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- The unlawful killing of a human being during times of peace, with malice aforethought express or implied
- Murder doesn’t have a statutory definition
D must cause the death of V
- Year and a Day rule Act 1996 has been abolished
- If the victim dies more than 3 years after, must require permission of attorney general. This stops unlawful sentencing e.g. if chain of
- causation is broken or too stretched ‘it’s a safe guard’
- Must establish has D caused death
A reasonable creature in being
- At what stage in the process of a birth does a foetus become a person? The test is whether the child has an existence independent of its mother- Cannot murder a foetus
- To have such an existence the child must have been completely expelled from its mother’s body and be alive. The child should have an independent circulation and it should have breathed after birth- Cord doesn’t have to be cut
- The cord and afterbirth need not have been expelled from the mother nor severed from the child
- It is not murder to kill a child in the womb or in the process of leaving the womb. Instead it is the separate offence of child destruction where the child is capable of being born alive.- If killed in womb – child destruction
A reasonable creature in being continued…
- Assault pregnant women- child born but later dies- Manslaughter
- A-G’s Reference (No 3 of 1994) (1997) - 8 months pregnant stabbed by boyfriend 3 times baby born premature- alive – later died- Not murder as was born alive was manslaughter
- A person becomes a corpse when one is brainstem dead. Cannot murder corpse as already dead- Can be convicted of attempted murder of a corpse as you have the mens rea
- This is malice aforethought
- Malicious aforethought is either
- 1. An intention to kill any person
- 2. An intention to cause grievous bodily harm to any person
- Premeditation is not required
- A parent who kills a suffering child out of motives of compassion is still malicious
- There is sufficient aforethought if an intention to kill is formed a mere second before the fatal blow is struck
- Law doesn’t distinguish between different killings
- If you foresee death or serious harm and take the risk - MURDER
Under the Queen’s Peace:
- All person’s appear to be ‘under the Queen’s peace’, even an alien enemy, ‘unless it to be in the heat of war, and in the actual exercise
Within any country of the realm
- If the killing is by a British citizen, it need no longer take place within any country of the realm; in cases of murder and manslaughter
- the English courts have jurisdiction over these offences- even if committed abroad
Sentence for murder
Advantages of the law on murder
- The current law on murder recognises an attempt to kill a corpse is murder following Shivpuri. This is fair because after all the D has the mens rea for murder
- The old year and a day rule was abolished in 1996: this shows that the law is adaptable and can be changed.
- The universal jurisdiction is a strong point: murder should be punished if it is committed anywhere in the world and some countries may not have a functioning criminal justice system
- The phrase ‘malice aforethought’ is misleading; the word ‘malice’ means il-will but this is not actually required for murder: euthanasia is murder but the D may not have ill-will. On the other hand if the law was changed it would throw the law of murder into confusion
- The word ‘aforethought’ would imply premeditation but this is not required either: a second before is enough. Surely the law should say what it means?
- The definition does not allow a distinction between genuine acts of malice and acts of compassion: is it really right that both should receive a mandatory life sentence? A way to reform it is to distinguish first and second degree murder: as the USA does. On the other hand, isn’t this begging the question; a life taken should be murder under any circumstances some argue
- The law should clarify when a foetus becomes a ‘reasonable creature in being’. At the moment it is unclear whether it is necessary for the child to have breathed or not.
- The foetus is not adequately protected: why is the crime only one of child destruction and carrying only a max life sentence. Arguably this is an offensive distinction because it doesn’t accord the foetus the same rights as a ‘reasonable creature in being’. What about medical technology? We know that the foetus can now survive at 24 weeks.
- The law on intention still covers a wide range of different states of mind, some more blameworthy than others, although the situation is better than it was under Hyam. Perhaps we should have a separate offence for indirectly intended murders. Although this could be confusing for the jury.
- The jury decides the verdict: some of the words and phrases in the definition of murder and hard to understand and antiquated. On the other hand, all of these terms are explained to the jury
- The sentence for murder is ‘life’ but this only means a tariff- More consistent?