Discussing Homicide

The definition of murder is derived from the writing of the jurist Sir Edward Coke: 'Murder is when a [person]... unlawfully killeth... any reasonable creature in rerum natura under the Queen's peace, with malice aforethought... '. A bit of a mouthful, you may think! Anyway, let's look at actus reus of the wording - essentially, the unlawful killing of a human being - in a little detail. The word 'unlawfully' can be taken to exclude killings for which the accused has a complete and valid justification, such as killing in self-defence or in wartime. 'Killeth' or 'kills' means 'causes the death of', and I shall deal with causation soon.

For the moment, take on board that murder is also a result crime and in accordance with the rule laid down by the House of Lords in R v MILLER [1983] 1 All ER 978 - HL (the cigarette that caused the fire) there is a duty to act in the face of a danger one has created oneself. 'Any reasonable creature in rerum natura' can be safely shortened to 'any human being'. This therefore excludes any 'baby' in a womb, so if death is caused before the child has an existence independent of its mother, there can be no murder. This is now settled law following the House of Lords' decision in ATTORNEY-GENERAL's REFERENCE (No.

3 of 1994) [1998] AC 245 HL. This leaves us with the question of what happens if a baby is born and later dies because of an attack on its mother by the defendant whilst in the womb. In other words, say the father is convicted of a section 18 OAPA attack on the pregnant mother, the child is born and later dies as a result of the attack. Look at it logically. Section 18 - intention to cause GBH - is enough to form an intent to murder; you know this from your mens rea lectures. So, had the mother in fact died, then the father would have faced a murder charge as against the mother.

Instead, she lived and we now have live-birth-then-death of the child resulting from damage caused to the foetus sustained by the attack. Well, the House of Lords decided that in these circumstances, an intention to inflict grievous bodily harm on the mother cannot amount to murder of the child, although it could amount to manslaughter. It may however still be the case that there could be liability for the murder of the child if the intention was to kill the mother, rather than GBH, and certainly it would be murder if it was intended to cause the child to die after having been born alive.

Anyway, let's move on. The original significance of this expression of 'under the Queen's peace' is somewhat unclear, but the only killings it would now seem to exclude are those in the actual heat and exercise of war or in putting down a rebellion. Otherwise, the killing of aliens (foreigners, not Martians! ) whether within UK jurisdiction or outside it, can amount to murder (or manslaughter) and is triable in England by virtue of section 9 Offences Against the Person Act 1861.

Incidentally, Coke's definition of murder used to provide that the death of the victim had to occur within a year and a day of the actus reus, but this has now been abolished by the Law Reform (Year and a Day Rule) Act 1996. So, let's come to the central element of the actus reus: 'killeth' or causing the death of the victim. Now, because murder is a result crime, it must be proved in each case that the defendant's actions were the cause of the victim's death. If the prosecution cannot link the defendant's conduct to the death, then the defendant must be acquitted.

In other words, the prosecution must show that but-for the defendant's conduct, the victim would not have died. The case of R v WHITE (1910) 2 KB 124 - CA, where the 'but-for' cause was the heart attack not the poison, illustrates this point. Here, the defendant son put potassium cyanide in a drink intending it to kill his mother, who was found shortly afterwards with the drink three parts full. An ordinary everyday event, you may think! In fact, the mother had died of a heart attack unconnected with the poison.

Thus, the son was found not guilty of murder although the consequence of what the son had intended - his mother's death - had occurred. Naturally, he was found guilty of attempted murder. One very important point here: the test for causation in law is that the actus reus must have been the substantial and operating cause of the victim's death. So, what does 'substantial' mean? It means that the defendant must only be shown to have more than minimally accelerated the death of the victim. In other words, the actus reus must be a significant cause of death.

As the court stated in R v PAGETT (1983) 76 Crim App Rep 279 - CA, 'the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result'. To repeat: it is not necessary to show that the defendant was the sole cause of the death provided that the defendant was a significant contributory cause. So, the fact that others contribute to the victim's death or that the victim himself plays a contributory part is irrelevant. Let's look at a case example on manslaughter where the issue of causation is the same as that of murder.

In R v KENNEDY (1999) Crim LR 65 - CA, the defendant prepared a syringe with a mixture of heroin and water and handed it to a friend, encouraging him to inject himself. This the friend did and the injection proved to be fatal. The defendant was convicted of manslaughter. You may note that I mentioned that the causation must be 'operative'. What this means is that if something intervenes between the actus reus and the death - and it can be shown that the intervening event was the operative cause of death - then usually the defendant is not guilty. For example, in WHITE, the intervening event was his mother's heart attack.

However, the intervening event must be overwhelming so as to make the actus reus pretty well irrelevant. For example, if I commit a section 18 OAPA offence against you and you are rushed to hospital where your life could have been saved were it not for a short delay in diagnosing your injury, then I would still be guilty of murder. Now, there are three exceptions to the rule that the actus reus must be the operative cause of death. Firstly, a defendant will have caused a death if it occurs as a natural consequence of his act. Consider the difficult case of PAGETT.

Here, the defendant armed himself with a shotgun and took a pregnant girl hostage in a flat. The police besieged the flat and called on the defendant to come out. He eventually did so, holding the girl in front of him as a human shield. He then fired the shotgun at the police officers who returned fire, striking and killing the girl hostage. The defendant was convicted of manslaughter. He was held to be the cause of the girl's death because the court felt that the actions of the police did not break the chain linking the defendant's conduct - holding the girl as a shield - to her death.

Their actions did not break the chain because they were reasonable acts of self preservation or defence and/or because they were analogous to involuntary acts done in performance of a legal duty; and that, since shooting back at the defendant was a natural consequence of his having shot first, he remained responsible. I must confess that I find it difficult to see why the police response was a natural one foreseeable as likely to happen in the ordinary course of events or why it was a reasonable act of self preservation: the police could have withdrawn, surely?

Clearly, the decision not to prosecute the police was a policy decision. The second exception to the rule is that if the defendant's conduct is not the operative cause of death but an abnormality in the victim is, then the defendant has committed the actus reus. So, if I chase you down the street and, due to a heart condition, you have a heart attack and die, then I have killed you. You see, the courts have always held that a defendant must take a victim subject to his physical and mental condition. In tort, this is known as the 'egg shell skull' principle.

In short, a defendant must always take a victim as he finds him. A case that you may find astonishing here, is R v BLAUE (1975) 1 WLR 1411 - CA. The defendant had stabbed the victim 13 times, and she was rushed to hospital where doctors diagnosed a blood transfusion as being the only way to save her. The victim, a Jehovah's Witness, refused and consequently died. The defendant was convicted of manslaughter. So, the abnormality here was the fact that the deceased was a Jehovah's Witness. To be frank, I do not care for the decision.

In any event, you can see clearly that an abnormality can break the chain of causation - here, the girl's refusal to have the transfusion, assuming that it would have saved her life - and still leave the actus reus operating. Interestingly, as Professor Williams said (Textbook of Criminal Law 1983), 'The decision means that if the death penalty for murder were restored, the attacker might be hanged purely as a result of the unreasonable decision of the victim not to accept medical help. ' The third exception covers attempts to escape.

So, if the defendant's conduct is not the operative cause of death, but it causes the victim to try to escape from the defendant, then the defendant will be held to have committed the actus reus. We have seen an example of this principle in assaults - ROBERTS: do you remember the girl who jumped out of a car to avoid further assault? Anyway, for fatal cases, the prosecution must show that the victim feared some physical harm, albeit not serious; and that the victim's reaction was foreseeable according to a reasonable man, taking into account any abnormality in the victim.

Further, a jury may take into account that in the agony of the moment, the victim may do the wrong thing. The Court of Appeal so ruled in R v WILLIAMS AND DAVIS [1992] Crim LR 198 - CA, where the victim jumped to his death from a moving car in order to escape from the defendants who were attempting to rob him. As it happens, the defendants were acquitted on a technicality. In the next lecture, we will consider the mens rea of murder.