The law of murder: what must the prosecution prove?

The phrase “body in a barrel” naturally dominates a headline. Legally, however, a murder conviction does not turn on how shocking the aftermath appears. The prosecution must prove a series of precise matters, beyond reasonable doubt, before a jury can convict.

That distinction can be seen in the recent case of Christopher Wright. As reported by the BBC, Wright was convicted at Sheffield Crown Court of murdering Richard Dyson, who had been living on his land in Barnsley. Mr Dyson disappeared in November 2019. His remains were found nearly six years later, concealed inside a concrete-filled barrel in a trailer at a nearby farm.

A post-mortem examination found that Mr Dyson had died from shotgun wounds. The Crown Prosecution Service said the case brought together phone records, CCTV, forensic and firearms evidence, bank-card data and covert recordings. Wright denied knowing what had happened to Mr Dyson, but the jury found him guilty. He was sentenced to life imprisonment with a minimum term of 35 years.

The case is an unusually stark example, but the legal questions were the same as in any other murder trial. What exactly did the prosecution have to prove?

What is murder in England and Wales?

Murder remains a common-law offence, i.e. there is no act of Parliament that makes murder a crime. The traditional definition refers to the unlawful killing of a human being under the King’s peace with “malice aforethought”. That expression sounds as though the prosecution must prove hatred and careful advance planning. It means neither.

In modern terms, murder is the unlawful killing of another person with an intention either to kill or to cause grievous bodily harm. Grievous bodily harm means really serious injury.

Unlike some other countries, England and Wales does not divide murder into first and second degrees. Nor does every killing amount to murder. The prosecution must establish that the defendant caused the death, that the killing was unlawful and that the defendant had the intention required for murder.

The defendant must have caused the death

The first question is whether the defendant’s conduct caused the death. This is sometimes straightforward, but not always. There may be disagreement about who inflicted an injury, when it occurred, whether it was fatal, or whether a later event broke the chain of causation.

The defendant’s act does not have to be the only or principal cause of death, but it must be a substantial cause. Medical treatment, an existing illness, the victim’s own actions or the involvement of another person can therefore become important.

Where the defendant denies any involvement, the prosecution must first prove identity and attribution: it must show that this defendant committed the act that caused the death. There is no rule requiring an eyewitness or a confession. A jury may convict on circumstantial evidence if the combined evidence makes it sure of guilt.

That was important in Wright’s case. According to the CPS, investigators built a chronology from telephone data, CCTV, purchases made shortly after the disappearance, the movement of the trailer, forensic findings and covertly recorded conversations. Firearms and ammunition recovered from Wright’s home matched the type used to cause the death. Each strand had to be considered alongside the others.

The killing must have been unlawful

Causing a death is not automatically murder. The word “unlawful” excludes a killing that is legally justified, most obviously where a person acts in lawful self-defence or in defence of somebody else.

Self-defence depends on the circumstances as the defendant honestly believed them to be and whether the force used was reasonable in those circumstances. Once there is sufficient evidence to raise the issue, the prosecution must make the jury sure that the defendant was not acting in lawful self-defence.

An accident may also prevent a murder conviction. A wholly accidental death may involve no criminal offence, whereas a death caused during unlawful or grossly negligent conduct may amount to manslaughter. Everything depends on a careful reconstruction of the events.

What intention does murder require?

This is the feature that principally separates murder from involuntary manslaughter. The prosecution must prove that, at the relevant time, the defendant intended to kill or intended to cause really serious injury.

It is therefore possible to commit murder without meaning to kill. If a person deliberately inflicts really serious harm and the victim dies, the necessary intention for murder may be present even though death was not the person’s purpose.

Intent is a question for the jury, assessed from all the evidence. People rarely announce what they intend, so a jury may draw conclusions from the weapon, the way it was used, the injuries, words spoken and what happened before and afterwards. Consider two ends of the spectrum – at one end a man puts a gun to the head of his victim and pulls the trigger at the other a man pushed his victim causing him to fall and hit his head. It is difficult to argue that the first man did not intend to cause the death or at least really serious harm to his victim. But, it might be that a jury concludes he did not intend to kill if it can be shown that the gunman believed the gun to be a fake, a toy, or merely unloaded.

In the latter example, it feels unlikely that the pusher intended to cause death or really serious harm, but that assessment might change depending on what was happening immediately before the push. If the attacker was screaming, “I’ll kill you” then you might conclude he intended death as the outcome of the push.

The prosecution does not have to prove a motive. A motive may strengthen a circumstantial case, but its absence does not prevent a conviction. Although we sometimes hear the phrase, “premeditated murder,” premeditation is not required either: the necessary intention can be formed in a moment.

Conduct after a death can be highly significant, but it must be treated with care. Concealing a body, destroying evidence or telling lies may support the prosecution case and may constitute separate offences. It does not, by itself, prove what the defendant intended at the moment the fatal act occurred. A proper defence tests both the alleged conduct and the conclusion the prosecution asks the jury to draw from it.

When murder may instead be manslaughter