“The Law Commission recently described murder as a ‘rickety structure set upon shaky foundations. Law Commission Consultation Paper No 177, New Homicide Act for England and Wales (2005) (LCCP 177), para 1.4. See below, p 633. (...) Murder is when a man of sound memory, and of the age of discretion, unlawfully killed within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, [so as the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a duty after the same]. (Coke 3 Inst 47)” (ref.1)
The European Court of Human Rights (ECtHR) sates in Article 2 that everyone has a right to live, murder breaks this law directly.
The Smith and Hogan’s Criminal Law states that, “it must be proved that the defendant caused the death of the deceased person.” (ref.1)
“The starting point is that we are concerned with proof of real state of mind. The mens rea for murder is that D must have malice aforethought, that is, D must have intended to kill or cause grievous bodily harm.” (ref.1)
“The mental element required for the crime of murder, as for the crime of manslaughter, has varied over the centuries. From Coke’s time (...) there has been a steady contradiction of definition of murder but for the unfortunate decision in DPP v Smith. Reporting in 1953 the Royal Commission on Capital punishment (RCCP) (Cmd 8932) found it ‘impractical’ to form a satisfactory definition of murder but it did recommend that the reach of murder be curtailed by abolition of the doctrine of ‘constructive’ murder. Under the doctrine a person was guilty of murder if he caused death during the commission of felony involving violence (eg, rape, robbery) or if he caused death while resisting an officer of justice.” (ref.1)
Further on the book explains the concept of abolition of ‘constructive malice’:
“1. Where a person kills another in the course of furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as it is required for killing to amount to murder when not done in the course of furtherance of another offence.
2. For purposes of the foregoing subsection, a killing done in the course or for the purpose of resisting an officer of justice, or of resisting or avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody, shall be treated as a killing in the course or furtherance of an offence.” (ref.1)
Studying elements of crime it is essential to have a look into actus reus and mens rea which are components of crime. “Lawyers have long found it convenient to distinguish the mental element from the other elements for the purposes of exposition of the law and have called it ‘mens rea’. This phrase derives from a maximum quoted by Coke in his Institutes (Ch 1, fo 1o) ‘ Actus non facit reum nisi mens sit rea’, an act does not make a man guilty of a crime unless his mind also be guilty. (...) The elements of the actus reus include elements of conduct, circumstances, and in some offences, consequences. (...)
Most crimes require proof of a mental element of some sort. It has to be proved with the same degree of strictness as the other elements of the crime as the case of Woolminghton (...). It is possible for the courts to dispense with mens rea in whole or in part with offences of strict or absolute liability (...), but, except in the anomalous case of an intoxication offender (...) they can never dispense with the actus reus. There are no ‘thought crimes’. (...)
Above all it is essential to emphasise that “these expressions – mens rea and actus reus – are only analytical tools: they help us to identify which elements of the offence are in dispute etc. The only thing that exists in law is the crime.” (ref.1)
There are two points of controversy in a description of the two concepts. “The actus reus generally requires proof that the defendant did an act. It is argued that since an act is essentially a voluntary movement and not a spasm or convulsion, ‘voluntariness’, though a mental element, is part of actus reus. (...) Some of writers and judges have described these mental elements as part of the mens rea. However, the only thing that really matters is whether they area elements in the crime. If they are, it is immaterial whether they are assigned to the actus reus or to the mens rea.”
All these concepts I already explored in my previous post, by reading a different book I wanted to compare and find if the definitions would differ and bring a new meaning into answers that I am looking for in aspect of murder and finding certain defences and understanding judgment through criminal law.
Again, it is clear that "all the elements of crime charged must be proved" and this is what is very important in understanding how prosecution has to act in order to persuade the jury to their side of arguments.
Other aspect on my research involves speculation and suspicion that leads to a suspect and how a suspect becomes a defendant. studying these concepts is crucial in understanding what would have had to be proved or investigated by the prosecution so that the legal guilt could be found and effectively the suspect turned into convicted person.
"There are may serious offences with law level mensrea requirements such as 'suspiction' and ' having reasonable grounds to suspect'. "
"In Da Silva [2006] EWCA Crim 1654, 'supicion' was held to impose a subjective test: D's suspicion need no be based on 'reasonable grounds'. D must think that there is a possibility, which is more than fanciful, that the relevant facts exist. Use of words like 'fleeting thought' and 'inkling' [vague idea of suspiction] is apt to mislead.(...) the court held that the essential element in the word 'suspect' and its affiliates, in this content, is that the defendant must think that there is a possibility, which is more than fanciful, that the relevant facts exist. A vague feeling of unease would not suffice. But the statue does not require the suspicion to be 'clear' or 'firmlygrounded and targeted on specific facts', or based upon 'reasonable grounds'." (ref.1)
Lord Devlin in Hussien v Chang Fook Kam [1970] AC 942 at 948 defined suspicion as its common meaning to be "in state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. Susption arises at or near the starting point of an investigation of which the obtaining of prima facie prof is the end." (ref.1)
The presumption of innocence is measured within the necessity for the Crown to establish every element of the offence to the standard of proof which will be measured on the balance of probabilities or beyond reasonable doubt depending what sort of offence did the person commit. As mentioned in my previous post the side of the argument that berries the burden of proof does not satisfy the jury/court they lose the case. The defendant on the other hand is not obliged to prove the particular defence in order to be not guilty. However, the defendant still needs to 'raise evidence' of the "defence in order get it on its feet". (ref.1)
As soon as he does so the Crown will have to disprove it, if it fails to do so the defendant is acquitted.
"In a criminal trial, the prosecution will have to satisfy the court of defendant's guilt to 'criminal standard': that is beyond reasonable doubt." (ref.1) which is what I have already learnt from the previous reading, in here there comes another aspect of exception in which "the defence bears the burden of proof the defendant must satisfy the court on the balance of probabilities - that is that it more likely than not. Crudely, that equates to 51 per cent. There is no standard of proof in relation to evidential burdens of proof. The requirement is that the party adduces enough evidence to raise the issue."
"The presumption of innocence is found in all international instruments of human rights and the constitutions of many states throughout the world. It is rightly perceived as a fundamental principle; many would say that it is foundational principle of criminal process.
...
It is submitted that when a challenge is made to the compatibility of a reverse onus the present law requires a three-stage process of decision-making.
1. interpretation of the statue: does the provision in question, interpreted in accordance with the ordinary principles of construction, place a burden on the accused? If so, is it a legal or an evidential burden? If it is evidential no further inquiry need [to] be made about compatibility with Art. 6 (2). If it is a legal burden, the court must move to stage 2 to assess the question of compatibility.
2. Justification of the reverse onus: does the provision in question serve a legitimate aim and is it proportionate to that aim? If the answer is Yes, the provision is an acceptable qualification to the presumption of innocence. The defendant will then bear the burden of proof on the matter in question, although to a lower standard of proof than the prosecution (namely the balance of probabilities), if the answer is No the court must move to stage 3.
3. Reading down the provision: if the reverse legal burden cannot be justified can the court 'read down' the burden to an evidential one, using s.3 of the HRA? If it can it should do so. If it cannot the court should make a declaration of incompatibility of the provision under s.4 of the HRA. (ref.1)
All the above is essential in understanding processes of conviction and at the same time learning the ways that Criminal law works.
Reference:
1. Smith and Hogan, Ormerod. D (2009) Criminal Law, Cases and Materials, 10th Edition
