This article has been written by Ms. Nandhini Sasikumar, a 3rd year of BA LLB Student from The Central Law College, Salem.

INTRODUCTION:

     There is no offence of “homicide” as such. A person cannot be charged with or convicted of “homicide”. Homicide means the killing of a human being and may be lawful-where, for example, fatal force was necessary to defend oneself. The two most important offences of unlawful homicide are murder and manslaughter. Although both are common law offences, elements of murder and manslaughter have been modified by Acts of Parliament of UK and the penalties for each are statutory.

     Nevertheless crimes of homicide, and especially murder, are regarded as the most serious and abhorrent crimes. The taking of life and the impact that it can have on the family and friend of the victim give a special significance to offences involving the killing of another human being. The seriousness with which they are regarded is reflected in the maximum penalties. In the case of murder, the Murder (Abolition of Death Penalty) Act 1965 stipulates a mandatory sentence. The judge has no option but to sentence the person convicted of murder to a term of imprisonment for life, Section 269 of the Criminal Justice Act, 2003 requires the trial judge to state the minimum term that the convicted murderer should serve before he or she is eligible to be released on license. This should reflect the seriousness of the murder and should be set by reference to one of three starting points: whole life, 30 years and 15 years.

MAIN CONTENT:

• DEFINITION OF MURDER:

       Murder, one of the most serious crimes that can be committed against individuals, has been variously defined: Hawkins defines it to be “the willful killing of any subject whatever, with malice aforethought, whether the person stains shall be an Englishman or a foreigner”. Russell says, “Murder is the killing of any person under the king’s peace, with malice pretense or aforethought, either express or implied by law”.

        Sir Edward Coke defines or rather describes this offence to be, “when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in return nutra under the kings pace, with malice afore thought, either expressed by the party or implied by law (so, as the party wounded, or hurt, etc., die of the wound or hurt, etc., within a year and day after the same).

        These classic definition, which has been adopted by others has been severely and perhaps justify criticized. In simple word, murder is the unlawful killing of a human being by a human being during the “Queen’s peace” with malice afore thought. Surprisingly enough, despite being the most serious crime (apart perhaps from treason), the offence has not been defined by statute. The present law of murder is a product of judge made law supplement by parliament’s sporadic intervention. The definition can be broken down into two aspects: actus reus and mens rea. The Latin maxim actus non facitreum, nisi mens sit rea means that the act itself does not constitute guilt unless it was done with a guilty mind. Another way of saying this is that criminal liability requires both wrongdoing and culpability or blameworthiness. This is, in fact, not a completely accurate description of the criminal law, as many crimes do not require mens rea i.e., blameworthiness. Where mens rea is not required liability is termed “strict”.

• Actus Reus: 

   This is the “external” element of a crime i.e., some form of measurable wrongdoing. It comprises the actor’s conduct, together with any circumstances, which make that conduct wrongful, and in the case of a result crime, the consequences. Generally, the actus rea raises the following questions to be answered:

1. Who can commit murder?
2. Where murder can be committed?
3. Who can be the victim?
4. Is there any time limit (a year and a day rule)?
5. Is it an unlawful act?
6. Did the act (by the defendant) cause death of the victim?

• Mens Rea:

    This is the “internal” or mental element of a crime. It must be proved that at the time the defendant was responsible for the actus reus of the offence with which he is charged, he behaved with the state of mind relevant to that offence. So to be guilty of theft he must be proved to be dishonest and intend to keep the property. Where the offence is one which requires proof of mens rea, both elements must be proved in order to secure a conviction. Generally, the mens rea raises the following questions to be answered:

1. Malice aforethought or the fault element?
2. Did the defendant intent to kill the victim (express malice)?
3. Did the defendant intent to cause grievous bodily harm to the victim (implied malice)?

• ACTUS REUS OF MURDER:

• Commission of Murder:

   “A man of sound memory and of the age of discretion” simply refers to a person, over the age of nine, responsible for killing according to the general principles mentioned above. If the killing was committed before 30 September 1998 by a person who was then under 14, he must be proved to have had a “mischievous discretion”. The other limitations those must be considered are that the person committed the offence is not insane within the M’Naghten Rules and since 1957; he does not suffer from diminished responsibility. Since, law only allows capital punishment and/or life imprisonment as penalty; a corporation cannot be tried for murder.

• Place of Occurrence:

   The phrase “Queen’s peace” is a strange one as it seems that everyone in the world is under the Queen’s or King’s peace, except an enemy alien that is killed in the course of war. If an enemy alien is a prisoner of the war he is under the Queen’s peace. The killing by a British Citizen need not take place within. “Any country of the realm”. Murder and Manslaughter are exceptional in that English Courts try a British citizen for these offences if committed in any country by Section 9 of the Offences against the Person Act 1861 and Section 3 of the British Nationality Act 1948. If the offence takes place on a British ship or aircraft it can be tried here whether the perpetrator is a British subject or an alien, but English Court has no jurisdiction if the offence occurs on a foreign ship outside territorial waters. Other statutory extensions are available under which murder may be tried in England and Wales irrespective of the killer’s nationality. 

• The Victim Being Identified:

    In Coke’s famous definition of murder he refers to the killing of a “reasonable creature in rerumnatura” that is simply the “person” who is the victim of an offence? That is “any human being”. The burning questions are at what stage of the process of birth a fetus becomes a person: and what stages in the process of death a person becomes a corpse. Article 2 of the European Commission of Human Rights (ECHR) imposes on the state certain obligation to protect life and investigates the taking of life, but the European Court has tried to escape the issue of when life begins and ends.

• Act Must Be Unlawful:

    “Whether killing is unlawful” is an important issue of the offence. Self-defense is the most obvious example of its application. The court to protect others has applied this element. It was accepted by the Court of Appeal in the Attorney-General’s Reference that no liability of murder would be found against the doctor who performed a lawful abortion, had the fetus be born alive and die because of injuries sustained in the abortion procedure. According to the Abortion Act 1967, in such a case, the doctor would not have performed an unlawful act. Though, consent in many offences renders conduct lawful, cannot be used as a defense in the context of murder.

• Causing Death of the Victim by the Defendant:

    Murder is a result crime in the sense that the defendant must be proved to have caused the victim’s death. Two matters have to be considered:

1. Whether the defendant in fact causes the victim’s death?
2. And if so, whether the defendant had any lawful excuse of causing death of the victim.

• CONSIDERATION OF ASPECTS OF CAUSATION:

• Causation in Fact:

    Factual causation is determined by reference to the sine quo non test. It is a precondition of proof of causation but is not sufficient, in itself, to determine the causal link. Nonetheless the defendant’s conduct must actually be demonstrated to have been the sine qua non of the result. Whether something amounts to a factual cause of an event is a question of fact for the jury, who will determine this by reference to the “but for” test. If the result would have occurred regardless of the defendant’s conduct, then he cannot be said to have caused that result regardless of his intention. The “but for” test is the starting point for the consideration of causation but will never, of itself, determine the outcome.

• Novus Actus Interveniens: The Act and Omissions of the Victim:

    The duty resting upon the victim to mitigate the harmful effects of any wrongful action is a well-developed concept in the law of Torts, there appears to be no corresponding duty resting upon the victim of an unlawful criminal assault. Hence, if D attacks V, causing injuries that it potentially life threatening, and V neglects to attend to the injuries or seek competent assistance, with the result that V dies. D may be unable to contend that V’s failure to obtain medical treatment broke the chain of causation.

• Novus Actus Interveniens: The Acts of a Third Party:

    The principle of reasonable foreseeability is equally applicable to those situations where the intervention of a third party is a factor in causing the death of V. For example, in Haystead v. DPP, the Court of Appeal observed that there had been no nervous actus where D had assaulted W causing her to drop the baby she was holding, the baby sustaining an injury on hitting the ground. The action of dropping the baby was not seen as “voluntary” in so far as it was a natural response to what D had done to W.

• MENS REA OF MURDER:

• The Mental Element of Murder: Malice Afore-Thought:

    Over the last fifty years the fault element of murder has caused the courts great difficulties. Murder is unlawful homicide committed with “malice afore-thought”. This general definition is now useless: neither malice nor aforethought is necessary, or sufficient enough for a finding of murder. It should be noted here that “Malice afore thought” has been a technical term which describes the mens rea required by the common law for a conviction of murder. Before 1957, three kinds of malice afore though were present-“express”, “implied” and “constructive”. An intention to cause death was required for expressed malice. Implied malice required a proof of an intention to cause grievous bodily harm. The result of constructive malice was that if D killed in the course of committing a felony, such as burglary, he would be charged with murder, because the necessary mens rea would be constructed from his having committed the felony. This rule operated in a spectacularly harsh fashion. D could be charged with P’s murder, even though he might actually intend neither to kill nor to cause grievous bodily harm. The 1957 Act abolished constructive malice but did not replace it with a statutory definition of murder. So, after the 1957 Act implied as well as express malice survives.

• Intend to Cause Grievous Bodily Harm (Implied Malice):

   An intention to cause grievous bodily harm remains sufficient mens rea for murder after surviving several attempts to unseal it. This aspect of the mens rea has been subject to considerable academic and judicial criticism.

• Intent is Subjective:

   The intent required for murder is an intent that the accused himself must be proved to have possessed. Such a statement of the obvious needs to be made, however, because of the notorious decision of the House of Lords in DPP v. Smith.

CONCLUSION:

     According to this article, first-degree murder is confined to killing committed with an intention to kill and the punishment would be mandatory life sentence. Second-degree murder encompasses unlawful killing where the offender’s intention was to cause serious harm. The evolution of the two concepts: actus reus and mens rea, has been slow and cumbersome. Leading to accusation that the only reason for this is that the subject is too emotive. Although the definition is now more settled than ever before, this area of the homicide offences is crying out for an outline drawn up by statute, similar to that provided for in the United States. Although elements of the offences have been modified by a number of Acts of Parliament the definition of the murder is still to be found at common law: therefore, further researchers are strongly recommended in this area of law.

REFERENCES:

1. The Crime and Disorder Act 1998, Section 35 abolished the dollincapax rules from the date.
2. Card. R, 2006, Cross Jones and Card: Introduction to Criminal Law, Oxford University Press.
3. Simester.A.P. and Sullivan.G.R. 2004, Criminal Law: Theory and Doctrine, Hart Publishing.
4. Smith.J.C. and Hogan.B. 2006, Criminal Law: Cases and Materials, Oxford: Oxford University Press.
5. Storey.T, 2004, Criminal Law, Cullompton: Willian.
6. Williams.G. 1983, Text Book of Criminal Law.
7. Wilson, 1990, a Plea for Rationality in the Crime of Murder.
8. Wilson, 1999, Doctrine Rationality after Woolin.

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