Murder carries a mandatory minimum sentence of life imprisonment and perhaps the greatest stigma of any crime.
The classic definition of murder is the unlawful killing of another with the intention to kill or to do grievous bodily harm.
"Unlawful killing"
“Killing” means that the defendant by his act or omission contributed significantly to the death. “Unlawful” means that the killing is not, for example, in lawful self-defence or as part of surgical treatment.
It is not necessary that there should be any direct contact between the accused and his victim. What is required only is that the accused’s act or omission was a “substantial cause” of death. That may be proved even where some other event, like medical negligence, also contributed to the death.
Before the law was reformed in 1996, murder could only be committed if the death occurred within a year and a day of the act which caused death (this was called the “Year and a Day Rule”).
Now, if an act can be shown to be a substantial cause of death it can be prosecuted as murder however much time has elapsed between the act and the death. Nevertheless, the consent of the Attorney General must be sought where three years or more separate the accused’s act, and the victim’s death.
The Mental Element
A conviction for murder does not require proof of an intention to kill. It is enough that the accused merely intended to cause “grievous bodily harm”.
Surprisingly then, the necessary mental element for an offence of murder is the same as that for wounding contrary to section 18 of the Offences Against the Persons Act 1861 (also known as grievous bodily harm with intent).
In 2006, the Law Commission recommended proposals to reform the law of murder by creating a three-tier system which would distinguish murder involving an intention to kill (first-degree murder) from murders involving an intention only to do serious injury (second degree murder). The latter, it was proposed, should attract a discretionary life sentence.
The 2006 proposals were not put in place but discussion of them has been recently revived in a 2024 review commissioned after the conviction of Valdo Calocane for the killing of three innocent people in Nottingham.
Defences to Murder
These are varied and often fact specific but the most common examples are:
Self defence – where the defendant genuinely feared for his/her personal safety and acted reasonably and proportionately to protect themselves;
Defence of another – as per self-defence but that the individual feared for the personal safety of another party;
Not present – such that they could not have committed the offence. Identification will be challenged and often the use of an alibi defence;
No intention to kill or cause grievous bodily harm;
Accident – accepting presence and participation but the mental element does not exist.
The Partial Defences to Murder
There are three partial defences which are only available upon a charge of murder and which, when successfully relied upon, result in a conviction for manslaughter:
Diminished responsibility.
Loss of Control.
Killing in pursuit of a suicide pact.
These defences are the subject of an earlier article.
Sentences Available for Murder
The sentence for murder is mandatory. Offenders aged 21 or over must be sentenced to imprisonment for life (or at Her Majesty’s Pleasure in the case of those aged under 18).
Except where a “whole life order” is imposed, the sentencing court must specify a “minimum term”. The legal framework for setting the minimum term upon a conviction for murder is governed by section 321 and section 322 and schedule 21 of the Sentencing Act 2020.
The “minimum term” is the term which an offender must spend in prison before becoming eligible to apply for parole. Eligibility for release at the expiry of the minimum term is determined by the Parole Board. Offenders who have been released will remain on license for the rest of their life.
A “whole life order” means that an offender must spend the rest of their life in prison.
The provisions of Schedule 21 provide a comprehensive framework for determining the appropriate starting points in cases of murder.
Those starting points include the following:
A “whole life order” in cases which are of an “exceptionally high” level of seriousness. This may include, for example, murders involving sexual or sadistic conduct, the murder of a child involving abduction, or the murder of a police officer in the course of his or her duty (section 2(1) Sentencing Act 2020);
A starting point of 30 years in cases which do not require a whole life order but which are of a “particularly high” level of seriousness. Such cases may include murder involving the use of a firearm; a murder which is aggravated by racial or religious hostility or a murder of two or more persons (section 3(1) Sentencing Act 2020);
A starting point of 25 years where the offender took a knife or other weapon to the scene intending to commit an offence and used that knife or other weapon when committing the murder (section 4(1) Sentencing Act 2020);
For any case which does not fall into the categories set out above, the appropriate starting point may be 15 years (section 5 (1) Sentencing Act 2020).
Credit for a guilty plea is available in cases of murder but the process of determining the level of a reduction is different. Where the court determines that there will be a “whole life order”, there will be no reduction for a guilty plea.
Where the court imposes a minimum term, the maximum reduction is one sixth of the minimum term or 5 years (whichever is less). The maximum should only be given where a guilty plea has been indicated at the first stage of the proceedings. A maximum of one-twentieth is available for a guilty plea on the day of trial.
Guest written by Redmond Traynor from 2 Hare Court chambers.
Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.