Attempted murder
Encyclopedia
Attempted murder is a crime in England and Wales
and Northern Ireland
.
, attempted murder is the crime of more than merely preparing to commit unlawful killing
and at the same time having a specific intention to cause the death of human being under the Queen's Peace
. The phrase "more than merely preparatory" is specified by the Criminal Attempts Act 1981
to denote the fact that preparation for a crime by itself does not constitute an "attempted crime".
In England and Wales
, as an "attempt
", attempted murder is an offence under section 1(1) of the Criminal Attempts Act 1981 and is an indictable offence
which carries a maximum penalty of life imprisonment
(the same as the mandatory sentence for murder). The corresponding legislation for Northern Ireland
is section 3(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (No.1120 (N.I.13)).
The mens rea
(Latin
for the "guilty mind") for murder includes an intention to kill or cause grievous bodily harm
where there is a high probability
of death resulting, whereas attempted murder depends on an intention to kill, and an overt act towards the homicide. Attempted murder is only the planning of a murder and acts taken towards it, not the actual killing, which is the murder. This makes the offence difficult to prove and it is more common for a lesser charge to be preferred under the Offences against the Person Act 1861
.
However, in R v Morrison [2003] 1 WLR1859, the Court of Appeal
considered the issue of alternative verdicts
on an indictment with a single count of attempted murder. Morrison had gone into a shop with two other men on a robbery with a firearm. They demanded money and one of the men shot at the shopkeeper who suffered only minor injury. The prosecution had many opportunities to add other counts before the trial
but failed to act. Having heard the case, the judge
expressed his view that the jury
could consider an attempted grievous bodily harm
(GBH) under section 18 of the 1861 Act and Morrison was duly convicted of attempting to cause grievous bodily harm. The Court of Appeal confirmed that attempting to cause grievous bodily harm is a valid alternative to attempted murder because there can be no intention to kill someone without the intention also to cause grievous bodily harm.
This is a practical decision to ensure that the criminal justice system did not allow a guilty person to walk away because only one charge had been preferred. But it is not necessarily a good general principle because, in euthanasia
for example, a person assisting intends to cause death, but with no suffering. That attempting to cause grievous bodily harm must be an alternative verdict should the intended "victim" not die would be a strange outcome because there is no intention to cause any long-lasting and serious injury: the two attempted offences have different mens rea requirements so that proof of intent to murder would not necessarily meet the requirement for section 18 of the 1861 Act.
First, acting deliberately and intentionally or recklessly with extreme disregard for human life, the person attempted to kill someone; and the person did something that was a substantial step toward committing the crime. [Mere preparation is not a substantial step toward committing a crime.]
of an intention to kill unless the words are accompanied by relevant action, e.g. finding and picking up a weapon, and making serious use of it, or making a serious and sustained physical attack without a weapon.
and necessity
are not available to a person charged with attempted murder. Conversely, the statutory defence of marital coercion
is, on the face of the statute, available to a wife charged with attempted murder. Academic writers have suggested that this is not consistent.
After the repeal of these offences by the Criminal Law Act 1967
, attempted murder was allowed to subsist at common law
until the enactment of the 1981 Act.
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
.
Today
In English criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, attempted murder is the crime of more than merely preparing to commit unlawful killing
Unlawful killing
In English law unlawful killing is a verdict that can be returned by an inquest in England and Wales when someone has been killed by one or several unknown persons. The verdict means that the killing was done without lawful excuse and in breach of criminal law. This includes murder, manslaughter,...
and at the same time having a specific intention to cause the death of human being under the Queen's Peace
Queen's peace
The Queen's peace is the term used in the Commonwealth realms to describe the protection the monarch, in right of each state, provides to his or her subjects...
. The phrase "more than merely preparatory" is specified by the Criminal Attempts Act 1981
Criminal Attempts Act 1981
The Criminal Attempts Act 1981 is an Act of the Parliament of the United Kingdom. It applies to England and Wales and creates criminal offences pertaining to attempting to commit crimes...
to denote the fact that preparation for a crime by itself does not constitute an "attempted crime".
In England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, as an "attempt
Attempt
Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
", attempted murder is an offence under section 1(1) of the Criminal Attempts Act 1981 and is an indictable offence
Indictable offence
In many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
which carries a maximum penalty of life imprisonment
Life imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
(the same as the mandatory sentence for murder). The corresponding legislation for Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
is section 3(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (No.1120 (N.I.13)).
The mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for the "guilty mind") for murder includes an intention to kill or cause grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
where there is a high probability
Probability
Probability is ordinarily used to describe an attitude of mind towards some proposition of whose truth we arenot certain. The proposition of interest is usually of the form "Will a specific event occur?" The attitude of mind is of the form "How certain are we that the event will occur?" The...
of death resulting, whereas attempted murder depends on an intention to kill, and an overt act towards the homicide. Attempted murder is only the planning of a murder and acts taken towards it, not the actual killing, which is the murder. This makes the offence difficult to prove and it is more common for a lesser charge to be preferred under the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
.
However, in R v Morrison [2003] 1 WLR1859, the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
considered the issue of alternative verdicts
Lesser included offense
A lesser included offense, in criminal law, is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime....
on an indictment with a single count of attempted murder. Morrison had gone into a shop with two other men on a robbery with a firearm. They demanded money and one of the men shot at the shopkeeper who suffered only minor injury. The prosecution had many opportunities to add other counts before the trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
but failed to act. Having heard the case, the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
expressed his view that the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
could consider an attempted grievous bodily harm
Grievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
(GBH) under section 18 of the 1861 Act and Morrison was duly convicted of attempting to cause grievous bodily harm. The Court of Appeal confirmed that attempting to cause grievous bodily harm is a valid alternative to attempted murder because there can be no intention to kill someone without the intention also to cause grievous bodily harm.
This is a practical decision to ensure that the criminal justice system did not allow a guilty person to walk away because only one charge had been preferred. But it is not necessarily a good general principle because, in euthanasia
Euthanasia
Euthanasia refers to the practice of intentionally ending a life in order to relieve pain and suffering....
for example, a person assisting intends to cause death, but with no suffering. That attempting to cause grievous bodily harm must be an alternative verdict should the intended "victim" not die would be a strange outcome because there is no intention to cause any long-lasting and serious injury: the two attempted offences have different mens rea requirements so that proof of intent to murder would not necessarily meet the requirement for section 18 of the 1861 Act.
First, acting deliberately and intentionally or recklessly with extreme disregard for human life, the person attempted to kill someone; and the person did something that was a substantial step toward committing the crime. [Mere preparation is not a substantial step toward committing a crime.]
Proof of mens rea
There must be more than merely preparatory acts and, although the defendant may threaten death, this may not provide convincing evidenceEvidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
of an intention to kill unless the words are accompanied by relevant action, e.g. finding and picking up a weapon, and making serious use of it, or making a serious and sustained physical attack without a weapon.
Duress, necessity and marital coercion
The defences of duressDuress in English law
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises in both English criminal law, and in civil law, where it is relevant to English...
and necessity
Necessity in English law
In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded...
are not available to a person charged with attempted murder. Conversely, the statutory defence of marital coercion
Marital coercion
Marital coercion is a statutory defence to most crimes under English criminal law and under the criminal law of Northern Ireland. It is similar to duress.-Legislation:The defence is contained in of the Criminal Justice Act 1925:...
is, on the face of the statute, available to a wife charged with attempted murder. Academic writers have suggested that this is not consistent.
History
Prior to 1967, sections 11 to 15 of the Offences against the Person Act 1861 created a number of offences of attempting to commit murder by various specified means (ss.11 to 14), and an offence of attempting to commit murder by any means not specified in those offences (s.15).After the repeal of these offences by the Criminal Law Act 1967
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
, attempted murder was allowed to subsist at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
until the enactment of the 1981 Act.