Fatal Offences Against the Person FACTSHEET
AQA – Criminal Law
EBradbury.com
Need to know:
• Common law offence of murder
• Voluntary manslaughter: loss of control (s.54 Coroners and Justice Act 2009) and
diminished responsibility (s.2 Homicide Act 1957 as amended)
• Common law offence of involuntary manslaughter: unlawful act manslaughter and
gross negligence manslaughter
Murder
Introduction
Murder falls into the category of ‘homicide’, which also encompasses voluntary and
involuntary manslaughter – essentially offences where the defendant has caused a death.
Murder is a common law offence and as such there is no statute that defines the conduct
required. This may seem strange for such a serious crime but the necessary elements can be
determined by considering the development of the law through a number of leading cases.
Coke’s Definition
As a starting point, it is commonly accepted that the classic definition of murder was given
by Sir Edward Coke in his work Institutes of the Laws of England, published in 1797:
Definition of Murder by Sir Coke 1797
‘Murder is when a man of sound memory, and of the age of discretion, unlawfully
killeth within any county 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 die of the wound or hurt, within a year and a day
after the same.’
The basic definition of murder is UNLAWFUL KILLING WITH MALICE AFORETHOUGHT
, Fatal Offences Against the Person FACTSHEET
AQA – Criminal Law
EBradbury.com
Actus Reus
The various elements that make up the actus reus can be discovered from Coke’s definition.
v Sound Memory and of the Age of Discretion
As with other crimes, the defendant must be sane and aged over ten.
v Unlawfully Killeth
Certain defences may make a killing lawful. One example is self-defence, another is the
defence of necessity e.g. the case of Re A (2000) where the courts authorised the separation
of conjoined twins to save one knowing the other twin would not survive.
Defences aside, this part of the definition has been taken to mean ‘cause the death of’.
Murder is a result crime and as such, the prosecution must prove beyond reasonable doubt
that the defendant’s conduct caused the victim’s death. They must prove both factual and
legal causation.
v Within Any Country of the Realm
If the defendant is a British citizen, they can be tried in the UK for murder committed in
another country.
v Any Reasonable Creature in Rerum Natura
This is understood to mean the victim is a person who is born and not dead in that they are
‘capable of living’. This seems straightforward at first glance but the exact timing of the
beginning and end of life can cause problems. Generally, the beginning of life is taken to be
when the child has an existence independent of its mother.
Attorney-General's Reference No.3 of 1994
Facts: The defendant stabbed his girlfriend in the abdomen. She was pregnant and the
baby was born prematurely and later died. The question was whether the defendant
could be convicted of the murder of the child. The trial judge thought that the foetus was
not in rerum natura at the time of the stabbing. The defendant was acquitted. The
Attorney General appealed against the acquittal. The case reached the House of Lords.
, Fatal Offences Against the Person FACTSHEET
AQA – Criminal Law
EBradbury.com
Held: The House of Lords held that the fact that the baby had not yet been born at the
time of the attack did not prevent a murder conviction when she later died. On the facts,
however the defendant could not be guilty as it was not possible to transfer the malice –
the intention to cause grievous bodily harm to the mother - to make the defendant liable
for the murder of the baby. They said that at best, a conviction for manslaughter was a
possibility.
Lord Mustill:
‘The mother and the foetus were two distinct organisms living symbiotically, not a single
organism with two aspects. The mother’s leg was part of the mother; the foetus was not.
Nor is the foetus a ‘person’. Rather it is a unique organism.’
The end of life is also difficult to define. There is not legal definition but generally, brain
stem death is accepted as signalling the end of life.
R v Malcherek (1981)
Facts: The victim of a stabbing was pronounced brain dead and doctors switched off
the life support machine.
Held: As the victim was considered to be brain dead, turning of the life support
machine did not end his life, the victim was already dead.
A defendant who tried to kill someone who, unbeknownst to them, was already dead would
not be guilty of murder but may be liable for attempted murder.
v Under the King’s Peace
Obviously today it is under the Queen’s peace but it means the same thing in each case.
Killing another would not amount to murder if that person is an enemy during wartime.
v So that the Party Wounded or Hurt Die Within a Year and a Day
The requirement that the victim must die of their injuries within a year and a day was
understandable in previous times when long breaks between the defendant’s conduct and
the victim’s death would make it difficult for the prosecution to prove causation. Following
modern advances in medical technology, doctors are now able to keep patients alive for
much longer periods and a number of cases highlighted the unfairness of the rule whereby a
defendant was able to escape liability for murder simply because the victim had taken
longer than a year and a day to die. In 1996, this rule was finally abolished by the Law
Reform (Year and a Day Rule) Act 1996.
To avoid a situation where the defendant is uncertain about possible charges as the
prosecution wait to see if the victim will die, any case with a gap of more than three years
, Fatal Offences Against the Person FACTSHEET
AQA – Criminal Law
EBradbury.com
between the defendant’s conduct and the death of the victim requires the permission of the
Attorney General. Similarly, if the defendant has already been prosecuted in relation to the
incident– probably for a non-fatal offence, the Attorney General’s consent will also be
required to re-charge the defendant with murder.
Mens Rea
The mens rea of murder is malice aforethought. This means that the defendant must either
intend to kill or intend to cause grievous bodily harm. The phrase is misleading since neither
‘malice’ meaning an ill will nor ‘aforethought’ or premeditation, is necessary. The person
who acts on the spur of the moment or the doctor who carries out euthanasia, are equally
as guilty as the cold-blooded killer.
The fact that the mens rea can be satisfied by an intention to cause grievous bodily harm
has been strongly criticised. Opponents say that it is unfair to find a defendant guilty of
murder when they did not intend or even foresee loss of life. However, others suggest that
if the defendant intentionally sets out to cause really serious harm then they must face the
consequences of their actions, however severe they may be.
R v Vickers (1957)
Facts: The defendant broke into a shop owned by an old woman. When she saw
Vickers, he punched her several times and kicked her in the head once. She died of
her injuries.
Held: The Court of Appeal established that intention to cause GBH is sufficient mens
rea to prove malice aforethought. This is an example of implied malice.
This point was confirmed by the House of Lords in the case of R v Cunningham
(1981).
It is now settled law that both direct and oblique intention will satisfy the mens rea
requirement for murder but it took a number of cases to determine this issue.
s.8 Criminal Justice Act 1967
‘A court or jury in determining whether a person has committed an offence ...
a) Shall not be bound in law to infer that he intended or foresaw a result of his
actions by reason only of its being a natural and probable consequence of
those actions; but
AQA – Criminal Law
EBradbury.com
Need to know:
• Common law offence of murder
• Voluntary manslaughter: loss of control (s.54 Coroners and Justice Act 2009) and
diminished responsibility (s.2 Homicide Act 1957 as amended)
• Common law offence of involuntary manslaughter: unlawful act manslaughter and
gross negligence manslaughter
Murder
Introduction
Murder falls into the category of ‘homicide’, which also encompasses voluntary and
involuntary manslaughter – essentially offences where the defendant has caused a death.
Murder is a common law offence and as such there is no statute that defines the conduct
required. This may seem strange for such a serious crime but the necessary elements can be
determined by considering the development of the law through a number of leading cases.
Coke’s Definition
As a starting point, it is commonly accepted that the classic definition of murder was given
by Sir Edward Coke in his work Institutes of the Laws of England, published in 1797:
Definition of Murder by Sir Coke 1797
‘Murder is when a man of sound memory, and of the age of discretion, unlawfully
killeth within any county 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 die of the wound or hurt, within a year and a day
after the same.’
The basic definition of murder is UNLAWFUL KILLING WITH MALICE AFORETHOUGHT
, Fatal Offences Against the Person FACTSHEET
AQA – Criminal Law
EBradbury.com
Actus Reus
The various elements that make up the actus reus can be discovered from Coke’s definition.
v Sound Memory and of the Age of Discretion
As with other crimes, the defendant must be sane and aged over ten.
v Unlawfully Killeth
Certain defences may make a killing lawful. One example is self-defence, another is the
defence of necessity e.g. the case of Re A (2000) where the courts authorised the separation
of conjoined twins to save one knowing the other twin would not survive.
Defences aside, this part of the definition has been taken to mean ‘cause the death of’.
Murder is a result crime and as such, the prosecution must prove beyond reasonable doubt
that the defendant’s conduct caused the victim’s death. They must prove both factual and
legal causation.
v Within Any Country of the Realm
If the defendant is a British citizen, they can be tried in the UK for murder committed in
another country.
v Any Reasonable Creature in Rerum Natura
This is understood to mean the victim is a person who is born and not dead in that they are
‘capable of living’. This seems straightforward at first glance but the exact timing of the
beginning and end of life can cause problems. Generally, the beginning of life is taken to be
when the child has an existence independent of its mother.
Attorney-General's Reference No.3 of 1994
Facts: The defendant stabbed his girlfriend in the abdomen. She was pregnant and the
baby was born prematurely and later died. The question was whether the defendant
could be convicted of the murder of the child. The trial judge thought that the foetus was
not in rerum natura at the time of the stabbing. The defendant was acquitted. The
Attorney General appealed against the acquittal. The case reached the House of Lords.
, Fatal Offences Against the Person FACTSHEET
AQA – Criminal Law
EBradbury.com
Held: The House of Lords held that the fact that the baby had not yet been born at the
time of the attack did not prevent a murder conviction when she later died. On the facts,
however the defendant could not be guilty as it was not possible to transfer the malice –
the intention to cause grievous bodily harm to the mother - to make the defendant liable
for the murder of the baby. They said that at best, a conviction for manslaughter was a
possibility.
Lord Mustill:
‘The mother and the foetus were two distinct organisms living symbiotically, not a single
organism with two aspects. The mother’s leg was part of the mother; the foetus was not.
Nor is the foetus a ‘person’. Rather it is a unique organism.’
The end of life is also difficult to define. There is not legal definition but generally, brain
stem death is accepted as signalling the end of life.
R v Malcherek (1981)
Facts: The victim of a stabbing was pronounced brain dead and doctors switched off
the life support machine.
Held: As the victim was considered to be brain dead, turning of the life support
machine did not end his life, the victim was already dead.
A defendant who tried to kill someone who, unbeknownst to them, was already dead would
not be guilty of murder but may be liable for attempted murder.
v Under the King’s Peace
Obviously today it is under the Queen’s peace but it means the same thing in each case.
Killing another would not amount to murder if that person is an enemy during wartime.
v So that the Party Wounded or Hurt Die Within a Year and a Day
The requirement that the victim must die of their injuries within a year and a day was
understandable in previous times when long breaks between the defendant’s conduct and
the victim’s death would make it difficult for the prosecution to prove causation. Following
modern advances in medical technology, doctors are now able to keep patients alive for
much longer periods and a number of cases highlighted the unfairness of the rule whereby a
defendant was able to escape liability for murder simply because the victim had taken
longer than a year and a day to die. In 1996, this rule was finally abolished by the Law
Reform (Year and a Day Rule) Act 1996.
To avoid a situation where the defendant is uncertain about possible charges as the
prosecution wait to see if the victim will die, any case with a gap of more than three years
, Fatal Offences Against the Person FACTSHEET
AQA – Criminal Law
EBradbury.com
between the defendant’s conduct and the death of the victim requires the permission of the
Attorney General. Similarly, if the defendant has already been prosecuted in relation to the
incident– probably for a non-fatal offence, the Attorney General’s consent will also be
required to re-charge the defendant with murder.
Mens Rea
The mens rea of murder is malice aforethought. This means that the defendant must either
intend to kill or intend to cause grievous bodily harm. The phrase is misleading since neither
‘malice’ meaning an ill will nor ‘aforethought’ or premeditation, is necessary. The person
who acts on the spur of the moment or the doctor who carries out euthanasia, are equally
as guilty as the cold-blooded killer.
The fact that the mens rea can be satisfied by an intention to cause grievous bodily harm
has been strongly criticised. Opponents say that it is unfair to find a defendant guilty of
murder when they did not intend or even foresee loss of life. However, others suggest that
if the defendant intentionally sets out to cause really serious harm then they must face the
consequences of their actions, however severe they may be.
R v Vickers (1957)
Facts: The defendant broke into a shop owned by an old woman. When she saw
Vickers, he punched her several times and kicked her in the head once. She died of
her injuries.
Held: The Court of Appeal established that intention to cause GBH is sufficient mens
rea to prove malice aforethought. This is an example of implied malice.
This point was confirmed by the House of Lords in the case of R v Cunningham
(1981).
It is now settled law that both direct and oblique intention will satisfy the mens rea
requirement for murder but it took a number of cases to determine this issue.
s.8 Criminal Justice Act 1967
‘A court or jury in determining whether a person has committed an offence ...
a) Shall not be bound in law to infer that he intended or foresaw a result of his
actions by reason only of its being a natural and probable consequence of
those actions; but
