Published: Wed, 07 Mar 2018
HOMICIDE – MURDER
The classic definition of murder is that of Sir Edward Coke (Institutes of
the Laws of England, 1797):
“Murder is when a man of sound memory, and of the age of discretion,
unlawfully killeth 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 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.”
For the purposes 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.
1. UNLAWFUL KILLING
The killing must be unlawful. Certain defences, eg self-defence, will make a
The act (or omission) of the defendant must have been the legal cause of the
death of the victim. Causation must be established.
2. HUMAN BEING
The killing must be of a living human being.
3. QUEEN’S PEACE
Under the Queen’s peace means that the killing of an enemy in the course of
war will not be murder.
4. DEATH WITHIN A YEAR AND A DAY
The year and a day rule was abolished by the Law Reform (Year and a Day Rule)
1. MALICE AFORETHOUGHT
The mens rea for murder is malice aforethought. The House of Lords in R v
Moloney  AC 905 held that nothing less than intention to kill or cause
grievous bodily harm (g.b.h.) would constitute malice aforethought: merely
foreseeing the victim’s death as probable was insufficient.
(a) Intention to kill
Murder is a crime of specific intent. Intention in this context includes
direct or oblique intent. Direct intent covers the situation where the defendant
desired the death. Oblique intent covers the situation where the death is
foreseen by the defendant as virtually certain, although not desired for its own
sake. The most recent authority on intention is:
R v Woollin (1998) The Times, July 23.
(b) Intention to cause G.B.H.
In R v Vickers  2 QB 664, the Court of Appeal held that a defendant
could be convicted of murder if it was established that he had intended to kill,
or had intended grievous bodily harm. The latter was accepted as sufficient mens
rea for murder because if a defendant was willing to inflict g.b.h., how was he
to know that the victim might not die? An intention to cause g.b.h. at least
evidenced a willingness to accept a substantial risk that the victim might die.
THE SENTENCE FOR MURDER
The punishment for murder, a mandatory sentence of life imprisonment, is
fixed by the Murder (Abolition of Death Penalty) Act 1965. On sentencing a
murderer the judge may recommend to the Home Secretary the minimum period which
should elapse before the prisoner is released on licence.
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