murder

• Murder definition

  The most widely accepted definition is from Sir Edward Coke 1787.

  Murder is 'the unlawful killing of a reasonable being (a human being) and under the King's Peace with malice aforethought, express or implied.
• Actus reus of murder


  - 'Unlawful killing'

  - Of a human being ('a reasonable person in being')

  - 'Under the King's Peace
• Actus reus - Unlawful killing - the 'killing' element


  The 'killing' can be committed through either an act or an omission.

  Case - R v Gibbins and Proctor

  Unlawful killings are consequence crimes - must lead to the result of death - tested through causation.
• Actus reus - Unlawful killing - the 'unlawful' element


  All killings are unlawful unless there is some valid justification for it e.g. self defence.

  Case - Re A
• Actus reus - unlawful killing - the 'unlawful' element


  This means there may be occasions created where there isn't just a justification for the amount of force used against another person. Examples include:

  - Defence of consent

  - Excessive force

  - Acting beyond a given duty
• Actus reus - unlawful killing - defence of consent

  The defence of consent does not apply in the case of murder.

  Case - R (Pretty) v DPP
• Actus reus - unlawful killing - excessive force

  Although soldiers and police may kill within the course of their duties, this cannot be done where it is not necessary or proportionate as this would amount to 'excessive force'

  Case - R v Clegg
• Actus reus - Unlawful killing - Acting beyond a given duty

  Doctor's that try to practice 'mercy killings' can be charged with murder if the facts can be clearly established.

  Case - R v Dr Bodkins Adams
• Actus reus - Human being - foetus

  A foetus is not a human being.

  Case - Attorney General's Reference

  The killing of a foetus will not amount to homicide.
• Actus reus - Human being - Brain-dead

  A person who is 'brain dead' is not classed as a human being.

  Case - R v Malcherek and Steel - already brain dead so not the cause of death

  Case - R v Inglis - doctors believed he would recover as he was not fully brain dead so was murder.
• Actus reus - King's Peace

  This means that if the killing was of an enemy throughout a war, an individual will not be seen as having committed the actus reus of murder.
• Actus reus - Causation

  - Factual causation - 'but for test' - R v Pagett

  - Legal Causation - 'more than a slight or trifling link' + 'more than minimal' - R v Kimsey + R v Hughes

  - Intervening act - Medical intervention + Victim's own act - R v Jordan + R v Roberts.

  - 'Thin skull rule' - the defendant must take the victim as they find them - unusual mental or physical state which makes them more injury prone cannot be used as an excuse - R v Blaue
• Mens rea of murder

  The mens rea for murder is 'malice aforethought, express or implied'.

  • Expressed - intention to kill.
  • Implied - intention to cause GBH. (DPP v Smith - really serious harm)

  Case - R v Vickers

  Either of these suffice the mens rea for murder - someone can be guilty if they did not intend to kill.
• Mens rea of murder - Intention

  • Direct intention - this is where our defendant's main aim/purpose matches the desired consequence - R v Mohan
  • Oblique intention - This is where the defendant's aim was not to bring about death, however the defendant should have foreseen, with virtual certainty, that there could be a consequence of death or GBH - R v Woollin
• Mens rea - Transferred malice


  The general rule on transferred malice applies to murder.

  If the defendant has aimed to fire shots at person 1, but misses and hits and kills person 2. Intention to kill or seriously harm person 1 has been transferred to person 2.

  Case - R v Gnango