Murder
Murder is a common law offence and therefore has never been defined by a statute. The
accepted definition was by Sir Edward Coke:
‘…the unlawful killing of a reasonable creature in being and under the Queen’s peace with
malice aforethought, express or implied, describes the mens rea of murder.
Actus Reus – the unlawful killing of a reasonable person in being and under the Queen’s
peace
Mens Rea – with malice aforethought, express or implied
The Actus Reus of murder
‘Unlawful killing’ – Some killings may be lawful, these killings are recognised by the law as
being justified. A person who kills in self defence or in prevention of the crime, provided
that the force used was reasonable, will not be guilty of an unlawful killing.
Omissions
If the accused has a duty towards a person and fails to carry out that duty and death results,
then the Actus Reus of murder may exist.
There are certain situations where this may happen:
A duty arising from a relationship, for example that between parent and child, such
as Gibbins and Proctor (1918)
A contractual duty, such as Pittwood (1902)
A duty arising from the accidental creation by the defendant of a dangerous chain of
events such as Miller (1983). No one died in Miller but there remains potential
liability for an omission
A ‘reasonable person in being’
A foetus in the womb is not defined in law as ‘in being’ if its existence is not independent of
the mother. It is only considered to be as such when it has been fully expelled from the
mother’s body.
If the foetus in the womb is deliberately injured and the child dies from these injuries after
being born, then the attacker would be criminally liable. This was decided in the Attorney –
General’s reference (No.3 of 1994) (1997); the verdict however, would most likely be
manslaughter than murder.
Doctors are permitted to switch off life support for those who are ‘brain dead’ without being
criminally liable – suggesting they are not a ‘reasonable creature in being’. There are no
Murder is a common law offence and therefore has never been defined by a statute. The
accepted definition was by Sir Edward Coke:
‘…the unlawful killing of a reasonable creature in being and under the Queen’s peace with
malice aforethought, express or implied, describes the mens rea of murder.
Actus Reus – the unlawful killing of a reasonable person in being and under the Queen’s
peace
Mens Rea – with malice aforethought, express or implied
The Actus Reus of murder
‘Unlawful killing’ – Some killings may be lawful, these killings are recognised by the law as
being justified. A person who kills in self defence or in prevention of the crime, provided
that the force used was reasonable, will not be guilty of an unlawful killing.
Omissions
If the accused has a duty towards a person and fails to carry out that duty and death results,
then the Actus Reus of murder may exist.
There are certain situations where this may happen:
A duty arising from a relationship, for example that between parent and child, such
as Gibbins and Proctor (1918)
A contractual duty, such as Pittwood (1902)
A duty arising from the accidental creation by the defendant of a dangerous chain of
events such as Miller (1983). No one died in Miller but there remains potential
liability for an omission
A ‘reasonable person in being’
A foetus in the womb is not defined in law as ‘in being’ if its existence is not independent of
the mother. It is only considered to be as such when it has been fully expelled from the
mother’s body.
If the foetus in the womb is deliberately injured and the child dies from these injuries after
being born, then the attacker would be criminally liable. This was decided in the Attorney –
General’s reference (No.3 of 1994) (1997); the verdict however, would most likely be
manslaughter than murder.
Doctors are permitted to switch off life support for those who are ‘brain dead’ without being
criminally liable – suggesting they are not a ‘reasonable creature in being’. There are no
