Homicide offences - Murder

Learning Outcomes

This article outlines murder in English law—its definition, elements, and related doctrines, including:

• The legal definition and elements of murder (actus reus and mens rea), distinguishing unlawful killing, a “human being”, and killings under the Queen’s Peace.
• The requirements for direct and oblique intention, with emphasis on the virtual certainty test and its application in problem-style questions.
• Causation principles, including factual and legal causation, novus actus interveniens, medical treatment, victim responses, natural events, and the thin skull rule.
• Omissions liability in homicide, focusing on recognised duties to act, creation of danger, and how failures to act are examined in SQE1 scenarios.
• The doctrine of transferred malice and its limits, particularly where different victims or types of harm are involved.
• Partial defences that reduce murder to manslaughter—diminished responsibility and loss of control—and how to structure answers on each element.
• Evidential and legal burdens, standards of proof, and statutory restrictions on partial defences, including sexual infidelity and revenge in loss of control.
• Practical exam technique for analysing murder fact patterns, identifying issues in sequence, and avoiding common SQE1 traps.
• Core sentencing consequences, including the mandatory life sentence, minimum terms, and basic bail considerations specific to murder charges.

SQE1 Syllabus

For SQE1, you are required to understand the offence of murder and its practical implications, with a focus on the following syllabus points:

• the legal definition and elements of murder (actus reus and mens rea)
• the distinction between direct and oblique intention
• the requirements for causation, including factual and legal causation, and intervening acts
• the operation of partial defences (diminished responsibility and loss of control) that may reduce murder to manslaughter
• how to apply these principles to SQE1-style MCQs and client scenarios
• omissions liability in homicide where a duty to act exists
• the doctrine of transferred malice and the status of the victim as a “human being”
• the effect of medical treatment, victim choices, and natural events on the chain of causation
• burdens and standards of proof in partial defences and statutory limits (e.g. sexual infidelity and revenge in loss of control)
• consequences of conviction (mandatory life sentence) and the stricter bail position for murder charges

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes the mens rea for murder?
   1. Intention to kill or cause grievous bodily harm
   2. Recklessness as to causing death
   3. Intention to cause actual bodily harm
   4. Negligence causing death
2. Which of the following is required to prove murder?
   1. The victim must be a human being
   2. The killing must be under the Queen’s Peace
   3. The defendant must have acted with malice aforethought
   4. All of the above
3. Which partial defence, if successful, reduces murder to manslaughter?
   1. Diminished responsibility
   2. Self-defence
   3. Automatism
   4. Consent

4. True or false? Oblique intention can be established where death is a virtually certain result of the defendant’s actions and the defendant appreciates this.

Introduction

Murder is the most serious homicide offence in English law. For SQE1, you must know its definition, the required actus reus and mens rea, how causation is established, and the main partial defences that can reduce murder to manslaughter. This article provides a concise, exam-focused overview of these core principles. Murder carries a mandatory life sentence upon conviction; there is no judicial discretion to impose another type of sentence, though the minimum term varies by culpability. Bail applications in murder cases are heard only in the Crown Court, and the presumption is against release unless the court is satisfied there is no significant risk of serious harm.

Key Term: actus reus
The physical element of an offence—here, the unlawful killing of a human being under the Queen’s Peace.

Key Term: mens rea
The mental element of an offence—here, intention to kill or cause grievous bodily harm.

Key Term: malice aforethought
The traditional label for murder’s mens rea; now understood to mean an intention to kill or to cause grievous bodily harm.

Key Term: grievous bodily harm (GBH)
Really serious bodily injury. Intention to cause GBH is sufficient for murder even if death was not desired.

Key Term: Queen’s Peace
Ordinary peacetime conditions within which the criminal law applies; killing enemy combatants in lawful war is not murder.

Definition and Elements of Murder

Murder is defined as the unlawful killing of a human being under the Queen’s Peace with malice aforethought. The prosecution must prove both the actus reus and mens rea.

Actus Reus: Unlawful Killing

The actus reus of murder consists of three requirements:

1. Unlawful killing: The defendant must cause the death of the victim without lawful justification (e.g., not in self-defence or during war). Killing can be by a positive act or by omission where a duty to act exists (such as parental duties, assumed responsibilities, or duties arising from creating a dangerous situation). Omissions liability in murder is recognised where the defendant’s failure to act is a substantial and operative cause of death.

2. Of a human being: The victim must be a living person, born alive and independent of the mother. A foetus is not a “human being” for murder. However, if injuries are inflicted in utero and the child is later born alive and dies as a result of those injuries, criminal liability for homicide may arise because the death occurred when the child was “a person in being.”

3. Under the Queen’s Peace: The killing must not occur during lawful armed conflict. Ordinary domestic killings fall under the Queen’s Peace.

A note on the time of death: modern practice treats death as occurring when the brain stem ceases to function (brain death). The obsolete “year and a day” rule limiting prosecution time has been abolished; causation can be established despite long delays between injury and death.

Key Term: brain death
The accepted medical and legal threshold for death: irreversible cessation of brain stem function.

Causation

The prosecution must prove that the defendant’s conduct caused the victim’s death, both factually and legally.

Key Term: causation
The link between the defendant’s conduct and the prohibited result, requiring both factual and legal causation.

Factual Causation

Apply the “but for” test: Would the victim have died but for the defendant’s act or omission? If not, factual causation is established.

Legal Causation

The defendant’s act must be a significant (more than minimal) cause of death and remain an operating and substantial cause at the time of death. The chain of causation must not be broken by an independent, unforeseeable event (novus actus interveniens). The defendant need not be the sole or primary cause; concurrent causes can suffice if the defendant’s contribution is significant.

Key Term: novus actus interveniens
A new, intervening act that breaks the chain of causation between the defendant’s conduct and the result.

Intervening acts include:

• acts of third parties (e.g. medical treatment): negligent treatment rarely breaks the chain unless it is so independent and potent that the original injury becomes insignificant
• acts of the victim (e.g. escape attempts or refusal of treatment): the defendant remains liable if the victim’s response was reasonably foreseeable or the defendant must “take the victim as found” (thin skull rule)
• natural events: unforeseeable acts of nature may break the chain.

The voluntary, informed act of a responsible adult can break the chain. For example, the free and informed self-injection of drugs by the victim is treated as an autonomous act that can sever causation from the supplier’s conduct.

Key Term: thin skull rule
The defendant is liable for the full consequences of their act, even if the victim has an unusual characteristic or belief that contributes to the result.

Worked Example 1.1

A stabs B, who is taken to hospital. On the way, the ambulance is struck by lightning and B dies instantly. Is A legally responsible for B’s death?

Answer:
The lightning strike is an unforeseeable, independent event that breaks the chain of causation. A is not liable for murder, but may be liable for attempted murder or another offence.

Worked Example 1.2

D sets fire to a house to frighten the occupants, knowing they are inside. The fire kills one person. D claims he only wanted to scare them.

Answer:
If death was a virtually certain result of D’s actions and D appreciated this, the jury may find oblique intention and convict D of murder.

Mens Rea: Malice Aforethought

The mens rea for murder is “malice aforethought,” which means either:

• intention to kill, or
• intention to cause grievous bodily harm (GBH).

Recklessness is not sufficient for murder. Murder is a specific intent offence: it cannot be committed recklessly. For intention, juries use the ordinary meaning for direct intention; where “intention” is disputed, they may infer intent via oblique intention.

Key Term: direct intention
The defendant’s aim or purpose is to bring about the prohibited result (e.g., death).

Key Term: oblique intention
The prohibited result is a virtually certain consequence of the defendant’s actions, and the defendant appreciates this.

Direct intention is straightforward: the defendant acts to kill or cause GBH. Oblique intention arises where the defendant foresees death or serious injury as a virtually certain consequence, even if not their primary aim. The “virtual certainty” threshold separates intent from recklessness; foresight of a high probability is not enough.

When assessing intent, motive is irrelevant. Mercy killings still meet the mens rea for murder if the defendant intends death or GBH. Conversely, voluntary intoxication may, in some cases, cast doubt on whether a defendant actually formed the necessary intent, but intoxication is never a defence in itself; it simply goes to whether intent existed.

Key Term: specific intent
An offence that requires intention as the fault element; recklessness will not suffice. Murder is a specific intent offence.

Transferred Malice

If D intends to kill or cause GBH to one person but accidentally kills another, the intention transfers to the actual victim; D’s malice is applied to the person actually harmed. This doctrine does not convert non-homicide conduct into homicide where the “victim” is not a human being (e.g., a foetus). It remains subject to normal causation rules.

Key Term: transferred malice
The principle that D’s intent towards one victim can transfer to the actual victim if the same type of harm is caused.

Worked Example 1.3

D punches V, who refuses medical treatment for religious reasons and dies. Is D liable for murder?

Answer:
Yes. The “thin skull” rule means the defendant must take the victim as found, including any vulnerabilities or beliefs.

Exam Warning

For murder, the prosecution must prove intention to kill or cause GBH. Recklessness, negligence, or motive alone are not sufficient.

Causation: Intervening Acts

The chain of causation may be broken by a voluntary, informed act of the victim or a third party, or by an unforeseeable natural event. However, the defendant remains liable if the intervening act was reasonably foreseeable or if the victim’s response was proportionate to the threat.

Common patterns:

• negligent medical treatment usually does not break the chain; the original injury generally remains an operating and substantial cause of death
• escape cases: if a victim’s attempt to flee danger is a reasonably foreseeable response, their conduct will not break the chain
• free, informed decisions by adults may break the chain (e.g. self-injection of drugs); conversely, a decision made under coercion, fear, or misinformation may not be treated as “free and informed.”

Worked Example 1.4

X stabs Y. In hospital, a junior doctor administers the wrong dosage of a drug, worsening Y’s condition; Y dies. Does medical negligence break the chain?

Answer:
No, unless the treatment is so independent and potent that X’s original injury is rendered insignificant. Ordinary negligence will not break the chain; X’s act remains an operating and substantial cause of death.

Worked Example 1.5

P threatens Q with a knife. Q runs into the road to escape and is struck by a car. Q dies. Is P liable for murder?

Answer:
If Q’s flight was a reasonably foreseeable response to P’s threat and P intended to cause GBH (or death), P can be liable for homicide. Q’s escape attempt does not break the chain where the response is proportionate and foreseeable.

Worked Example 1.6

R shoots at S intending to kill S. The bullet misses S and kills T, a bystander. Is R liable for T’s murder?

Answer:
Yes. R’s intent transfers from S to T under transferred malice because the same type of harm (killing a human being) was caused.

Partial Defences to Murder

Certain defences, if successful, reduce murder to voluntary manslaughter.

Diminished Responsibility

A defendant may rely on diminished responsibility if, at the time of the killing, they suffered from an abnormality of mental functioning arising from a recognised medical condition, which substantially impaired their ability to understand their conduct, form rational judgment, or exercise self-control, and provides an explanation for the killing.

The defence is statutory. The burden of proving diminished responsibility rests on the defence, on the balance of probabilities. Medical evidence is usually essential to establish a recognised condition and the extent of impairment.

Key Term: diminished responsibility
A partial defence to murder where the defendant’s mental condition substantially impaired their responsibility for the killing.

Key points:

• abnormality of mental functioning must arise from a recognised medical condition (e.g. depression, schizophrenia, PTSD, epilepsy, alcohol dependency syndrome, diabetes, or battering-related disorders)
• “substantial impairment” means impairment more than trivial but not necessarily total; juries assess this based on evidence of the defendant’s abilities at the time (such as understanding conduct, rational decision-making, and self-control)
• the abnormality must provide an explanation for the killing: it must be causally connected to the act or omission; if the homicide occurred for reasons unrelated to the condition, the defence fails
• intoxication: intoxication alone does not qualify; however, where a recognised medical condition (e.g. alcohol dependency syndrome) exists, it may underpin the defence, but the focus remains on impairment from the condition, not simply voluntary intoxication.

Loss of Control

A defendant may rely on loss of control if:

• they lost self-control,
• the loss resulted from a qualifying trigger (fear of serious violence or things said/done of extremely grave character causing a justifiable sense of being seriously wronged),
• and a person of the defendant’s sex and age with normal tolerance and self-restraint might have reacted similarly in the defendant’s circumstances.

This defence is statutory. The defendant bears an evidential burden to raise the issue; once sufficiently raised, the prosecution must disprove loss of control beyond reasonable doubt. The loss need not be sudden; cumulative provocation (e.g., prolonged abuse) can suffice. However, a considered desire for revenge bars the defence, and sexual infidelity alone cannot be a qualifying trigger. The defence may be unavailable where the defendant incited the trigger as an excuse to use violence.

Key Term: loss of control
A partial defence to murder where the defendant lost self-control due to a qualifying trigger, reducing liability to manslaughter.

Important features:

• fear trigger: the defendant feared serious violence from the victim against themselves or another identified person; fear may be cumulative
• anger trigger: things said or done of extremely grave character causing a justifiable sense of being seriously wronged; this is an objective assessment of gravity and justifiability
• sexual infidelity: cannot on its own be a qualifying trigger; however, it may be part of the wider context where other triggers are present
• revenge: a considered desire for revenge excludes the defence
• characteristics of the hypothetical comparator: the jury considers a person of the defendant’s age and sex with normal tolerance and self-restraint, in the defendant’s circumstances relevant to the gravity of the trigger (not personal traits that simply reduce self-control)
• intoxication: intoxication does not preclude the defence, but the comparator is sober; intoxication generally cannot be relied upon to lower the standard of self-restraint.

Worked Example 1.7

F, after years of abuse, kills her partner during a violent argument. She claims she lost control after being threatened and insulted.

Answer:
If the jury finds F lost self-control due to a qualifying trigger and a normal person might have reacted similarly, the charge may be reduced to manslaughter.

Worked Example 1.8

G, angry at a neighbour’s insults, goes home, collects a knife, returns hours later and stabs the neighbour. Can G rely on loss of control?

Answer:
Unlikely. The delay, planning, and arming suggest a considered desire for revenge, which bars the defence. Unless fear of serious violence or extremely grave circumstances with justifiable wrong are established and the reaction was not revenge-driven, the defence fails.

Revision Tip

For SQE1, focus on the elements of each partial defence and when they apply. Know the difference between murder and manslaughter. For diminished responsibility, map the four elements: abnormality, recognised condition, substantial impairment, and causal explanation. For loss of control, ensure evidence of loss of self-control, a qualifying trigger, and the “might have reacted” comparator, and check exclusions (revenge, sexual infidelity alone, incitement).

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Murder requires unlawful killing of a human being under the Queen’s Peace with intention to kill or cause GBH.
• Murder can be committed by omission where a duty to act exists and the omission is a significant cause of death.
• The victim must be a human being; a foetus is not a “person in being,” but injuries inflicted in utero can lead to homicide liability if the child is born alive and dies from those injuries.
• Death is treated as brain death; the “year and a day” rule has been abolished.
• Causation requires both factual and legal causation; the defendant’s conduct must remain an operating and substantial cause, unless the chain is broken by an independent, unforeseeable event.
• Intervening acts include third-party acts, victim responses, and natural events; negligent medical treatment rarely breaks the chain; the thin skull rule applies.
• Direct intention is where death or GBH is the defendant’s aim; oblique intention is where death or GBH is a virtually certain result and the defendant appreciates this.
• Transferred malice applies where the same type of harm is caused to a different victim.
• Murder is a specific intent offence; recklessness is insufficient, and intoxication goes only to whether intent was formed.
• Partial defences (diminished responsibility and loss of control) can reduce murder to manslaughter if all statutory elements are satisfied; understand burdens and exclusions.
• Murder carries a mandatory life sentence; bail in murder cases is stricter and addressed by the Crown Court.

Key Terms and Concepts

• actus reus
• mens rea
• malice aforethought
• grievous bodily harm (GBH)
• Queen’s Peace
• brain death
• causation
• novus actus interveniens
• thin skull rule
• direct intention
• oblique intention
• specific intent
• transferred malice
• diminished responsibility
• loss of control