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Murder is one of two offences, alongside manslaughter, which constitute homicide. This offence is a common law crime, developing through the system of judicial precedent rather than via any statute laid down by Parliament. The Murder (Abolition of Death Penalty) Act 1965 establishes that the punishment for murder is a mandatory life sentence.

The classic definition of murder is provided by Sir Edward Coke in Institutes of the Laws of England (1797).

Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any country 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.

Elements of the offence

Broken down, murder requires:

  1. The unlawful killing;
  2. Of a human being;
  3. By an act or omission;
  4. Which results in the death of that human being;
  5. Within the Queen’s Peace;
  6. With malice aforethought.

There is no longer the requirement that the death occur within a year and a day of the defendant’s actions. This rule was abolished by the Law Reform (Year and a Day Rule) Act 1996.

Elements (1)-(5) constitute the actus reus (conduct element) of the crime of murder, whilst element (6) relates to the mens rea (mental element). These elements and the cases explaining them will be broken down in the sections which follow.

Unlawful killing

The killing must be an unlawful one, being one which cannot be excused or justified in law.

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Of a human being

In order for someone to be the victim of a murder, the victim must be a human being. The Court has therefore had to decide at what point something becomes a human being for the purposes of homicide.

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By an act or omission

Where someone does a positive act which kills another person, such as picking up a knife and stabbing their victim, it is clear this constitutes the actus reus of murder. However, the courts have had much more difficulty dealing with omissions (a failure to act) which lead to a death.

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Which results in the death of that human being

To constitue the actus reas of murder, the defendant must (1) cause (2) the death of the victim.

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Within the Queen's peace

The killing must occur ‘within the Queen’s Peace’ in order to constitute a murder.

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With malice aforethought

Traditionally, the mens rea for murder is that the crime must be committed with ‘malice aforethought.’ Now, this simply refers to the mental states which are recognised by the common law as being sufficient to form the mental element required for murder.

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