22.01.2018 in Law
A Report on Murder


The law on murder as it exists in the UK is essentially a continuation of common law, where the courts still hold lots of discretion to refine and redefine elements of an offence. This leaves the public, bar and bench which some degree of uncertainty. Besides, the present elements and defenses still need some adjustments. The past legislative intervention has been occurring in piecemeal, leaving the law largely unconsolidated and shaky. This report recommends that the present law on murder be consolidated by means of legislations as major revisions and rationalizations being done to realize a more comprehensive, fair, clear and certain laws on these areas. This reform ought to focus on the actus reus of the crime, the mens rea and the available defenses.


Task 1: Element of the Crime of Murder in UK

In the United States (hereafter UK), the definition of murder is essentially based on the common law definition, albeit with subtle statutory modifications.  At common law, the felony of murder refers to the unlawful killing (by someone, “D”) of another person (“V”) with malice aforethought. Four important elements must therefore be proved for successful conviction of a defendant accused of murder: (1) the unlawfulness D’s act or omission ; (2)killing of V (caused by D’s act or omission) ; (3) who is a person ; and (4) the presence of  malice aforethought in D’s conduct. The fits three are essentially comprise the actus reus of the crime whereas the last element forms the mens rea of the offence, and is the basis of distinction of murder from all the other forms of homicide.  

At common law, killing was deemed to have occurred upon V’s cardiopulmonary arrest, when respiration and blood circulation stopped. However, owing to technological advancement, the permanent termination of brain activities is preferred as a measure of when one is regarded to have died. Specification that the killing had to be legal is intended to exclude executions resulting from death penalty or death that results among combatants in armed conflict, or where the law enforcers use a reasonable force to restore piece and order. A human being as a victim of D’ killing presents the issue as to when life commences, a fare controversial topic. At common law, life begins at birth, when a fetus successfully passes through the mother’s birth canal and takes the first breath. As such, criminal liability would not arise in relation to killing a fetus, as the (common) law does not regard it as a human being. The requirement that V had to be killed by another person removed suicide from the scope of murder, as there could not have been a criminal liability against the deceased. It is important to note that causation (link between D’s act or omission and the death of V) is a vital component which if not proved would not warrant imposing criminal liability on the accused.

Upon successful establishment of the above components of mens rea, there is a huddle of proving malice aforethought. Unlike connotations that may be inferred, malice aforethought does not mean that D must have acted maliciously towards V nor that D must have premeditated the killing of V.  In the United Kingdom, the requirement as to the malice aforethought will be satisfied if it is shown that either: (a) D intended to kill V, or ;( b) D intended to carry out a serious harm against V. Later on , in 1975, the house of Lords, in reiterating the narrower approach to malice aforethought in the UK, pointed out that it would suffice for purposes of malice aforethought if it could be established that D foresaw, or ought to have foreseen that his either of the results (death or serious harm)  or that D’ conduct would highly probably cause death or serious harm.

Having established both the mens rea and the actus reus of the offence, it must also be shown that there existed a coincidence between the two at a point in time.  Such coincidence will be deemed to exist even in a sequence of event that eventually leads to death by the virtue of single transaction principle. For instance in Thabo Meli v R, the defendant threw his victim over the cliff thinking that he had died from harm inflicted by D. Her died upon being thrown. The court held that these were acts of the same transactions and were so closely connected  that they would be held to be contemporaneous. Task 2: Voluntariness, the Concepts of Causation and Omission

It sis already pointed, it must be established that the conduct of D killed v, if the requisite actus reus is to be established.  A question that arises is whether the defendant ought to be held responsible for conducts, which though his, are caused by forces beyond his control. Generally, generally, nature of abnormality that stands to impact significantly on the thinking, volition and emotion of the defendant frees D from being responsible for his action. He can therefore not be said to have acted in that manner as the forces were beyond his control and therefore did not act voluntarily. 

It is equally important to establish that D’s acts or omissions was operational and indeed the most cause of V’s death with no new intervening act ( novus actus interveniens) breaking in between and thereby breaking the chain of causation. Only then will it be said that D was responsible for the death of V. Otherwise, the death may be attributed to the new act breaking in and thus takes the liability away from the defendants. However, if after an act of D, V takes certain steps in response as a result of which the original attack of D escalates or is attacked by a third party; chain of causation will not be regarded to have been broken. Secondly, even if V was in the verge of dying and he ends up dying by the virtue of D’s conduct, it may not be a defense to say that D was about to die as D should have left his victim the way he found him. These stem from the common law position that the chain of causation will not be broken by contingency that was foreseeable. The only way out of causation chain by D is to establish that V’s act or the alleged intervening act was the substantial cause of V’s death and that D’s act merely formed a background upon which v’s act or third party’s act operated. Otherwise v is not under an obligation to act as D wishes.  It is equally open for D to shat a phenomenon that is of unpredictable natural character came into play, thereby causing V’s death ,and breaking chain of causation.

 Task3: Adequacy of the mens rea of murder and the problems with proving intention.  

It should be noted here that the components of malice aforethought at common law was broader than currently applicable in the United Kingdom. This is after the Homicide Act of 1957 was passed which abolished the application of the common law doctrine of constructive malice, as a possible component of malice aforethought. This doctrine implied  malice aforethought if it could be established that D intended to commit a felony or that  he or she intended to resist or oppose a lawful arrest. The law as it is presently calls for illustration that the defendant had intension to kill or inflict serious harm. This has been a major hurdle as these facts , in reality are in the best knowledge of the defendant. Even the test of probable impact of the defendant’s conduct as an objective test adopted in some cases may as well veer off from the real intension of the defendant.  

Whereas significant efforts have been made by the legislature and the judiciarytopolish up the requirements relating to the mens rea of murder(malice aforethought), the law on this aspect still needs further reforms.  The requirement of intention to cause serious harm as an adequate ground to establish mens rea of murder is unfair and still leaves murder to be an offence that is too broad. One who intends to inflict serious harm and another who intends to cause death obvious has aims that are of significant variance; the former seeks to harm just a limb or limbs while the latter seeks to terminate life. They should therefore not be put in the sme category of an offense. Perhaps, serious harm rule should be severed from amongst the components of murder mens rea ;or there be different categories (levels) of murder, with this aspect forming a requisite mens rea component of a murder of a lower degree that the intension to cause death.

Task4: evaluating the law relating to the defenses to murder

There are a number of defenses available for a defendant to a murder suspect against whom a prima facie case has been established. Self defense apply as a full defense and will be satisfied if the defendant used a reasonable force when under impending and overwhelming danger of his person or properly or to save any other person and that the force that was used was commensurate with the danger posed by the attackers. These is also the defense of insanity and diminished responsibility, introduced by Coke J in M’Naghten’s case and later incorporated by the Homicide Act 1957. These apply where a condition retards or impair the defendant’s mind to the extent that they are not mentally responsible for their actions. These are partial defense that leaves the court with the discretion of imposing conditional discharge to life imprisonment. Still at common law, there exists the defense of provocation, partial defense that reduces liability from murder to manslaughter.  It submitted that administration of lethal drugs to patients solely for alleviation of pain is a defense for murder in medical cases.

Nevertheless, the law relating to murder defenses still needs further reforms. There are some defenses that have been allowed in other areas of law, like the law of torts and contract, like necessity, duress and marital coercion, but have nevertheless not been accepted as a defense for murder. However, these circumstances have t often operate to overpower or compromise voluntariness of the defendant. If provocation, which has an effect of limiting one’s restraint over him or her, can be a partial defense, there is no reason to exclude these as defenses.


The common law still remains the core of murder law in the United Kingdom. However, some of the adjustments, particularly with regards to the mens rea  and the defenses have been made by  statutes such as Homicide Act 1957. Nevertheless, further reforms are still essential. Some of the reforms may include statutory consolidation of the laws, redefining the elements and coming up with different categories of murder.

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