Part 1: The Legal Definition & Core Concepts
This section will outline the legal definition of murder in England and Wales. It will begin by examining the traditional definition provided by Sir Edward Coke before breaking the offence down into its two core components: the actus reus (the guilty act) and the mens rea (the guilty mind).
The Classic Definition
The offence of murder is a common law offence, meaning it has been developed by judges through cases over centuries rather than being defined in an Act of Parliament. The starting point for understanding murder is the traditional definition provided by the 17th-century jurist Sir Edward Coke.
Lord Coke's Definition:
In his work, the Institutes of the Laws of England, Lord Coke defined murder as: "Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day of the same." (Coke, 1797)
Plain English Translation:
In modern, simple terms, Coke's definition can be understood as: an unlawful killing of a human being, under the monarch's peace, with the intention to kill or cause grievous bodily harm.
It is important to note that one part of this definition is now out of date. The requirement that the victim must die "within a year and a day" of the defendant’s act was abolished by the Law Reform (Year and a Day Rule) Act 1996. This means a defendant can now be prosecuted for murder regardless of how long the victim survives after the initial injury, provided their act can still be proven to be the cause of death.
Breaking Down the Elements
All criminal offences are made up of two key parts: the actus reus and the mens rea. For a person to be found guilty of murder, the prosecution must prove beyond reasonable doubt that the defendant committed both of these elements.
Actus Reus (The guilty act): What specific act/result is required for murder?
The actus reus of murder is the unlawful killing of a human being under the Queen’s Peace (Monaghan, 2022). We can break this down further:
- Unlawful Killing: This means the killing must not be legally justified. For example, a killing in self-defence or the prevention of crime may be considered lawful if the force used was reasonable. The term 'killing' refers to causing the death of the victim. The prosecution must prove that the defendant's act was both the factual and legal cause of death.
- Factual causation is established using the 'but for' test from R v White [1910] 2 KB 124. 'But for' the defendant's actions, would the victim have died as and when they did?
- Legal causation requires the defendant's act to be an 'operating and substantial' cause of death, as established in cases like R v Smith [1959] 2 QB 35. The defendant's act does not need to be the only cause, but it must be more than a minimal one.
- A Human Being: The victim must be a 'reasonable creature in rerum natura'. This legal language means a person who has been born and is independent of their mother, but who is not yet 'brain-stem dead'. A foetus in the womb is not considered a person for the purposes of murder (Attorney-General's Reference (No. 3 of 1994) [1998] AC 245). The legal point of death is generally considered to be when the brain stem ceases to function (R v Malcherek and Steel [1981] 1 WLR 690).
- Under the Queen's Peace: This means the killing of an enemy in the course of war would not be considered murder. This element is rarely an issue in modern cases.
Mens Rea (The guilty mind): What two specific intentions satisfy the mental element for murder?
The mens rea for murder is known as 'malice aforethought'. This term can be confusing, as it does not require any 'malice' (ill-will) or 'aforethought' (pre-planning). A person can be convicted of murder even if they killed someone they loved, or if they acted on the spur of the moment.
'Malice aforethought' has been interpreted by the courts to mean one of two things:
- An intention to kill (known as express malice).
- An intention to cause grievous bodily harm (GBH) (known as implied malice).
Grievous bodily harm is defined as "really serious harm" (DPP v Smith [1961] AC 290). This second form of intent is a key concept in the law of murder and has been confirmed in several important cases.
Part 2: Case Law Scavenger Hunt
The common law nature of murder means that its key principles have been defined and refined by judges in leading cases. The following cases are crucial to understanding its elements.
Case 1: R v Adams (1957) 1 Cr App R 20 or the "Queen's Peace" rule
Question: What does it mean for a killing to be "unlawful"? (Name one situation where a killing is lawful).
A killing is 'unlawful' if it is committed without any legal justification or excuse. Most killings are unlawful. However, there are specific situations where a killing can be lawful. A common example is self-defence, where a person uses reasonable force to protect themselves from an attack, and the attacker dies as a result. For the defence to succeed, the force used must have been necessary and proportionate to the threat faced.
The case of R v Adams [1957] Crim LR 365 provides another example relating to medical treatment. Dr Adams was charged with murdering a patient by administering large doses of painkillers. The judge, Devlin J, directed the jury that a doctor who gives treatment to relieve pain and suffering is not guilty of murder, even if the drugs given may incidentally shorten the patient's life. This is often referred to as the 'doctrine of double effect'. The doctor's intention is to relieve pain (a lawful, medical purpose), not to cause death, and therefore the act is not considered an unlawful killing.
Case 2: R v Vickers (1957) 2 QB 664
Question: Does a defendant need to intend to kill to be convicted of murder? What else qualifies?
No, a defendant does not need to intend to kill to be convicted of murder. As established by the Court of Appeal in R v Vickers, an intention to cause grievous bodily harm (GBH) is also sufficient for the mens rea of murder.
In Vickers, the defendant broke into the cellar of a sweet shop to steal money. He was discovered by the elderly woman who ran the shop. Vickers attacked her, kicking her in the head. She died from her injuries. Vickers argued that he did not intend to kill her, only to cause her serious harm to stop her from identifying him. The court upheld his murder conviction, confirming that if a person unlawfully kills another while intending to cause them GBH, they have the necessary 'malice aforethought' for murder. This principle was later confirmed by the House of Lords in R v Cunningham [1982] AC 566.
Case 3: R v Woollin (1998) 4 All ER 103
Question: What is "indirect" or "oblique" intent, and what test did the court establish for virtual certainty?
Indirect or oblique intent deals with situations where the defendant argues that the victim's death was not their primary aim or purpose, but it happened as a side effect of their actions.
In R v Woollin, the defendant lost his temper and threw his three-month-old baby son towards a pram. The baby hit a hard surface and died from a fractured skull. The defendant argued he did not intend to kill the baby or cause him serious harm; he was just angry. The House of Lords had to decide how a jury should be directed in such cases.
The court established the 'virtual certainty' test. The current law, following Woollin, is that a jury is not entitled to find the necessary intention for murder unless they feel sure that:
- Death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions; and
- The defendant appreciated that this was the case.
This is not a definition of intention itself, but rather a rule of evidence. It clarifies the circumstances in which a jury can infer that a defendant had the necessary intention, even if it was not their stated purpose. If the two-part test is met, the jury has the evidence from which they can find intent, but they are not required to do so.
Part 3: Mini-Scenario Application
Scenario: Alex gets into an argument with Sam outside a bank. Furious, Alex punches Sam once in the jaw, intending only to bruise him. Sam falls backward, hits his head on the concrete pavement, and dies instantly.
Has the Actus Reus of murder been committed? Why or why not?
Yes, the actus reus of murder has been committed. The actus reus is the 'unlawful killing of a human being under the Queen's Peace'.
- Killing: Alex's act of punching Sam was the cause of Sam's death. Applying the rules of causation:
- Factual Causation: 'But for' Alex punching Sam, Sam would not have fallen, hit his head, and died (R v White). Therefore, factual causation is established.
- Legal Causation: Alex's punch was the 'operating and substantial' cause of death. It does not matter that the fall and hitting the pavement was the immediate cause of death; that chain of events was a direct and foreseeable result of the punch. Alex's act was more than a minimal cause of the death (R v Smith). There was no intervening act to break the chain of causation.
- Unlawful: The killing was unlawful as Alex has no legal justification for punching Sam, such as self-defence. It was an act of aggression.
- Human Being under the Queen's Peace: Sam was a person in being and the killing did not occur in a time of war.
Therefore, all the elements of the actus reus of murder are present.
Has the Mens Rea of murder been committed based on R v Vickers? Explain your reasoning.
No, the mens rea for murder has not been committed. The mens rea for murder is 'malice aforethought', which means an intention to kill or an intention to cause grievous bodily harm (GBH), as confirmed in R v Vickers.
The scenario states that Alex's intention was "only to bruise him". A bruise does not amount to GBH, which is defined as "really serious harm" (DPP v Smith). While a bruise is a form of injury, it would typically be classed as actual bodily harm (ABH) at most, which is a lower level of harm. Since Alex did not intend to kill Sam, and did not intend to cause him really serious harm, he does not have the 'malice aforethought' required for a murder conviction. The specific intent for murder is absent.
Should Alex be convicted of murder or a different offense (such as manslaughter)?
Alex should not be convicted of murder because, as explained above, he lacks the necessary mens rea.
However, he is likely to be convicted of a different homicide offence: unlawful act manslaughter (also known as constructive manslaughter). This offence is committed when a defendant commits an unlawful act that a reasonable person would see as dangerous, and that act inadvertently causes a death.
The four elements for unlawful act manslaughter are all present here:
- There must be an unlawful act: Alex committed the criminal offence of battery when he intentionally punched Sam.
- The act must be dangerous: The test for 'dangerous' is objective. It asks whether a "sober and reasonable" person would realise that the act carried a risk of some physical harm, even if not serious harm (R v Church [1966] 1 QB 59). A reasonable person would recognise that punching someone in the jaw carries a risk of some harm.
- The act must cause the death: As established in the actus reus analysis, the punch caused Sam's death.
- The defendant must have the mens rea for the unlawful act: Alex had the mens rea for battery, as he intended to apply unlawful force to Sam.
Since all four elements are satisfied, Alex would be liable for unlawful act manslaughter. This offence covers situations where a defendant causes death but did not have the intention to kill or cause GBH, making it the appropriate charge in this scenario.
References
Coke, E. (1797) The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminall Causes. E. and R. Brooke.
Monaghan, N. (2022) Criminal Law. 7th edn. Oxford University Press.
Case Law
Attorney-General's Reference (No. 3 of 1994) [1998] AC 245
DPP v Smith [1961] AC 290
R v Adams [1957] Crim LR 365
R v Church [1966] 1 QB 59
R v Cunningham [1982] AC 566
R v Malcherek and Steel [1981] 1 WLR 690
R v Smith [1959] 2 QB 35
R v Vickers [1957] 2 QB 664
R v White [1910] 2 KB 124
R v Woollin [1999] 1 AC 82 (also reported at [1998] 4 All ER 103)
Legislation
Law Reform (Year and a Day Rule) Act 1996
