Murder is an offence under thecommon law legal system ofEngland and Wales. It is considered the most serious form ofhomicide, in which one person kills another with theintention to unlawfully cause either death or serious injury. The element of intentionality was originally termedmalice aforethought, although it required neithermalice norpremeditation. Baker[1] 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 inDPP v Hyam.
Becausemurder 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:
Murder is defined, at common law rather than bystatute, as the unlawful killing of a reasonable person in being under the King or Queen's peace with malice aforethought express or implied.
Theactus reus (Latin for "guilty act") of murder was defined in common law byCoke:
Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought, 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 of the same.[2]
The latter clause (known as the 'year and a day rule') was abolished in 1996 (seebelow).
A further historic rule, thefelony murder rule, was abolished in theHomicide Act 1957. Until abolition, the effect of this rule had been to create murder offences in two cases: whenmanslaughter 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" means without lawful justification or excuse.[3]
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 nonovus actus interveniens (Latin for "new act breaking in") to break thechain 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:
There are conflicting authorities on the above point,R v Jordan[4] andR v Smith.[5] 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.
For a killing to amount to murder by a defendant, the defendant must have caused thedeath of "a reasonable creaturein rerum natura". The phrase as a whole is usually translated as "a life in being", i.e. where theumbilical cord has been severed and the baby has a life independently of themother.[6]
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. TheLaw 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.[6] In that case,Lord Mustill noted that the legal position of the unborn, and other pertinent rules related totransferred malice, were very strongly embedded in the structure of the law and had been considered relatively recently by the courts.[6] 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.[6]
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 beenborn 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.[6]
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:[6]
Lord Hope has, however, ... [directed] attention to the foreseeability on the part of the accused that his act would create a risk ... All that it [sic] is needed, once causation is established, is an act creating a risk to anyone; and such a risk is obviously established in the case of any violent assault ... The unlawful and dangerous act of B changed the maternal environment of the foetus in such a way that when born the child died when she would otherwise have lived. The requirements of causation and death were thus satisfied, and the four attributes of "unlawful act" manslaughter were complete.
Lord Hope drew attention to the parallel case ofR v Mitchell[7] 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:
As the defendant intended to commit that act [stabbing], all the ingredients necessary formens rea in regard to the crime of manslaughter were established, irrespective of who was the ultimate victim of it. The fact that the child whom the mother was carrying at the time was born alive and then died as a result of the stabbing is all that was needed for the offence of manslaughter whenactus reus for that crime was completed by the child's death. The question, once all the other elements are satisfied, is simply one of causation. The defendant must accept all the consequences of his act ... The death of the child was unintentional, but the nature and quality of the act which caused it was such that it was criminal and therefore punishable.
Four years later, the caseSt George's Healthcare NHS Trust v S; R v Collins and others, ex parte S [1998] 3 All ER 673 considered the willful killing of a foetus before birth, without maternal consent, in a medical context. It was held atrespass to the person that the hospital terminated the pregnancy involuntarily due to the mother being diagnosed with severepre-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 refuseconsent to treatment, whether her own life or that of her unborn child depends on it (see a discussion onomission).
It also can be contrasted against theUnited States federalUnborn 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 orinjury 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.
A killing is not murder if the person killed is not "under theKing's peace".[8][9][10] The killing of analien 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.[9][11] 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.[12] The effect ofR v Depardo[13] is that the same rule applies where an alien enemy is charged with killing aBritish subject.[9][11]
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 enemycombatant during a time of war or other international conflict. In the case ofR v Clegg,[15] a soldier inNorthern Ireland was convicted of murder after shooting into the back of a fleeing vehicle and killing ajoyrider who had driven past the checkpoint he was guarding, although the conviction was later overturned on appeal.[16]
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 – themens rea (malicious intent) is 'transferred'. It may not apply when the crime which took place was different from the crime intended,[17] although a charge ofmanslaughter may be possible in such cases.[6]
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 caseR v Greatrex (David Anthony), the Court of Appeal summarised some of the legal circumstances this can apply:[18]
[There are] two distinct paradigms of indirect responsibility for murder. One is the class of case in which, although there is no shared intent to kill or do serious harm, the secondary party knows that the other (usually but not necessarily because he is carrying a weapon) may kill or do serious harm in the course of the venture. (e.g.Chan Wing-Siu v The Queen [1984] 3 AER 877). The test is succinctly summarised inR. v Powell and Daniels 1996[19] as requiring "subjective realisation by the accused that his co-participant may commit murder and, notwithstanding that, his agreement to participate himself".[20]
Its counterpart is the situation inR. v Anderson and Morris 1996[21] where two persons embark on an unlawful but not murderous enterprise and one of them commits a murder which the other had no way of foreseeing. The principle is illustrated in the well-known passage from the speech of Viscount Simmonds, L.C. inDavis v D.P.P. 1954[22] instancing a fight among a crowd of boys in which no more thancommon assaults are contemplated but in which one produces a knife of which the others know nothing and kills with it.[20]
As the Court of Appeal, Criminal Division, explained inR. v Stewart 1995[23] such shared intent [to commit serious harm] renders each party criminally liable for the acts done in the course of carrying it out. It is only where the jury is not satisfied that the intent of any one defendant was to cause serious harm or to kill that participation will be negatived.[20]
InR v Gnango (2011), theSupreme Court controversially held under the doctrine of joint enterprise andtransferred 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.[24]
The requirement that death occur within ayear and a day of any injury for a killing to amount to murder was abolished by theLaw 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 theproximate 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.
Themens rea (Latin for "guilty mind") of murder is either anintention to kill (per the 2004 binding case ofR v Matthews & Alleyne[25]) or an intention to causegrievous bodily harm (R v Moloney,[26]R v Hancock & Shankland,[27] andR v Woollin[28]). InMoloney, Lord Bridge was clear that, for the defendant to have themens rea of murder, there must be something more than mere foresight or knowledge that death or seriousinjury is a "natural" consequence of the current activities: there must be clear evidence of an intention. This intention is proved not only when the defendant's motive or purpose is to kill or causegrievous bodily harm (direct intent), but when death or grievous bodily harm is a virtually certain consequence of the defendant's act (indirect or 'oblique' intent). Also inMoloney, Lord Bridge held that themens rea of murder need not be aimed at a specific person so, if aterrorist plants a bomb in a public place, it is irrelevant that no specific individual is targeted so long as one or more deaths is virtually certain. Further, it is irrelevant that the terrorist might claim justification for the act through a political agenda. How or why one person kills could only have relevance to thesentence.
For a killing to amount to murder, theactus reus andmens rea must coincide in point of time. The so-called single transaction principle allows a conviction where the defendant has bothactus reus andmens rea together during the sequence of events leading to death. InThabo Meli v R[29] the defendants thought they had already killed their victim when they threw him over a cliff and abandoned the "body". Thus, although the act actually causing death was performed when thedefendants did not have the intention to kill, theconviction was confirmed. Concurrence is also known as simultaneity or contemporaneity.
An offence of murder by aBritish subject "may be dealt with, inquired of, tried, determined, and punished" inEngland and Wales wherever in the world the killing took place and no matter what thenationality of the victim.[30]
Murder is anoffence against the person for the purposes of section 3 of theVisiting Forces Act 1952.[31]
Euthanasia involves taking the life of another person, generally for compassionate reasons. It is distinct fromassisted suicide, in which one person takes actions that helps another person to voluntarily bring about his or her own death, and distinct fromrefusal of treatment. Both remain illegal in theUnited Kingdom. In recent decades, a number of private members' bills have been introduced to parliament in this area, but have not proceeded beyond second reading until theTerminally Ill Adults (End of Life) Bill in 2024, which as of early 2025 is in the committee stage of the House of Commons.
In such cases criminal charges, which may include murder and other unlawful killing charges, depend to some extent on the discretion of theDirector of Public Prosecutions and whether a prosecution is deemed "in the public interest". Some discretion determines when a case is worth proceeding with.[32] In 2010, the DPP was forced to publish the guidelines used by theCrown Prosecution Service to determine whether to bring a criminal prosecution in the case of an assisted suicide following a decision by the House of Lords in a case brought byDebbie Purdy, a woman with multiple sclerosis who sought clarity on whether her husband would be prosecuted if he were to assist her in travelling to Switzerland to end her life atDignitas.[33]
The caseAttorney General's Reference No. 3 of 1994 considered in some depth the legal basis for murder, manslaughter, transferred malice, and the position of an unborn child who dies before or after birth, and as a result of harm to the foetus, mother, or the natural processes of pregnancy.[6] The primary ruling of the case, byLord Mustill, noted that the foundation and delineation for several rules of law in theory and in historical terms was unsatisfactory, but that the rules themselves were very strongly embedded in the structure of the law and had been considered relatively recently.[6] In particular, "the concept of general malice must be rejected as being long out of date".[6]
In 2004, theLaw Commission published an initial report,Partial Defences to Murder.[34] It concluded the law on murder was "a mess";[34] a full review was announced by theHome Office in October 2004. The terms of reference were published in July 2005, and in 2006 the Law Commission published their second reportMurder, Manslaughter and Infanticide which examined the law in these areas.[35] The key recommendations included:[34]
The first words of Coke's definition refer to the defences ofinsanity (defined in theM'Naghten Rules) andinfancy. If any of the general defences such asself-defence apply, an accused will be acquitted of murder. The defence in the 1860Eastbourne manslaughter case was that the schoolteacher Thomas Hockey was acting under parental authority in using corporal punishment (he was charged with murder but found guilty of manslaughter).
Another defence in medical cases is that ofdouble effect. As was established byJudge Devlin in the 1957 trial ofDr John Bodkin Adams, causing death through the administration of lethal drugs to a patient, if the intention is solely to alleviate pain, is not considered murder.[36]
The defences ofduress andnecessity are not available to a person charged with murder. The statutory[dubious –discuss] defence ofmarital coercion, before it was abolished, was not available to a wife charged with murder.[37]
The following partial defences reduce murder tovoluntary manslaughter:
Section 1(2) of theInfanticide Act 1938 creates a partial defence which reduces murder to the offence of infanticide under section 1(1) of that Act.[38]
If a partial defence is successful, it will allow the sitting judge full discretion as to the sentence given to the offender; these can range from a conditional discharge to a life sentence (which accounts for around 10 per cent of voluntary manslaughter sentences).
Proceedings against a person for murder, if the injury alleged to have caused the death was sustained more than three years before the death occurred, or the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death, may only be instituted by or with the consent of theAttorney General.[39]
A count charging a single principal offender with murder will now be in the following form:[40][41]
STATEMENT OF OFFENCE.
Murder.
PARTICULARS OF OFFENCE.
A.B., on the ... day of ..., murdered J.S.
The date which is specified in the indictment is the date on which the deceased died, because the offence is not complete until that date.[40]
A count of murder may be joined with a count charging another offence of murder,[42] or a count charging a different offence.[43] A count of conspiracy to murder may be joined with a count of aiding and abetting murder.[44]
InR v Greatrex (David Anthony),[45]Beldam LJ said:
The facts of this case demonstrate how important it is since the decision in the case ofReg. v Powell; Reg. v English (supra) for prosecutors to make sure that an indictment contains alternative offences which carry penalties appropriate for the seriousness of the conduct of those involved.[18]
On the trial of an indictment for murder, the jury cannot return analternative verdict to the offence charged in that indictment under section 6(3) of theCriminal Law Act 1967, except for the offences listed below:
For this purpose each count is considered to be a separate indictment.[52]
Murder is anindictable-only offence.[53]
 | This article needs to beupdated. The reason given is:Sentencing Act 2020 reformed sentencing including repeal of most of the 2000 Act. Please help update this article to reflect recent events or newly available information.(June 2022) |
The sentence for murder is, in all cases,mandatory and depends upon the age of the offender at the time of the crime or conviction.[54] Where a person convicted of murder appears to the court to have been aged under eighteen at the time of the offence was committed, the court must sentence the guilty party to bedetained during His Majesty’s pleasure.[55] Where a person aged under twenty-one is convicted of murder the court must sentence that person tocustody for life.[56] In any other case, a person convicted of murder must be sentenced toimprisonment for life.[57]
Since theabolition of capital punishment, murder has carried a mandatorylife sentence in English law. As of 2011[update] this comprises three elements:
The tariff sets the minimum time that must be spent inprison before an offender can be considered forparole. Following the decision of theEuropean Court of Human Rights inT v UK[59] and the consequent statutory change (enacted asCriminal Justice and Court Services Act 2000 s 60), thejudge must indicate in opencourt the appropriate tariff for an offender aged under 18 who is convicted of murder. The period specified by thejudge is a 'sentence', which may, with the leave of the Court of Appeal, beappealed or be the subject of anAttorney General's Reference.[60] Criminal Justice Act 2003 s 271 sets the same rule for adults. ThePractice statement (Life sentences for murder)[61] set the tariff for adults, i.e. one aged 18 or over at the time of the offence, with a starting point of 14 years as the minimum term for a case with no aggravating ormitigating factors, and lists the factors which might suggest either a higher or a lower than normal minimum term in an individual case. Mitigating factors include amental illness,battered woman syndrome, using excessive force inself-defence ormercy killing.Assassination,contract killing, killing to subvert the justice system (such as killing a witness, etc.) are aggravating factors.The statutory guidelines and case law on sentencing are covered in the Crown Prosecution Sentencing Manual.[62]
Thetrial judge has always been expected to make a recommended minimum term. In 1983 theHome Secretary began amending, usually increasing, the minimum term recommended by the trial judge; this system was declared illegal in 2002 by both theHigh Court and theEuropean Court of Human Rights following a successful challenge by convicted murdererAnthony Anderson. Anderson had been convicted of a double murder in 1988 and the trial judge recommended that he should serve at least 15 years before being considered for parole, but six years later his tariff was increased to 20 years byHome SecretaryMichael Howard.Since then trial judges have been obliged to recommend a minimum term; only theLord Chief Justice has the power to make any amendments, either through an appeal by theAttorney General to increase a sentence which is seen as unduly lenient, or an appeal by the prisoner to have the minimum term reduced.
Life imprisonment has been the only option that judges have had when sentencing murderers since the death penalty was abolished in 1965. The average prisoner sentenced to life imprisonment spends 14 years behind bars. More serious cases, which included aggravating factors such as a rape or robbery, have led to murderers spending 20 or more years in prison. A few multiple murderers have remained in prison until their deaths; these includeMyra Hindley andRonnie Kray. An estimated 20 prisoners in Britain have been recommended for lifelong imprisonment; these includeMark Hobson,Donald Neilson,Dennis Nilsen,Jeremy Bamber andSteve Wright,Wayne Couzens, seeList of prisoners with whole-life orders. Lengthy minimum terms have also been imposed on some killers including 55 years onHashem Abedi, 40 years onIan Huntley, 35 years on bothRobert Black andDanyal Hussein.
TheCriminal Justice Act 2003 changed the law so that instead of theHome Secretary having discretion to modify judicial sentences (which might have been seen as unjustly subject topopulism and political considerations), all appeals whether by the subject or by the Attorney General (for "unduly lenient" sentences) are submitted to theCourt of Appeal, with the leave of that court, for a ruling. To ensure the right of judges was used reasonably, the Act stipulated standard "starting points", and typical aggravating and mitigating factors. While judges were allowed discretion to set any minimum sentence or "whole life" term, their reasoning for departure from these was to be provided.
The Act also states that in considering an appeal of a minimum term (by any party), the Court of Appeal shall not make any allowance in respect of the (slightly inaccurately described) "double jeopardy" discount, whereby the uncertainty and distress to the respondent prisoner of being sentenced a second time is considered as mitigation.[63]
Under schedule 21 to theCriminal Justice Act 2003 the starting points for murders committed on or after 18 December 2003[64] are as follows. Where a crime falls into multiple categories, the applicable starting point is the highest:
Schedule 21 is due to be replaced by Schedule 21 of theSentencing Act 2020, but this is only a consolidating statute which does not change the law.
In the case of death arising violently or "unnaturally", suddenly with an unknown cause; or in prison or police custody, there is a duty to hold aninquest (a formal inquiry) to ascertain the identity of the deceased, time and place of death, and method of death (but no further specific allegations). Arange of verdicts are possible; cases where murder is a consideration are likely to return a coroner's verdict ofunlawful killing, covering all unlawful killings and in particular murder,manslaughter andinfanticide. The standard for this ruling isbeyond reasonable doubt; failure to meet this standard would usually result in a verdict ofaccidental death ordeath by misadventure,[68] or anopen verdict where the cause is not known.
Other verdicts possible coversuicide,accident,execution of sentence of death andlawful killing (formerly "justifiable homicide"). The verdict does not name individuals as responsible parties.[68]
Wrongful death is acivil action brought against a person who has wrongfully caused the death of another person. Under theFatal Accidents Act 1976 a claim may only be brought for the benefit of certain classes of people, mostly close relatives, and usually by theexecutor or (failing this) any person for whose benefit a claim could have been made. Claims can cover economic loss, grief, and funeral expenses.
Historically undercommon law, a dead person could not bring a suit, and this created aloophole in which activities that resulted in a person's injury might result in a claim fordamages and otherremedies, but activities that resulted in a person's death would not. Therapid development of railways in the 1830s led to increasing outcry over the indifferent attitudes of railway companies to railway-related deaths, leading to theFatal Accidents Act 1846 (later superseded by theFatal Accidents Act 1976) which gavepersonal representatives the right to bring a legal action for damages where the deceased person had such a right at the time of their death. Compensation was restricted at the time to the husband, parent, or child of the deceased.[69]
The followinginchoate offences relate to the substantive offence of murder:
Provocation was formerly a partial defence to murder. See also theStatute of Stabbing and theMurder Act 1751.
Hale said:
The killing of a man attaint of felony, otherwise than in execution of the sentence by a lawful officer lawfully appointed, is murder or manslaughter, as the case happens, and tho there were some doubt, whether the killing of a personoutlawed of felony were homicide or no, 2 E. 3. 6. yet it is homicide in both cases. 27 Affiz. 44. Coron. 203.[70]
Hale said:
If a man be attaint in apraemunire whereby he is put out of the king's protection, the killing of him was held not to be homicide, 24 H. 8. B. Coron. 197. But the statute of 5 Eliz. cap. 1 hath now put that out of the question, declaring it to be unlawful.[71]
Section 4 of theCriminal Procedure Act 1851 (14 & 15 Vict c 100) provided that in any indictment for murder preferred after the coming into operation of that Act, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in every indictment for murder to charge that the defendant "did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased". That Act came into operation on 1 September 1851.[72]
That section was replaced by section 6 of theOffences against the Person Act 1861, which provided that in any indictment for murder, it was not necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it was to be sufficient in any indictment for murder to charge that the defendant "did feloniously, wilfully, and of his malice aforethought kill and murder the deceased". That section was repealed by theIndictments Act 1915.[73]
The following specimen count was contained in paragraph 13 of the Second Schedule to the Indictments Act 1915 before it was repealed.
STATEMENT OF OFFENCE.
Murder.
PARTICULARS OF OFFENCE.
A.B., on the day of , in the county of , murderedJ.S.
See sections 1 to 3 of theOffences against the Person Act 1861 and Parts II and III of theHomicide Act 1957.
The following former offences were offences ofaggravated murder: