A new lecture on murder in criminal law is now available on YouTube, description below:

The definition of murder comes from Sir Edward Coke in Institutes of the Lawes of England (1628):
“Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law, [so as the party wounded, or hurt etc. die of the wound or hurt, etc. within a year and a day after the same].”

The first part deals with a person being of sound mind and therefore covers issues such as insanity under the M’Naghten (1843) rules as well as diminished responsibility under s. 2 of the Homicide Act 1957. The age of criminal responsibility in England and Wales is 10 years old.

Unlawfully killing excuse defendants who have a lawful excuse for their actions such as actin in self-defence.

Within any county has been greatly expanded to cover all murders committed by British citizens (s. 9 Offences Against the Person Act 1861; s. 3 British Nationality Act 1948) and can even cover non-British citizens under s. 4 Suppression of Terrorism Act 1978.

The victim must be in existence and this can be controversial in areas where the start of life is concerned. The foetus is not seen as being in existence and therefore falls under other offences such as under the Infant Life (Preservation) Act 1929. The baby must have independent existence and be fully expelled from the mother (Poulton (1832)) but does not necessarily have to have the umbilical cord cut yet (Reeves (1839)). Under Article 2 of the European Convention on Human Rights this issue is left to the states under the margin of appreciation (Vo v France [2004]).

“Under the King’s peace” has also been greatly expanded and according to Hale covers all situations except those in the heat of war. Therefore British soldiers can be convicted for murder.

The mens rea of malice aforethought is not applied literally and since Moloney [1985] covers two situations: intention to kill and intention to cause grievous bodily harm. The definition of intention is based on Woolin [1985] meaning a virtually certain consequence. Grievous is given an ordinary meaning of serious and is left to the jury. After DPP v Smith [1965] was discredited in Frankland & Moore v R [1987] the test for liability is subjective. Meanwhile s, 1 of the Homicide Act 1957 removed the concept of constructive malice.

The victim must die and be killed and the definition for this can be controversial in end of life cases. Often when doctors offer palliative care they will not be prosecuted even if they are accelerating death (Airedale NHS Trust v Bland [1993]). Issues around those in a vegetative case can be dealt with by reference to the patient’s best interests as per s. 4 of the Mental Capacity Act 2005.

There is no time limit between the actions of the defendant and the actual death but after three years permission from the attorney general is needed to pursue a prosecution. This is also needed if the defendant has already been convicted of an offence in relation to the incident.

For sentencing the minimum term was previously set by the Home Secretary but this was incompatible with articles 5 (liberty) and 6 (fair trial) of the European Convention on Human Rights in the case of R v Home Secretary ex p Anderson [2002]. Now under schedule 21 of the Criminal Justice Act 2003 this is set by the judge and can be whole life, 30 years or 15 years.

Over the years many reforms have been suggested for murder by the Law Commission.