The Actus Reus of murder
- Murder is the most serious homicide offence.
- Jurisdiction over murder extends to any murder in any country: a British citizen may
be tried in an English court for a murder he is alleged to have committed in another
country.
Element 1: An unlawful killing
Key case: R V Gibbins and Proctor: Shows that an omission can make a person liable for
murder.
- Killing must be unlawful
- A killing is not unlawful if it is done in self-defence, the defence of another or the
prevention of crime.
- Consent is never a defence to murder.
Element 2: A reasonable creature in being
- The killing must be of ‘a reasonable creature in being’.
- ‘A reasonable creature in being’ means person.
- For murder to be committed, a person must be killed.
- Foetuses – the general rule is that it’s not murder to kill a foetus in the womb or in
the process of leaving the womb.
- A foetus only becomes a reasonable person in being when it has an existence
independent of the mother:
-when it has been fully expelled from the mother’s body (Poulton 1832), is alive and
has an independent circulation.
-However, the umbilical cord need not have been cut (Reeves 1839).
- The time of death is crucial, not the time of the injury.
A-G’s Ref NO 3 of 1994
- The defendant stabbed his girlfriend when she was 23 weeks’ pregnant. She
recovered but gave birth prematurely. The baby was born alive but died aged 4
months. The defendant was charged with murder.
- Held at first instance: the trial judge directed the jury that a foetus was not a
‘reasonable creature in being’ so the defendant could not be guilty of it murder. The
defendant was acquitted.
- The house of lord held that foetuses cannot be murdered in utero, as they are not
‘reasonable creature in being’, but, where a baby is born alive and dies as a result of
violence inflicted upon it in utero, this can be the actus reus for murder or
manslaughter.
The old year and a day rule
- There used to be a rule that the victim’s death must occur within a year and a day of
the defendant’s unlawful act.
- With improvement in medicine, the rules became outdated, because patients can be
kept alive for more than a year and a day after an attack.
- The rule was abolished by the Law Reform (YEAR AND A DAY RULE) Act 1996
- Murder is the most serious homicide offence.
- Jurisdiction over murder extends to any murder in any country: a British citizen may
be tried in an English court for a murder he is alleged to have committed in another
country.
Element 1: An unlawful killing
Key case: R V Gibbins and Proctor: Shows that an omission can make a person liable for
murder.
- Killing must be unlawful
- A killing is not unlawful if it is done in self-defence, the defence of another or the
prevention of crime.
- Consent is never a defence to murder.
Element 2: A reasonable creature in being
- The killing must be of ‘a reasonable creature in being’.
- ‘A reasonable creature in being’ means person.
- For murder to be committed, a person must be killed.
- Foetuses – the general rule is that it’s not murder to kill a foetus in the womb or in
the process of leaving the womb.
- A foetus only becomes a reasonable person in being when it has an existence
independent of the mother:
-when it has been fully expelled from the mother’s body (Poulton 1832), is alive and
has an independent circulation.
-However, the umbilical cord need not have been cut (Reeves 1839).
- The time of death is crucial, not the time of the injury.
A-G’s Ref NO 3 of 1994
- The defendant stabbed his girlfriend when she was 23 weeks’ pregnant. She
recovered but gave birth prematurely. The baby was born alive but died aged 4
months. The defendant was charged with murder.
- Held at first instance: the trial judge directed the jury that a foetus was not a
‘reasonable creature in being’ so the defendant could not be guilty of it murder. The
defendant was acquitted.
- The house of lord held that foetuses cannot be murdered in utero, as they are not
‘reasonable creature in being’, but, where a baby is born alive and dies as a result of
violence inflicted upon it in utero, this can be the actus reus for murder or
manslaughter.
The old year and a day rule
- There used to be a rule that the victim’s death must occur within a year and a day of
the defendant’s unlawful act.
- With improvement in medicine, the rules became outdated, because patients can be
kept alive for more than a year and a day after an attack.
- The rule was abolished by the Law Reform (YEAR AND A DAY RULE) Act 1996
