Introduction
The offence of murder is a common law offence in England and Wales and is considered the most serious form of homicide. The classic definition, provided by Sir Edward Coke in the 17th century, defines murder as the unlawful killing of a reasonable person in being under the King's peace, with malice aforethought (Coke, 1797). This definition provides the foundation for the modern law, which, like other criminal offences, is separated into two components: the actus reus (the guilty act) and the mens rea (the guilty mind). This essay will outline the key elements required to establish the offence of murder, focusing on its constituent parts and the development of the case law that defines them.
The Actus Reus of Murder
The actus reus of murder is the 'unlawful killing of a reasonable person in being under the King's peace'. Each element of this definition has a specific legal meaning. The killing must be 'unlawful', which distinguishes it from killings that are legally justified, for example, in self-defence or by a soldier in the course of a war. The victim must be a 'reasonable person in being', which has been interpreted to mean a human being. Legal personality begins when a child is born and has an existence independent of its mother (Attorney-General's Reference (No. 3 of 1994) [1998] AC 245). Death is determined to have occurred at the point of brain-stem death (R v Malcherek and Steel [1981] 1 WLR 690).
Furthermore, the prosecution must prove that the defendant’s act or omission caused the victim’s death. The law requires both factual and legal causation to be established. Factual causation uses the 'but for' test: but for the defendant's actions, would the victim have died as and when they did? (R v White [1910] 2 KB 124). Legal causation requires that the defendant's act was an 'operating and substantial' cause of the death (R v Smith [1959] 2 QB 35). This means the defendant’s contribution to the death must be more than minimal. The chain of causation will not be broken unless there is an intervening act that is so independent of the defendant's act and so potent in causing the death that the defendant's conduct is no longer considered a significant cause.
The Mens Rea of Murder
The mens rea for murder is traditionally described as 'malice aforethought'. This historical term can be misleading, as it does not require any 'malice', ill-will, or premeditation. The modern interpretation, established through case law, is that the defendant must have an intention to kill or an intention to cause grievous bodily harm (GBH). The inclusion of an intention to cause GBH as sufficient mens rea for murder was confirmed in R v Vickers [1957] 2 QB 664 and later upheld by the House of Lords in R v Cunningham [1982] AC 566.
The meaning of 'intention' itself has been a source of considerable judicial debate. Intention can be either direct or oblique. Direct intention is the most straightforward form, where the defendant’s aim or purpose is to bring about the prohibited consequence (Herring, 2022). For example, if D shoots V with the aim of killing them, D has a direct intent to kill.
Oblique intention is more complex and applies where the result was not the defendant's primary purpose but was a foreseeable consequence of their actions. The law on this has developed over several decades. Early cases suggested that if the result was a 'natural consequence' of the defendant’s act, intention could be found (R v Moloney [1985] AC 905). This was later refined in R v Hancock and Shankland [1986] AC 455, where it was held that the greater the probability of a consequence, the more likely it was that the consequence was foreseen and intended. The current law is found in R v Woollin [1999] AC 82. The House of Lords clarified that a jury is not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendant's actions and that the defendant appreciated that such was the case.
Conclusion
In summary, the offence of murder in England and Wales is established by proving both the actus reus and mens rea beyond a reasonable doubt. The actus reus involves the unlawful killing of a human being, with a clear causal link between the defendant's act and the victim's death. The mens rea, or 'malice aforethought', requires proof of an intention to kill or to cause grievous bodily harm. While the concept of direct intention is relatively clear, the law on oblique intention has evolved significantly, culminating in the 'virtual certainty' test established in R v Woollin. These elements together form the basis of the modern law of murder, a serious offence that continues to be defined and refined by the courts.
References
- Coke, E. (1797) Institutes of the Laws of England, Part 3.
- Herring, J. (2022) Criminal Law: Text, Cases, and Materials. 10th edn. Oxford University Press.
Case Law
- Attorney-General's Reference (No. 3 of 1994) [1998] AC 245
- R v Cunningham [1982] AC 566
- R v Hancock and Shankland [1986] AC 455
- R v Malcherek and Steel [1981] 1 WLR 690
- R v Moloney [1985] AC 905
- 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] AC 82
