Murder: What does the law say about unlawful killings?

The legal definition of Murder

Murder is a common law offence and there is no legal definition in statute, however the following requirements have been established through case law to identify murder as a criminal offence.

For a person to have committed a murder in the eyes of the law they must satisfy all the below requirements: (The Actus Reus of murder)

The victim of the killing must have been a ‘person in being’ , this means a murder will only occur if a person is unlawfully killed and that the victim is a person who is independent from their mother (not still in the womb)
The victim must have died, If a person attempts to unlawfully kill a person but they survive the attack that person would most likely be guilty of attempted murder and not actual murder itself.
The victim's death must have been caused by the act (possible failure to act) of the defendant. If a person dies of a disease, then this is not murder.

To summaries, the victim must be a person, who has died as a result of the defendants actions.

For a person to be guilty of murder they must also have the intention to kill or cause grievous bodily harm (GBH) (This is the Mens Rea of Murder)

The punishment for murder

S1(1) Murder (Abolition of Death Penalty) Act 1965:

‘No person shall suffer death for murder, and a person guilty of murder shall… be sentenced to imprisonment for life’.

There is a mandatory punishment for murder, a mandatory sentence of life imprisonment.
Even though every person that is found guilty of murder will be given a life sentence, the actual amount of years a life sentence represents will be up to the complete discretion of the court. This period of years is then called the Tariff period of the sentence.

The Criminal Justice Act 2003

The Criminal Justice Act 2003 introduced and created three broad categories of murder. For each category there is a starting point for the length of the sentence and then the judge in the court has the power to reduce the length of the sentence as they see fit.

Category 1

This is the most serious category of murder; this act of murder is considered the most heinous of crimes. The direction to the court with anyone convicted of a category 1 murder is that a life sentence should mean life. This applies to all those of 21years of age plus. The judges can reduce this providing they have reasonable justifications.

Category 2

This is classed as an intermediate murder with the starting point for sentencing for this type of crime being 30 years in relation to a person over the age of 18years old.

Category 3

This is defined as a residual murder; the starting point for sentencing in this type of murder is 15years for those defendants over the age of 18years old and then a starting point of 12years for those under the age of 18years old.

Murder has been split into these sub categories primarily due to the objective of fair labeling. The victim’s family would want the punishment to represent the crime, especially when a loved one has been taken away from them as a result of the murder. The Punishments for murder are linked to the severity of the actions by the criminal, the more severe and sadistic the murder the longer the term in prison.

The Victim must have been a ‘person in being’

There is often confusion as to when a person is classed as a human being during pregnancy. In relation to the legal crime of murder, a person is classed as a ‘person in being’ and able to be unlawfully killed when the foetus is independent form the mother’s womb and therefore surviving without the mother.

The Victim must have died

A person is legally dead, for the purpose of murder, once their brain stem is dead. This is what the prosecution will need to prove when they are trying to convict the defendant for the unlawful killing of the victim.

The intention to cause Grievous Bodily Harm (GBH) is enough to be convicted of murder

This theory often causes controversy, as a person may be convicted of murder as long as a person unlawfully dies as a result of the defendants actions even if they only intended to cause that person serious harm and not kill them.

Many people will argue that this process is used as a deterrent effect, with the hope that if someone believes that they could be guilty of murder even if that was not their intention, they are less likely to act in a threatening way and commit the crime.


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