Murder - the required actus reus and mens rea

Murder - the required actus reus and mens rea

There are various offences of homicide in England. There is murder, voluntary manslaughter, unlawful act manslaughter, gross negligence manslaughter, corporate manslaughter, infanticide and driving-related homicide (causing death by dangerous/careless driving etc). There are no degrees of murder in England, and the offence has a compulsory life sentence. The partial defences of diminished responsibility and loss of control, plus the circumstances of a suicide pact, make an intentional homicide voluntary manslaughter rather than murder.

The actus reus for murder is causing the death. At first glance, this might seem to suggest that omissions are incapable of constituting the actus reus. Certainly neglect in the case of Stone and Dobinson where the couple were held to owe a duty of care, they were found guilty of gross negligence manslaughter. However, in the case of Gibbons and Proctor, it was held that an omission could be the actus reus of murder where there was a duty of care.

The mens rea for murder is the intention to kill, or the oblique intention to kill, or the intention to cause serious harm (grievous bodily harm, but not for attempted murder). The oblique intention to kill is present when the person knows their actions are virtually certain to result in death. For example throwing someone from a third-floor balcony was seen as the oblique intention for murder in Walker (although the victim survived miraculously).

So if someone states that a nurse deliberately withheld a "life-saving drug" from her mother, that is certainly capable of amounting to murder. If the drug was "life-saving" (not just important) and the nurse knew this, then the mens rea of oblique intent seems satisfied. If the omission caused death, then the offence is made out. The person making this allegation has apparently not pursued the authorities to investigate the murder of her relative, although she has vigorously pursued other issues and actions. If it were my mother, that would be my highest priority. The account as it stands is difficult to believe, knowing the personality of the person involved.

Further, this is therefore an implicit accusation of murder. The relative making the accusation insists she has never accused hospital staff of murder (although plenty of her supporters have and still do), but she has very much made this accusation even if she hasn't explicitly used the term "murder".