This documents highlights the key element of Actus Reus (AR) in Murder. It covers key cases and is great for revision.
Suitable for students studying GCSE Law through to Undergraduate Law.
- 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- With improvement in medicine, the rules became outdated, because patients can be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
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