Murder:
Definition of Murder
The definition of murder, although adapted to be relevant in a modern
context, remains as that set out by Sir Edward Coke. Murder occurs,
therefore, where a person unlawfully kills any reasonable creature in
rerum natura under the Queen’s peace with malice aforethought (Coke’s
Institutes, 3 Co Inst 47).
Examination Consideration
It is likely that this definition would be required in almost all questions on
murder. It is a good idea to learn it.
The actus reus of murder therefore requires the unlawful killing of any
reasonable creature in rerum natura under the Queen’s peace. The mens
rea, malice aforethought.
Unlawful Killing
Killing means causing death and the approach in establishing the
existence of this element is the same as that discussed in relation to
causation. The killing will be unlawful unless there is some justification for
it, such as self-defence.
Case in focus - Airedale NHS Trust v Bland [1993] AC 789
In this judgment, permission of the court was sought for the withdrawal of
life saving treatment from a patient. It was held that there is a distinction
between withdrawing treatment that may sustain life in the patient’s best
interest and actively administering a drug that might bring about the
patient’s death. The latter would be murder, the former would not.
R v Inglis [2011] 1 WLR 1110
In this case, a mother deliberately killed her terminally ill son by injecting
him with heroin. Following Bland the fact that the mother saw her actions
as an act of mercy was irrelevant. Mercy killing was and is unlawful and
therefore the mother was liable for her son’s murder.
It used to be the case that where death occurred beyond a year and a day
following the acts of the defendant, no conviction for murder could be
brought. This was known as the ‘year and a day rule’ and was abolished
by the provisions of the Law Reform (Year and a Day Rule) Act 1996 for all
acts committed after 17th June 1996. However, section 2 of the 1996 Act
provides that permission must be obtained from the Attorney-General
before a prosecution can be brought where the act of the defendant
occurred more than three years before the death of the victim.
, Any Reasonable Creature in Rerum Natura
This element is most simply defined as any human being. A baby does not
fulfil these requirements until it has been fully born. Unborn foetuses,
however advanced in their development and close to birth, cannot be
murdered (A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421). Although murder
can occur if it is possible to show that the defendant intended to kill the
mother and that they also intended that the child should die soon after
being born. In R v Poulton(1832) 5 C & P 329 it was held that a baby
would not satisfy the requirement of being born until fully expelled from it
mother. It is however necessary that, even if fully expelled, the baby must
exist separate from its mother, even if just briefly (R v Crutchley(1837) 7
C & P 814). In other words, the baby must be alive as a distinct individual
before it can be murdered. However, as mentioned above, the act that
causes the baby’s death can occur whilst it is still in utero providing that it
lives independently briefly before dying.
Under the Queen’s Peace
It is recognised that this term may have had a specific meaning in Coke’s
time that has been lost in the subsequent period (R v Page [1954] 1 QB
170). In a modern context, section 9 of the Offences Against the Person
Act 1861 provides that where a person is killed, whether or not they are
one of the Queen’s subjects, by a subject of the Queen outside of Her
jurisdiction - that is anywhere other than England or Wales - they can be
tried and convicted in England or Wales. This section applies to where the
entire actus reus takes place abroad (the act causing the death and the
death itself). Where only one part of the actus reus takes place abroad,
section 10 of the 1861 Act applies. This section removes the requirement
for the defendant to be a subject of the Queen. Although the provision
suggests that an act committed by a foreigner abroad may render them
liable to the English courts if the death occurs in England, it seems that
this is not the case (R v Lewis(1857) Dears & B 182), although it does
seem that an act committed in England and a subsequent death abroad
makes the defendant liable in England.
Malice Aforethought
Malice aforethought means an intention to kill or cause grievous bodily
harm (R v Cunningham [1982] AC 566, A-G’s Ref (No 3 of 1994) [1997] 3
WLR 421). On the basis of the proper definition, the term malice
aforethought is misleading because it suggests elements of both ill will
against a victim and some degree of premeditation; neither are required.
The requirements of intention have been discussed in detail in relation
to mens rea in general and will not be repeated here. It should be noted
that because murder is an offence of specific intent, the discussions in
relation to virtual certainty for intention are extremely relevant. It is
Definition of Murder
The definition of murder, although adapted to be relevant in a modern
context, remains as that set out by Sir Edward Coke. Murder occurs,
therefore, where a person unlawfully kills any reasonable creature in
rerum natura under the Queen’s peace with malice aforethought (Coke’s
Institutes, 3 Co Inst 47).
Examination Consideration
It is likely that this definition would be required in almost all questions on
murder. It is a good idea to learn it.
The actus reus of murder therefore requires the unlawful killing of any
reasonable creature in rerum natura under the Queen’s peace. The mens
rea, malice aforethought.
Unlawful Killing
Killing means causing death and the approach in establishing the
existence of this element is the same as that discussed in relation to
causation. The killing will be unlawful unless there is some justification for
it, such as self-defence.
Case in focus - Airedale NHS Trust v Bland [1993] AC 789
In this judgment, permission of the court was sought for the withdrawal of
life saving treatment from a patient. It was held that there is a distinction
between withdrawing treatment that may sustain life in the patient’s best
interest and actively administering a drug that might bring about the
patient’s death. The latter would be murder, the former would not.
R v Inglis [2011] 1 WLR 1110
In this case, a mother deliberately killed her terminally ill son by injecting
him with heroin. Following Bland the fact that the mother saw her actions
as an act of mercy was irrelevant. Mercy killing was and is unlawful and
therefore the mother was liable for her son’s murder.
It used to be the case that where death occurred beyond a year and a day
following the acts of the defendant, no conviction for murder could be
brought. This was known as the ‘year and a day rule’ and was abolished
by the provisions of the Law Reform (Year and a Day Rule) Act 1996 for all
acts committed after 17th June 1996. However, section 2 of the 1996 Act
provides that permission must be obtained from the Attorney-General
before a prosecution can be brought where the act of the defendant
occurred more than three years before the death of the victim.
, Any Reasonable Creature in Rerum Natura
This element is most simply defined as any human being. A baby does not
fulfil these requirements until it has been fully born. Unborn foetuses,
however advanced in their development and close to birth, cannot be
murdered (A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421). Although murder
can occur if it is possible to show that the defendant intended to kill the
mother and that they also intended that the child should die soon after
being born. In R v Poulton(1832) 5 C & P 329 it was held that a baby
would not satisfy the requirement of being born until fully expelled from it
mother. It is however necessary that, even if fully expelled, the baby must
exist separate from its mother, even if just briefly (R v Crutchley(1837) 7
C & P 814). In other words, the baby must be alive as a distinct individual
before it can be murdered. However, as mentioned above, the act that
causes the baby’s death can occur whilst it is still in utero providing that it
lives independently briefly before dying.
Under the Queen’s Peace
It is recognised that this term may have had a specific meaning in Coke’s
time that has been lost in the subsequent period (R v Page [1954] 1 QB
170). In a modern context, section 9 of the Offences Against the Person
Act 1861 provides that where a person is killed, whether or not they are
one of the Queen’s subjects, by a subject of the Queen outside of Her
jurisdiction - that is anywhere other than England or Wales - they can be
tried and convicted in England or Wales. This section applies to where the
entire actus reus takes place abroad (the act causing the death and the
death itself). Where only one part of the actus reus takes place abroad,
section 10 of the 1861 Act applies. This section removes the requirement
for the defendant to be a subject of the Queen. Although the provision
suggests that an act committed by a foreigner abroad may render them
liable to the English courts if the death occurs in England, it seems that
this is not the case (R v Lewis(1857) Dears & B 182), although it does
seem that an act committed in England and a subsequent death abroad
makes the defendant liable in England.
Malice Aforethought
Malice aforethought means an intention to kill or cause grievous bodily
harm (R v Cunningham [1982] AC 566, A-G’s Ref (No 3 of 1994) [1997] 3
WLR 421). On the basis of the proper definition, the term malice
aforethought is misleading because it suggests elements of both ill will
against a victim and some degree of premeditation; neither are required.
The requirements of intention have been discussed in detail in relation
to mens rea in general and will not be repeated here. It should be noted
that because murder is an offence of specific intent, the discussions in
relation to virtual certainty for intention are extremely relevant. It is
