The classic definition of murder is that of Sir Edward Coke (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. ” For the purposes of convenience, we can say that murder is the unlawful killing of a human being under the Queen’s peace with malice aforethought ACTUS REUS.
1. UNLAWFUL KILLING The killing must be unlawful. Certain defences, eg self-defence, will make a killing lawful. The act (or omission) of the defendant must have been the legal cause of the death of the victim. Causation must be established. 2. HUMAN BEING The killing must be of a living human being. 3. QUEEN’S PEACE Under the Queen’s peace means that the killing of an enemy in the course of war will not be murder. MENS REA 1. MALICE AFORETHOUGHT ( now simply called intention) : Firstly it is important to consider the meaning of intention , where there is no evidence present it will be considered direct intention.
Indirect intention is when the person knows that a particular outcome is possible , how ever he did not aim at that out come. (a) Intention to kill ( express malice) : A killing done intentionally in the heat of the moment is just as much murder as one which has been planned and premeditated. An intentional killing is murder if prompted by compassion as much as if it is prompted by greed. So, in Inglis  the Court of Appeal upheld the conviction for murder of a mother whose son was suffering persistent vegetative state following a car accident and whom she had deliberately injected with heroin as an act of compassion.
The judge mus dirct the jury with a standard direction which will be something like this : Members of the jury, to find the defendant guilty of murder the question you must ask yourself is: ‘Did D stab V with the intention of killing V? ’ If you are not sure of the answer to this question then ask yourselves: ‘Did D stab V with the intention of causing V serious injury? ’ If your answer to either of these questions is yes then you must find the accused guilty of murder. If you are not sure that he had either of these intentions then you may find him guilty of manslaughter.
R v Woollin  AC 82 House of Lords The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. The trial judge directed the jury that if they were satisfied the defendant “must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder. ” The jury convicted of murder and also rejected the defence of provocation.
The defendant appealed on the grounds that in referring to ‘substantial risk’ the judge had widen the definition of murder and should have referred to virtual certainty in accordance with Nedrick guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation to refer to virtual certainty. House of Lords held: Murder conviction was substituted with manslaughter conviction. (b) Intention to cause G. B. H. (implied malice) In R v Vickers  2 QB 664, the Court of Appeal held that a defendant could be convicted of murder if it was established that he had intended to kill, or had intended grievous bodily harm.
The latter was accepted as sufficient mens rea for murder because if a defendant was willing to inflict g. b. h. , how was he to know that the victim might not die? An intention to cause g. b. h. at least evidenced a willingness to accept a substantial risk that the victim might die . This principle was confirmed in Cunning ham 1981, in which the defendant repeatedly hit the victim over the head with a chair which caused his death.
The defendant appealed against his conviction for murder, arguing that R v Vickers was wrongly decided and an intention to kill was necessary. This was rejected and Vickers affirmed. THE SENTENCE FOR MURDER The punishment for murder, a mandatory sentence of life imprisonment, is fixed by the Murder (Abolition of Death Penalty) Act 1965. On sentencing a murderer the judge may recommend to the Home Secretary the minimum period which should elapse before the prisoner is released on licence.