Murder is an offence under the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
of
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
. It is considered the most serious form of
homicide
Homicide occurs when a person kills another person. A homicide requires only a volitional act or omission that causes the death of another, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no inten ...
, in which one person kills another with the
intention
Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
to cause either death or serious injury unlawfully. The element of intentionality was originally termed
malice aforethought
Malice aforethought is the "premeditation" or "predetermination" (with malice (law), malice) required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravation (law), aggravated murder in a few. Insof ...
, although it required neither
malice nor
premeditation
Malice aforethought is the "premeditation" or "predetermination" (with malice) required as an element of some crimes in some jurisdictions and a unique element for first-degree or aggravated murder in a few. Insofar as the term is still in use, ...
. Baker (''Glanville Williams Textbook of Criminal Law''; London: Sweet & Maxwell, 2015), chapter 14 states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in ''DPP v Hyam''.
Because
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
is generally defined in law as an intent to cause serious harm or injury (alone or with others), combined with a death arising from that intention, there are certain circumstances where a death will be treated as murder even if the defendant did not wish to kill the actual victim. This is called "
transferred malice
Transferred intent (or transferred , or transferred malice, in English law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held resp ...
", and arises in two common cases:
* The defendant intended serious harm to one or more persons, but an unintended other person dies as a result;
* Several people share an intent to do serious harm, and the victim dies because of the action of ''any'' of those involved (for example, if another person goes "further than expected" or performs an unexpectedly lethal action).
Definition
Murder is defined, at common law rather than by
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
, as the unlawful killing of a reasonable person in being under the King or Queen's peace with malice aforethought express or implied.
Actus reus
The ''
actus reus
(), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...
'' (
Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
for "guilty act") of murder was defined in common law by
Coke:
The latter clause (known as the '
year and a day rule
The year and a day rule is associated with the former common law standard that death could not be legally attributed to acts or omissions that occurred more than a year and a day before the death.
It is elsewhere associated with the minimum sent ...
') was abolished in 1996 (see
below
Below may refer to:
*Earth
*Ground (disambiguation)
*Soil
*Floor
*Bottom (disambiguation)
Bottom may refer to:
Anatomy and sex
* Bottom (BDSM), the partner in a BDSM who takes the passive, receiving, or obedient role, to that of the top or ...
).
A further historic rule, the
felony murder rule
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed (regardless of intent to kill) in the commission of a dangerous or enumerated crime (called a felony in s ...
, was abolished in the
Homicide Act 1957
The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limi ...
. Until abolition, the effect of this rule had been to create murder offences in two cases: when
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
occurs during the course of a crime it could in certain cases be automatically reclassified by law as murder; and that any deaths resulting from acts of a criminal during the crime could cause culpability as murder on the part of all his or her fellow criminals. The effect of this rule is partly retained despite abolition, since intent to kill is not necessary – intent (including common intent) to cause serious injury is sufficient for murder if death results.
"Unlawfully"
"Unlawfully" means without lawful justification or excuse.
Causation and foreseeability
For a killing to amount to murder by a defendant, at the time of death the defendant's acts or omissions must be the operating and most substantial cause of death with no ''novus actus interveniens'' (Latin for "new act breaking in") to break the
chain of causation. Thus, the defendant cannot choose how the victim is to act, nor what personality to have. No matter whether brave or foolish, the defendant must expect the victim to:
*try to escape and if he or she dies in that attempt, the chain of causation is not broken; or
*try to fight back and so escalate the extent of the violence between them; or
*seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death.
There are conflicting authorities on the above point, ''
R v Jordan
''R v Jordan'' (1956) 40 Cr App R 152 was an English criminal law case that has been distinguished by two later key cases of equal precedent rank for its ruling that some situations of medical negligence following a wounding are those of break ...
'' and ''
R v Smith There are a number of court cases by the name of ''R. v. Smith'':
United Kingdom
* ''R v Smith (George Joseph)'' (1915) 11 Cr App R 229, (1915) 25 Cox 271, (1915) 31 TLR 617, CCA (the "brides in the bath" case)
* '' R v Smith (Thomas Joseph)'', 9 ...
''. In short, any contingency that is foreseeable will maintain the chain. Put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon, will break the chain.
Life in being
For a killing to amount to murder by a defendant, the defendant must have caused the
death
Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including brainstem, and brain ...
of "a reasonable creature ''in rerum natura''". The phrase as a whole is usually translated as "a life in being", i.e. where the
umbilical cord
In placental mammals, the umbilical cord (also called the navel string, birth cord or ''funiculus umbilicalis'') is a conduit between the developing embryo or fetus and the placenta. During prenatal development, the umbilical cord is physiologic ...
has been severed and the baby has a life independently of the
mother
]
A mother is the female parent of a child. A woman may be considered a mother by virtue of having given childbirth, birth, by raising a child who may or may not be her biological offspring, or by supplying her ovum for fertilisation in the cas ...
.
''Attorney General's Reference No. 3 of 1994'' is a relatively recent case involving a murder charge for death of an unborn child. The
Judicial functions of the House of Lords, Law Lords considered the case of a man who stabbed his pregnant wife in an argument. The wife recovered but delivered the baby prematurely. The baby died some time after the premature birth. The cause of death was simply that she had been born prematurely due to the effect of the attack on the mother, rather than due to any injury.
In that case,
Lord Mustill
Michael John Mustill, Baron Mustill, PC, FBA (10 May 1931 – 24 April 2015) was an English barrister and judge. He was a Lord of Appeal in Ordinary from 1992 to 1997.
Life and career
The son of Clement William and Marion Mustill, he was ed ...
noted that the legal position of the unborn, and other pertinent rules related to
transferred malice
Transferred intent (or transferred , or transferred malice, in English law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held resp ...
, were very strongly embedded in the structure of the law and had been considered relatively recently by the courts.
The Lords concurred that a foetus, although protected by the law in a number of ways, is legally not a separate person from its mother in English law. They described this as outdated and misconceived but legally established as a principle, adding that the foetus might be or not be a person for legal purposes, but could not in modern times be described as a part of its mother. The concept of transferred malice and general malice were also not without difficulties; these are the legal principles that say when a person engages in an unlawful act, they are responsible for its consequences, including (a) harm to others unintended to be harmed, and (b) types of harm they did not intend.
As such in the above case where a husband stabbed his pregnant wife, causing premature birth, and the baby died due to that premature birth, in English law no murder took place. "Until she had been
born alive and acquired a separate existence she could not be the victim of homicide". The requirements for murder under English law, involving transfer of malice to a foetus, and then (notionally) from a foetus to the born child with legal personality, who died as a child at a later time despite never having suffered harm as a child (with legal personality), nor even as a foetus having suffered any fatal wound (the injury sustained as a fetus was not a contributory cause), nor having malice deliberately directed at it, was described as legally "too far" to support a murder charge.
However, they did note that English law allowed for alternative remedies in some cases, and specifically those based on "unlawful act" and "gross negligence"
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
which does not require intent to harm the victim:
Lord Hope drew attention to the parallel case of ''
R v Mitchell'' where a blow aimed at one person caused another to suffer harm leading to later death, affirmed by the Court of Appeal as manslaughter, and summarized the legal position of the death of the unborn child:
Four years later, the case ''
St George's Healthcare NHS Trust v S'' ''
R v Collins and others, ex parte S''
998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
3 All ER considered the willful killing of a foetus before birth, without maternal consent, in a medical context. It was held a
trespass to the person
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.
Trespass to the person historically involved six separate trespasses: threats, assault, battery, wounding ...
that the hospital terminated the pregnancy involuntarily due to the mother being diagnosed with severe
pre-eclampsia
Pre-eclampsia is a disorder of pregnancy characterized by the onset of high blood pressure and often a significant amount of protein in the urine. When it arises, the condition begins after 20 weeks of pregnancy. In severe cases of the disease ...
. The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse
consent
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
to treatment, whether her own life or that of her unborn child depends on it (see a discussion in
Omission (criminal law)
In law, an omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an '' actus reus'' and give rise to liability only when the law imposes a dut ...
).
It also can be contrasted against the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
Unborn Victims of Violence Act
The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law that recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of ...
of 2004. Under this law, the intent to cause harm (''mens rea'') from the initial assault applies to any unborn child similarly to any other unplanned victim, and death or
injury
An injury is any physiological damage to living tissue caused by immediate physical stress. An injury can occur intentionally or unintentionally and may be caused by blunt trauma, penetrating trauma, burning, toxic exposure, asphyxiation, o ...
to the foetus is charged as a separate homicide whether or not the accused had actual knowledge or intent with respect to the child, or even knowledge of the pregnancy.
"Under the King's peace"
A killing is not murder if the person killed is not "under the
King's peace".
Archbold Criminal Pleading, Evidence and Practice
''Archbold Criminal Pleading, Evidence and Practice'' (usually called simply ''Archbold'') is the leading practitioners' text for criminal lawyers in England and Wales and several other common law jurisdictions around the world.
It has been in p ...
. 1999. Paragraph 19-18 at page 1564. The killing of an
alien enemy in the heat of war, and in the actual exercise thereof, is not murder because the alien enemy is not under the King's peace.
[ Archbold's Pleading, Evidence and Practice in Criminal Cases. Twenty-third edition. 190]
Page 780
The killing, otherwise than in the heat of war, and the actual exercise thereof, of an alien enemy, within the kingdom, is not excused by the fact that he is an alien enemy, and can, therefore, be murder. The effect of ''
R v Depardo'' is that the same rule applies where an alien enemy is charged with killing a
British subject
The term "British subject" has several different meanings depending on the time period. Before 1949, it referred to almost all subjects of the British Empire (including the United Kingdom, Dominions, and colonies, but excluding protectorates ...
.
See also ''
R v Page''.
Certain acts are excluded as murder, usually when the place or circumstances were deemed not to be under the King's peace at the time. Examples of killings not under the King's peace include the killing of an enemy
combatant
Combatant is the legal status of an individual who has the right to engage in hostilities during an armed conflict. The legal definition of "combatant" is found at article 43(2) of Additional Protocol I (AP1) to the Geneva Conventions of 1949. It ...
during a time of war or other international conflict. In the case of ''R v Clegg'', a soldier in
Northern Ireland
Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
was convicted of murder after shooting into the back of a fleeing vehicle and killing a
joyrider who had driven past the checkpoint he was guarding, although the conviction was later overturned on appeal.
Transferred malice
In English law,
transferred malice
Transferred intent (or transferred , or transferred malice, in English law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held resp ...
(known in some jurisdictions as "transferred intention") is a doctrine that states in some circumstances a person who intends to commit an offence involving harm to one individual and instead (or as well) harms another, may be charged with the latter as a crime – the ''mens rea'' (malicious intent) is 'transferred'. It may not apply when the crime which took place was different from the crime intended, although a charge of
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
may be possible in such cases.
Common intent
As well as being responsible for any murderous consequences of his or her own unlawful actions that affect others, a person may also be held liable for the unlawful actions of others he or she acts with, even if not agreed or planned, if there is a common (or shared)
intention
Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
(sometimes called a "common purpose"). In the 1998 case ''
R v Greatrex (David Anthony)'', the Court of Appeal summarised some of the legal circumstances this can apply:
[R. v Greatrex (1998)](_blank)
EWCA Crim 976 (19 March 1998)
In ''
R v Gnango
''Regina v Armel Gnango'' is the leading English criminal law case on the interaction of joint enterprise, transferred malice, and exemption from criminal liability where a party to what would normally be a crime is the victim of it. The Suprem ...
'' (2011), the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
controversially held under the doctrine of joint enterprise and
transferred malice
Transferred intent (or transferred , or transferred malice, in English law) is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held resp ...
that D2 is guilty of murdering V if D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if D1 mistakenly kills V in the course of the fight.
'Year and a day' rule
The requirement that death occur within a
year and a day of any injury for a killing to amount to murder was abolished by the
Law Reform (Year and a Day Rule) Act 1996
The Law Reform (Year and a Day Rule) Act 1996 is a short Act of Parliament which abolished the year and a day rule in English law and Northern Irish law.
The year and a day rule was an ancient rule of the common law which created a conclusive p ...
. Historically it had been considered that if a person survived more than that period after an incident, and died later, the incident could not be considered the
proximate cause
In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause. Ca ...
of death. Advances in modern medicine and patient care, including stabilized states such as coma which can last more than a year before death, made this assumption no longer appropriate.
''Mens rea'' (intention)
The ''
mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
'' (Latin for "guilty mind") of murder is either an
intention
Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...
to kill (per the 2004 binding case of ''
R v Matthews & Alleyne'') or an intention to cause
grievous bodily harm
Grievous bodily harm (often abbreviated to GBH) is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The ...
(''
R v Moloney'', ''
R v Hancock & Shankland'', and ''
R v Woollin
''R v Woollin'' was a decision of the highest court of law-defining in English criminal law, in which the subject of intention in '' mens rea'', especially for murder was examined and refined.
Facts
Having given various explanations for his thre ...
''). In ''Moloney'', Lord Bridge was clear that, for the defendant to have the ''mens rea'' of murder, there must be something more than mere foresight or knowledge that death or serious
injury
An injury is any physiological damage to living tissue caused by immediate physical stress. An injury can occur intentionally or unintentionally and may be caused by blunt trauma, penetrating trauma, burning, toxic exposure, asphyxiation, o ...
is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or cause
grievous bodily harm
Grievous bodily harm (often abbreviated to GBH) is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The ...
(direct intent), but when death or grievous bodily harm is a virtually certain consequence of the defendant's act (indirect or 'oblique' intent). Also in ''Moloney'', Lord Bridge held that the ''mens rea'' of murder need not be aimed at a specific person so, if a
terrorist
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the terrorist might claim justification for the act through a political agenda. How or why one person kills could only have relevance to the
''sentence''.
Concurrence (simultaneity)
For a killing to amount to murder, the ''actus reus'' and ''mens rea'' must coincide in point of time. The so-called single transaction principle allows a conviction where the defendant has both ''actus reus'' and ''mens rea'' together during the sequence of events leading to death. In ''Thabo Meli v R'' the defendants thought they had already killed their victim when they threw him over a cliff and abandoned the "body". Thus, although the act actually causing death was performed when the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
s did not have the intention to kill, the
conviction
In law, a conviction is the verdict reached by a court of law finding a defendant guilty of a crime. The opposite of a conviction is an acquittal (that is, "not guilty"). In Scotland, there can also be a verdict of "not proven", which is consid ...
was confirmed. Concurrence is also known as simultaneity or contemporaneity.
Jurisdiction
An offence of murder by a
British subject
The term "British subject" has several different meanings depending on the time period. Before 1949, it referred to almost all subjects of the British Empire (including the United Kingdom, Dominions, and colonies, but excluding protectorates ...
"may be dealt with, inquired of, tried, determined, and punished" in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
wherever in the world the killing took place and no matter what the
nationality
Nationality is a legal identification of a person in international law, establishing the person as a subject, a ''national'', of a sovereign state. It affords the state jurisdiction over the person and affords the person the protection of the ...
of the victim.
Visiting forces
Murder is an
offence against the person
In criminal law, the term offence against the person or crime against the person usually refers to a crime which is committed by direct physical harm or force being applied to another person.
They are usually analysed by division into the fol ...
for the purposes of section 3 of the
Visiting Forces Act 1952
The Visiting Forces Act 1952 is an Act of the Parliament of the United Kingdom.Section 3provides immunity against prosecution for certain offences in the courts of United Kingdom by members of visiting forces and, by virtue of the 1964 Act, inte ...
.
The terminally ill or incapacitated, 'mercy killings' and assisted suicide
Euthanasia
Euthanasia (from el, εὐθανασία 'good death': εὖ, ''eu'' 'well, good' + θάνατος, ''thanatos'' 'death') is the practice of intentionally ending life to eliminate pain and suffering.
Different countries have different eut ...
involves taking the life of another person, generally for compassionate reasons. It is distinct from
assisted suicide
Assisted suicide is suicide undertaken with the aid of another person. The term usually refers to physician-assisted suicide (PAS), which is suicide that is assisted by a physician or other healthcare provider. Once it is determined that the p ...
, in which one person takes actions that helps another person to voluntarily bring about his or her own death, and distinct from
refusal of treatment. Both remain illegal in the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
, despite multiple bills and proposals proposed to legalise some form of exemption in certain cases, or with certain safeguards, and polls suggesting that "80% of British citizens and 64% of Britain’s general practitioners" favour some form of legalisation.
In such cases criminal charges, which may include murder and other unlawful killing charges, depend to some extent on the discretion of the
Director of Public Prosecutions
The Director of Public Prosecutions (DPP) is the office or official charged with the prosecution of criminal offences in several criminal jurisdictions around the world. The title is used mainly in jurisdictions that are or have been members o ...
and whether a prosecution is deemed "in the public interest". A stated purpose of retaining this discretion is to allow human opinion, rather than codified rules, as a final decider, due to the highly sensitive circumstances typical of such cases, and to reduce the risk of persons killing or being pressured to take their own lives, if the law were codified more concretely. In 2010, the DPP was forced to publish the guidelines used by the
Crown Prosecution Service
The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions.
The main responsibilities of the CPS are to provide legal adv ...
to determine whether to bring a criminal prosecution in the case of an assisted suicide following a decision by the House of Lords in a case brought by
Debbie Purdy, a woman with multiple sclerosis who sought clarity on whether her husband would be prosecuted if he were to assist her in travelling to Switzerland to end her life at
Dignitas.
Criticism and proposals to amend the law
Judicial views
The case ''Attorney General's Reference No. 3 of 1994'' considered in some depth the legal basis for murder, manslaughter, transferred malice, and the position of an unborn child who dies before or after birth, and as a result of harm to the foetus, mother, or the natural processes of pregnancy.
The primary ruling of the case, by
Lord Mustill
Michael John Mustill, Baron Mustill, PC, FBA (10 May 1931 – 24 April 2015) was an English barrister and judge. He was a Lord of Appeal in Ordinary from 1992 to 1997.
Life and career
The son of Clement William and Marion Mustill, he was ed ...
, noted that the foundation and delineation for several rules of law in theory and in historical terms was unsatisfactory, but that the rules themselves were very strongly embedded in the structure of the law and had been considered relatively recently.
In particular, "the concept of general malice must be rejected as being long out of date".
Reviews and reports
In 2004, the
Law Commission
A law commission, law reform commission, or law revision commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal chang ...
published an initial report, ''Partial Defences to Murder''.
It concluded the law on murder was "a mess";
a full review was announced by the
Home Office in October 2004. The terms of reference were published in July 2005, and in 2006 the Law Commission published their second report ''Murder, Manslaughter and Infanticide'' which examined the law in these areas. The key recommendations included:
* A three tier classification of homicide, by creating first and second degree murder charges, as well as manslaughter which would be retained. The distinction would be to allow a distinction between intention to kill (mandatory life sentence) and intention to grievously harm with a "serious risk" of death (discretionary life sentence). The second degree case would also include certain cases involving
diminished responsibility
In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental f ...
,
provocation
Provocation, provoke or provoked may refer to:
* Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions
* Agent provocateur, a (generally political) group that tries to goad a desired res ...
or
suicide pact
A suicide pact is an agreed plan between two or more individuals to die by suicide. The plan may be to die together, or separately and closely timed.
General considerations
Suicide pacts are an important concept in the study of suicide, and h ...
. At present all murder convictions are simply described as "murder", argued by critics to attach the same emotive label to great extremes of circumstance.
* Reforms "in relation to complicity in murder, diminished responsibility, provocation and infanticide";
* Consultation on whether and in what way the law should recognise either "an offence of 'mercy' killing or a partial defence of 'mercy' killing".
Defences
Complete defences
The first words Coke's definition refer to the
M'Naghten Rules on the
insanity defence
The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic psychiatric disease at the time of the ...
and
infancy
An infant or baby is the very young offspring of human beings. ''Infant'' (from the Latin word ''infans'', meaning 'unable to speak' or 'speechless') is a formal or specialised synonym for the common term ''baby''. The terms may also be used to ...
. If any of the general defences such as
self-defence
Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
apply, an accused will be acquitted of murder. The defence in the 1860
Eastbourne manslaughter
''R v Hopley'' (more commonly known as the Eastbourne manslaughter) was an 1860 legal case in Eastbourne, Sussex, England. The case concerned the death of 15-year-old Reginald Cancellor (some sources give his name as Chancellor and his age as 13 ...
case was that the schoolteacher Thomas Hockey was acting under parental authority in using corporal punishment (he was charged with murder but found guilty of manslaughter).
Another defence in medical cases is that of
double effect
The principle of double effect – also known as the rule of double effect; the doctrine of double effect, often abbreviated as DDE or PDE, double-effect reasoning; or simply double effect – is a set of ethical criteria which Christian philosop ...
. As was established by
Judge Devlin in the 1957 trial of
Dr John Bodkin Adams, causing death through the administration of lethal drugs to a patient, if the intention is solely to alleviate pain, is not considered murder.
The defences of
duress
Coercion () is compelling a party to act in an involuntary manner by the use of threats, including threats to use force against a party. It involves a set of forceful actions which violate the free will of an individual in order to induce a desi ...
and
necessity
Necessary or necessity may refer to:
* Need
** An action somebody may feel they must do
** An important task or essential thing to do at a particular time or by a particular moment
* Necessary and sufficient condition, in logic, something that is ...
are not available to a person charged with murder. The statutory defence of
marital coercion
Marital coercion was a defence to most crimes under English criminal law and under the criminal law of Northern Ireland. It is similar to Duress in English law, duress. It was abolished in England and Wales by section 177 of the Anti-social Behavio ...
, before it was abolished, was not available to a wife charged with murder.
Partial defences
The following partial defences reduce murder to
voluntary manslaughter
Voluntary manslaughter is the killing of a human being in which the offender acted during ''the heat of passion'', under circumstances that would cause a reasonable person to become emotionally or mentally disturbed to the point that they cannot ...
:
*
Loss of control, under sections 54 and 55 of the
Coroners and Justice Act 2009
The Coroners and Justice Act 2009 (c. 25) is an Act of the Parliament of the United Kingdom. It changed the law on coroners and criminal justice in England and Wales.
Among its provisions are:
*preventing criminals from profiting from publica ...
.
*
Diminished responsibility
In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminally liable for doing so, as their mental f ...
(Homicide Act 1957, section 2 – as amended)
*
Suicide pact
A suicide pact is an agreed plan between two or more individuals to die by suicide. The plan may be to die together, or separately and closely timed.
General considerations
Suicide pacts are an important concept in the study of suicide, and h ...
, under section 4 of the
Homicide Act 1957
The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limi ...
Section 1(2) of the
Infanticide Act 1938
The Infanticide Act 1938 (1 & 2 Geo 6 c 36) is an Act of the Parliament of the United Kingdom. It creates the offence of infanticide for England and Wales.
Section 1 - Offence of infanticide
Sections 1(1) to (3) now read:
Amendments
The wo ...
creates a partial defence which reduces murder to the offence of infanticide under section 1(1) of that Act.
If a partial defence is successful, it will allow the sitting judge full discretion as to the sentence given to the offender; these can range from a conditional discharge to a life sentence (which accounts for around 10 percent of voluntary manslaughter sentences).
Proceedings
Restriction on institution of proceedings
Proceedings against a person for murder, if the injury alleged to have caused the death was sustained more than three years before the death occurred, or the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death, may only be instituted by or with the consent of the
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
.
Indictment
A count charging a single principal offender with murder will now be in the following form:
Archbold Criminal Pleading, Evidence and Practice
''Archbold Criminal Pleading, Evidence and Practice'' (usually called simply ''Archbold'') is the leading practitioners' text for criminal lawyers in England and Wales and several other common law jurisdictions around the world.
It has been in p ...
, 1999, para. 19-85 at p. 1584
The date which is specified in the indictment is the date on which the deceased died, because the offence is not complete until that date.
Joinder of counts
A count of murder may be joined with a count charging another offence of murder, or a count charging a different offence. A count of conspiracy to murder may be joined with a count of aiding and abetting murder.
In ''
R v Greatrex (David Anthony)'',
Beldam LJ said:
Alternative verdict
On the trial of an indictment for murder, the jury cannot return an
alternative verdict to the offence charged in that indictment under section 6(3) of the
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom that made some major changes to English criminal law, as part of wider liberal reforms by the Labour government elected in 1966. Most of it is still in force.
Territ ...
, except for the offences listed below:
*Manslaughter
[The ]Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom that made some major changes to English criminal law, as part of wider liberal reforms by the Labour government elected in 1966. Most of it is still in force.
Territ ...
, section 6(2)(a)
*Causing grievous bodily harm with intent to do so, contrary to section 18 of the
Offences against the Person Act 1861
*Any offence of which a person found not guilty of murder may be found guilty under an enactment specifically so providing,
[The ]Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom that made some major changes to English criminal law, as part of wider liberal reforms by the Labour government elected in 1966. Most of it is still in force.
Territ ...
, section 6(2)(b) namely:
**
Child destruction
Child destruction is the name of a statutory offence in England and Wales, Northern Ireland and Hong Kong. The offence of that name has been abolished and replaced in Victoria, Australia.
Child destruction is the crime of killing an unborn but v ...
, contrary to section 1(1) of the
Infant Life (Preservation) Act 1929
The Infant Life (Preservation) Act 1929 is an Act of the Parliament of the United Kingdom. It created the offence of child destruction. The Act retains three sections, the most substantive legal changes of which are in the first section.
The B ...
**
Infanticide
Infanticide (or infant homicide) is the intentional killing of infants or offspring. Infanticide was a widespread practice throughout human history that was mainly used to dispose of unwanted children, its main purpose is the prevention of reso ...
, contrary to section 1(1) of the
Infanticide Act 1938
The Infanticide Act 1938 (1 & 2 Geo 6 c 36) is an Act of the Parliament of the United Kingdom. It creates the offence of infanticide for England and Wales.
Section 1 - Offence of infanticide
Sections 1(1) to (3) now read:
Amendments
The wo ...
**Aiding, abetting, counselling or procuring suicide or an attempt to commit suicide, contrary to section 2(1) of the
Suicide Act 1961
The Suicide Act 1961 (9 & 10 Eliz 2 c 60) is an Act of the Parliament of the United Kingdom. It decriminalised the act of suicide in England and Wales so that those who failed in the attempt to kill themselves would no longer be prosecuted.
Th ...
*Any offence of which a person found not guilty of murder may be found guilty under section 4(2) of the
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom that made some major changes to English criminal law, as part of wider liberal reforms by the Labour government elected in 1966. Most of it is still in force.
Territ ...
(assisting an offender, i.e. doing "any act with intent to impede
he murderer'sapprehension or prosecution", given that the jury believe that the offence (of murder) was committed, though not necessarily by the defendant).
*
Attempted murder
Attempted murder is a crime of attempt in various jurisdictions.
Canada
Section 239 of the ''Criminal Code'' makes attempted murder punishable by a maximum of life imprisonment. If a gun is used, the minimum sentence is four, five or seven ye ...
, or an attempt to commit any other offence of which a person found not guilty of murder may be found guilty, contrary to section 1(1) of the
Criminal Attempts Act 1981
The Criminal Attempts Act 1981 (c 47) is an Act of the Parliament of the United Kingdom. It applies to England and Wales and creates criminal offences pertaining to attempting to commit crimes. It abolished the common law offence of attempt.
P ...
.
For this purpose each count is considered to be a separate indictment.
Mode of trial
Murder is an
indictable-only offence
In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India, Australia, New Zealand, Malaysia, Singapore), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing ...
.
Sentencing
The sentence for murder is, in all cases,
mandatory
Mandate most often refers to:
* League of Nations mandates, quasi-colonial territories established under Article 22 of the Covenant of the League of Nations, 28 June 1919
* Mandate (politics)
In representative democracies, a mandate (or seat) ...
and depends upon the age of the offender at the time of the crime or conviction. Where a person convicted of murder appears to the court to have been aged under eighteen at the time of the offence was committed, the court must sentence the guilty party to be
detained during Her Majesty’s pleasure. Where a person aged under twenty-one is convicted of murder the court must sentence that person to
custody for life. In any other case, a person convicted of murder must be sentenced to
imprisonment for life
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes fo ...
.
Since the
abolition of capital punishment, murder has carried a mandatory
life sentence
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
in English law. this comprises three elements:
# A minimum term, often called a "tariff", set by the
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
, representing
retributive justice
Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. As opposed to revenge, retribution—and thus retr ...
without any prospect of parole. This may be appealed by the individual or, if considered
unduly lenient, by the
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
;
# Until otherwise decided, continuing incarceration running from the expiry of the minimum term until the
parole board A parole board is a panel of people who decide whether an offender should be released from prison on parole after serving at least a minimum portion of their sentence as prescribed by the sentencing judge. Parole boards are used in many jurisdiction ...
considers the person may safely be "
released on licence
Release on licence in England and Wales can refer to
* Release from prison on temporary licence, followed by return to prison.
* Release from prison on parole
Parole (also known as provisional release or supervised release) is a form of ear ...
", i.e., upon conditions known as "early release provisions", based upon consideration of the risk posed to the public by the person;
# At any time the licence may be revoked and the offender recalled to prison until it is considered safe to release him or her again on licence. This element does, in a real sense, represent a
life sentence
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
and affords a degree of ongoing deterrence and improved public safety after release.
Tariff system
The tariff sets the minimum time that must be spent in
prison
A prison, also known as a jail, gaol (dated, standard English, Australian, and historically in Canada), penitentiary (American English and Canadian English), detention center (or detention centre outside the US), correction center, correc ...
before an offender can be considered for parole. Following the decision of the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
in ''T v UK'' and the consequent statutory change (enacted as
Criminal Justice and Court Services Act 2000
The Criminal Justice and Court Services Act 2000 is a United Kingdom Act of Parliament that advances a number of agendas related to criminal justice. It instituted the National Probation Service as well as the Children and Family Court Advisory a ...
s 60), the
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
must indicate in open
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
the appropriate tariff for an offender aged under 18 who is convicted of murder. The period specified by the
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
is a 'sentence', which may, with the leave of the Court of Appeal, be
appeal
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
ed or be the subject of an
Attorney General's Reference. Criminal Justice Act 2003 s 271 sets the same rule for adults. The ''Practice statement (Life sentences for murder)'' set the tariff for adults, i.e. one aged 18 or over at the time of the offence, with a starting point of 14 years as the minimum term for a case with no aggravating or
mitigating factor
In criminal law, a mitigating factor, also known as an extenuating circumstance, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sente ...
s, and lists the factors which might suggest either a higher or a lower than normal minimum term in an individual case. Mitigating factors include a
mental illness
A mental disorder, also referred to as a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing and remitti ...
,
battered woman syndrome
Battered woman syndrome (BWS) is a pattern of signs and symptoms displayed by a woman who has suffered persistent intimate partner violence: whether psychological, physical, or sexual, from her male partner. It is classified in the ICD-9 (code ) a ...
, using excessive force in
self-defence
Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
or
mercy killing
Euthanasia (from el, εὐθανασία 'good death': εὖ, ''eu'' 'well, good' + θάνατος, ''thanatos'' 'death') is the practice of intentionally ending life to eliminate pain and suffering.
Different countries have different eutha ...
.
Assassination
Assassination is the murder of a prominent or important person, such as a head of state, head of government, politician, world leader, member of a royal family or CEO. The murder of a celebrity, activist, or artist, though they may not have ...
,
contract killing
Contract killing is a form of murder or assassination in which one party hires another party to kill a targeted person or persons. It involves an illegal agreement which includes some form of payment, monetary or otherwise. Either party may be ...
, killing to subvert the justice system (such as killing a witness, etc.) are aggravating factors.
The statutory guidelines and case law on sentencing are covered in the Crown Prosecution Sentencing Manual.
The trial judge has always been expected to make a recommended minimum term. In 1983 the
Home Secretary
The secretary of state for the Home Department, otherwise known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom. The home secretary leads the Home Office, and is responsible for all national ...
began amending, usually increasing, the minimum term recommended by the trial judge; this system was declared illegal in 2002 by both the
High Court and the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
following a successful challenge by convicted murderer
Anthony Anderson
Anthony Anderson (born August 15, 1970) is an American actor, comedian and game show host. He is best known for his leading roles in drama series such as Marlin Boulet on '' K-Ville'', and as NYPD Detective Kevin Bernard on the NBC crime drama ' ...
. Anderson had been convicted of a double murder in 1988 and the trial judge recommended that he should serve at least 15 years before being considered for parole, but six years later his tariff was increased to 20 years by
Home Secretary
The secretary of state for the Home Department, otherwise known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom. The home secretary leads the Home Office, and is responsible for all national ...
Michael Howard
Michael Howard, Baron Howard of Lympne (born Michael Hecht; 7 July 1941) is a British politician who served as Leader of the Conservative Party and Leader of the Opposition from November 2003 to December 2005. He previously held cabinet posi ...
.
Since then trial judges have been obliged to recommend a minimum term; only the
Lord Chief Justice
Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
has the power to make any amendments, either through an appeal by the
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
to increase a sentence which is seen as unduly lenient, or an appeal by the prisoner to have the minimum term reduced.
Life imprisonment has been the only option that judges have had when sentencing murderers since the death penalty was abolished in 1965. The average prisoner sentenced to life imprisonment spends 14 years behind bars. More serious cases, which included aggravating factors such as a rape or robbery, have led to murderers spending 20 or more years in prison. A few multiple murderers have remained in prison until their deaths; these include
Myra Hindley
The Moors murders were carried out by Ian Brady and Myra Hindley between July 1963 and October 1965, in and around Manchester, England. The victims were five children—Pauline Reade, John Kilbride, Keith Bennett, Lesley Ann Downey, and Edward E ...
and
Ronnie Kray
Ronald Kray (24 October 193317 March 1995) and Reginald Kray (24 October 19331 October 2000) were identical twin brothers, gangsters and convicted criminals. They were the foremost perpetrators of organised crime in the East End of London, Engl ...
. An estimated 20 prisoners in Britain have been recommended for lifelong imprisonment; these include
Mark Hobson,
Donald Neilson
Donald Neilson (born Donald Nappey; 1 August 1936 – 18 December 2011), alias the “Black Panther,” was a British armed robber, kidnapper, and multiple murderer. From 1971, he committed a series of robberies of sub-post offices; in 197 ...
,
Dennis Nilsen
Dennis Andrew Nilsen (23 November 1945 – 12 May 2018) was a Scottish serial killer and necrophile who murdered at least twelve young men and boys between 1978 and 1983 in London. Convicted at the Old Bailey of six counts of murder and two of ...
,
Jeremy Bamber
Jeremy Nevill Bamber (born Jeremy Paul Marsham; 13 January 1961) is a British convicted murderer. He was convicted of the 1985 White House Farm murders in Tolleshunt D'Arcy, Essex, in which the victims included Bamber's adoptive parents, Ne ...
and
Steve Wright,
Wayne Couzens
Wayne may refer to:
People with the given name and surname
* Wayne (given name)
* Wayne (surname)
Geographical
Places with name ''Wayne'' may take their name from a person with that surname; the most famous such person was Gen. "Mad" Antho ...
, see
List of prisoners with whole-life orders
This is a list of prisoners who have received a whole life order, formerly called a whole life tariff, through some mechanism in jurisdictions of the United Kingdom. From the introduction of the whole life order system in 1983 until an appeal by a ...
. Lengthy minimum terms have also been imposed on some killers including 55 years on
Hashem Abedi, 40 years on
Ian Huntley
The Soham murders were a double child murder committed in Soham, Cambridgeshire, England on 4 August 2002. The victims were two 10-year-old girls, Holly Marie Wells and Jessica Aimee Chapman, who were lured into the home of a local resident and ...
, 35 years on both
Robert Black and
Danyal Hussein
Bibaa Henry (aged 46) and Nicole Smallman (aged 27) were two sisters who were stabbed to death by Danyal Hussein in Fryent Country Park, Kingsbury, north-west London, England, on 6 June 2020.
The reporting and investigation of their killi ...
.
Criminal Justice Act 2003
The
Criminal Justice Act 2003
The Criminal Justice Act 2003 (c. 44) is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland an ...
changed the law so that instead of the
Home Secretary
The secretary of state for the Home Department, otherwise known as the home secretary, is a senior minister of the Crown in the Government of the United Kingdom. The home secretary leads the Home Office, and is responsible for all national ...
having discretion to modify judicial sentences (which might have been seen as unjustly subject to
populism
Populism refers to a range of political stances that emphasize the idea of "the people" and often juxtapose this group against " the elite". It is frequently associated with anti-establishment and anti-political sentiment. The term developed ...
and political considerations), all appeals whether by the subject or by the Attorney General (for "unduly lenient" sentences) are submitted to the
Court of Appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
, with the leave of that court, for a ruling. To ensure the right of judges was used reasonably, the Act stipulated standard "starting points", and typical aggravating and mitigating factors. While judges were allowed discretion to set any minimum sentence or "whole life" term, their reasoning for departure from these was to be provided.
The Act also states that in considering an appeal of a minimum term (by any party), the Court of Appeal shall not make any allowance in respect of the (slightly inaccurately described) "double jeopardy" discount, whereby the uncertainty and distress to the respondent prisoner of being sentenced a second time is considered as mitigation.
Starting points, post-2003
Under schedule 21 to the
Criminal Justice Act 2003
The Criminal Justice Act 2003 (c. 44) is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland an ...
the starting points for murders committed on or after 18 December 2003 are as follows. Where a crime falls into multiple categories, the applicable starting point is the highest:
; Whole life starting point (schedule 21, paragraph 4)
:A
whole life starting point would normally be appropriate for the following "exceptionally high seriousness offences" (or multiple offences committed together and considered as a whole) committed by a person age 21 or over:
:* the murder of two or more persons, where each murder involves any of the following-
:** a substantial degree of premeditation or planning,
:** the abduction of the victim, or
:** sexual or sadistic conduct
:* the murder of a child if involving the abduction of the child or sexual or sadistic motivation
:* the murder of a police officer or prison officer in the course of his duty (on or after 13 April 2015) (this was added b
section 27of the
Criminal Justice and Courts Act 2015
The Criminal Justice and Courts Act 2015 is an Act of the Parliament of the United Kingdom which made a number of changes to the criminal justice system. It was introduced to the House of Commons on 5 February 2014 by Lord Chancellor Chris Grayli ...
)
:* a murder done for the purpose of advancing a political, religious or ideological cause. (The
Counter-Terrorism Act 2008
The Counter-Terrorism Act 2008 (c 28) is an Act of the Parliament of the United Kingdom which increased police powers for the stated purpose of countering terrorism. The first reading of the bill was held in January 2008, and it received royal ...
adds "racial cause" to these, from 16 February 2009)
:* a murder by an offender previously convicted of murder
; 30 year minimum starting point (schedule 21 paragraph 5)
:A 30 year starting point would normally be appropriate for the following "particularly high seriousness offences" (or multiple offences committed together and considered as a whole) committed by a person age 18 or over. In ''Griffiths and others v R'' (2012) the Court of Appeal said that this list is not exhaustive.
:* the murder of a police officer or prison officer in the course of his duty (before 13 April 2015)
:* a murder involving the use of a firearm or explosive
:* a murder done for gain (in furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death)
:* a murder intended to obstruct or interfere with the course of justice
:* a murder involving sexual or sadistic conduct
:* the murder of two or more persons
:* a murder that is racially or religiously aggravated or aggravated by sexual orientation
:* a murder normally resulting in a
whole life tariff
In England and Wales, life imprisonment is a sentence that lasts until the death of the prisoner, although in most cases the prisoner will be eligible for early release after a minimum term set by the judge. In exceptional cases, however, a ju ...
committed by a person aged 18 or over but under 21
; 25 year minimum starting point (schedule 21 paragraph 5A)
:A 25 year starting point was later added (as of 2 March 2010) for the circumstance where a person age 18 or over takes a weapon to "the scene" intending to either commit any offence, or have it available as a weapon, and used that weapon to commit the murder.
; 15 year minimum (schedule 21 paragraph 6)
:Any other murder committed by a person age 18 or over
; 12 year minimum (schedule 21 paragraph 7)
:Any other murder committed by someone under the age of 18
Schedule 21 is due to be replaced by Schedule 21 of the
Sentencing Act 2020
In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mul ...
, but this is only a consolidating statue which does not change the law.
Related proceedings and crimes
Coroner verdicts
In the case of death arising violently or "unnaturally", suddenly with an unknown cause; or in prison or police custody, there is a duty to hold an
inquest
An inquest is a judicial inquiry in common law jurisdictions, particularly one held to determine the cause of a person's death. Conducted by a judge, jury, or government official, an inquest may or may not require an autopsy carried out by a coro ...
(a formal inquiry) to ascertain the identity of the deceased, time and place of death, and method of death (but no further specific allegations). A
range of verdicts are possible; cases where murder is a consideration are likely to return a coroner's verdict of
unlawful killing
In English law, unlawful killing is a verdict that can be returned by an inquest in England and Wales when someone has been killed by one or more unknown persons. The verdict means that the killing was done without lawful excuse and in breach of ...
, covering all unlawful killings and in particular murder,
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
and
infanticide
Infanticide (or infant homicide) is the intentional killing of infants or offspring. Infanticide was a widespread practice throughout human history that was mainly used to dispose of unwanted children, its main purpose is the prevention of reso ...
. The standard for this ruling is
beyond reasonable doubt
Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, bec ...
; failure to meet this standard would usually result in a verdict of
accidental death
An accidental death is an unnatural death that is caused by an accident, such as a slip and fall, traffic collision, or accidental poisoning. Accidental deaths are distinguished from death by natural causes, disease, and from intentional homicide ...
or
death by misadventure
In the United Kingdom, death by misadventure is the recorded manner of death for an accidental death, caused by a risk taken voluntarily.
Misadventure in English law, as recorded by coroners and on death certificates and associated documents, ...
,
[Lord Mackay of Clashfern (ed.) (2006) ''Halsbury's Laws of England'', 4th ed. reissue, vol.9(2), "Coroners", 1043. Killed unlawfully] or an
open verdict The open verdict is an option open to a coroner's jury at an inquest in the legal system of England and Wales. The verdict means the jury confirms the death is suspicious, but is unable to reach any other verdicts open to them. Mortality studies c ...
where the cause is not known.
Other verdicts possible cover
suicide
Suicide is the act of intentionally causing one's own death. Mental disorders (including depression, bipolar disorder, schizophrenia, personality disorders, anxiety disorders), physical disorders (such as chronic fatigue syndrome), and s ...
,
accident
An accident is an unintended, normally unwanted event that was not directly caused by humans. The term ''accident'' implies that nobody should be blamed, but the event may have been caused by unrecognized or unaddressed risks. Most researcher ...
,
execution of sentence of death and
lawful killing
The concept of justifiable homicide in criminal law is a defense to culpable homicide (criminal or negligent homicide). Generally, there is a burden of production of exculpatory evidence in the legal defense of justification. In most countrie ...
(formerly "justifiable homicide"). The verdict does not name individuals as responsible parties.
Civil claims ('wrongful death')
Wrongful death
Wrongful death claim is a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. In wrongful death cases, survivors are compensated for the harm, l ...
is a
civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
brought against a person who has wrongfully caused the death of another person. Under the
Fatal Accidents Act 1976
The Fatal Accidents Act 1976 (c 30) is an Act of the Parliament of the United Kingdom, that allows relatives of people killed by the wrongdoing of others to recover damages.
Background
The Fatal Accidents Act 1846 had allowed claims for damages ...
a claim may only be brought for the benefit of certain classes of people, mostly close relatives, and usually by the
executor
An executor is someone who is responsible for executing, or following through on, an assigned task or duty. The feminine form, executrix, may sometimes be used.
Overview
An executor is a legal term referring to a person named by the maker of a ...
or (failing this) any person for whose benefit a claim could have been made. Claims can cover economic loss, grief, and funeral expenses.
Historically under
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, a dead person could not bring a suit, and this created a
loophole
A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system.
Originally, the word meant an arrowslit, a narrow verti ...
in which activities that resulted in a person's injury might result in a claim for
damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
and other
remedies, but activities that resulted in a person's death would not. The
rapid development of railways in the 1830s led to increasing outcry over the indifferent attitudes of railway companies to railway-related deaths, leading to the
Fatal Accidents Act 1846
The Fatal Accidents Act 1846 (9 & 10 Vict. c.93), commonly known as Lord Campbell's Act, was an Act of the Parliament of the United Kingdom, that, for the first time in England and Wales, allowed relatives of people killed by the wrongdoing o ...
(later superseded by the
Fatal Accidents Act 1976
The Fatal Accidents Act 1976 (c 30) is an Act of the Parliament of the United Kingdom, that allows relatives of people killed by the wrongdoing of others to recover damages.
Background
The Fatal Accidents Act 1846 had allowed claims for damages ...
) which gave
personal representative
In common law jurisdictions, a personal representative or legal personal representative is a person appointed by a court to administer the estate of another person. If the estate being administered is that of a deceased person, the personal repres ...
s the right to bring a legal action for damages where the deceased person had such a right at the time of their death. Compensation was restricted at the time to the husband, parent, or child of the deceased.
Related offences
The following
inchoate offence
An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the fol ...
s relate to the substantive offence of murder:
*
Attempted murder
Attempted murder is a crime of attempt in various jurisdictions.
Canada
Section 239 of the ''Criminal Code'' makes attempted murder punishable by a maximum of life imprisonment. If a gun is used, the minimum sentence is four, five or seven ye ...
*
Soliciting to murder Soliciting to murder is a statutory offence of incitement in England and Wales and Northern Ireland and the Republic of Ireland.
In common parlance, the act of soliciting to murder may be thought of as "hiring a hitman", though the word "hiring" i ...
*
Conspiracy to murder
Conspiracy to murder is a statutory offence defined by the intent to commit murder.
England and Wales
The offence of conspiracy to murder was created in statutory law by section 4 of the Offences Against the Person Act 1861 and retained as ...
History
Provocation
Provocation, provoke or provoked may refer to:
* Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions
* Agent provocateur, a (generally political) group that tries to goad a desired res ...
was formerly a partial defence to murder. See also the
1 Jac 1 c 8 and the
Murder Act 1751
The Murder Act 1751 (25 Geo 2 c 37), sometimes referred to as the Murder Act 1752,Leon RadzinowiczA History of English Criminal Law and Its Administration from 1750 Macmillan Company. 1948. Volume 1. Page 801. was an Act of the Parliament of Gr ...
.
Persons attainted or outlawed of felony
Hale said:
Persons attainted in a praemunire
Hale said:
Indictment
Section 4 of the
Criminal Procedure Act 1851
The Criminal Procedure Act 1851 ( 14 & 15 Vict. c. 100) is an Act of the Parliament of the United Kingdom. It was drafted by Charles Sprengel Greaves. Stephen said that compared to earlier legislation on defects in indictments, the Criminal Pro ...
(14 & 15 Vict c 100) provided that in any indictment for murder preferred after the coming into operation of that Act, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in every indictment for murder to charge that the defendant "did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased". That Act came into operation on 1 September 1851.
That section was replaced by section 6 of the
Offences against the Person Act 1861, which provided that in any indictment for murder, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in any indictment for murder to charge that the defendant "did feloniously, wilfully, and of his malice aforethought kill and murder the deceased". That section was repealed by the
Indictments Act 1915
The Indictments Act 1915 (5 & 6 Geo 5. c.90) was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centur ...
.
The following specimen count was contained in paragraph 13 of the Second Schedule to the Indictments Act 1915 before it was repealed.
Sentence
See sections 1 to 3 of the
Offences against the Person Act 1861 and Parts II and III of the
Homicide Act 1957
The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limi ...
.
Aggravated murder
The following former offences were offences of
aggravated murder
Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...
:
*offences of
petty treason
Petty treason or petit treason was an offence under the common law of England in which a person killed or otherwise violated the authority of a social superior, other than the king. In England and Wales, petty treason ceased to be a distinct offen ...
under the
Treason Act 1351
The Treason Act 1351 is an Act of the Parliament of England which codified and curtailed the common law offence of treason. No new offences were created by the statute. It is one of the earliest English statutes still in force, although it has b ...
[ The Law Commission. ''A New Homicide Act for England and Wales''. Consultation Paper No 177. 28 November 2005. Paragraph 1.94 at page 17.]
*offences of
capital murder
Capital murder was a statutory offence of aggravated murder in Great Britain, and Northern Ireland, and the Republic of Ireland, which was later adopted as a legal provision to define certain forms of aggravated murder in the United States. In som ...
under the
Homicide Act 1957
The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limi ...
See also
*
List of murder laws by country
This is a list of the laws of murder by country. The legal definition of murder varies by country: the laws of different countries deal differently with matters such as mens rea (how the intention on the part of the alleged murderer must be proved ...
Notes
{{DEFAULTSORT:Murder In English Law
English criminal law
Murder in England
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
Common law offences in England and Wales