Murder

• There are different homicide offences that depend on the mens rea. 
• The most serious offence is murder. 
• Murder is a common-law offence which means that it is not defined in an act of parliament. 
• The accepted definition was given by Lord Coke (see summary). 
• Murder is unusual in the fact that a British citizen can be tried in an English court for a murder committed in another country. 

In Exam questions you must prove the Actus Reus (AR) and Mens rea (MR) or murder as stated below. The easiest way to do this is to memorise the definition below and then systematically explain what the words mean. If you are doing OCR  this should give you full marks for your A01 section (Knowledge and understanding). 

 "The unlawful killing of a reasonable person in being under the Queen's peace with malice aforethought expressed or implied" 

Actus   reus

1. Unlawful:  This simply means "without a valid defence".  See section on defences below. 
2. Killing:  For the offence of murder to exist death needs to be the outcome of D's action. This means that we must prove that the defendant's actions caused death. In other words, you must apply the normal rules of causation. In most cases this will not be an issue as the cause of death is fairly obvious (for example, someone pulls the trigger of a gun against someone's head). In these cases, you should not talk about causation in great detail it is enough to simply mention it. Causation has to be discussed in detail when the cause is not obvious. 
3. A reasonable person in being: This simply means human being. There are two main situations when it is important to discuss this point. 

• A foetus in the womb is not considered a human being for the purposes of the law or murder  Attorney General’s Ref (No3 of 1994) (1997). This is why abortion is not illegal. 
• If a victim is brain-dead  the law is not clear.  Malcherek & Steel stablished that if a doctor turns off the life support machine of a "brain dead person" they may not be liable for murder as this person is not a "reasonable person in being" at this point. However, the obiter in this case did stablish that if a third party were to turn off the life support this may well be considered murder. We have not had a case with these facts so this is not binding precedent but the law may react in this manner if this happend. 
• Under the Queen’s Peace. This means that the killing did not take place in times of war. This is why killing during war is not murder although there are separete rules governing killing in war that are not covered in the A level curriculum. 

Mens   rea

1. With malice aforethought:  ‘Malice’ does not mean ill-will or malevolence ( R v Inglis 2011) . It simply means intention so we need to consider the normal rules of intention. 
2. Expressed: Expressed malice or expressed intention in the context of murder, is just a fancy way of saying that the defendant intended to kill. So the defendant intended to "bring about the prohibited outcome" (R v Mohan)  which in this case is death. Intention can be direct or indirect 
3. OR: remember someone can be guilty of murder if the have expressed or implied malice. 
4. Implied: Implied malice or implied intention is just a fancy way of saying that the defendant did not intent to kill but they did intent to cause GBH. If you can prove the defendant intended to cause "very serious harm" they have the required mens rear for murder.  Implied intention cal aso be direct or oblique.