CRIMINAL LAW II UNIT 2 LECTURE NOTES - MURDER

CRIMINAL LAW II UNIT 2

LECTURE NOTES - MURDER

__________________________________________________________________

INTRODUCTION

Murder has been classically defined by Sir Edward Coke as far back as the 17

century as:

“… when (1)a man of sound memory, and (2) of the age of discretion, (3) unlawfully killeth within any country of the realm (4) any reasonable creature in rerum natura under the King's peace, (5) with malice aforethought, either expressed by the party or implied by law, (6) so as the party wounded, or hurt, etc. die of the wound or hurt, etc.

(7) within a year and a day after the same."

WHO CAN COMMIT MURDER – A MAN OF SOUND MEMORY

The point of who is capable of committing murder is an important starting point with respect to defining murder and brings us right back to the topic of “Criminal Capacity”, as from your recollection of the principles studied in Criminal Law One, not every person is deemed capable of committing a crime. In order to be capable of committing a crime, one has to be in his her right mind/otherwise known as “being a man of sound memory” , or must have reached the age of capacity which in Jamaica is the age of twelve years old – See Section 63 of the The Child Care and Protection Act which states: It shall be conclusively presumed that no child under the age of twelve years can be guilty of an offence.

This means that, notwithstanding that there may be the clearest of evidence that a child under the age of twelve years old committed a criminal act (be it simple like petty theft or heinous like murder) once it is shown that he was under the said age of twelve at the time of committing the act, no criminal proceedings can ensue.

Also, as we should know by now, where a person is deemed to be insane by virtue of

satisfying the criteria as set out in the McNaughten case he is deemed incapable of

committing murder as he would be unable to satisfy all the criteria as set out in the test

above.

It is important to note also that a corporation, though recognized as a legal person cannot be tried for murder either as it is incapable of suffering the only penalty prescribed by law which is life imprisonment. See Section 3 of the OAPA which prescribes the penalty for murder, supra.

A man of sound memory is therefore any person who may be found criminally liable for his actions under the principles of criminal liability.

ACTUS REUS - UNLAWFULLY KILLETH

Based on last week’s lecture, we should remember that not all killings are regarded as unlawful and there are some instances provided by law where a person may be deemed to have lawfully killed another person and as such does not suffer any consequences for doing same.

Reminder from last week’s lecture:

Sec 10 of the Offences Against the Person Act makes provision for where a person kills another person in self defence or through misfortune when it states:

“No punishment or forfeiture shall be incurred by any person who shall kill another by misfortune, or in his own defence, or in any other manner without felony”.

Section 14 of the Jamaican Constitution makes it lawful for the state to take a life in

“execution of the sentence of a court in respect of a criminal offence of which he has been convicted” and also makes it lawful where a person is killed “as the result of the use of force in certain circumstances namely:

(a) the defence of any person from violence or for the defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot, insurrection or mutiny;

(d) in order lawfully to prevent the commission by that person of a criminal offence, or (e) if he dies as the result of a lawful act of war.

In order for a killing to deem unlawful therefore, it must been occasioned outside the permissible ambits of the law as noted above and it must also be proven that the act (or omission) of the defendant must have been the legal cause of the death of the victim.

Causation must therefore be established; it must be proved by the prosecution that the Defendant by his own act or unlawful omission causes death. Specifically, what must be caused is some acceleration of death and it makes no difference for this purpose that the victim is already suffering from a fatal disease or injury or is under a sentence death.

Lord Alverton underscored this point in the case of R v. Dyson [1908] 2KB 454 at page

457 when he said that:

“ The proper question to have been submitted to the jury was whether the prisoner [defendant] accelerated the child’s death by the injuries which he inflicted in December 1907. For if he did the fact that the child was already suffering from meningitis from which he would in any event have died before long, would afford no answer to the charge of causing its death.”

REASONABLE CREATURE IN RERUM NATURA

Again from last week we should remember that in order for a person to be the subject of Homicide and by extension the law of murder, he must have been sufficiently expelled from his mother’s womb so as to have an independent existence (as it relates to when the life of a reasonable creature begins), and he must have his brain stem intact, if nothing else (as it relates to when a the life of a reasonable person ends and is therefore incapable of being covered under the law of homicide). Revisit last week’s lecture which speaks to the applicable principles aforesaid and the relevant cases.

UNDER THE QUEEN’S PEACE

Simply means that the killing of an enemy in the course of war will not be murder.

MENS REA – WITH MALICE AFORETHOUGHT EXPRESS OR IMPLIED

As noted by the authors of Smith & Hogan 12

Edition:

“The meaning of the term “malice aforethought” is of the utmost importance, for it is the presence or absence of it which determines whether an unlawful killing is murder or manslaughter.”

The authors went on to quote the words of Justice Stephen in the case of Doherty (1887) 16 Cox CC 306 at 307 when he stated “Murder is unlawful homicide with malice aforethought. Manslaughter is an unlawful homicide without malice aforethought.”

It is submitted that the definition as propounded by Justice Stephen is not wholly accurate

as it does not consider crimes which fall under the heading of Voluntary Manslaughter

whereby the defendant has the same mens rea as the person guilty of murder but his

sentence is mitigated to manslaughter by virtue of a defence available to him. It is

therefore assumed that the term “manslaughter” as referenced in Justice Stephens

definition above relates strictly to “involuntary manslaughter” which we will discuss

more in depth next week.

What should be very clear however is that it is the presence or absence of “malice aforethought” which determines which category a homicide is- i..e whether it is murder or manslaughter.

This therefore begs the question : what exactly does the term “malice aforethought”

mean and the simple answer to that question is that malice aforethought has come to be recognized as meaning intention: Maloney [1985] AC 905.

In that case the House of Lords held that nothing less than intention to kill or cause grievous bodily harm (G.B.H.) would constitute malice aforethought: merely foreseeing the victim's death as probable was insufficient.

Note that from as early as 1957 in the case of Vickers an intention to cause G.B.H was recognised as being as sufficient mens rea for murder.

In R v Vickers [1957] 2 QB 664, the Court of Appeal held that a defendant could be convicted of murder if it was established that he had intended to kill, or had intended grievous bodily harm. The latter was accepted as sufficient mens rea for murder because if a defendant was willing to inflict G.B.H, how was he to know that the victim might not die? An intention to cause G.B.H. at least evidenced a willingness to accept a substantial risk that the victim might die.

(NOTE- THE CONSEQUENCE OF OBLIQUE AND DIRECT INTENTION (ARE ONE AND THE SAME) = MURDER).

In R v Cunningham [1981] 2 All ER 863, the defendant repeatedly struck the victim around the head with a chair resulting in his death. The prosecution contended that while there was no intention to kill, there had been an intent to do really G.B.H. The defendant's plea of manslaughter was rejected and he was convicted of murder. The House of Lords stated that an intention to cause "really serious injury" was sufficient to amount to the mens rea for murder.

Note further that the term GBH has been held to simply mean really serious harm:

Saunders [1985] Crim LR 230; Bollom: [2003] EWCA Crim 2846. The evaluation of

whether the harm suffered is sufficiently serious to constitute GBH is a matter of fact to

be determined by a jury.

WHAT IS THE MEANING OF INTENTION

Intention has the meaning attributed to it in the case of Woolin [1999] Cr App R 8 and can be said to exist where:

(i) A person desires a certain consequence and by his actions brings it about (direct intention);

(ii) A person appreciates that it is a virtual certainty that (barring any unforeseen circumstances) the defendant’s action would cause death or serious bodily harm although the defendant does not desire the consequence for its own sake

Note that in both cases (of direct/express and oblique/implied intention) it is a subjective test and the DEFENDANT must have desired the consequences as in the case of direct intention or at the very least appreciated death of GBH as a virtual certainty in the case of indirect/oblique intention.

Note that the threshold of virtual certainty is very high and in the case of Woolin it was determined that appreciating a consequence as substantial risk was not enough. (Please revisit your cases on the law of intention from last semester to appreciate how the law of intention developed into what it is now.)

From that exercise of review you will note that the present state of the law on intention was not arbitrarily achieved but came about after years of the English courts making decisions with a view to trying to get the law “right”; this meaning that there was a systematic attempt to create/develop a test for intention which would be fair to the accused charged with murder, since a conviction for murder carries severe penalties;

including the very draconian sentence of death.

MALICE AFORETHOUGHT – MISLEADING?

From the above one should see that the term “malice aforethought” as it noted in the

classic definition of murder may be misleading as there need not be “malice” in the truest

sense neither need it be “aforethought” in any way. The term “malice” in layman’s terms

simply means with bad intentions and “aforethought” means that some previous thought

was given to the perpetrator’s actions. Students are advised that they should guard against

equating the term “aforethought” with the term “premeditated” as all that is required to

prove malice aforethought is that an intention was formed (either express of oblique)

prior to the killing, even if only a mere second before. Students are further advised not to

equate the terms “malice” with malicious or bad intentioned as a person may have the

best intention as in the case of euthanasia and yet be deemed to have malice aforethought.

Malice aforethought is simply put – any intention to kill (direct or oblique) formed prior to the actual killing of a person, even if formed one second before .

EASY REFERENCE – MURDER IS…

For ease of reference and without taking anything away from the classic definition, we can simply say that murder is the killing of a human being by another human, under the Queen’s peace with malice aforethought bearing in mind that death no longer need occur within a year and a day and bearing in mind that malice aforethought simply means intention.

MURDER AND ACCEPTABLE MEDICAL TREATMENT

In September 2000 the Court of Appeal of England delivered their judgment to what they described as a ‘truly unique’ case – that of the conjoined twins Jodie and Mary (Re: A (Children). They were being asked to consider whether a High Court judge had been correct to rule that the proposed separation of the twins, which would result in the death of one of them, was lawful, or whether it amounted to murder. In the opinion of the Court of Appeal, the proposed operation was ‘not unlawful’, an opinion justified on varied legal grounds including that of ‘necessity’.

At the heart of the legal debate in this case was the question of whether decisions about the relative worth of the life of individuals could be legally made, when those decisions result in the loss of the life considered to be less worthy. We will examine the legal basis for these types of decisions, and consider whether the decision in Re: A (Children) will have any impact in other areas of medical practice where ‘value of life’ decisions are made.

Negligence/ ‘criminal negligence’ and Decisions regarding the relative ‘worth of life’

Although the author could find no reported cases of doctors being found liable by the courts for a death arising out of decisions made during ‘triaging’ or where there was considered to be ‘bed blocking’ in intensive care settings, it is not outside the realms of possibility that in this increasingly litigious society, an action for negligence against an individual doctor (or their employer) may be brought by aggrieved family members.

An action taken in the civil courts for negligence would only be successful if the

plaintiffs could demonstrate that the doctor’s actions were substantially different from

those that would have been taken by other reasonably competent medical practitioners,

and that the actions taken were not supported by medical opinion.

The test in Bolam v Friern Hospital Management Committee (1957) was whether a doctor acted ‘in accordance with the practice accepted by a responsible body of medical men skilled in that particular art’.

In the case of Mary and Jodie in Re: A (Children), the underlying principle is that the life of Mary was sacrificed so that her sister Jodie could benefit from treatment that would provide her with a ‘near normal’ life. Mary’s death was held to be intentional, and would thus be considered unlawful (i.e. murder), unless there was some legal exception to the rule that one must not kill another person in being or some other valid excuse. It was held that the doctrine of necessity offered the most acceptable legal justification for Mary’s demise.

One argument has been that the decision in Re: A (Children) has indeed widened the scope for medical professionals to justify difficult clinical decisions on the grounds of necessity, and it remains to be seen whether doctor’s professional bodies, and defence organizations initiate public debate on the desirability of such a move.

SENTENCE/PUNISHMENT FOR MURDER

Section 3 of the OAPA provides that:

Prepared and Compiled by Kedian T. Francis

See the following cases and articles:

1. Airdale National Health Service Trust v Bland [1993]1 ALL ER 821 2. Attorney General’s Reference No. 3 of 1994 [1997] 3 ALL E.R 936 3. R v. Adams [ 1957] Crim. L.R 265

4. “The Trial of David Moor” [2000] Crim. L.R. 31

5. ‘Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity?’, 6 European Human Rights Law Review, (2006).

6. “Murder By Design: The `Feel-Good Factor’ And The Criminal Law”(See:http://eric.exeter.ac.uk/exeter/bitstream/10036/47778/2/Murder

%20by%20Design%20MedLR.pdf)