Murder
- teachlawhub
- 10 hours ago
- 5 min read
Murder is arguably one of the most serious offences in English criminal law. It is a common law offence, this means that it has been developed over time through court decisions rather than being fully written in to legislation. Over time, judges have shaped the offence so that it can apply to a wide range of real-life situations.
The common law definition of murder comes from Lord Coke, who described it as “the unlawful killing of a reasonable creature in being under the Queen’s peace in any country of the realm with malice aforethought, express or implied.”
This definition is split into two main parts: the actus reus (guilty act) and the mens rea (guilty mind). Both must be proven beyond reasonable doubt and must exist at the same time for a conviction of murder.
The actus reus of murder requires the following elements:
· Unlawful Killing
· Reasonable Creature in Being
· Under the King’s Peace
· In any Country of the Realm
· Causation
The mens rea for murder is known as the malice aforethought.
Actus Reus: Unlawful Killing
The first element of the actus reus of murder is the unlawful killing of another human being.
The term unlawful means that the killing is not legally justified or excused by law. A killing will only be unlawful if there is no valid legal defence, such as self-defence or other lawful authority.
A killing may be lawful if it is carried out in self-defence, but only if the force used is both necessary and reasonable in the circumstances as the defendant believed them to be.
In R v Martin (2001), the defendant shot at burglars who had entered his rural home during the night. He believed he and his family were in danger. However, the court held that although he may have believed he was acting in self defence, the force used was excessive and not reasonable. Because of this, the killing was considered unlawful and the defence of self defence failed.
Here the courts confirmed that self defence will only apply where force is reasonable; excessive force makes the killing unlawful.
An unlawful killing can happen through a positive act, or through an omission (failure to act) where the defendant has a legal duty to act.
In R v Gibbons and Proctor (1918), the defendants were a father and his partner. They deliberately failed to feed the father’s young daughter over a period of time, keeping her in the house while she starved. The child eventually died from malnutrition. The court decided that the father had a clear legal duty as a parent to care for his child. His failure to act was treated as the cause of death, meaning the omission amounted to an unlawful killing and both defendants were guilty of murder.
This case shows that an unlawful killing can happen through either an act or an omission by the defendant.
Actus Reus: Reasonable Creature in Being
Next it must be proven that the victim is a reasonable creature in being, which means that they are a living human being with an independent existence.
A foetus inside the womb is generally not considered a reasonable creature in being, meaning its death cannot normally amount to murder. However, the law becomes more complicated when a foetus is injured before birth but is later born alive.
In these cases, the key question is whether the child has an independent existence from the mother. If a baby is born alive and later dies from injuries caused before birth, it may be treated as a victim of murder.
In Attorney-General’s Reference No. 3 of 1994 (1997), the defendant stabbed a pregnant woman during an argument. The baby was born alive but later died from injuries caused in the womb. Due to the fact that the baby had existed independently from the mother, outside of the womb, the baby was considered as a reasonable creature in being, meaning murder could be considered.
The court decided that once the baby was born alive, it becomes a reasonable creature in being once it has an independent existence from the mother.
A further key medical concept linked to this is brain stem death. This occurs when the brain stem permanently stops functioning. The brain stem controls essential life functions such as breathing and consciousness. Once brain stem death has occurred, the person is legally considered dead, even if machines are still keeping the heart beating. At this point, the person is no longer a reasonable creature in being, so murder cannot occur.
Actus Reus: Under the King’s Peace
The killing must take place under the King or Queen’s peace, this means that the killing happens during peace time and not a time of war.
If the defendant has killed during a lawful act of war, this will not amount to murder. However, if the defendant has unlawfully killed the victim during war time, this can amount to murder.
In R v Blackman (2017), a Royal Marine shot a wounded Taliban fighter in Afghanistan. The victim was no longer a threat and was considered hors de combat (out of the fight). The defendant argued he believed the victim was already dead or dying. The court held that the killing was unlawful because the victim was still alive and protected under the Geneva Conventions.
The defendant was convicted of murder, and the court was clear in stating that where there has been an unlawful killing of an enemy during war, this can be considered murder.
Actus Reus: In Any Country of the Realm
The unlawful killing must take place in a country of the realm. The phrase within any country of the realm means that the unlawful killing must take place within UK jurisdiction. This means that the unlawful killing has taken place within a country which has a legal system where English criminal law applies. This includes offences committed in England and Wales and, in some cases, abroad where UK jurisdiction applies.
Actus Reus: Causation
The final aspect of the actus reus is that the prosecution must also prove that the defendant caused the victim’s death.
Here the normal rules of causation will apply. The prosecution must prove that the defendant is:
· The factual cause
· The legal cause
· There are no intervening acts.
Mens Rea: Malice Aforethought
The mens rea for murder is the malice aforethought, which can be express or implied.
Express malice aforethought, this is where the defendant has a direct intention to kill the victim.
Implied malice aforethought, this is where the defendant intends to cause serious bodily harm (GBH), even if death is not intended.
In R v Cunningham (1981), the defendant attacked the victim causing serious injuries.
The court held that intention to cause really serious harm is enough for murder, even if there was no intention to kill.
In addition to the express and applied malice aforethought, the courts can establish the mens rea for murder by applying oblique intention when there is no direct intention.
Oblique intention applies when death or serious injury is not the defendant’s main aim, but it is a virtual certainty.
In R v Nedrick (1986), the defendant set fire to a house and a child died.
The court held that the jury could find intention if death or serious injury was a virtual certainty and the defendant knew this.
In R v Woollin (1999), the defendant threw his baby son onto a hard surface, causing death.
The House of Lords confirmed the test: if death or serious harm is a virtual certainty and the defendant appreciates this, the jury may infer intention.
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