4.) Who was a human being.
A homicide offence cannot be charged in respect of the killing of a foetus - the child must have been entirely expelled from its mother and have an independent circulation, although the umbilical cord does not need to have been cut. It is not certain whether a person who is 'brain dead' would be considered as a reasonable creature in being or not - it is suggested that 'brain death' is the recognised test for death, but there has been no case on this point.
The Mens Rea of murder is malice aforethought, express or implied - this means an intention to kill or cause GBH. This means that a defendant can be guilty of murder even though they did not intent to kill. This was decided in Vickers (1957). The House of Lords said in Woolin (1998) that there were two types of intention - Direct intention, which is when the defendant desires the consequence and oblique intention, which is when the consequence is not what the defendant desires but he forsees it as virtually certain to happen. Although foresight of virtual certainty does not always amount to intention, there will be very few circumstances in which a jury will not find that it does. The CA held that "the greater the probability of a consequence, the more likely it is that it was forseen, and the more likely it was forseen, the more likely it was intended".
Critical Evaluation of Murder
There are several areas in which the law on murder is not satisfactory. Four main points are the definition of murder, the fact that a defendant can be convicted of murder even though they did not intent to kill, the mandatory life sentence, and the fact that excessive force in a situation where some force was justified does not provide any defence.
Some people may argue that the definition of murder is out of date as it was established in 1797, and should be repaced by a modern statutory definition in modern language - for example, 'malice aforethought' could become 'intention'. At the beginning of its report on partial defences to murder (law com 290 2004) the Law Commission said expressly that it "has long considered that the law of murder is in need of review". On the other hand, it could be argued that the current definition, despite being old, is effective as it has worked for over 200 years. Another problem with the definition of murder is that the actus reus involves the death of a 'person in being', which excludes the death of a foetus. This means that if a pregnant woman is killed, the defendant cannot be convicted for the death of the child as it is not a 'person in being' which has been seen as unfair in certain circumstances, as families have lost a mother and child but the killer will not be punished for the death of the child. However, extending the definition of murder to cover the death of a foetus would involve redefining the point when life begins, which would possibly conflict with abortion laws.
The Mens Rea of murder includes the intention to kill, but also the intention to cause G.B.H., and it can be debated as to whether the latter is enough. It could be argued that the definition of murder is too broad, for example, a person who kills but only intends to cause serious bodily harm and who may not even foresee the possibility of death occurring can be convicted of murder. In Cunningham (1981), Lord Davies stated that the thought that the Mens Rea for murder should be limited to an intention to kill. However, it could also be argued that the definition of murder is too narrow, as the English definition of murder excludes recklessness as to death (e.g. in Nedrick or Woollin), which is enough in Scotland. It's often difficult to prove what a defendant actually intended. It could be argued that the existing rules should be replaced with a statutory test based on observable facts.
If the defendant is 18 or over and is convicted of murder, the judge has to pass a sentence of life imprisonment. The judge cannot give a different sentence, even if he feels that the defendant is not as blameworthy as another person is - contract killers and terrorists are given the same mandatory sentence as people who perform euthanasia (Cocker) or use excessive force in self-defence (Tony Martin). The mandatory sentence is also seen to be inadequate, because most murderers are released after 20 years or less. Many people think that life should mean life - whether it is life imprisonment or death - as this is true retribution. However, it could be seen as inhumane as it goes against the idea of rehabilitation. The House of Lords Select Committee Murder and Life Imprisonment (1989) recommended the abolition of the mandatory sentence for murder, as did an independent committee chaired by Lord Lane, the former Lord Chief Justice, in 1993. The abolition would mean that the sentence would then be at the discretion of the judge, perhaps assisted by the jury classifying the offence in order of seriousness. As long as the only sentence for murder is the mandatory life sentence, it could be argued that justice can't really be acheived.
If a defendant can show that they used reasonable force in self defence or prevention of crime in doing the killing, they are not guilty of murder. However, when the defendant uses excessive force in the circumstances, they are guilty of murder. This 'all or nothing' effect on the defence is seen as being too harsh as the defendant in either acquitted or given a life sentence. Some people argue that if the defendants only 'fault' is that they used more force than was reasonable, a life sentence is not justified.
