Murder (OCR A-Level Law): Revision Notes
Murder
Introduction
Murder is a common law offence that has existed for centuries. The legal definition originates from Sir Edward Coke in the sixteenth and seventeenth centuries. Murder is defined as the unlawful killing of a human being with malice aforethought.
This offence consists of two essential elements that must both be proven beyond reasonable doubt: the actus reus (the prohibited act) and the mens rea (the required mental state). Understanding each component and the key cases that interpret them is crucial for exam success.
Both the actus reus and mens rea must be proven beyond reasonable doubt for a murder conviction. If either element cannot be established, the defendant cannot be convicted of murder, though they may still face liability for a lesser offence such as manslaughter.
Actus reus of murder
The actus reus of murder is the unlawful killing of a human being. This means the prosecution must prove that the defendant's actions or omissions caused the death of another person in circumstances where no legal justification exists. There are four key components that make up the actus reus:
- Unlawful killing
- Causation
- Death
- Human being
Unlawful killing
A killing is unlawful unless there is a legal justification or defence that makes it lawful. The most common justification is self-defence, where reasonable force is used to protect oneself or others from imminent harm. If the defendant successfully raises a defence such as self-defence, the killing becomes lawful and no murder conviction can follow.
However, the use of force must be reasonable and proportionate. Excessive force removes the protection of self-defence and renders the killing unlawful.
R v Clegg (1995) established a critical principle: a defendant's lack of wicked or evil motive does not prevent their actions from being unlawful. In this case, a soldier shot and killed a joyrider who failed to stop at a checkpoint in Northern Ireland. Although Clegg was performing his duties and had no malicious intent, the court held that his use of excessive force made the killing unlawful.
This demonstrates that good intentions or a sense of duty cannot excuse an unlawful killing if the force used exceeds what is reasonable and necessary.
Causation
The prosecution must prove that the defendant's act or omission actually caused the victim's death. The normal rules of causation apply to murder just as they do to other offences. This means establishing both factual causation (but for the defendant's actions, would the victim have died?) and legal causation (was the defendant's conduct an operating and substantial cause of death?).
Causation can be established through a direct act, such as stabbing or shooting, or through an omission where the defendant had a legal duty to act. The chain of causation can also operate indirectly, such as where the defendant sets in motion a sequence of events that ultimately leads to death.
Intervening acts and causation: Students should remember that intervening acts may break the chain of causation, but medical treatment will rarely do so unless it is so independent and potent that it makes the original injury merely part of the history.
Death
Death is determined by medical criteria rather than legal ones. The current medical test for death is brain stem death. This means that a person is legally dead when their brain stem has ceased to function, even if their heart is still beating with mechanical assistance.
R v Malcherek and Steel (1981) confirmed brain stem death as the accepted test. In both cases, doctors switched off life-support machines because neither victim showed any brain stem activity. The court held that the original attackers were still responsible for the deaths because the victims were already medically dead before the machines were switched off. The doctors' actions in switching off life support did not break the chain of causation.
R v Inglis (2011) reinforced this principle in a tragic case where a mother killed her son who was in a persistent vegetative state following an accident. The court stated 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. This case emphasizes that the value and protection of human life extends to those with severe disabilities or in vegetative states, and that euthanasia remains unlawful regardless of the defendant's motives.
Human being
The law asks when rather than what a human being is. The crucial question is: when is a human being capable of existence independent of the mother? A foetus becomes a human being when it is born alive and breathing through its own lungs. Before this point, a foetus is not considered a separate human being for the purposes of murder law.
Rance v Mid-Downs Health Authority (1991) established that a foetus in the womb cannot be the victim of murder because it has not yet achieved an existence independent of the mother.
Attorney-General's Reference No. 3 of 1994 (1997) clarified that murder or manslaughter can be committed where a foetus is injured while in the womb, the child is subsequently born alive and enjoys an independent existence, but then dies from those injuries.
Worked Example: A-G Ref No. 3 of 1994
In this case, 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 House of Lords held that a conviction for murder or manslaughter was possible because:
- The baby had been born alive
- The baby had achieved independent existence before dying
- The death resulted from injuries inflicted while in the womb
This demonstrates that the crucial timing is when the child achieves independent life, not when the injury was inflicted.
CP v CICA (2014) further developed this area of law, confirming the principles about when a foetus becomes a human being for legal purposes.
The test for defining when life begins remains controversial. Advances in medical technology mean that premature babies can survive at earlier stages of development, which raises ethical and legal questions about the appropriate threshold for legal personhood.
Mens rea of murder
The mens rea of murder is described using the archaic phrase malice aforethought. Lord Mustill observed in 1998 that the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning. He was referring partly to this phrase, which does not actually require malice (spite or ill-will) or aforethought (planning or premeditation).
What malice aforethought actually means
Despite its misleading name, malice aforethought simply means intent to kill or cause grievous bodily harm. Grievous bodily harm means really serious harm. A defendant can be convicted of murder even if they only intended to cause serious injury but did not intend or foresee death. This reflects the law's view that anyone who intentionally inflicts serious harm on another person should accept responsibility if death results.
Four Ways to Satisfy Mens Rea
The mens rea can be satisfied in four different ways:
- Direct intent to kill - where death is the defendant's aim or purpose
- Oblique intent to kill - where death is virtually certain to result from the defendant's actions and the defendant appreciates this
- Direct intent to cause really serious harm - where causing serious injury is the defendant's aim or purpose
- Oblique intent to cause really serious harm - where serious injury is virtually certain and the defendant appreciates this
Remember: Intent to cause GBH is sufficient for murder, even without intent to kill.
Key cases on grievous bodily harm
DPP v Smith (1961) established that grievous means no more and no less than really serious. This provides the basic definition that grievous bodily harm requires really serious harm, not just any injury.
R v Saunders (1985) held that the word "serious" could safely be omitted when directing a jury. This suggests that simply using the word "really" is sufficient, and adding "serious" afterward might be redundant.
R v Janjua and Choudhury (1998) gave trial judges discretion about whether to include the word "really" when explaining grievous bodily harm to juries. In this case, the defendants stabbed their victim several times with a five-inch blade. The Court of Appeal held that trial judges should decide whether or not to use the word "really" based on the circumstances of each case, though it remains the preferred approach to include it for clarity.
Exam technique for murder questions
When answering scenario questions on murder, use the ILAC structure:
- Issues - Identify what has happened in the scenario
- Law - Explain the relevant legal principles and cases
- Apply - Apply the law to the specific facts given
- Conclude - Decide whether the defendant is guilty or not guilty of murder
Critical Exam Advice
In scenario questions, the victim will always be both human and dead, so avoid spending excessive time discussing these elements. Instead, focus your analysis on:
- Causation issues
- Whether there was an act or omission
- Whether any defence might apply
The examiner wants to see detailed discussion of the areas where there is genuine doubt or complexity, not basic points that are clearly established by the facts.
When evaluating the law of murder, consider anomalies and areas open to criticism. The archaic definition, the controversial mens rea of intending serious harm (rather than requiring intent to kill), and the contentious definition of when life begins are all suitable areas for critical analysis.
Key Points to Remember
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Murder is the unlawful killing of a human being with malice aforethought - this common law definition comes from Sir Edward Coke
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The actus reus has four components: unlawful killing, causation, death, and human being
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Death is determined by brain stem death (R v Malcherek and Steel)
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A human being exists when born alive and breathing independently (A-G Ref No. 3 of 1994)
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Malice aforethought actually means intent to kill or cause grievous bodily harm - it can be direct or oblique intent for either outcome
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Grievous bodily harm means really serious harm (DPP v Smith)
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Use ILAC structure in exam scenario questions: Issues, Law, Apply, Conclude
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Focus exam answers on areas of genuine doubt, not basic established facts