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Murder, despite being the most serious offence in English law, is one only defined at the common law. It is a crime
which carries a mandatory life sentence and the ability for the judge to set a minimum period which must be served
before the defendant is eligible for release.
The classic definition of murder is that of Sir Edward Coke:
"Murder is when a man of sound memory, and of the age of discretion unlawfully kill within any country 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 the law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year
and a day after the same."
Institutes of the Laws of England (1797) Lord Coke
For practical purposes, and that of convenience, we can say that murder is the unlawful killing of a human being under
the Queen's Peace with malice aforethought. However, death no longer need occur within a year and a day (since the
introduction of the Law Comission (Year and a Day Rule) Act 1996.
The killing must be unlawful. It is not unlawful if the killing is in self defence or in the prevention of crime, and D
used reasonable force in the circumstances as he reasonably believed them to be.
Use of excessive force is not acceptable, would deny the defendant the defence of self defence, and thus
incriminate him of murder.
D was on duty at a checkpoint in NI. A car came speeding towards the point and D shouted for it to stop.
He fired 4 shots at the car, the last of which killed the passenger.
Evidence showed that the car was passed the checkpoint by the time the final shot was fired and thus the
danger had passed.
Finally, the killing may be justified by the use of the defence of necessity thus making it lawful.
The main question here is whether an omission is sufficient for the actus reus of murder. Once it has been established
that it was the cause of the death either an act or omission can be the actus reus.
Gibbins & Proctor (1918)
Gibbins and his partner starved his 7-year-old daughter to death. The other children were well cared for.
An omission can be the actus reus for murder where a duty of care exists.
Causation must be proven as murder is a result crime (i.e. D cannot be guilty unless V dies). Both factual causation and
legal causation must be proven.
Reasonable Person in Being:
This phrase essentially means a human being so for murder, a person must be killed. A murder charge cannot be
brought for killing a foetus: unless the child is born prematurely and dies as a result of D's actions.
Attorney-General's Ref. No. 3 of 1994 (1997)
D stabbed his pregnant girlfriend. She recovered but the baby was born prematurely. The baby died at 4
months as a result of the premature birth.
A foetus is not a `reasonable creature in being' and therefore it is impossible to murder it.
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This phrase also means that doctors cannot be charged murder for switching off a life support machine (nor is it
an intervening act).
Being `under the King's Peace' means that the killing of an enemy in the course of war would not be murder. Killing a
Prisoner of War however, may be sufficient.
The mens rea for murder is `malice aforethought' which means intention `express or implied'.
Express Malice Aforethought:
This is the true intention to kill.…read more