The Modern Murder Law in the UK - Assignment Example

? Territorial And Extraterritorial Ambit Of The Offense Of Murder Under English Criminal Law Introduction According to English Law, murder is a crime at Common law. Therefore the definition of murder is a common law and not defined under any statute by parliament. The classic definition of murder is attributed to Coke can be summarized as “murder is when a man of sound memory and of the age of discretion, unlawfully kills within any country of the realm any reasonable creature in rerum natural order the Queen’s peace, with malice aforethought, either expressed by the party, or implied by the law, so as the party wounded, or hurt etc. die of the wound or hurt etc. within a year and a day after the same” (Allen 309). It is imperative to note that under the English criminal system, murder is classified into the category of homicide and manslaughter. Legally, homicide is a more serious offence in comparison to manslaughter. In order for a person to be charged with homicide or manslaughter, the elements of the definition of murder must be proved to be true. Actus Reus Under the English Law, the Actus Reus for murder must be present before one can be convicted for the offence of murder. One aspect of Actus Reus is that act of murder must be unlawful. This implies that act should not have any legal basis to justify its occurrence. Under the English criminal system, the law recognizes some circumstances under which murder can be justified. For instance, killing someone in self defense can be admissible in a court as a legally permissible reason for murder. The justification for killing also depends on the circumstances under which the deceased was killed and the role of the accused in the murder (Chalmers & Fiona 219). In essence, killing under English law may include accelerating another person’s death due to an act or an omission. Also, it is essential to note that death is confirmed to occur when it can be proven medically that the brain is dead. Thus, the disconnection of a life support machine can be classified as murder if the brain is not yet dead. The second aspect of Actus Reus for murder is that it must occur under the Queen’s peace. Under the law, all people are under peace except for enemy combatants killed in war. This means that any killing that occurs under all circumstances except during war are is classified as an offence of murder. Enemy killing is not justified by law unless it occurs during a war or events thereof (David 453). English Law is precise in regards to the concept of “Queen’s peace” by expressly stating that all situations except during war are classified as “Queen’s peace”. Even formally identified foreign enemies cannot be lawfully killed under the pretext that they are outside the scope of the Queen’s peace. It is imperative to that this principle applies both within and outside the territories of the English criminal law. The specific act or omission that results in the murder of a person must have a substantial contribution as cause of death for an accused person to be convicted for the offence of murder. The act or omission and the death must be linked in order for a conviction to be upheld. In essence, the prosecution has the burden of proving that the accused did more than minimally or negligibly contribute to the death. The contribution of the accused person to the death must be considered substantial in the context of the law (Hirst 229). In this regard, even if the action or omission just accelerated the death, the accused is legally liable for the death. For instance, in R v Dyson (1908), it was held that the defendant was liable for the offence of murder even though the defendant had only hastened death. In order to break the causation chain, it is upon the defendant to prove that the intervening act was the main cause of the death (Cryer 152). This may occur in instances whereby a person’s actions or inactions are part of a chain of actions that can be attributed to the death. It is only an unforeseeable or unexpected action of a third party that can break terminate the causation principle and absolve a defendant of the offence of murder. In order for a killing to be classified as an offence of murder, the defendant must have played a role in causing the death of reasonable creature taken to be a human being. It is imperative to note that it is not an offence of a murder for a person to kill any other creatures other than human being. For instance, the English Law does not recognize the killing of animals, whether domestic or wild, as offences of murder. In this regard, the critical issue in the definition of human being is what actually constitutes a “life in being”. The question is controversial especially in relation to the definition of when “life” begins. Pro life arguments postulate that life begins at conception and this means that killing of any unborn child is an offence of murder (Chalmers et al 240). According to this argument, abortion is an act of murder irrespective of the time that it takes place as long as it can be proven that conception occurred. However, the English Law is explicit that a foetus is not a human being in the context of homicide law. A child is taken to be “a life in being” after its whole body is extruded form the mother and it has an independent existence of its own. This means that abortion cannot be considered to be murder in English Law as the foetus does not meet the threshold of being defined as “being” (Allen 313). In fact, the independent existence of a child after birth is dependent on other factors such as whether it has an independent circulation or has breathed on its own. This is critical as it absolves medical personnel of the offense of murder in the case of still births. It is notable that the argument of whether a foetus is a “life in being” or not is a subject of great controversy and divergent opinions. It can be argued that medically, a fully formed foetus is “a life in being” since it is capable of all aspects that define a living person albeit still in the womb. However, the English Law does not uphold this medical view considering the fact the foetus does not an independent existence. Despite this, English Law recognizes that a child may have independent existence even when it has not drawn breath or the umbilical cord is still attached to the mother. In this regard, medical personnel can have liability for the offence of murder from the death of a child who had just been born (Hirst 343). Further, the English Law recognizes that a person continues in being until death occurs. The doctrine of transferred malice can also contribute to Actus Reus in English Law. According to the principle of transferred malice, a person who has the motive to cause extensive bodily harm to another person but instead ends up harming another can be charged with the crime (Cryer 165). This implies the defendant sought to kill a different person but ended up killing another one, the defendant is still culpable for the crime of murder. One of the fundamental arguments in regards to the doctrine of transferred malice is whether a person who had intent of a different crime but ends up killing another person is liable for the offence of murder. In such circumstances, the defendant cannot be held liable for murder and perhaps the charge may be lowered to manslaughter. In Aston v Mason (1992) 94 Cr App R 180, it was held that where two or more people are indicted for some offence and evidence does not conclusively point to one either of them and nothing indicates that they acted in unison, both the accused should be not be charged for the offence of murder. The principle of joint enterprise emphasizes that association evidence should create an inference beyond doubt that suspect aided the principle offender in executing an offence. Thus, the prosecution in a homicide case must consider strengths of a joint. It is possible for joint offenders in a murder case to be prosecuted independently even though they committed the crime together (Allen 314). The evidence against them will be considered on an individual basis without necessary tying the cases together. The “year and a day rule” requirement was rendered obselete by the Law Reform Act (1996). Under this rule, it was required that death had to occur within a period of in order for it to be termed as an offence of murder. Although this rule was abolished, it is still a requirement that the attorney general has to give consent in cases where an injury that allegedly caused death was sustained three or more years ago. Also, the attorney general has to give consent for an offence of murder in situations where the accused has been previously convicted for offences related to the particular death. Mens rea For a conviction of murder to be upheld, it is imperative that the defendant must have a mens rea. In order for a court under English Law to convict a person for the offence of murder, it is necessary for either a proven intention to kill or an intention to grievous bodily harm. In the case of R v Mathews & Alleyne (2004) it was held that there must be a clear intention to kill for a defendant to be accused of murder. It is imperative to note that for a person accused of murder to be actually convicted, the evidence must indicate that the defendant had an actual intention to commit murder. Suffice to say, mere foresight that a particular action might result into the death of another person is not sufficient prove for an intent of murder. In order to prove intent of murder, it is necessary for the prosecution to not only show that the defendant’s motive was to kill but also show that death and grievous bodily harm are certain outcomes of the defendant’s actions. Further, in R v Moloney (1985) 1 AER 1025 it was held that the intention of murder does not necessarily need to aimed at one person. This brings into the loop the aspect of terrorism whereby a terrorist performs acts with intent to cause mass deaths or grievous bodily harm Both the actus reus and mens rea exist define the situations under which conviction from murder might arise. This means that the act of murder must be proven as well as clear motive for murder must be submitted for anyone to be charged with the offence of murder. Thus, the prosecution has the burden of proof in offences of murder so as ascertain beyond doubt that the offence was committed and the defendant actually intended to kill. Complete defences for the offence of murder As noted, murder is a capital offence that is punishable by a mandatory life imprisonment sentence. Despite the severity of the offence, the English criminal law provides that a person may be acquitted of murder if he or she acted in self defence. Self defence implies that the defendant caused death or grievous harm as a matter of last resort to protect his or her life or that of people in great danger (Cockyane 514). The defendant has to show that the act of killing was the only measure of last resort that would be applicable to exercise self defence. It should be noted that using excessive force that leads to death is not admissible as a defence for an offence of murder. A person cannot use the defence of duress or necessity in an offence of murder. According to English Law, the offence of murder cannot be justified as to having happened under compulsion. However, this position can be disputed in instances where a defendant can clearly demonstrate that the only option under duress was to cause death of another party. It is human nature to act in one’s own best interests and the legal system should recognize this fundamental aspect of humanity. Partial defences for the offence of murder Partial defences can be used to argue out an offence of murder to be reduced to act of voluntary manslaughter. Manslaughter is not classified as a capital offence although it may still be considered as a murder. Notably, manslaughter carries a less stiff penalty in comparison to homicide. One of the partial defences for murder is diminished responsibility. The Coroners and Justice Act 2009 indicates circumstances in which a defendant can use the defence of diminished responsibility for cases of murder. Abnormal mental functioning can be cited in the defence of diminished responsibility. The abnormal mental functioning must substantially impair the capability of the defendant to act in a reasonable manner. Under this defence, the defendant must prove that the abnormal mental functioning limited his or her ability to understand the conduct that led to the offence of murder. Also, the defendant has to prove that the abnormal mental functioning substantially impaired his or her ability to exercise self control and to form a rational judgment. Loss of control can also be invoked a partial defence for the crime of murder. The Coroners and Justice Act 2009 makes provisions and conditions under which defendant may successfully use the defence of loss of control to be acquitted of murder charge. The defendant has to clearly show that loss of control occurred. The loss of control need not to be sudden in order for this defence to be used but the defendant has the obligation to show that indeed, he or she lost control. Under this defence, a defendant can cite things said and done as triggers of loss of self control. In R v Clinton it was held that issues such as admission of sexual infidelity can be justified as triggers that may lead to loss of control. This defence is anchored on the premise that a person who has justifiably lost control may act in the heat of the moment due to impaired judgment. The Homicide Act 1954 indicates that a suicide pact can be used by a defendant as a partial defence for the crime of murder. In this case, the defendant can show that the he or she had a suicide pact with the deceased. The survivor has to prove to the court that he or she had a joint suicide pact with the deceased. It is notable that even when this defence is successfully, the defendant would still be convicted for the offence of voluntary manslaughter Involuntary manslaughter Involuntary manslaughter occurs when a person kills but without an intention to cause death or cause grievous bodily harm. All the components of murder are inherent in involuntary manslaughter other than the fact there is no intent. Involuntary manslaughter can termed as unlawful act of manslaughter or as gross negligence manslaughter. In either case, the offense is less serious when compared to voluntary manslaughter. Extraterritorial ambit of the offence of murder under English criminal law Although the murder was defined as offence that occurred within the boundaries of any country in the realm, it is imperative to note that murder has an extraterritorial ambit. In fact, the extraterritorial ambit of murder can be traced back to ancient times where it served the function of helping Crown to manipulate the prosecution of murder to any location that the Crown chose. The Offenses Against the Person Act 1861 laid down the basic framework for prosecution of murder or manslaughter committed abroad (Hirst 227). Section 9 of Offenses Against the Person Act 1861 indicates that any person who commits the act of murder or manslaughter in the United Kingdom, the Queens Dominion or any other lands is liable for trial in England or in Ireland. This Act has a wide scope since it includes all British citizens overseas although it does include acts of murder and manslaughter that occur in the air or on the sea (Hirst 228). The Suppression of Terrorism Act also gives the English Criminal Law jurisdiction for terrorist crimes committed by English Nationals inside or outside the boundaries of the United Kingdom Under the English Law, the English courts have jurisdiction over crimes that occur in the high seas. The Merchant Shipping Act 1995 has territorial scope in respect to all vessels within British territorial waters and UK flagged vessels in international waters. Also, English Law applies for British Nationals onboard foreign vessels. It is therefore imperative that any murder offence that occurs in the high seas can be tried under the English Law. British seamen and passengers onboard sea vessels or on foreign ports or harbours are under the jurisdiction of English Law. The Aviation and Maritime Security Act 1990 and the Aviation Security Act 1982 also gives the British courts extra territorial jurisdiction for all sea and air vessels Specifically, the offence of murder is liable to full prosecution under English Law whether it occurs on the sea or in the air. Suffice to say, English Law has automatic jurisdiction when the sea vessels and aeroplanes are registered to the United Kingdom. However, perpetrators of the offence of murder can still be held accountable for their offence as long as they are British citizens or if the offence occurs within the British territory irrespective of the registration place of the sea vessel or the aeroplane. English Law is also party to various European Conventions that have extra territorial jurisdiction over the offence of murder. For instance, under the International Criminal Court Act 2001 of which Britain is a signatory, the International Criminal Court has extra territorial jurisdiction over the offence of murder. This Act indicates that acts against humanity, genocide and war crimes are offences that can be tried in the International Criminal Court. Imperatively, murder is inclusive as an offence under crimes against humanity. In such circumstances, the English Law takes precedence when a British Citizen is involved in the offence of murder. However, in other instances, the English Law allows for the extradiction of the murder perpetrator to the International Criminal Court for trial Bibliography Allen, M, 2007, Textbook on criminal law, Oxford University Press, Oxford. Blom C, Louis J, and Terence M, 2004,With malice aforethought: a study of the crime and punishment for homicide. Hart Publishing, New York. Chalmers, J, and Fiona L, 2008, "Fair Labelling in Criminal Law." 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