Murder is an offence under the common law legal system of England and Wales. It is considered the most serious form of homicide, in which one person kills another with the intention to unlawfully cause either death or serious injury. The element of intentionality was originally termed malice aforethought, although it required neither malice nor premeditation. Baker states that many killings done with a high degree of subjective recklessness were treated as murder from the 12th century right through until the 1974 decision in DPP v Hyam.
Because murder is generally defined in law as an intent to cause serious harm or injury (alone or with others), combined with a death arising from that intention, there are certain circumstances where a death will be treated as murder even if the defendant did not wish to kill the actual victim. This is called "transferred malice", and arises in two common cases: The defendant intended serious harm to one or more persons, but an unintended other person dies as a result; Several people share an intent to do serious harm, and the victim dies because of the action of any of those involved (for example, if another person goes "further than expected" or performs an unexpectedly lethal action).
Definition Murder is defined, at common law rather than by statute, as the unlawful killing of a reasonable person in being under the King or Queen's peace with malice aforethought express or implied.
Actus reus The actus reus (Latin for "guilty act") of murder was defined in common law by Coke:
The latter clause (known as the 'year and a day rule') was abolished in 1996 (see below).
A further historic rule, the felony murder rule, was abolished in the Homicide Act 1957. Until abolition, the effect of this rule had been to create murder offences in two cases: when manslaughter occurs during the course of a crime it could in certain cases be automatically reclassified by law as murder; and that any deaths resulting from acts of a criminal during the crime could cause culpability as murder on the part of all his or her fellow criminals. The effect of this rule is partly retained despite abolition, since intent to kill is not necessary – intent (including common intent) to cause serious injury is sufficient for murder if death results.
"Unlawfully" "Unlawfully" means without lawful justification or excuse.Archbold Criminal Pleading, Evidence and Practice. 2009. Paragraphs 17-44 and 19-3.
Causation and foreseeability
For a killing to amount to murder by a defendant, at the time of death the defendant's acts or omissions must be the operating and most substantial cause of death with no novus actus interveniens (Latin for "new act breaking in") to break the chain of causation. Thus, the defendant cannot choose how the victim is to act, nor what personality to have. No matter whether brave or foolish, the defendant must expect the victim to: try to escape and if he or she dies in that attempt, the chain of causation is not broken; or try to fight back and so escalate the extent of the violence between them; or seek medical treatment for the injuries sustained and, even if mistakes are made by the medical staff, this will not break the chain of causation unless the mistakes become the more substantial cause of death.
There are conflicting authorities on the above point, R v JordanR v Jordan (1956) 40 Cr App R 152 and R v Smith.R v Smith 2 QB 35; soldier stabbed, dropped twice, poor medical treatment, defendant still guilty of murder In short, any contingency that is foreseeable will maintain the chain. Put the other way, only some unexpected act by a third party which places the original attack as a merely a background context, or some unpredictable natural phenomenon, will break the chain.
"In rerum natura"
For a killing to amount to murder by a defendant, the defendant must have caused the death of "a reasonable creature in rerum natura". The phrase as a whole is usually translated as "a life in being", i.e. where the umbilical cord has been severed and the baby has a life independently of the mother.
Attorney General's Reference No. 3 of 1994 (an appeal on a point of law following acquittal) is a relatively recent case involving a murder charge for the death of an unborn child. The Law Lords considered the case of a man who stabbed his pregnant wife in an argument. The wife recovered but delivered the baby prematurely. The baby died some time after the premature birth. The cause of death was simply that she had been born prematurely due to the effect of the attack on the mother, rather than due to any injury. In that case, Lord Mustill noted that the legal position of the unborn, and other pertinent rules related to transferred malice, were very strongly embedded in the structure of the law and had been considered relatively recently by the courts. The Lords concurred that a foetus, although protected by the law in a number of ways, is legally not a separate person from its mother in English law. They described this as outdated and misconceived but legally established as a principle, adding that the foetus might be or not be a person for legal purposes, but could not in modern times be described as a part of its mother. The concept of transferred malice and general malice were also not without difficulties; these are the legal principles that say when a person engages in an unlawful act, they are responsible for its consequences, including (a) harm to others unintended to be harmed, and (b) types of harm they did not intend.
As such in the above case where a husband stabbed his pregnant wife, causing premature birth, and the baby died due to that premature birth, in English law no murder took place. "Until she had been born alive and acquired a separate existence she could not be the victim of homicide". The requirements for murder under English law, involving transfer of malice to a foetus, and then (notionally) from a foetus to the born child with legal personality, who died as a child at a later time despite never having suffered harm as a child (with legal personality), nor even as a foetus having suffered any fatal wound (the injury sustained as a foetus was not a contributory cause), nor having malice deliberately directed at it, was described as legally "too far" to support a murder charge.
However, they did note that English law allowed for alternative remedies in some cases, and specifically those based on "unlawful act" and "gross negligence" manslaughter which does not require intent to harm the victim:
Lord Hope drew attention to the parallel case of R v MitchellR v Mitchell Q.B. 741 where a blow aimed at one person caused another to suffer harm leading to later death, affirmed by the Court of Appeal as manslaughter, and summarized the legal position of the death of the unborn child:
Four years later, the case St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S 3 All ER 673 considered the willful killing of a foetus before birth, without maternal consent, in a medical context. It was held a trespass to the person that the hospital terminated the pregnancy involuntarily due to the mother being diagnosed with severe pre-eclampsia. The court held that an unborn child's need for medical assistance does not prevail over the mother's autonomy and she is entitled to refuse consent to treatment, whether her own life or that of her unborn child depends on it (see a discussion on omission).
It also can be contrasted against the United States federal Unborn Victims of Violence Act of 2004. Under this law, the intent to cause harm (mens rea) from the initial assault applies to any unborn child similarly to any other unplanned victim, and death or injury to the foetus is charged as a separate homicide whether or not the accused had actual knowledge or intent with respect to the child, or even knowledge of the pregnancy.
"Under the King's peace" A killing is not murder if the person killed is not "under the King's peace".3 Co Inst 47Archbold Criminal Pleading, Evidence and Practice. 1999. Paragraph 19-18 at page 1564.Some of the sources cited by this section use the term "Queen's peace" because, at the time they were written, the Sovereign was female. This section uses term "King's peace", because the present Sovereign is male. The killing of an alien enemy in the heat of war, and in the actual exercise thereof, is not murder because the alien enemy is not under the King's peace.Archbold's Pleading, Evidence and Practice in Criminal Cases. Twenty-third edition. 1905.Page 780. The killing, otherwise than in the heat of war, and the actual exercise thereof, of an alien enemy, within the kingdom, is not excused by the fact that he is an alien enemy, and can, therefore, be murder.1 Hale 433 ("If a man kills an alien enemy within this kingdom, yet it is felony, unless it be in the heat of war, and in the actual exercise thereof.") The effect of R v DepardoR v Depardo (1807) Russ & Ry 134, (1807) 168 ER 723, (1807) 1 Taunt 2b, (1807) 127 ER 739, (1807) 9 RR 693. is that the same rule applies where an alien enemy is charged with killing a British subject.
See also R v Page.R v Page 1 QB 170, 3 WLR 895, 2 All ER 1355, 37 Cr App R 184, Ct-MAC
Certain acts are excluded as murder, usually when the place or circumstances were deemed not to be under the King's peace at the time. Examples of killings not under the King's peace include the killing of an enemy combatant during a time of war or other international conflict. In the case of R v Clegg,R v Clegg 1 All ER 334. a soldier in Northern Ireland was convicted of murder after shooting into the back of a fleeing vehicle and killing a joyrider who had driven past the checkpoint he was guarding, although the conviction was later overturned on appeal.
Transferred malice In English law, transferred malice (known in some jurisdictions as "transferred intention") is a doctrine that states in some circumstances a person who intends to commit an offence involving harm to one individual and instead (or as well) harms another, may be charged with the latter as a crime – the mens rea (malicious intent) is 'transferred'. It may not apply when the crime which took place was different from the crime intended,E.g., R v Pembliton although a charge of manslaughter may be possible in such cases.
Common intent As well as being responsible for any murderous consequences of his or her own unlawful actions that affect others, a person may also be held liable for the unlawful actions of others he or she acts with, even if not agreed or planned, if there is a common (or shared) intention (sometimes called a "common purpose"). In the 1998 case R v Greatrex (David Anthony), the Court of Appeal summarised some of the legal circumstances this can apply:R. v Greatrex (1998) EWCA Crim 976 (19 March 1998)
In R v Gnango (2011), the Supreme Court controversially held under the doctrine of joint enterprise and transferred malice that D2 is guilty of murdering V if D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if D1 mistakenly kills V in the course of the fight.
'Year and a day' rule The requirement that death occur within a year and a day of any injury for a killing to amount to murder was abolished by the Law Reform (Year and a Day Rule) Act 1996. Historically it had been considered that if a person survived more than that period after an incident, and died later, the incident could not be considered the proximate cause of death. Advances in modern medicine and patient care, including stabilized states such as coma which can last more than a year before death, made this assumption no longer appropriate.
Mens rea (intention)