Murder — SQE1 FLK2 Criminal Liability

A man shuts his business partner inside a walk-in freezer at their premises on a Friday evening and jams the door from the outside. He knows the temperature is well below freezing, that the freezer cannot be opened from within, and that nobody will be in the building until Monday. The partner dies of hypothermia.

He says he only wanted to teach his partner a lesson, and had no wish at all for him to die. He also accepts he knew a man could not survive in there until Monday. Can a jury find he intended to kill? Yes. And working out why is most of what this topic is.

This is Murder, the most serious offence in English criminal law. Keep that freezer in mind. We come back to it.

Here is the route. The definition and its five elements first. Then unlawful killing, and who counts as a victim. Then causation, factual and legal. Then malice aforethought, and the difference between wanting a result and knowing it will happen. Then the mandatory life sentence and how a minimum term is fixed. And finally what is wrong with all of it.

Start with something that surprises people. Murder has never been defined by statute. It is a common law offence, built by judges over centuries, and Parliament has never enacted a definition. So the sentence you learn is the one the courts use.

Here it is. Murder is the unlawful killing of a reasonable person in being and under the King's peace, with malice aforethought. Five elements sit inside that. An unlawful killing. Of a person in being. Under the King's peace. With malice aforethought. Every one proved beyond reasonable doubt. Miss one and it is not murder.

Take them in order, because the first can end the case on its own. A killing is unlawful if it is not justified or excused by law. Self-defence, a police officer acting lawfully in the execution of their duty, a soldier killing an enemy combatant. None of those is murder.

Which matters more than it looks. A man wakes to find an intruder standing over his bed with a knife. He strikes once with a heavy lamp and kills him. The jury accept the belief was genuine and the force reasonable. He caused the death, the intruder was a person in being, and striking a head with a lamp shows intent to cause really serious harm. Every element is there but one.

The killing was lawful. So the mens rea never has to be argued at all. That is why you work the elements in order.

Second element. The victim must be a person in being, meaning a human being born alive and breathing independently of the mother. A foetus is not. Killing an unborn child is not murder, though it may be another offence, such as child destruction under the Infant Life (Preservation) Act 1929.

But watch what happens when the timing shifts. A man punches his heavily pregnant partner in the stomach, meaning really serious harm. The assault brings on labour, the baby is delivered ten weeks early, breathes on her own, lives two hours, and dies of the injuries. He says there was no person in being when he struck.

He is wrong about homicide and right about murder. A child born alive who then dies of injuries inflicted before birth can be a homicide victim, and there is no minimum period of survival. But malice cannot be transferred from the mother, through the foetus, to the child. So the verdict is unlawful act manslaughter, not murder.

At the other end of life, a person remains alive until brain stem death is confirmed. If it has already occurred before the defendant acts, there is no person in being to kill. If the victim is critically ill but not yet brain dead, and then dies, the defendant can still be liable.

Third element, and the one you will almost never argue. Under the King's peace. Its one real function is to exclude the killing of an enemy combatant in the course of war. A British soldier shoots an enemy firing on his unit, within his rules of engagement. Murder? No. Not under the King's peace.

Now causation, which has two limbs and you need both. Factual cause first, the but for test. But for what the defendant did, would the victim have died when they did? If not, the defendant factually caused the death.

That test survives multiple causes. Two men, acting independently, each put poison into the same drink. Neither quantity alone would have killed him. Together they did. Remove either dose and he does not die that night, so both caused the death. Contribution need not be sole, or even main.

Then legal cause. The act must be an operating and substantial cause of the death, meaning more than merely trivial. An intervening act breaks the chain only if it is truly independent and unforeseeable. Medical treatment for the very injuries the defendant caused is not independent, and almost never breaks it.

R v Smith, 1959. A soldier was stabbed in a barracks fight, dropped on the way to the medical centre, and given treatment that was thoroughly bad. He died. Still murder. The wound was still the operating and substantial cause, and negligent treatment does not displace it.

The threshold is deliberately high. The treatment must be so independent of the defendant's act, and so potent in causing death, that his own contribution becomes insignificant. Two pieces of ordinary negligence do not add up to that. The chain does not break by accumulation.

R v Malcherek, 1981. The defendant stabbed his wife, causing catastrophic brain injuries. She was put on a ventilator, brain stem death was confirmed, and the doctors switched the machine off. He argued the doctors killed her. No. The stabbing remained the operating and substantial cause, and withdrawing futile treatment is not an intervening act.

R v Blaue, 1975. The defendant stabbed a young woman. She needed a blood transfusion to live and refused it, as a Jehovah's Witness. She died. The refusal did not break the chain. You take your victim as you find them, and that means the whole person, not just the body.

And note what the court refused to ask. Not whether the refusal was reasonable. Change the facts so the victim says he would rather die than lose a leg, with doctors satisfied he understands the choice, and the answer is the same. The wound is what killed him.

One more piece of the actus reus. At common law no killing could be prosecuted as homicide unless death followed within a year and a day. That rule was abolished by the Law Reform (Year and a Day Rule) Act 1996, because modern medicine can keep a victim alive far beyond a year.

There is now no time limit at all. Poison someone who lingers for three years and you can still be tried for murder. The safeguard is consent. Where death occurs more than three years after the act, or the defendant has already been convicted of a connected offence, the Attorney General must consent.

Now the mens rea, and start by ignoring the words. Malice aforethought requires no malice and no forethought. No premeditation, no planning, no motive. It means only that the defendant had the required mental state at the moment of the killing.

Two men who have never met argue outside a pub. Within seconds one picks up a bottle, swings it at the other's head and fractures his skull. He dies. No plan, no thought of hurting anyone that evening. But the jury are sure that when he swung, he meant really serious harm. That is malice aforethought.

So what is the required mental state? Two limbs, and this is where candidates lose marks. An intention to kill. Or an intention to cause grievous bodily harm, which means really serious harm. Either will do. R v Vickers, 1957, put it beyond doubt. A burglar confronted by the elderly householder struck her and she died. Murder, although he never meant to kill.

One thing that will not do is another offence. Constructive malice was abolished by s.1 of the Homicide Act 1957, so committing a burglary at the time supplies nothing. The prosecution still has to prove intention to kill or to cause really serious harm.

Now the harder half. Intention comes in two shapes. Direct intention is aim or purpose: what the defendant was trying to bring about. Shoot a man in the head at point-blank range and nobody argues. Oblique intention is different. The result is not what he wanted, but he appreciated it as a virtually certain side effect.

The courts took decades to settle it. R v Moloney, 1985. Two men drinking after a family party held a contest to see who could load a shotgun faster. Moloney won, and shot his stepfather dead. The House of Lords held that foresight of a consequence is not the same as intending it, though it is evidence from which intent may be found.

The next case added probability. The greater the probability of a consequence, the more likely it is that it was foreseen and intended. But that is still only evidence. Probability is not the threshold.

R v Woollin, 1999, fixed the threshold, and it is the law now. The defendant lost his temper and threw his three-month-old baby onto a hard surface. The jury must be sure of two things. That death or really serious harm was a virtual certainty from the act, and that he appreciated it. Then they are entitled to find that he intended it.

Read that word again. Entitled. Not obliged. Foresight of virtual certainty is evidence of intention, not intention itself, and the jury may still decline to find it.

Back to the freezer. Sub-zero, jammed shut, nobody in the building until Monday. Death was virtually certain, and he accepts he knew it. Both stages answered, and the jury may find he intended to kill, however sincerely he says he only wanted to teach a lesson.

Now change it. A protester drops a paving slab from a motorway footbridge, meaning to block the road. He accepts he realised somebody might well be badly hurt, but he aimed for the empty hard shoulder. The slab goes through a windscreen and kills the driver. Foresight of a risk is not virtual certainty. That is recklessness, and the verdict is manslaughter.

Which brings us to sentence, where murder is unlike everything else. By s.1 of the Murder (Abolition of Death Penalty) Act 1965 the sentence is fixed by law. Life imprisonment. No determinate sentence, no suspended sentence, no exceptional circumstances exception.

Life does not always mean life in prison. The judge sets a minimum term, sometimes called the tariff, which must be served before the Parole Board can consider release. Release comes only if the Board is satisfied it is safe. The offender then stays on licence for life, and can be recalled at any time.

The minimum term comes from Schedule 21, which gives starting points. A whole life order where the seriousness is exceptionally high, which includes the murder of a police officer acting in the course of duty. Thirty years for the murder of a child, or of two or more people, or a murder involving sexual or sadistic conduct, or for gain.

Twenty-five years where the defendant took a knife or other weapon to the scene intending to use it. And fifteen years for everything else. Starting points, not answers. The judge moves up or down for aggravating factors like planning or a vulnerable victim, and mitigating ones like mental disorder or youth.

Finally, why so much of this is criticised. There is no partial defence of excessive force in self-defence. Get it right and the killing is lawful. Get it wrong and it is murder, with the mandatory sentence. No halfway house, and a frightened householder who goes too far is sentenced like a contract killer.

There is no defence of mercy killing either, so a person who kills a terminally ill relative at their request is a murderer. And the mens rea does not require an intention to kill at all. The man who meant serious injury and the man who meant death get the same verdict and the same sentence.

The Law Commission proposed a way out in 2006, in Murder, Manslaughter and Infanticide. Two degrees. First degree murder for an intention to kill, carrying life. Second degree for an intention to cause grievous bodily harm, with the judge free to choose the sentence. Parliament has never acted.

A word on how SQE1 tests this. You are not asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn the rules and how they decide facts. The names in this episode are memory pegs, nothing more.

If you keep only three. R v Vickers, because an intention to cause really serious harm is as good as an intention to kill. R v Woollin, for virtual certainty and the word entitled. And R v Blaue, for the woman who refused the transfusion, because you take your victim as you find them.

Four traps. One: murder does not require an intention to kill. An intention to cause really serious harm is enough, and a defendant who insists he never wanted anyone dead may be telling the truth and still be guilty of murder.

Two: foresight is not intention. The threshold is virtual certainty, not high probability, and it is subjective. The question is what this defendant appreciated, not what a reasonable person would have realised. And even then the jury are entitled to find intention, never obliged to.

Three: take your victim as you find them means the whole person. A haemophiliac who bleeds to death, a believer who refuses a transfusion, a patient who would rather die than lose a leg. The court does not ask whether the victim's decision was reasonable, and neither should you.

Four: work the elements in order. If the killing was lawful, nothing about the defendant's state of mind matters at all. And remember that malice aforethought contains neither malice nor forethought.

Quick check. A man breaks into a house at night and is confronted on the landing by the elderly owner, who recognises him. He hits her repeatedly across the head with a heavy torch, meaning to injure her badly enough that she cannot follow him or give evidence. He does not want her to die, and leaves believing she will recover. She dies the next morning.

He is charged with murder and says he never intended to kill anybody. On what basis, if any, can he be convicted? Three candidate answers. One: none, because murder requires an intention to kill and he plainly had no such intention.

Two: on the basis that he was committing a burglary at the time, which supplies the intent required. Three: on the basis that he intended really serious harm, which is enough for murder. Pause here if you want a moment.

The answer is three. Malice aforethought has two limbs, and an intention to cause grievous bodily harm is as good as an intention to kill. He meant to injure her badly enough that she could not follow him or give evidence. That is an intention to cause really serious harm, and she died of those injuries. Murder, though he neither wanted nor foresaw her death.

Why the others fail. One recognises only the first limb and overlooks the grievous bodily harm limb, which is the commonest error in this topic. Two reaches for constructive malice, abolished by the Homicide Act 1957. Committing another offence at the time supplies no mens rea for murder.

Five things to take away. One: unlawful killing of a person in being, under the King's peace, with malice aforethought, and if the killing was lawful nothing else matters. Two: a person in being is born alive and breathing, a foetus is not, and a person stays alive until brain stem death is confirmed.

Three: causation is but for, then operating and substantial cause, and neither negligent treatment nor a refusal of treatment breaks the chain. Four: malice aforethought is an intention to kill or to cause really serious harm, with no premeditation required.

Five: for oblique intention, death or really serious harm must have been a virtual certainty that this defendant appreciated, and then the jury are entitled to find intent. And our freezer? Both stages answered, and a mandatory life sentence follows. Next time, Manslaughter.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.