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A Critical Evaluation of Murder 

By: Thomas Gallagher

Introduction

Murder is not provided for in any statute in England or Wales, with its definition emanating from case law. The definition of murder can be broken down into two elements, mens rea and actus reus.

This brief article will focus on these two elements of murder. Firstly, a brief insight into the two concepts will be needed. This will equip the reader with the relevant understanding for the more critical part of this article, that being the evolution of these two concepts.

Lastly, this article will focus on the future of the definition of murder, focusing on proposals for a more appropriate definition of the crime of murder.

Actus Reus and Mens rea

The concept of actus reus focuses on the act of all criminal offences, not just murder. As stated in the introduction, the actus reus of common law offences will be provided by the case law. The act itself will not constitute an offence. There must be a mental element to a crime; this is known as mens rea.

An example of this would be simply falling over a dog and kicking a dog. Whilst the act will be the same, and indeed the result, it is the intention that changes the circumstances into a criminal offence.

The concept of mens rea refers to the mental element of any crime. This definition can change from crime to crime. The main contributory to most crimes will be that of intention per the example above.

If these two elements exist, then a criminal offence will have been committed.

Evolution of the two concepts

The first definition of the actus reus for murder was give by Coke as ‘unlawfully killing a reasonable person who is in being and under the kings peace’. This definition emanated from the 17th century and was not equipped to deal with medical advances the followed the inception of this definition.

The most problematic limb of this two part definition is mens rea.

Most of the literature that has addressed this area has focused on the definition of intention, and more importantly, the foresight of a person accused of such a crime.
An example of this would be the classical illustration given in most text books. Here a person wants to blow up a plane.

The accused contends that that was his only aim, his only intention. However, the plane is full of people on board; if the plane explodes then the people on board will be killed.

A persons foresight of their actions, therefore, plays a crucial role.

The case law on the area of mens rea has been extensive, with a definition finally being settled upon in a House of Lords case. (It is not in the scope of this brief article to explore the area fully, although the citation for this case is R v Woolin 1996).

Proposals for the Future

The Law Commission has proposed a definition for the mens rea element, although this has not been followed up. A more recent proposal has been put forward by the Nathan Committee, although this only slightly alters the law at the present moment, although the calls for a more purposeful definition that is provided by statute seems more distant than ever.

Conclusion

As has been shown by this brief article, the offence of common law murder is an extremely complicated area. The initial elements are based in Latin and have there foundations in the 17th century.

The evolution of these two concepts has been slow and cumbersome; leading to accusations that the only reason for this is that the subject is too emotive. Although the definition is now more settled, this area is crying out for a definition provided for by statute similar to that provided for in the United States.


 

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