This article is written by Anand Singh, a student from the Hidayatullah National Law University (HNLU), Raipur. The article discusses the present concept of intentional murder in the United Kingdom (UK), and how it has evolved throughout the history of the UK. Further, the article also talks about whether the law on murder in the UK has proven to be inefficient in curbing the crimes related to homicide, and there exists a need for reform in the current framework.
Murder is an offence under English common law. It is the most severe form of homicide, in which one person unlawfully kills another with the intent to cause death or serious harm. What constitutes murder and the punishment for the same has changed throughout the history of the United Kingdom (UK). The key element that aided in the development of the concept of murder was the intention of the offender. On the other hand, the debate surrounding punitive measures was centred on whether capital punishment should be there or whether it should be scrapped. This article discusses what types of homicides are classified as murder under English law, both in the present and in the past, as well as the penalties that are imposed for them.
Intentional murder in the UK – the current status of law
There is not a statutory definition of murder in the UK, and therefore the definition established by Sir Edward Coke remains valid under common law to date with slight modifications. According to it, Murder happens when a human, with malice aforethought, unlawfully kills any rational creature under the King’s or Queen’s peace.
The elements of murder under English law
- Actus Reus (Guilty Act) of the Murder – The unjustified killing of a human being in the Queen’s peace is considered as the actus reus of murder under English Law.
- Unlawful Killing – Killing implies causing death, which is a result of crime, so causation (the examination into whether the defendant’s conduct or omission was responsible for the harm or damage) must be established. Unless there is a legitimate reason for the killing, such as self-defence, it would be unlawful.
- Rational Creature – The second element of the murder’s actus reus is simply considered as any human being. This removes animals from the scope of murder, but it does pose the issue of when one becomes a human being and when one ceases to be a human being. A fetus cannot be called a human unless it is fully born, thus a person who kills a fetus cannot be accused of murder. In the case of Attorney-General’s Reference, it was held that unborn fetuses, no matter how much further ahead in their growth and close to birth, cannot be murdered.
Although the murder of the fetus can be proved, if it can be shown that the accused intended to kill the mother and that they also intended that baby will die shortly after the birth. In the case of R v. Poulton, the question of when a fetus will become a human being was answered. It was established that a fetus becomes a human being after it has been completely expelled from its mother and must be alive even for a brief moment.
Finally the question of when an individual ceases to exist as a human being was addressed in the case of R v. Malcherek and Steel. It was decided that when a person’s brain stems stop working, regardless of whether they are kept alive by artificial means, they are considered to be dead.
- Under the Queen’s Peace – According to this aspect of the actus reus of murder killing of an alien opponent in the heat of war, and the course of combat is not murder. Under section 9 of the Offences Against the Person Act 1861, this element also provides that if a person even if they’re not one of the Queen’s subjects, is killed by a subject of the Queen outside of Her jurisdiction – which is, anywhere besides England or Wales – the accused can be charged and prosecuted in England or Wales.
- Malice Aforethought – The malice aforethought of murder is the mens rea. However, based on the literal meaning, the term malice aforethought is deceptive as it implies both ill-will toward a victim and any degree of premeditation, none of which are needed. In the courts, malice aforethought has been described as the intent to kill or the intention to inflict Grievous Bodily Harm (GBH). This intent is established not only where the defendant’s objective or goal is to kill or inflict grievous bodily harm (direct intent), but also when death or grievous bodily harm is an almost certain result of the defendant’s action (indirect or ‘oblique’ intent). Thus, a defendant who tries to fracture a victim’s arm but not to kill will be charged with murder, if such an act results in the death of the victim.
Punishment for the murder: mandatory life sentence
The compulsory punishment for murder is life imprisonment, In all the cases, where the length of the sentence is determined by the age of the offender at the time of the offence or sentencing. Murder has carried a compulsory life sentence in English law since the Murder (Abolition of the Death Penalty) Act, 1965 abolished capital punishment in the UK. While this represents the seriousness of murder as an offence, it should be noted that several judicial decisions have indicated that the sentencing should be more open to judicial discretion.
Defences to Murder
There are two kinds of defences available against the crime of murder: Full Defences, which absolve the accused entirely of criminal liability, and Partial Defences, which limit the offence of murder to the less severe charge of manslaughter.
The defendant would be acquitted of murder if he can prove any of the full defences. These full defences include –
- Self-Defence – Self-defence is a complete defence against murder. An individual is not guilty of an offence whether they kill another person in self-defence or in defence of another person. They have instead committed justifiable homicide. Section 3 of the Criminal Law Act of 1967 establishes the full defence of self-defence in the UK, specifying that, a person can use such force as is reasonable in the situations in the prevention of crime, or in effecting or assisting in the lawful arrest of criminals, suspected offenders, or of individuals unlawfully at large.
- Necessity – Under English Law, the defence of necessity acknowledges that there might be circumstances in which an individual may be eligible to act by disobeying the law. Despite these exceptions of necessity as a defence, courts have been hesitant to recognize the general defence of necessity defence against the offence of murder. It is only available when there is a genuine risk of immediate harm or danger that may otherwise result in a person’s death, such as medical necessity.
There are three distinct partial defences against murder that reduce it to the less serious offence of voluntary manslaughter. In this case, the defendant must show both actus reus and mens rea for the crime of murder. However, he is successfully able to prove one of the three special partial defences. These partial defences include –
- Diminished Responsibility – Diminished responsibility is defined under Section 2 of the Homicide Act, 1957, and was later amended by Section 52 of the Coroners and Justice Act, 2009. The defendant must be able to show the following to depend on the defence:
- A mental disorder triggered by a proven medical condition.
- That explains the defendant’s actions or omissions as a participant in the murder.
- Which substantially impaired his or her mental capacity to either:
- a) Realize the meaning of their actions or,
- b) Make a sound decision or,
- c) Show self–control.
- Loss of Control – Section 54 of the Coroners and Justice Act, 2009, laid down the loss of control as a defence to murder, and it went into effect in October 2010. Killings committed before this date are still subject to the provocation defence as laid down in Section 3 of the Homicide Act, 1957. The loss of control defence was established in reaction to issues about the provocation defence, which was proving to be difficult to implement, and the appellate courts were not always consistent in its interpretation and application. The new defence of loss of control is similar to the provocation defence in terms of standards, but it is much more specific in its application. As per Section 54(1) – An individual who kills or is involved in killing may be charged with manslaughter rather than murder if the following factors exist:
- an absence of self-control,
- there was a qualifying condition for the lack of self-control, and,
- if a person of the same sex and age as the defendant, with a standard level of tolerance and self-restraint and in similar circumstances, might have responded similarly as the defendant.
- Suicide Pact – Section 4 of the Homicide Act, 1957, introduced the concept of the suicide pact. According to it, If a person may show that they murdered or induced someone to be killed in the course of a suicide pact, they will be charged with manslaughter, not murder. Section 4(3) defines a suicide pact as an understanding between two or more parties that their acts will result in the death of both of them.
To be competent in pleading this defence, the suspect must not only claim that they were part of a suicide pact under ordinary criminal standard, but also that they wished to die at the time they killed the victim. The impact is undeniably restrictive. Yet, for example, a defendant who administers a potent drug to another person and then takes one themselves and survives will be entitled to use this defence.
The changes in legislation concerning intentional murder in the UK
- A year and a day rule – As per the earlier definition of murder, for a killing to be considered as a murder, the death had to occur within a year and a day of the injury.
- In the past, the sentence for murder in the United Kingdom was capital punishment.
- According to Section 3 of the Homicide Act, 1957, the provocation was once a partial defence to murder.
- The Year and a day rule were abolished in 1996, by the virtue of the Law Reform (Year and a Day Rule) Act, 1996.
- The death penalty as a punishment for murder was suspended in 1965 and was later abolished in 1969 by the Murder (Abolition of Death Penalty) Act, 1965, which replaced it with a mandatory sentence of life imprisonment.
- The Coroners and Justice Act of 2009 revised provocation as a partial defence and added it as the principle of Loss of Control, which is also a partial defence.
How changes in legislation have changed the trends in intentional murder
Many laws regulating homicide in the United Kingdom have not changed since the seventeenth century. The situation has remained the same besides the fact that it has been recognized for a long time that there is a desperate need for restructuring. The first argument to make is that it is crucial to study murder critically and statistically in respect of the current societal structure. The present situation in England and Wales needs immediate consideration. Homicide rates are at an all-time peak compared to the rest of the twentieth century.
In the 2004 report of the Law Commission titled “Partial Defences to Murder”, the existing law on murder was described as a total mess, and a complete review was suggested. Later, in 2006, a report titled “Murder, Manslaughter, and Infanticide” was published, which proposed a three-tier system on the rule of murder, against the existing two-tier structure, which was rejected by the government.
The law on intentional murder in the UK has seen substantial reforms in the past, still, there is an abundance of past principles in the current structure that do not meet the needs of modern society, as a result of which there has been an increase in homicide cases, which was never even experienced in the 20th century. Thus, there is a pressing need for amendment in the existing law of murder in the UK.
- https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/9/enacted#:~:text=9Where%20any%20Murder%20or,whether%20the%20same%20 shall%20 amount
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