Keith Mack
Murder is an offence under the common law legal system of England and Wales. It is defined as the unlawful killing of a reasonable person with malice aforethought, either express or implied. The actus reus of murder is the unlawful killing of a human being, while the mens rea is malice aforethought, which has been interpreted as the intention to kill or cause grievous bodily harm. This means that intent to kill is not necessary for a murder conviction; intent to cause serious injury is sufficient. Transferred malice, or transferred intent, is also a concept in English law, where a person who intends to harm one individual but harms another instead may be charged with the latter as a crime.
| Characteristics | Values |
|---|---|
| Definition | Murder is defined 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 | Murder is when a person of sound memory and of the age of discretion unlawfully kills any reasonable creature in rerum natura under the King's peace. |
| Mens rea | Malice aforethought, which has been interpreted as intention to kill or intention to cause Grievous Bodily Harm (GBH). |
| Transferred malice | A person who intends to commit an offence involving harm to one individual and instead harms another may be charged with the latter as a crime – the mens rea is 'transferred'. |
| Partial defences | Diminished responsibility, loss of control, and killing in pursuance of a suicide pact. |
| Mandatory sentence | Murder conviction carries a mandatory life sentence. |
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What You'll Learn
Murder is an offence under common law
The actus reus of murder is the unlawful killing of a human being in the King's peace. All unlawful killings are result crimes, and causation must be established. The mens rea of murder is malice aforethought, which has been misleadingly termed as requiring 'malice' and 'premeditation'. However, it is important to note that these elements are not necessary for a murder charge. Instead, the prosecution must prove an intentional act that is unlawful and likely to subject the victim to harm.
The law on intention, particularly in relation to murder, has evolved significantly over the years. In R v Moloney, the defendant argued that he did not intend to shoot his stepfather, with whom he shared a good relationship. Lord Bridge decided that intention could only be inferred if death or serious injury was a natural consequence of the voluntary act, and the defendant foresaw this consequence. This case established that the jury has the freedom to infer intention based on the circumstances.
Transferred malice, a doctrine in English law, states that if an individual intends to commit an offence against one person but instead harms another, they may be charged with the latter as a crime. This doctrine applies when there is a common or shared intention, as in the case of R v Greatrex (David Anthony). Additionally, certain partial defences to murder exist, such as diminished responsibility, loss of control, and killing in pursuance of a suicide pact, which can reduce the conviction to voluntary manslaughter.
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Malice aforethought and intent
Murder is defined at common law as the unlawful killing of a person with "malice aforethought", either express or implied. This element of intention is fulfilled when the defendant's motive or purpose was to cause death or serious bodily harm (known as 'direct intent'). However, malice aforethought does not require that the accused premeditated to hurt someone, but that they knew their actions could lead to someone's harm. This is called "implied malice", which requires that a person knowingly did an act that they knew was dangerous, and acted without concern for other people's safety.
The four states of mind that are recognised as constituting "malice aforethought" in murder prosecutions are:
- The intent to cause death: If the defendant intended to cause the victim's death when committing the act, then the killing is with malice aforethought and is considered murder.
- The intent to inflict great bodily injury: If the defendant intended to inflict severe injuries and the victim dies as a result, the death is considered to have been inflicted with malice aforethought, even if the defendant did not consciously want to cause the victim’s death.
- The intent to commit a felony: If the defendant was in the process of committing or fleeing from a felony when they committed a homicidal act, they are considered to have acted with malice aforethought.
- Acting with a "depraved indifference" to human life: If the defendant commits an act knowing that it runs an unusually high risk of causing death or serious bodily harm, ignoring this risk demonstrates a depraved indifference to human life.
In English law, the mens rea requirement of murder is either an intention to kill or an intention to cause grievous bodily harm. The intent to kill the first person is sufficient, and the motive or purpose of the defendant must be to cause death or serious bodily harm.
In some jurisdictions, transferred malice or "transferred intent" may apply, where a person intends to harm one individual but instead harms another. They may be charged with the latter as a crime, and the mens rea is 'transferred'.
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Transferred malice and shared intention
Transferred malice, also known as transferred intent, is a legal doctrine in criminal law. It states that if a person intends to kill one person but accidentally kills another, their intent to kill is transferred from the intended victim to the actual victim. As a result, the perpetrator is guilty of murdering the actual victim. This doctrine is based on the idea that the perpetrator's intent should be considered when determining their guilt, even if the harm was caused to a different person or item than intended.
The doctrine of transferred malice is not without controversy, and its intellectual basis has been criticised. For example, in the case of Attorney General's Reference No 3 of 1994, the House of Lords held that the doctrine of transferred malice could not apply to convict a defendant of murder when the victim was a fetus. In this case, the defendant had stabbed a pregnant woman, and the fetus was wounded in the attack but died after being born prematurely. The court argued that the fetus was part of the mother, and therefore the intention to harm the mother was also an intent to harm the fetus. However, Lord Mustill criticised the doctrine, stating that it was related to the original concept of malice and had no intellectual basis.
Another controversial application of transferred malice and shared intention can be found in R v Gnango. In this case, the Supreme Court held that under the doctrines of joint enterprise and transferred malice, if two people voluntarily engage in a fight, each intending to kill or cause grievous bodily harm to the other, and one of them mistakenly kills a third party, both fighters are guilty of murder. This decision sparked debate, as it extended the doctrine of transferred malice to include shared intention in a joint criminal venture.
The doctrine of transferred malice is not universally accepted and has been subject to criticism and debate. Some argue that it mislabels the crimes committed by erasing one of the victims from the moral description of the crime. However, others defend its usefulness in ensuring that perpetrators are held accountable for their actions, even if the harm was unintended.
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Involuntary manslaughter
There are two categories of involuntary manslaughter at common law: manslaughter by unlawful and dangerous acts, and manslaughter by criminal negligence. Involuntary manslaughter by an unlawful and dangerous act requires the prosecution to prove an intentional act that is unlawful and that all sober and reasonable people would inevitably realise must subject the victim to at least some risk of harm. Manslaughter by criminal negligence, also known as "criminally negligent homicide", can occur in a variety of situations, such as deadly car crashes caused by reckless or impaired driving, or the failure to ensure safety protocols are followed, such as in the operation of a carnival ride or the installation of smoke detectors in an apartment building.
The penalties for involuntary manslaughter are generally less severe than for murder, but it is still considered a very serious crime. In most states, it is a felony, but the specific penalties vary depending on the jurisdiction. For example, in Pennsylvania, involuntary manslaughter is treated as a first-degree misdemeanour, with a possible penalty of up to five years in jail, while under federal law, it is punishable by up to eight years in prison, a fine, and costs.
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Murder conviction and sentencing
Murder is defined in common law as the unlawful killing of another human being with intent or malice aforethought. This state of mind is what generally distinguishes murder from other forms of unlawful homicide, such as manslaughter. As murder causes an enormous amount of grief for those close to the victim, and permanently deprives the victim of their existence, it is considered a very serious crime that warrants harsh punishments.
Murder charges and sentencing differ depending on the degree of murder and the jurisdiction in which the crime was committed. Most states separate murders and violent crimes into degrees, with the exact definitions varying between states. Generally, first-degree murder involves the premeditated killing of another person, or a killing committed during a felony. This type of murder is considered a serious crime and may lead to life imprisonment or the death penalty.
First-degree murder convictions draw the harshest sentences of any criminal case, with specific elements of the crime and legal defences available varying by jurisdiction. State and federal laws will provide the possible sentences, with some states having strict statutory guidelines that give courts less leeway to determine the sentence after conviction.
Second-degree murder typically involves an intentional killing that is not premeditated. For example, if someone intends to cause serious bodily harm to another person and throws a knife at them, resulting in death, this could be charged as second-degree murder. The sentencing procedure for second-degree murder will depend on the jurisdiction, with courts examining the nature of the offence and weighing any aggravating or mitigating factors.
Aggravating factors, such as the defendant's criminal history and prior convictions, can increase the severity of the imposed sentence. On the other hand, mitigating factors, such as the defendant's remorse or acceptance of responsibility, can decrease the severity of the sentence.
In some states, such as Florida, all first-degree murder convictions bring either the death penalty or life in prison without the possibility of parole. Other states, like California, provide a range of years to life imprisonment, with parole eligibility. In 2019, California suspended the use of the death penalty, and most states have placed a moratorium on its use due to concerns about its disproportionate imposition on minority groups.
Felony murder laws, which apply when a murder is committed during a felony, have been criticised for compelling harsh decades-long or life sentences even when the person charged did not directly cause or intend loss of life. These laws have been found to disproportionately impact people of colour and youth, with calls for their repeal or reform.
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Frequently asked questions
Murder is defined as the unlawful killing of a reasonable person in being under the King or Queen's peace with malice aforethought express or implied.
The actus reus of murder is the unlawful killing of a human being in the King's peace.
The mens rea of murder is malice aforethought, which has been interpreted by the courts as the intention to kill or the intention to cause Grievous Bodily Harm (GBH).
Transferred malice refers to circumstances in which a person intends to harm one individual but instead harms another. In such cases, the malicious intent is 'transferred' to the crime committed against the unintended victim.
Murder and manslaughter differ primarily in their intent requirements. Murder requires an intention to kill or cause Grievous Bodily Harm, while manslaughter involves an unlawful killing without the specific intent to kill or cause serious harm.
