Source – Common law definition set out by Lord Coke in 1797
Type of offence – Indictable offence with mandatory life sentence
Definition – the unlawful killing of another human being, in times of peace, with malice aforethought express or
implied
ELEMENT 1: ACTUS REUS
Act/omission
Unlawful killing
Of another human being/a reasonable person
Within the King’s Peace
Causation
Actus reus (1) unlawful killing
The victim must have died. Case law tells us this is a brain stem death (Malcherek and Steele)
The defence of necessity may be available for murder (intentional killing) – Re A: separation of cojoined twins –
suggesting that necessity could be a defence to a charge of murder provided that the killing was the lesser of 2 evils.
Law remains unclear. This was only a court of appeal civil division decision and therefore it is not binding on
criminal cases. The CA made it clear that this decision was based on the unique and particular facts of the case
The defence of self defence is controversially available for murder – R v Beckford, which shows that D can use a pre
emptive strikes rather than waiting to be killed themselves.
The law regarding euthanasia and assisted suicide remains unclear. Cases like Adams (1957) and Inglis (2010)
highlight the issues associated with these practices. Murder remains a hateful crime, and a mother was convicted of
murdering her son, serving a minimum term of 5 years.
In Airedale NHS Trust v Bland (1993), doctors applied for permission to stop feeding Tony, who was left in a coma
after the Hillsborough Football disaster. The HL ruled that doctors had no duty to continue treatment if it was no
longer in the patient's best interests.
Although Tony’s death was inevitable this is not murder by omission. So doctors can withdraw treatment (if its no
longer in the patient’s best interests, but they cannot actually end a person’s life)
Actus Reus (2) of another human being
Common law says that a human being is a person capable of independent existence – not foetuses – fully expelled
from their mother, capable of independent existence (Poulton, Enoch) and baby stabbed in utero, born alive and
then died of injuries is a human being and it was murder (AG’s ref)
Actus Reus (3) positive act or omission
The AR of murder can include D doing a positive act but it can also be committed by omission if the common law
recognises a duty to act situation
Omission example: Gibbins v Proctor
Actus Reus (4) times of kings peace
All intentional killing is murder unless you are killing enemy in times of war. Soldiers who kill on
patrol/UN/peacekeeping duties are still liable for murder as illustrated by the case of Blackman (officer in army who
intentionally shot & killed an injured Taliban man
R v Clegg – a solider used excessive force, killing a joyrider who failed to stop at a checkpoint – D’s lack of ‘wicked or
evil’ motive did not preclude his actions from being unlawful
Type of offence – Indictable offence with mandatory life sentence
Definition – the unlawful killing of another human being, in times of peace, with malice aforethought express or
implied
ELEMENT 1: ACTUS REUS
Act/omission
Unlawful killing
Of another human being/a reasonable person
Within the King’s Peace
Causation
Actus reus (1) unlawful killing
The victim must have died. Case law tells us this is a brain stem death (Malcherek and Steele)
The defence of necessity may be available for murder (intentional killing) – Re A: separation of cojoined twins –
suggesting that necessity could be a defence to a charge of murder provided that the killing was the lesser of 2 evils.
Law remains unclear. This was only a court of appeal civil division decision and therefore it is not binding on
criminal cases. The CA made it clear that this decision was based on the unique and particular facts of the case
The defence of self defence is controversially available for murder – R v Beckford, which shows that D can use a pre
emptive strikes rather than waiting to be killed themselves.
The law regarding euthanasia and assisted suicide remains unclear. Cases like Adams (1957) and Inglis (2010)
highlight the issues associated with these practices. Murder remains a hateful crime, and a mother was convicted of
murdering her son, serving a minimum term of 5 years.
In Airedale NHS Trust v Bland (1993), doctors applied for permission to stop feeding Tony, who was left in a coma
after the Hillsborough Football disaster. The HL ruled that doctors had no duty to continue treatment if it was no
longer in the patient's best interests.
Although Tony’s death was inevitable this is not murder by omission. So doctors can withdraw treatment (if its no
longer in the patient’s best interests, but they cannot actually end a person’s life)
Actus Reus (2) of another human being
Common law says that a human being is a person capable of independent existence – not foetuses – fully expelled
from their mother, capable of independent existence (Poulton, Enoch) and baby stabbed in utero, born alive and
then died of injuries is a human being and it was murder (AG’s ref)
Actus Reus (3) positive act or omission
The AR of murder can include D doing a positive act but it can also be committed by omission if the common law
recognises a duty to act situation
Omission example: Gibbins v Proctor
Actus Reus (4) times of kings peace
All intentional killing is murder unless you are killing enemy in times of war. Soldiers who kill on
patrol/UN/peacekeeping duties are still liable for murder as illustrated by the case of Blackman (officer in army who
intentionally shot & killed an injured Taliban man
R v Clegg – a solider used excessive force, killing a joyrider who failed to stop at a checkpoint – D’s lack of ‘wicked or
evil’ motive did not preclude his actions from being unlawful
