Murder is a common law offence and was defined by Lord Coke in 1797 as an “unlawful killing of a reasonable person in being under the Queen’s peace, with malice aforethought, express or implied”. That definition is still what defines murder today. The first part of the definition is the acts reus of murder. The second part is the mens rea.
Let’s break down Coke’s definition into its constituent parts and see how the courts have applied those parts in case law.
Unlawful Killing means that the defendant must have caused the death and be without any legal permission to do so. Certain defences such as self-defence would provide such legal permission. The killing can come about via an act or an omission, meaning a failure to act. In the case of Re A, regarding the separation of conjoined twins, doctors were granted legal permission to operate in order to separate the twins. Without this operation, both twins would certainly have died. The doctors performed the operation, despite knowing that it would cause the death of the weaker twin. They had legal permission to do so and therefore could not be found guilty of murder.
A case which illustrates murder by omission is R v Stone and Dobinson, where the defendants had agreed to look after Stone’s ill sister. They failed to provide basic care and she died as a result. Their failure to act, an omission, was given as the actus reus of the offence of murder.
A Reasonable Person in Being refers to the victim as being human. The victim, however, cannot (for the purposes of ‘murder’) be a foetus or brain-dead. This is illustrated in cases such as Attorney General’s Reference No.3 of 1994, where the defendant attacked a pregnant woman, causing her to prematurely give birth two weeks later. The premature baby died as a result of the early birth, however, the House of Lords declared the defendant not guilty of murder because at the time of the attack on the mother, the baby was not yet independent of the mother and was therefore not regarded by the court as a reasonable person in being.
In the case of R v Malcherek and Steel, the victim’s life-support machine was switched off after the doctors had established that the death of the brain-stem. The defendant appealed, but was unsuccessful because the doctor’s actions in switching off the life-support did not break the initial chain of causation, caused by the injuries inflicted by the defendant, which the victim died from.
Under the Queen’s Peace means that the defendant cannot be found guilty if they kill an enemy in the course of war. In contrast to this, the defendant in R v Page, a British soldier, was found guilty of murder, as they killed an Egyptian national whilst off-duty. The defendant had not killed ‘in the course of war’ in this instance. Furthermore, in the case of R v Clegg, a soldier fired shots at a stolen car which had driven through an army checkpoint in Northern Ireland. Since the car no longer posed a threat (as it was driving away from the defendant) it was decided by the court that the force used was excessive and unreasonable. The defendant was convicted of murder as since he wasn’t allowed the defence of “self defence”, he wasn’t granted legal permission to kill.
Malice Aforethought means the intention to cause harm. For the offence of murder, the intention can either be “express” (to cause death) or “implied” (to cause Grievous Bodily Harm). Either of those two intentions will suffice for a murder conviction.
Over the years, the law on intention, particularly in relation to murder, has developed quite significantly.
In R v Moloney, the defendant shot his step-father, killing him. At trial, it was argued that the defendant didn’t think the gun was pointed at his step-father, with whom he enjoyed a good relationship. Lord Bridge decided that intention could only be inferred if: (1) death or serious injury was a natural consequence of the voluntary act, and (2) the defendant foresaw that consequence as being a natural consequence of their act. The jury does not have to automatically ‘find’ intention, but, rather, they have the freedom to infer intention if they see fit. The defendant in Moloney was therefore found guilty of manslaughter rather than murder, as intention was not established on appeal to the House of Lords.
The court, in the case of R v Nedrick, went further than the Moloney decision and argued that if death was a virtually certain consequence of the defendant’s actions and if the defendant was aware of this at the time of the killing, then they should be convicted. This decision was later upheld in R v Woolin.
Sometimes it is difficult for the courts to prove whether or not the intention of a violent attack is to kill, or just to cause serious injury. Since Coke’s definition allows “malice aforethought implied”, juries have the freedom to decide for themselves what the defendant intended, regardless of what he or she pleads. Either way, however, so long as intention to cause at least GBH is established, a murder conviction can follow.
This was illustrated in the case of R v Vickers. Here it was established that the defendant intentionally caused Grievous Bodily Harm to his victim after being discovered burgling a sweet shop. The victim died from her injuries and the defendant was convicted of murder, despite claiming that it was never their intention to kill. They were aware, however, of the severity of the injuries they had inflicted on their elderly and vulnerable victim. This allowed the jury to infer intention in order to convict the defendant.
When asked to explain and apply the law on murder in your exam, there are two main areas that you should focus on:
- Within your actus reus section of your answer, there is often a causation issue to be explored.
- Within the mens rea section of your answer, there is often an issue regarding the defendant’s foresight of consequences.
In most murder scenario questions, so long as you deal with these two issues with clarity, precision and depth, you should be able to achieve high marks. The other criteria in Coke’s definition should still be mentioned, but are rarely central to the defendant’s criminal liability. That being said, you can’t predict what the next exam will be about!
- Which scholar defined murder? Lord ___?
- True or false: A ‘reasonable person in being’ cannot be a foetus?
- Complete the phrase: Malice _________?
- In R v Nedrick, intention could be inferred if death was a _________ certainty?
- Foresight of consequences is a major legal issue that examiners typically expect students to write about in answers to murder questions. What is the other major issue?