Murder (AQA A-Level Law): Revision Notes
Murder
Overview of murder
Murder is a common law offence defined as the unlawful killing of a human being with malice aforethought. This definition originates from Edward Coke's work in the sixteenth and seventeenth centuries and remains in use today.
Murder is classified as an indictable offence, which means it can only be tried by a jury in the Crown Court. Upon conviction, it carries a mandatory life sentence (though this does not necessarily mean the defendant will spend their entire life in prison).
To secure a conviction for murder, the prosecution must prove both the actus reus (the guilty act) and the mens rea (the guilty mind) beyond reasonable doubt.
This content will be assessed in Paper 1.
Actus reus of murder
The actus reus of murder is the unlawful killing of a human being. This seemingly simple phrase contains several distinct legal components, each of which must be satisfied for a conviction.
Unlawful
For a killing to constitute murder, it must be unlawful. This means the killing cannot be legally justified by a defence such as self-defence. Even if the defendant had no wicked or evil motive, this does not automatically make their actions lawful.
Case Example: R v Clegg (1995)
In this case, a soldier shot and killed a joyrider who failed to stop at a security checkpoint. The soldier used excessive force, and despite having no malicious motive, his actions were deemed unlawful because they went beyond what was reasonable in the circumstances.
Legal Principle: The court confirmed that a lack of evil intent does not prevent a killing from being unlawful if it cannot be justified by a legal defence.
Killing
This component simply means causing death. The law is not concerned with the method by which death is caused - it is irrelevant whether the defendant acted or failed to act (an omission). Both positive acts and failures to act when under a duty to do so can constitute killing.
Causing
The usual rules of causation apply to murder. The defendant's act or omission must be a substantial cause of the victim's death, though it need not be the sole or main cause. The test requires that the defendant's conduct must have "more than minimally, negligibly or trivially contributed to the death," as stated by Lord Woolf MR in R v HM Coroner for Inner London ex parte Douglas-Williams (1999).
When analyzing causation in murder cases, you must consider:
- Factual causation - the "but for" test
- Legal causation - the defendant's act was a substantial and operating cause
- Intervening acts - any acts that might break the chain of causation
Death
Death is determined by a medical test, not a legal one. The current medical definition of death is brain stem death. This means that even if other bodily functions continue with mechanical assistance, a person is legally dead once their brain stem has ceased to function.
Case Example: R v Malcherek and Steel (1981)
In this case, doctors switched off life-support machines for two victims who were showing no brain stem activity.
Court's Decision: The defendants who had caused the original injuries were responsible for the deaths, not the doctors who switched off the machines, because brain stem death had already occurred.
Legal Principle: Brain stem death is confirmed as the appropriate test for determining death.
Importantly, illness or disability, regardless of severity, does not prevent someone from being classified as a human being. Therefore, euthanasia remains murder in English law.
R v Inglis (2011) - Euthanasia and Murder
A mother killed her son who was in a persistent vegetative state following an accident. The Court of Appeal stated unequivocally that:
"A disabled life, even a life lived at the extremes of disability, is not one jot less precious than the life of an able-bodied person."
The defendant was convicted of murder. This case confirms that euthanasia, regardless of motive or the victim's condition, remains murder in English law.
Human being
The legal test focuses on when someone becomes a human being, rather than what constitutes one. A foetus is not considered a human being for the purposes of murder law. The question is: when is a human being capable of existence independent of the mother?
The answer is that a person becomes a human being when they are born alive and breathing through their own lungs. This means that a foetus in the womb cannot be the victim of murder, though harm caused to it may result in murder if the child is subsequently born alive and then dies from those injuries.
Case Examples: When Does Life Begin?
Rance v Mid-Downs Health Authority (1991) established that a foetus in the womb is not a person in law.
A-G Ref No. 3 of 1994 (1997) clarified the position further:
- A pregnant woman was stabbed in the abdomen
- The baby was born alive but died 112 days later due to complications from its premature and traumatic birth
- The court held that "murder or manslaughter can be committed where... the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies"
Key Principle: The child must be born alive and then die. If the foetus dies in the womb, murder cannot be charged (though other offences may apply).
Mens rea of murder
The mens rea of murder is malice aforethought. As Lord Mustill observed in 1998, "the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning," and the phrase "malice aforethought" is a prime example. The archaic terminology is misleading because it does not require either malice (ill-will) or aforethought (planning or premeditation).
Modern Definition of Malice Aforethought
In modern law, malice aforethought means intent to kill or cause grievous bodily harm (GBH).
This intent can take four forms:
- Direct intent to kill - the defendant's purpose or aim is to kill the victim
- Oblique intent to kill - death is a virtually certain consequence of the defendant's actions, and the defendant appreciates this
- Direct intent to cause GBH - the defendant's purpose is to cause really serious harm
- Oblique intent to cause GBH - really serious harm is a virtually certain consequence, and the defendant appreciates this
Grievous bodily harm
The meaning of grievous bodily harm (GBH) has been clarified through case law. In DPP v Smith (1961), the House of Lords held that "grievous" means no more and no less than really serious harm. Later, in R v Saunders (1985), the Court of Appeal suggested that the word "serious" alone was sufficient, and "really" could safely be omitted.
However, R v Janjua and Choudhury (1998) gave trial judges discretion on this point. In this case, the defendants stabbed their victim several times with a five-inch blade. The Court of Appeal ruled that the trial judge should decide whether or not to include the word "really" when directing the jury. In practice, most judges do include it to emphasize the severity of harm required.
Critical Point About GBH and Murder
A defendant can be convicted of murder even if they only intended to cause really serious harm, without any intent to kill. This is often criticized as being too broad, as it means someone can be convicted of murder and receive a mandatory life sentence without ever intending to kill anyone.
Exam technique: using cases effectively
The IDEA Framework
When applying legal principles to scenario questions, remember the IDEA framework:
- Identify the point of law
- Describe the point of law
- Give a case Example
- Apply the point/case to the facts of the scenario
This structured approach ensures you demonstrate both legal knowledge and the ability to apply it to new situations.
Remember!
Key Points to Remember:
- Murder is the unlawful killing of a human being with malice aforethought
- The actus reus requires proof of five elements: unlawful, killing, causing, death, and human being
- Brain stem death is the current medical test for death (R v Malcherek and Steel)
- A person becomes a human being when born alive and breathing independently (A-G Ref No. 3 of 1994)
- Malice aforethought (the mens rea) means intent to kill or cause GBH - it does not require malice or premeditation
- GBH means really serious harm (DPP v Smith; R v Janjua and Choudhury)
- Even intent to cause GBH is sufficient for murder - there is no need to prove intent to kill
- Murder is triable only in the Crown Court and carries a mandatory life sentence