I have just finished my favourite horror film of all time: Psycho. It's an old film, black and white, and directed by Alfred Hitchcock, but it remains my favourite horror, and my go-to sick bed movie. For those of you who don't know, the film features Marion Crane who, after stealing tens of thousands of dollars from her place of work, flees the city of Phoenix, Arizona, to see her boyfriend in California. During a heavy rainstorm, however, Marion pulls into the Bates Motel to seek refuge for the night, where she meets the charming, if a little awkward, Norman Bates who invites her to have dinner. Marion accepts his invitation, but then overhears a fierce argument between Norman and his mother about bringing a woman into their home. Norman brings the sandwiches down to the motel, and they eat in a small sitting room, while Norman tells Marion about his mother, a mentally ill woman who refuses to allow Norman his independence. Moved by his story of family love, Marion decides to return the stolen money the next day, and return to Phoenix. Before she can do this, however, she is stabbed to death in the iconic 'shower scene' by a shadowy figure - Norman's mother.
The film goes on, with an investigation by Marion's boyfriend and sister uncovering the horrifying truth behind the Bates Motel. But what Psycho does, and many other horror films for that matter, is deal with what we think is the scariest thing of all: violent crime. Horror films simply wouldn't be interesting if in Nightmare On Elm Street, all Freddy Krueger did was evade taxes, or if in Get Out, the Armitage family were running an illegal gambling ring in their basement. What makes horror films scary isn't the spooky music and the supernatural elements of magic, ghosts, and demons, but the end result of a violent crime.
A fascinating study of criminality comes from the book A Criminal History of Mankind by Colin Wilson, who posits that crime only became 'scary' with the introduction of police forces. Before that, murder, rape, and robbery was simply a fact of life - watch any episode of Game Of Thrones to see. This isn't to say that murder, rape, and robbery, among other crimes, didn't devastate the victims or their families, but that there wasn't the same widespread fear of criminals that there is today. It was the arrival of police officers, who drove criminals into the shadows, that created this spooky image of a criminal. Along with the introduction of the media, particularly tabloids, who turn our interests in the macabre into a media circus, and print every grisly detail to feed the masses. The explosion of the true crime genre in recent years has sparked a new discussion as to why we have this fascination with murder, and an article by Clare Thorpe provides an interesting insight: "As humans we want to understand the darker side of our nature. True crime stories allow us to explore that in a safe way, from a safe distance."
But while true crime deals with horrific murders, sinister motives, and harsh punishments, it unsurprisingly glosses over the actual law itself, and so this article will take a closer look at some crimes, and what we actually need to have to prove the guilt of the perpetrator.
A brief note as to the terms used in this post: mens rea (meaning 'guilty mind') refers to the state of mind the prosecution has to prove in order to convict someone of a crime; actus reus (meaning 'guilty act') refers to the actual conduct of the defendant. Both mens rea and actus reus must be proved in order to find a defendant guilty.
Murder
Most true crime deals with murder, and, as you are well aware, no two murders are the same. But the points to prove for each murder are the same. Simply: one must unlawfully kill another human being, under the Queen's peace, with the intent to unlawfully kill or cause grievous bodily harm.
You might be thinking 'isn't all killing unlawful?' and you have a point, but the answer is 'No.' If you are preventing a crime or in the process of arresting someone, defending yourself, another, or your property, or conducting a lawful act that, through no fault of your own, goes wrong, you are not guilty of murder. Of course, there are degrees to this For instance, you may only use 'reasonable' force when defending yourself - if someone pushes your shoulder, and you shoot them in the head, this is not reasonable. In the same vein, you have to reasonably suspect that the person is in the process of committing a crime - if you simply suspect someone is committing a crime because of the colour of their skin, you haven't acted lawfully at all.
Where the law gets tricky is with the question of 'what does it mean to kill?' This might seem like a stupid question, particularly in clear cut cases of murder that you will find on TV, but it isn't always this clear. What if you injure someone so horrifically that they have to be kept on life-support, and the doctor makes the decision to pull the plug - in the strictest sense, you haven't killed them, the doctor has, but our own logic tells us that the reason the plug was pulled was because of the injuries you inflicted upon that person, therefore, you have killed them. To put it another way, the injuries you inflicted were a substantial and operating cause of death. The legal test is this: but for your action, would that person have died, and was your action substantial enough to shoulder the blame? The substantial part simply mitigates the strict logic of the 'but for' test. For example, if you told someone to take a different route to the shop, and they were killed on the way to the shop, but for your directions, they would not have been killed, but your directions did not cause their death. It comes down to logic.
Another requirement, on the face of it self-explanatory, is that the victim must be a human. This means you cannot kill a dead person, you cannot murder a fish, and you cannot murder a foetus. You can, however, murder a baby, a disabled person, a person in a coma, or a person who does not believe they are a person at all. In the cases of foetuses, probably the most controversial aspect of my last point, there is a separate crime for "child destruction", which is defined as the killing of an unborn child capable of being born alive. Under the Abortion Act 1967, medical practitioners terminating pregnancies cannot be convicted of this crime.
Under the Queen's peace simply refers to the fact that it is lawful to kill an enemy combatant in wartime. This does not mean you can kill non-enemy combatants in wartime, nor does it mean you can kill people you perceive to be your enemy in peacetime.
Finally, you must intend to kill or cause grievous bodily harm. This is misleadingly referred to as 'malice aforethought', but there is no requirement for malice - you can kill someone out of mercy, for instance - and there is no requirement for aforethought - but there is no requirement for the murder to have been premeditated. All that is required is that, in the moment, you intended to seriously harm or kill an individual. This, of course, can have the defences of self-defence or reasonably preventing crime.
Kidnapping
Kidnapping is another staple of the true crime genre, and there are four elements to this crime.
Firstly, the crime must involve the taking or carrying away of one person by another. This includes situations where a person is induced by the kidnapper to walk or drive away himself (such as when the victim's car is hijacked).
Secondly, the taking or carrying away of the person must be achieved through force or through fraud. Force does not limit itself to physical violence or the threat of it, but rather any conduct which overrides the true consent of the victim. Any fraud which induces the victim to agree to being taken or carried away invalidates the victim's true consent.
Thirdly, the person taken or carried away must be done so without the consent of that person. This includes situations where the victim changes their mind, and withdraws their consent to being taken away, or if they lack the capacity to give their true consent (for example, if they are a young child). It must also be proved that the kidnapper knew or was reckless that they did not have the victim's consent.
Finally, the taking or carrying away must be without lawful excuse. Someone with custody of a child (without being in contravention of a court order) is clearly legally permitted to take their own child.
There are some interesting procedural points to note in relation to kidnapping. For instance, a parent who kidnaps their child in defiance of a court order relating to the child's custody should not be charged with the offence of kidnapping, but rather the lesser offence of contempt of court, unless the parent's conduct was exceptionally bad. Also, the consent of the Director of Public Prosecutions to the institution of a prosecution for kidnapping whenever the victim is under 16, or where the prosecution is against a person intimately connected with the child (such as a parent).
The difference between the offences of abduction and kidnapping is relatively straightforward: abduction is where a person is taken away from their legal guardian, whereas kidnapping is simply taking someone against their will. While there is overlap, the core issue depends on whether the victim is under the lawful control of another (usually a parent).
Aggravated burglary
Firstly, normal burglary is defined by the Theft Act 1968 s.9(1) as entering any building as a trespasser with an intent to steal or attempt to steal anything in the building, or inflicts or attempts to inflict upon any person within the building any grievous bodily harm. As a result, you have committed burglary if you walk into someone's house uninvited, and steal a TV; you have also committed burglary if you climb through an ajar window into an office and hit a worker inside. You have not, however, committed burglary if you enter a building without an intent to cause GBH or steal, and exit without having stolen or caused GBH. You have just committed trespass.
Aggravated burglary, however, requires an additional element: you must commit burglary and have with you at the time any firearm or imitation firearm, weapon, or explosive. 'Imitiation firearm' includes realistic-looking toy guns, but not a magazine for a rifle. It need not be capable of being discharged, but it does need to look capable of being discharged. An offensive weapon refers to anything that can cause harm, but also objects intended for use in the capacitation of a person, such as handcuffs, a rope, or even sleeping pills. The 'weapon' need not be designed to harm a person, such as a screwdriver, but if it is used in such a way that shows an intention to cause harm, then the requirement has been met.
The question of whether or not you have the weapon with you may be straightforward in cases where an intruder enters the house wielding a machete or an AK-47, but is less clear cut when an accomplice waiting outside is holding the weapon, or if the intruder left the knife on the kitchen counter downstairs before going upstairs to search through the bedrooms for valuables. Crucially, the offender must have the weapon on him, easily accessible to him, at the time at which the burglary is committed. For example, if an intruder enters a house to look around, and, startled by the occupant coming out of the bathroom, grabs a hammer off a table and attempts to hit the occupant with it, the intruder commits aggravated burglary at the very moment he picks up the hammer with the intention to cause GBH. It is not necessarily relevant that the hammer was not in his possession when he entered the property, and it is not relevant that his initial intention was to simply trespass.
Closing thoughts
The explosion of true crime has not desensitized the public to the horrific acts of crime - evidence suggests that the audience (who is disproportionately female) actually use their consumption of true crime to come up with ways to avoid being victims of crime themselves. What it has done, however, is omitted the crucial legal elements of the offences being discussed. While questions of forensic evidence, eyewitness testimony, and police questioning are undoubtedly important to solving a crime, they do not change the key requirements of the legal case that must be proven in order to secure a conviction.
What true crime also often neglects to include is a reasoned discussion of the problems inside the criminal justice system, and its 'open-and-shut' narrative stifles a closer examination of whether prison is actually the best recourse for offenders, and even what the purpose of our prison system is. To find out more on this, listen to our companion Law According To A King podcast, where we talk to journalist Peadar O'Cearnaigh about his views on criminal justice in the UK.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
The main source of information from this blog post was 'Police Law' (15th edn) by Card and English.
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