cause GBH

The possibility for constructive liability (murder where D merely intends to cause GBH) has
attracted severe criticism from academics34 and appeal court judges35 alike. Such criticism
arises because, in these cases, D does not choose to kill or perhaps even to risk killing, and
therefore (arguably) lacks the culpability to deserve liability for murder. For example, if D (a
paramilitary) shoots V in the knee as a punishment for V’s disloyalty, D intends to cause
GBH but definitely does not want V to die: D wants V to be a walking deterrent to disloyal
members. D is liable for a serious offence against the person. 36 However, where V, for
whatever reason (eg, lack of treatment; infection; etc) dies as a result of the shot, D’s liability
is inflated to murder and the mandatory life sentence is applied. 37 In this manner, under the
current law, D satisfies the mens rea for murder even if she has no anticipation that her
conduct risks killing V. All that is required is that she intends a certain level of harm and the
jury interpret it as an intention to cause GBH. This will be discussed further in the reform
section below, along with the counter argument (common to constructive liability) that as
soon as D intends any harm her normative position changes and she should be responsible for
all the consequences that follow.38

5.4.1 Other mens rea requirements

As will be noted from the chart used above to lay out the offence (Chapter 5.2), the mens rea
of murder includes elements beyond an intention to kill or cause GBH. Most importantly, as
with all other criminal offences, D can only commit murder if her act or omission causing
death was performed voluntarily. Additionally, she must intend or know that what she is
killing is a person.

34
Mitchell, ‘In defence of the correspondence principle’ [1999] CrimLR 195; cf Horder, ‘A critique of the
correspondence principle in criminal law’ [1995] CrimLR 795.
35
Hyam [1975] AC 55, see the reasoning of Lord Diplock.
36
Chapter 7.6.
37
In theory, if D simply intends to prick V with a pin and V is a haemophiliac, this could lead to liability for
murder (whatever D’s impression, a reasonable jury are likely to see the intended pinprick as an intention to
cause serious harm to someone with this condition).
38
Chapter 5.6.2.

10
 Assessment matters...

In most cases (and most problem questions) it will be straightforwardly apparent that D
acts voluntarily and she is aware that V is a person, and in these cases discussion of mens
rea need not go beyond the required intention to kill or cause GBH. However, where there
is uncertainty (eg, where a spasm in D’s finger causes her to pull the trigger of a gun; or
where D shoots at a figure unsure if it is a person; etc) then these elements will require
specific discussion.

5.5 Defences to murder

If the actus reus and mens rea elements of murder are satisfied, the next step is to explore the
possibility of a defence.

5.5.1 General defences

Most of the general defences (so called because of their application across multiple offences)
will potentially apply to murder, with the notable exception of duress. These are fully
discussed later in two separate chapters. In Chapter 13 we discuss denials of mental
responsibility: D contends that he lacks responsibility for the offence due some form of
mental abnormality, age or intoxication. In Chapter 14 we discuss the general defences of
self-defence and necessity: D contends that her actions were justified or should be excused
because she lacked a viable choice not to offend. Satisfying the elements of one of these
defences will lead to a complete acquittal.39

5.5.2 Doctors and the treatment of terminally ill patients

Over a number of years, with the increased use of powerful pain relieving medication in
hospitals, a category of cases has emerged that has put a strain on the law of murder. These
cases involve the prescription of pain relieving drugs to terminally ill patients, where doctors
are aware that (as a side-effect) the patient’s life expectancy will be reduced. Such practices
are very common, and relatively uncontroversial in their medical context. However, to the

39
The only exception being the insanity defence, which leads to the special verdict of ‘not guilty by reason of
insanity’. This is discussed in Chapter 13.

11
extent that they satisfy the definition of murder, it seems that the avoidance of liability is now
best explained as a form of specific defence for medical professionals.

It is important, first, to understand how the elements of murder will be satisfied in

these cases. The doctor completes the actus reus of murder because she acts (in prescribing
drugs) in a manner that accelerates the patient’s death (as discussed above (Chapter 5.3.3),
causing death includes doing an act that accelerates death). In terms of mens rea, although
she does not directly intend to kill or cause GBH (this is not her purpose), the shortening of
life is a virtually certain consequence of her act and her knowledge of this is likely to amount
to an oblique intention to kill.40 Thus, the elements of murder are satisfied.

This problem arose in Adams, although the solution offered by the court did not rely
on criminal defences.

Adams [1957] CrimLR 365: D (a doctor) was charged with murder having ‘eased the
passing’ of several patients including V with strong pain relieving drugs.
 Crown Court: Not guilty. Devlin J directed the jury that there was no special
defence for doctors, but that ‘he is entitled to do all that is proper and necessary to
relieve pain and suffering even if measures he takes may incidentally shorten life’.

The principle applied in this case is sometimes referred to as the doctrine of double effect,
which holds that intentionally causing a harmful result (eg, death) can be morally defensible
where it is a side effect of promoting a good end (eg, pain relief). Crucial to this is Devlin’s
focus on the incidental shortening of life, as the same act completed by another party (eg, to
hasten the collection of inheritance), or by a doctor where the shortening of life was the main
purpose, would lead to conviction.41 However, the direction (and the principle) is
problematic: it is unclear whether it is actus reus (causation) or mens rea (intention) that is
being undermined, and it is also unclear how it is being undermined (what exactly does it
mean to ‘incidentally shorten life’?).

In line with the result of Adams, but moving away from the reasoning of Devlin, it is
now best to see this exception as a special common law defence. In Bland,42 Lord Goff
referred (obiter) to:

40
Woollin [1998] 4 All ER 103. We may hope that despite D’s foresight the jury will chose not to ‘find’
intention, but this is not certain: Chapter [Link]. cf Moors discussed in [1999] CrimLR.
41
See, for example, Cox (1992) 12 BLMR 38, where the ‘defence’ did not apply to a doctor that prescribed non-
therapeutic drugs with the principal intention of causing death.
42
[1993] 1 AC 789.

12
 … the established rule that a doctor may, when caring for a patient who is, for example, dying of
cancer, lawfully administer painkilling drugs, despite the fact he knows that an incidental effect of
that application will be to abbreviate the patient’s life.

Constructed as a defence, the rule may still lack some clarity, but it is able to provide specific
protection for doctors within this sub-set of cases. It is also able to do so without distorting
the general rules of causation, or relying upon the vagaries of oblique intention.

5.5.3 Partial defences

As well as the complete defences discussed above (defences that, if satisfied, will lead to D’s
acquittal), the law of murder also includes three partial defences. If one of these partial
defences is satisfied then D’s liability for murder will be downgraded to voluntary
manslaughter, an offence which still carries a maximum life sentence, but at the discretion of
the court (ie, not a mandatory life sentence). These partial defences are not general defences,
and apply only to the offence of murder.

The three partial defences to murder are:

1. Loss of self-control: D kills while out of control owing to fear of serious violence or a
justifiable sense of being seriously wronged;43
2. Diminished responsibility: D’s recognised medical condition led to an abnormality of
mind and caused her to kill;44 and
3. Suicide pact: D kills V in pursuance of an agreement that they will both die together.45

Each of the partial defences will be discussed in detail in Chapter 6, as their satisfaction will
lead to liability for manslaughter.

43
Coroners and Justice Act 2009, s54.
44
Homicide Act 1957, s2 (as amended by the Coroners and Justice Act 2009, s52).
45
Homicide Act 1957, s4.

13
 Beware...

When considering defences to murder, students often skip straight to discussion of the
partial defences. However, remember that these defences will still lead to liability for
manslaughter. Therefore, you should always consider the complete defences first. Only if D
lacks a complete defence would she want to consider the partial defences.

5.6 Reform

Despite sustained criticism of several aspects of the offence of murder, and despite numerous
reform recommendations, the law has remained largely unchanged over the past fifty years. 46
In this section, we provide some additional discussion of the two main areas of criticism
identified above, and sketch some of the recommendations for reform that have been offered.
These relate to the maintenance of the mandatory life sentence, and secondly, the scope of the
mens rea for murder.

5.6.1 The mandatory life sentence47

In order to achieve the partial removal48 and subsequent abolition49 of the death penalty, the
substitution of a mandatory life sentence of imprisonment provided the necessary political
compromise. The death penalty could be removed, but there was (and is) maintenance of the
idea that murder as the ultimate crime should be punished with some comparable level of
‘ultimate’ punishment.

The mandatory life sentence does not, in the majority of cases, lead to imprisonment
for the rest of the offender’s life. However, its terms remain uniquely draconian. Depending
upon the circumstances of the murder, the minimum period of imprisonment will be set by
the court at between 15 years and a full life term: this is known as the tariff period. 50
Importantly, and unlike standard fixed term sentences, the tariff period must be served in full
before D’s release is considered by a parole board. At the end of the tariff, a parole board will
then decide whether D should stay in prison (where D represents a continued risk to

46
See generally, Horder, Homicide and the Politics of Law Reform (2012) OUP.
47
Wasik, ‘Sentencing in homicide’ in Ashworth & Mitchell (eds) Rethinking English Homicide Law, 167.
48
Homicide Act 1957, s5: singling out certain types of murder that continued to attract the death penalty.
49
Murder (Abolition of the Death Penalty) Act 1965.
50
Criminal Justice Act 2003, s269 and sch 21.

14
particular persons or to the public), or be released into the community. Even where D is
released, this is only a release on a life-long license: allowing administrative action (as
opposed to judicial) to call D back into prison where necessary.

Despite the original utility of the mandatory life sentence (as a compromise in the
abolition of the death penalty), arguments against preservation of the mandatory sentence are
overwhelming. Central to this, highlighted from the outset of this chapter, is that the law of
murder does not target a single specific ‘ultimate’ wrong, but is rather broad enough to catch
conduct across a wide moral spectrum: from cold-blooded serial killers or sexual killers, to
the morally ambiguous mercy killing. This is common of most criminal offences, for
example, there is similar disparity between D that carelessly breaks another’s pen and D that
intentionally smashes another’s computer, and yet both are liable for the same offence of
criminal damage.51 The difference, of course, is that a judge can reflect the moral disparity in
criminal damage cases within the courts sentencing discretion (from disposal to 10 years
imprisonment, or potentially life imprisonment where there are aggravating factors 52),
whereas for murder, such discretion is removed. Over time, reflecting such criticisms,
attitudes towards the mandatory life sentence have hardened academically, 53 judicially,54
within Parliament,55 and even within the general public.56

However, despite hardening attitudes against the mandatory life sentence, the
(current) political reality is that the sentence is unlikely to be reformed. 57 We have seen this
most recently, for example, in the Law Commission’s terms of reference relating to their
review of murder in 2005 and 2006: where the mandatory sentence was stated as a non-
optional element of murder.58 In light of this reality, focus has turned to the reform of murder
itself and the rules relating to it, the aim being to remove behaviour from the offence that
does not warrant the mandatory sentence. Three areas are of particular interest:

1. Narrowing the definition of murder: This possibility is discussed under the next
reform heading below;
51
Criminal Damage Act 1971, s1. Discussed at Chapter 9.
52
Criminal Damage Act 1971, s4.
53
Mitchell, Murder and Penal Policy (1990).
54
See, for example, Howe [1987] 1 All ER 771, 781.
55
House of Lords, Select Committee on Murder and Life Imprisonment (1989) HL Paper 78 [108-18]:
recommending the removal of the mandatory sentence.
56
Law Commission, A New Homicide Act for England and Wales? (Consultation 177, 2005) Appendix A
(Mitchell); Mitchell & Roberts, Public Opinion and Sentencing for Murder (2010): empirical work finding
majority public support for removing the mandatory sentence.
57
Horder, Homicide and the Politics of Law Reform (2012) OUP.
58
Law Commission, Murder, Manslaughter and Infanticide (No 304, 2006) [1.1].

15
 2. Reforming the partial defences: Satisfying a partial defence allows D’s liability to be
mitigated from murder to manslaughter and thereby avoids the mandatory life
sentence. Recent reform in relation to these defences is discussed in the next chapter;
and
3. Extenuating circumstances mitigation: The idea of ‘extenuating circumstances’ has
been introduced in other jurisdictions to allow (in exceptional circumstances) the
mandatory life sentence not to apply for certain murder cases. 59 However, despite a
similar proposal (outlined by Professor John Spencer QC) being advocated in this
country, and even put forward as an amendment to a Bill in the House of Lords in
2009, it has not been adopted.60 Indeed, this option seems unlikely to gain political
traction, perceived (unfavourably) as an erosion of the mandatory sentence.

5.6.2 The mens rea of murder

Debates about the appropriate boundaries of murder have generally focused on mens rea
elements: adapting the mens rea in order to better target those seen as deserving of the label
of murderer and (of course) in view of the mandatory life sentence. Two examples provide
useful illustration.

Lord Robert Goff: In a wide ranging article published in 1988, Lord Goff
recommends reforming the mens rea of murder in a manner that would at once narrow the
current law (by removing liability where D intends GBH, as opposed to death, and by
narrowing an intention to kill to direct intention only), and also widen it (by allowing liability
where D is ‘wickedly reckless’ as to death). 61 Goff would narrow the law, excluding those
that intend to cause GBH, chiefly because he believes such defendants are inappropriately
labelled as murderers.62 As Goff comments, ‘it seems very strange that a man should be
called a murderer even though not only did he not intend to kill the victim, but he may even
[in certain cases] have intended that he should not die.’ 63 Conversely, Goff would find
liability where D is wickedly reckless as to death (a concept borrowed from Scottish criminal
law). This would apply where D did not necessarily act with the purpose of killing V, but her
59
For example, in Israel and the French Penal Code, Art 345.
60
House of Lords debates, 26 Oct 2009, col 1008-09.
61
Goff, ‘The mental element in the crime of murder’ (1988) LQR 30.
62
See, also, Wilson, ‘Murder and the structure of homicide’ in Mitchell and Ashworth (eds.) Rethinking English
Homicide Law (2000).
63
Goff, ‘The mental element in the crime of murder’ (1988) LQR 30, 48.

16
actions demonstrated a callous or careless disregard for V’s life. To understand these
proposals, it is useful to also see the meticulous rebuttal of Goff’s approach in the reply
article of Glanville Williams.64

The Law Commission: The most recent and most comprehensive review of murder
has come from the Law Commission. 65 In its 2005 Consultation Paper, the Commission sets
out proposals for a new ladder of homicide offences including first degree murder (punished
with a mandatory life sentence); a new offence of second degree murder (punished with a
discretionary life sentence); and manslaughter (punished with a discretionary life sentence).
The separation of first and second degree murder allows the Commission to narrow the
offence of first degree murder (and, thereby, the mandatory sentence) to only catch those that
kill with the intention to kill; with those intending to cause serious harm liable for the lesser
offence of second degree murder.66

In the Commission’s 2006 Report, although it retains the three offence structure, it
make significant amendments. Most importantly, it recommends that first degree murder
should include both cases where D kills with the intention to kill, and where D kills with the
intention to cause a serious injury where she is aware that such injury carries a serious risk of
causing death. This approach widens the category of first degree murder beyond those
intending death (the consultation proposal), but would still be significantly more restrictive
than the current law: D that intends to cause GBH but does not foresee a serious risk of death
will not be caught within the Commission’s definition. 67 Despite the merits of these
recommendations, they have yet to be acted upon by the Government and (at the time of
writing) appear unlikely to acted upon.

Beware...

When and if you discuss Law Commission (or any other) recommendations in an essay,
64
Williams, ‘The mens rea of murder: Leave it alone’ (1989) LQR 387.
65
Law Commission, A New Homicide Act for England and Wales? (Consultation 177, 2005); Law Commission,
Murder, Manslaughter and Infanticide (No 304, 2006).
66
For comment on the Consultation’s proposals, see, Wilson, ‘The structure of criminal homicide’ [2006]
CrimLR 471; Rogers, ‘The Law Commission’s proposed restructuring of homicide’ (2006) JCrimL 223.
67
For comment on the Report’s recommendations, see, Ashworth, ‘Principles, pragmatism and the Law
Commission’s recommendations on homicide law reform’ [2007] CrimLR 333.

17
 remember that they are just that: recommendations. It is very easy to refer to such policies
inaccurately as if they represent the current law. Do not fall into this trap.

5.7 Eye on assessment

The offence of murder is one of the most commonly used offences within problem scenarios.
This is because, not only is the offence important and interesting in its own right, but it is also
a useful vehicle through which to focus discussion on the meaning of intention (murder is one
of the few offences that is only satisfied by a mens rea of intention as opposed to
recklessness); issues of causation (most causation cases are murder cases); and the defences
(with the addition of the partial defences, murder scenarios can involve a wide variety of
defences).

Despite the range of potential issues however, as with all problem questions, it is
important to work through the problem/offence methodically in order to discuss liability.
With this in mind, we can work through the step-by-step approach outlined in previous
chapters to see how this applies to a murder scenario.

Step 1: Identify the potential This is unlikely to take more than a sentence, but it is essential to tell
criminal event in the facts your reader where in the facts you are focussing .

In the context of murder (or other potential homicide offences), step one simply requires you
to point out a death in the facts that may be connected with D. For example, ‘we will first
examine the potential liability of Lucy for the death of Tom’.

Step 2: Identify the potential Having identified the facts (eg, D potentially killing V), you must now
offence identify the offence you are going to apply. Usually, this means
identifying the most serious offence that D might have committed.

Whenever there is a death in a problem question that may have been caused by D, you should
always begin with a consideration of murder (even if it is reasonably clear that an element
within the offence will not be satisfied). 68 If the offence is satisfied, you can then move to a
discussion of defences, both full and partial. If not, depending upon which elements of
murder are missing this will lead you to the consideration of an alternative offence.

Step 3: Applying the offence to Actus reus: What does the offence require? Did D do it?
the facts Mens rea: What does the offence require? Did D possess it?
68
The only exception being where the problem question tells you to only discuss some other offence.

18
 Remember, to be liable for the offence every element of the
actus reus and mens rea must be satisfied. Thus, every element
should be discussed (even where it is easily satisfied and little
discussion is necessary). Where there is doubt, in law or in fact,
highlight and discuss areas of likely dispute between
prosecution and defence. Also, if the question asks you to
critically engage with the law as you apply it, take particular
care to include evaluation of the law.

Actus reus: When discussing the actus reus of murder you are looking for an act or omission
that has caused V’s death. This will involve the standard rules of causation and (where
necessary) omissions liability discussed at Chapter 2.

If D does not satisfy every element of the actus reus she will not be liable for murder
(or any other homicide offence). If the question only asks you to consider liability for murder
or homicide offences, then this is the end of the story: no liability for murder. However, if the
question asks you to consider D’s liability more generally, having concluded that she did not
cause death, your next question will be whether she has criminally contributed to the death.
For example, has she assisted, encouraged or caused another person to kill V (leading to
potential liability as a secondary party: Chapter 12); or has she assisted or encouraged V to
kill herself (leading to potential liability for assisting or encouraging suicide: Chapter 11)?
However, if D does satisfy the actus reus of murder, continue to discuss mens rea.

Mens rea: The mens rea of murder is only satisfied where D acts or omits to act with
the intention (direct or oblique) that her conduct will cause death or GBH (serious bodily
harm). It is useful to think of this as a tick-box exercise, with any one of four states of mind
sufficient. This is illustrated in table 5.4.

Table 5.4: MR for murder

Intention… to cause death… or to cause GBH.

Direct 1 2
Oblique 3 4

When applying the mens rea for murder to problem facts, it is also useful to follow this
ordering. If you find that D has acted with the direct intention to cause death (1), then there is
no need to discuss the GBH rule in any detail and certainly no need to discuss the complex

19
rules of oblique intention.69 If it is necessary to discuss oblique intention (eg, where D does
not want to harm V at all, but recognises that her actions are extremely likely to do so), it is
good practice to lead your reader to that point: tell the reader (drawing on the facts of the
problem) why you think a court would be unlikely to find a direct intention.

If D lacks mens rea when performing the conduct element of the actus reus then she
will not be liable for murder. If the question only asks you to consider liability for murder
then this is the end of the story: no liability. However, where the question is more general
(asking you to consider liability for homicide offences, or all potential offences), then,
assuming the actus reus was satisfied, you will now move to consider potential liability of an
offence of involuntary manslaughter. These offences (discussed at Chapter 6) require the
same actus reus as murder (an act or omission causing death), but are much less restrictive in
terms of mens rea. However, if D does satisfy the mens rea for murder, continue to discuss
defences.

Step 4: Consider defences The word ‘consider’ here is important, as you should not discuss every
defence for every question. Rather, consider (mentally) whether there
are any defences that could potentially apply. If there are, discuss those
only.

When discussing defences always begin with the complete defences (Chapters 13 and 14) as
these usually lead to a complete acquittal. Remember that the defence of duress does not
apply to murder. If none of the complete defences apply (or there is some doubt over their
application) also continue to discuss the partial defences (Chapter 6).

Step 5: Conclude This is usually a single sentence either saying that it is likely that D has
committed the offence, or saying that it is not likely either because an
offence element is not satisfied or because a defence is likely to apply.
It is not often that you will be able to say categorically whether D has
committed the offence or not, so it is usually best to conclude in terms
of what is more ‘likely’.
Step 6: Loop Go back up to step 1, identifying the next potential criminal event.
Continue until you have discussed all the relevant potentially criminal
events.

5.7.1 Worked problem question example

Figure 1 is an example of a problem question that has been used to examine students. The
question is specific to murder (it only asks for murder to be considered) and so other potential
69
This approach, only discussing oblique intention where necessary, is also taken by the courts. An approach
described by Lord Bridge as a ‘golden rule’ in Moloney [1985] AC 905, 926.

20
offences are not relevant to the answer. The simple bullet point plan demonstrates the process
of application we have just discussed.70 Note the variety of general principles, discussed in
Chapters 1-4, that are relevant to the answer.

Example Question

Dave and Andy belong to the same gang. One night, in retaliation for an attack on their patch, Dave and Andy
go out in search of a rival gang member (Fred) in order to kill him. However, seeing the two coming, and
realising their intention, Fred grabs Andy and attempts to use him as a human shield to avoid attack. Dave
does not want to harm Andy, but realises that if he shoots him there is a small chance that the bullet will pass
through his body and kill Fred. Dave even thinks there is a chance that Andy could survive. Dave shoots,
killing Andy and Fred.

As Dave returns home, he finds his step-son (Pete) dead. Although Pete had lived alone with Dave for many
years, the two had begun to hate each other. In recent months, this culminated in Pete refusing to eat and Dave
refusing to feed him. Following medical investigation, it was found that Pete’s death resulted from starvation.
Dave was aware that Pete could die in this way and is glad he is dead.

Discuss Dave’s potential liability for murder.

Introduction: Brief statements introducing topic. As the question is about murder only, this
could involve an outline of the offence elements. Also introduction of how we are going to
approach the question (eg, chronologically, victim by victim).

Step 1: The first potential criminal event relates to Dave’s (D’s) role in the death of Fred.
Step 2: We will assess D’s potential liability for murder.
Step 3:
 Actus reus: An act or omission causing death.
 In our case it is clear that D’s act (shooting) has caused Fred’s death. As the actus reus
elements are clear, there is no need to discuss these elements in great detail.
 Mens rea: Acting with the intention to cause death or GBH.
 Here, again, there are few problems, as it is clear from the facts that D shoots with the
direct intention to kill Fred. There is no need to discuss oblique intention. Note, the
fact that D foresees only a small chance of success is irrelevant to a finding of direct
(purpose based) intention.
Step 4: There are no likely defences, and therefore no discussion of defences is required.
 The only possibility of a defence arises if D believes that Fred is going to harm
Andy, in which case D shooting Fred could be argued as the ‘self-defence’ of Andy.
70
As a simple bullet point plan, this is intended to help you with the structuring of problem answers. In a full
answer, you would be expected to write in full sentences; use case law to establish any legal claims; and so on.

21
Step 5: It is very likely that D will be liable for murder in relation to the death of Fred.

Step 1: The second potential criminal event relates to Dave’s role in the death of Andy.
Step 2: We will assess D’s potential liability for murder.
Step 3:
 Actus reus: An act or omission causing death.
 The same act (shooting) that killed Fred has also killed Andy. Thus, with reference
back to the previous discussion, it is clear that the actus reus of murder is also
satisfied here.
 Mens rea: Acting with the intention to cause death or GBH.
 This time it is unlikely that D is acting with the direct intention to kill Andy or to
cause him GBH (Andy is his friend and he would be happy if Andy were to escape
harm). However, D does see harm to Andy (shooting through him) as inevitable and
so we should consider oblique intention and Woollin. Here, it may be that D lacks
virtual certainty that his act will cause death (D foresees a chance that Andy will
survive), but it is likely that D foresees causing at least GBH as a virtual certainty and
so the jury may find the mens rea for murder is made out. If you refer back to the box
illustration above (Chapter 5.7), D lacks mens rea (1), (2) and (3), but satisfies (4).
 As an alternative way of finding mens rea, we also have the option of using the
doctrine of transferred malice.71 This is because, when D acts to kill Andy, he does so
with the intention to kill another person (Fred): this mens rea (malice) could be
transferred to Andy to find liability.
Step 4: There are no likely defences, and therefore no discussion of defences is required.
Step 5: It is very likely, employing either approach to finding mens rea, that D will be liable
for murder in relation to the death of Andy.

Step 1: The final potential criminal event relates to Dave’s role in the death of Pete.
Step 2: We will assess D’s potential liability for murder.
Step 3:
 Actus reus: An act or omission causing death.
 Pete’s death is not caused by any positive acts from D, and so we must consider
omissions liability based on D’s failure to prevent the death. Murder can be
committed by omission. D may have a duty to act based on a familial duty (as Pete’s
71
Discussed at Chapter 4.3.1.

22
 step father) and/or from an assumed duty based on previous care. This requires some
discussion of the case law and (ideally) highlighting that we do not know Pete’s age:
if fully emancipated then it is less likely that D will have a duty. If there is a duty to
act, it seems to be breached by D’s inactivity (that we know of): we would expect him
to feed Pete or at least call for assistance. When considering if this omission caused
Pete’s death, it would be useful to discuss Pete’s refusal as a potential intervening act
that could break the chain of causation. However, if we think D’s duty extends to
calling for help (as opposed to simply offering food), then it does not look as if Pete’s
refusal to eat will break the chain of causation between that omission and its causal
effect on the death.
 Mens rea: Acting with the intention to cause death or GBH.
 This is one of those occasions where we have to accept a lack of detail: we don't know
from the facts whether D omitted with the direct intention to kill or cause GBH (the
fact Dave is glad may provide an indication to that effect, but it is hardly conclusive).
Logically, if D observed Pete’s starvation over time then it is likely that he will have
foreseen Pete suffering at least GBH as a virtual certainty, but again, this is not
definite.
Step 4: There are no likely defences, and therefore no discussion of defences is required.
Step 5: It is possible that D will be liable for murder in relation to the death of Pete, but there
are potential problems finding a duty to act, and particularly to finding mens rea.

Conclusion: A problem question conclusion need only provide a brief overview of potential
liability. For example, here it seems that Dave will be liable for the murder of Fred and Andy,
and may be liable for the murder of Pete if he is found to have had a duty to act, and to have
intended death or GBH.

23