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Criminal Defences

A Guide to Murder Defences

Learn more about defences that can be used for the offence of Murder.

Murder is undoubtedly one of the most serious criminal offences. If you have been arrested and charged with murder, you probably feel overwhelmed and terrified. You may be replaying events in your mind and questioning your options. Your court date is likely to be some months away and you may be thinking of that date with apprehension, wondering about what the judge will direct the jury to consider when reaching its verdict. Perhaps you are asking yourself whether you may be able to use a legal defence to justify your actions to the court. If so, this article can help. This article explains the legal definition of murder and discusses the kind of evidence that is likely to come up in your case. We then look at the maximum sentence for murder. Finally, and most importantly, we discuss the defences that you may be able to rely upon to reduce your sentence or be relieved of liability altogether.

An overview of the offence of murder

Murder is one of several offences that relate to the unlawful killing of a human being. Under the law of England and Wales, for you to be convicted of murder, the court must find that:

  1. You have killed another person. Murder cannot be committed by a company or other corporation; this would fall under the category of manslaughter.
  2. The killing was unlawful. This means that there is no legal justification available for you to rely upon.
  3. You intended to kill or cause grievous bodily harm. The jury must find that, at the time of the killing, you believed that death or really serious bodily harm was virtually certain to occur as a result of your actions.
  4. The person killed was ‘in being.’ The person killed must have been alive and breathing through their own lungs at the time of being killed. You cannot be convicted of murder for the killing of a foetus prior to it being born; this falls under a separate offence.
  5. You were sane at the time of the killing. It must have been the case that you were not suffering from mental health issues that removed your mental capacity to commit the offence.

What kind of evidence is used in murder cases?

The evidence that the prosecution will rely upon in a murder case depends greatly on the circumstances. If the act took place in a public area, the police will obtain any available CCTV footage. Witness testimonies of anyone who was present or had knowledge of the events are likely to be key evidence, both for the prosecution and for the defence. When you were arrested, the police undoubtedly took biometric information such as your fingerprints and DNA sample. They may try to use these to link you to the scene of the crime, and – if applicable – with the body.

Both the prosecution and the defence team are likely to rely upon medico-legal experts. A pathologist will examine the corpse to determine the cause of death. Both sides may also ask a psychiatrist to prepare a report on you. This report will present what was understood about your state of mind at the time of the offence.

The court may also consider any communication that you had with the victim in the time period preceding their death. For this reason, the police will seize electronic devices such as your mobile phone and computer. Very importantly, your own testimony, if you choose to give one, will be essential evidence.

What is the maximum sentence for murder?

According to the law, if you are convicted of murder, the judge must give you a life sentence. However, this does not necessarily mean that you will spend your whole life in jail. If you are under the age of 18, the minimum term of your custodial sentence is 12 years. If you are an adult, the minimum time that you will spend in prison is between 15 and 30 years.

When considering what sentence to give you, the judge will consider ‘aggravating’ and ‘mitigating’ factors. An aggravating factor is one that increases the seriousness of the offence. For example, if you planned the offence to a significant degree, if you abused a position of trust, or if the victim was particularly vulnerable.

A mitigating factor is one that may help reduce the sentence you are given. This might include if you were suffering from mental health issues at the time of the offence, or if you were acting in response to fear or provocation. If you make a guilty plea, this may reduce the sentence that you are given.

Sentences for murder vary considerably depending on the facts of the case, and it is difficult to generalise. As with anything in a murder charge, you should ask a solicitor for specialist advice on your case. More details on the sentencing guidelines for murder can be found here.

What are the applicable murder defences?

This section explores the legal justifications to murder. These fall into two categories: partial defences and complete defences.

Partial defences

Partial defences argue that you did not have the intention to kill or commit serious harm required by the law to convict a person of murder. If successfully argued, they may lead to the murder charge being reduced to manslaughter.

  • Diminished responsibility: This is where the court finds that you were suffering from an abnormality in mental functioning linked to a recognised medical condition that provides an explanation for your behaviour. The court must find that your mental condition either stopped you from:
    • understanding the nature of your conduct; and/or
    • forming a rational judgment; and/or
    • exercising self-control.
  • Loss of control: This is similar to but replaces the old defence of ‘provocation’. It applies where the defendant suffered from a loss of control, but only in certain circumstances. The court must find that a person of your age and sex, with a normal degree of tolerance and self-restraint, might have acted in a similar way to you in the circumstances. You must have acted out of a justifiable sense of being wronged, and the wrong must be of an extremely grave character. The law says that you cannot rely on the sexual infidelity of your partner, the breakdown of a relationship, or the desire for revenge as a trigger for your loss of control.
  • Suicide pact: If you entered into a suicide pact, where you killed the other person, and the court is satisfied that you had the settled intention to die yourself, you may be able to rely upon this defence.
  • Intoxication by drugs or alcohol: The courts are reluctant to accept voluntary intoxication as an excuse for criminal behaviour. This is so because courts don’t want to give people ‘excuses’ for being drunk or drugged and committing crimes. That said, if you were involuntarily intoxicated at the time of events (if someone spiked your drink, for example), it may be found that you did not have the necessary mental intention to commit murder. This could lead to you being convicted of a lesser offence.
Complete defences

Complete defences are incredibly valuable because, a valid complete defence may lead to you being acquitted altogether or convicted of a lesser offence.

  • Self-defence: The law says that if you are attacked, you may use the force that is reasonably necessary to defend yourself. You may also use reasonable force to defend another person, property, to prevent crime, or to conduct a lawful arrest. The extent to which you can rely on self-defence for actions resulting in murder is highly fact dependant, and you should consult a solicitor for advice on the circumstances of your case.
  • Automatism: If you were not aware of your actions when committing the offence, in some rare circumstances, you may be able to rely upon the defence of automatism. For example, this has been used for crimes committed by a person whilst sleep-walking. Generally, if you were under the voluntary influence of alcohol or drugs you will not be able to rely on this defence.
  • Insanity: If the court finds that due mental illness, you lacked the ability to reason such that you did not know that the act that you were doing was against the law, you may be acquitted on the grounds of insanity. If you succeed in this defence, you may be detained under the Mental Health Act 1983 on the basis that your mental condition poses a risk to others in society.
  • Mistake: If you were mistaken as to certain circumstances and would not have committed the offence if you had known otherwise, this defence may apply. There is a legal debate about when this defence can apply to murder. If you feel this defence might apply to your case, consult a solicitor for more information.

What happens if a murder defence is successful?

A successful defence may lead to you being acquitted or convicted of a lesser charge, such as manslaughter. Defences to murder are a complex area of law, so it is essential to instruct a solicitor whom you trust as soon as possible.

Where can I get help with murder offences?

If you or a loved one has been accused of murder, the experts at Stuart Miller Solicitors are ready to assist you today. At this difficult time in your life, instructing the right lawyer who takes time to understand your case and advises you on the best course of action might just make all the difference. To arrange a no-obligation consultation, please get in touch.

(This page was last updated on November 22, 2023.)


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