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

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.

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.

It should be noted that for murder, the year and a day rule has since been abolished by the Law Reform (Year and a Day Rule) Act 1996. There is now, no requirement that the death occur within a year and a day of the defendant’s actions.

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. A killing which is unlawful, is 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 law must first classify the victim as a human being. This raises the question at which point something becomes a human beings for legal purposes

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By an act or omission

The Courts have had very little trouble dealing with positive act cases: it is clear that a positive act to kill someone, such as picking up a knife and stabbing your victim, constitutes the actus reus of murder. However, the courts have found the status of omissions (a failure to act) which lead to a death far harder to grapple with.

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Which results in the death of that human being

This element of the actus reus of murder can be further broken down into two distinct matters for consideration: (1) causation, and (2) death.

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Within the Queen's peace

In order to constitute a murder, the killing must occur ‘within the Queen’s Peace.’ If it does not, then the killing is incapable of amounting to murder regardless of whether the other actus reus elements are present.

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With malice aforethought

The traditional definition of the mens rea for murder is that the crime must be committed with ‘malice aforethought.’ However, this now 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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