A detailed outline of the offence of Murder in English Law. This includes definitions and case examples of the elements of the offence, as well as criticism and reform suggestions. Document provides all information needed for answering exam style questions or scenario essays on this offence, as wel...
Murder is arguably one of the most, if not the most serious offence that can be
committed within the United Kingdom. It is therefore arguably surprising that it has
never been properly defined by statute. This has meant its scope and elements have
been left to the common law to define.
The Law Commission in their 2005 report ‘A New Homicide Act for England and
Wales’ define murder as a ‘rickety structure set upon shaky foundations’ as a result of
this. Arguably however in practice murder as an offence works well in the majority of
cases, and it is rare that injustice will occur.
The most used definition of murder comes from Sir Edward Coke as being ‘the
unlawful killing of a person in being under the king/queen’s peace, with malice
aforethought, express of implied’. The courts have interpreted this to mean an
intention to kill or cause grievous bodily harm (see below – also known as GBH).
Actus Reus (the physical elements of an offence) = unlawful killing of a person in
times of peace
Mens Rea (the mental elements of an offence) = Intention to kill or cause GBH
Actus Reus of Murder
Who can commit murder?
Sir Edward Coke – anyone who is of the age of criminal responsibility (not a child in
the legal sense) and of sound mind and memory (the modern approach of this is that
someone is not excused for diminished responsibility as discussed in topic 2)
What about an unborn child?
Under English law it is not an offence to kill a foetus. This is most easily shown
through the fact that abortion is legal in the United Kingdom provided that set
requirements are fulfilled.
Although this is the case, a person who does kill a foetus could be liable for other
offences, namely under S58 of the Offence Against the Person Act 1861 for procuring
an abortion (knowledge of this offence is not needed however).
When does a foetus become a child then, and therefore capable of being a victim of
murder?
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