Lesson #1 - The Law of Murder - How to get away with Murder

The law of murder in the United Kingdom is set out in common law. The legal definition of murder is 'the unlawful killing of a human being in the Queen's peace, with malice aforethought'. This definition can be broken down into different elements, each of which must be satisfied for a defendant to be convicted of murder. These elements are then further subdivided into Actus Reus and Mens Rea elements, thus to be convicted of murder the prosecution must produce evidence which proves to the jury that the defendant did in fact satisfy the elements beyond reasonable doubt. The Actus reus “guilty act” in criminal law consists of all elements of a crime other than the mental state of the accused. In particular, Actus Reus generally consist of: conduct, result, a state of affairs or an omission. It is the physical manifestation of the crime. On the other hand, the Mens Rea is concerned with the state of mind of the defendant. There are three main levels of Mens Rea: intention, recklessness and negligence. For example John Kills James with an axe while in a state of rage. The Actus Reus would be the physical action of John killing James with an axe while the mens Rea would be John’s mental state, which would be an intention to kill with malice i.e whilst enraged.

Subject to three exceptions (The Defences) the crime of murder is committed, where a person:

• of sound mind and discretion (i.e. sane);
• unlawfully kills (i.e. not self-defence or other justified killing);
• any reasonable creature (human being);
• in being (born alive and breathing through its own lungs - Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;
• under the Queen's Peace;
• with intent to kill or cause grievous bodily harm (GBH).

Burden and Standard of Proof

The Burden of Proof Lies on the Prosecution. This means that the prosecution must make a case and bring forth evidence which proves that the defendant committed the act in question. The standard of Proof which is Required is that of “Beyond reasonable doubt”. This means that the prosecutor must prove the defendant's guilt Beyond a Reasonable Doubt.

Actus Reus Elements

The actus reus of murder is the unlawful killing of a human being in the Queen's peace.

-Unlawful killing
Unlawful killing can be committed by an act or an omission.

-Human being

The second element of the actus reus of murder requires the victim to be a human being. This obviously excludes animals from the remit of murder but raises questions as to at what point does one become a human being and at what point does one cease to be a human being.

A foetus is not classed as a human being and therefore a person who kills a foetus can not be charged with murder:
A-G ref (No 3 of 1994) [1998] AC 245
A foetus becomes a human being when it has been fully expelled from it mother and has an independent existence.

-In the Queen's Peace
The third aspect of the Actus Reus of murder excludes the killing of alien enemies in the time of war.

Causation

The prosecution must always show a causal link between the act/omission and the death. The act or omission must be a substantial cause of death, but it need not be the sole or main cause of death. It must have "more than minimally negligibly or trivially contributed to the death. If no causal link can be found then no conviction.

Mens Rea Elements

The mens rea of murder is malice aforethought. Malice aforethought has been interpreted in the courts as meaning intention to kill and intention to cause GBH.
This simply means that based on the evidence a court would class one’s mental state whilst committing the crime into three categories; intention, Recklessness or Negligence.

Thus, all of these elements must be established and verified by the prosecution in a court of law before an individual can be convicted of murder. Remember it is the duty of the prosecution to prove that you are guilty, you must only give evidence to refute the allegations by the prosecution. They bare the burden of proof. However, one can enter into a defence in an attempt to justify the murder based on the circumstances. When such defence is entered into the burden of proof Is reversed and the defendant must give to prove his defence.

Defences - “Get out of Jail free Card”

While self defence and there are three specific defences for murder under UK law:

1. Diminished responsibility
   Essentially an abnormality of the mind which would have to arise from a recognised medical condition and substantially impair the accused’s ability to understand their conduct, form a rational judgement or exercise self-control.
   The medical abnormality of mind would also have to provide an explanation for the accused’s actions or omissions. It does not have to be the sole cause of the killing but it would have to be more than merely trivial, therefore it would not succeed if the accused would have killed regardless of the abnormality of mind.
   Medical evidence is imperative both for determining whether there is a recognised abnormality of mind but also to establish whether there was substantial impairment. Although medical evidence will be called in a case of diminished responsibility, the jury is not bound to accept this evidence. It is for the defence to prove diminished responsibility, however this only needs to be proven on the balance of probabilities.

2. Loss of control
   Loss of control is a partial defence that has been available since 2010. Prior to this there was a defence of provocation, which has since been abolished and is no longer available.
   Loss of control occurs where the deceased’s behaviour was such that any reasonable person would have lost control. However, there needs to be a qualifying trigger for the action. Qualifying triggers include loss of control from a fear of serious violence from the victim and/or loss of control to things done or said which resulted in the accused having a justifiable sense of being seriously wronged.
   The loss of control does not need to be sudden, however, control must be lost and the accused cannot act in revenge. If the defence want to raise loss of control as a defence to murder then a judge has to decide if there is sufficient evidence to put the partial defence to the jury. If it is then the burden is on the prosecution to disprove it.

3. Killing in pursuance of a suicide pact
   A common agreement between two or more people for them all to die, it does not matter if the agreement – or pact – is to take their own lives, or to kill each other. However, the accused must intend to die in the pact. It does not matter if they went onto die or not as clearly this partial defence only applies if there is a survivor of a suicide pact.
   If the accused merely assists in a suicide and did not intend to die themselves then they would not be able to raise this partial defence and may be liable for prosecution for an alternative offence of assisting a suicide. It would be for the accused to raise killing in pursuance of a suicide pact, however it would only have to be established on the balance of probabilities.

Also There is self-defence, Automatism and Insanity as other general defences.

ProxyProctor LLB

Disclaimer - I have a Law Bachelors Degree, I have yet to complete my BPTC training, this means that I am not qualified to practice as a Legal Practitioner. This is merely an examination and interpretation of the law of murder. Please seek professional legal advise if you are implicated in a murder. This information may become out-dated as cases and concepts often change. This piece is merely an overview illustrating the basic concepts behind murder.