The modern conception of the felony murder rule arose in 1716, with William Hawkins' Treatise of Pleas of the Crown, during his work on English criminal law.
Hawkins reasoned that malice was implicit in a crime that "necessarily tends to raise Tumults and Quarrels, and consequently cannot but be attended with the danger of personal hurt."
For example, if the recipient of a forged check has a fatal allergic reaction to the ink, most courts will not hold the forger guilty of murder, as the cause of death is too remote from the criminal act.
To count any death that occurred during the course of an assault as felony murder would obliterate a distinction that is carefully set by the legislature.
[14] Similarly, in New South Wales, common law has been overridden and the question needs only be dealt with through statutory construction and application.
[15][clarification needed] In New South Wales, § 18(1)(a) of the Crimes Act 1900 provides the statutory definition of 'constructive murder'.
The act or omission causing death must be "done in an attempt to commit or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years".
R v Munro[18] confirmed that the mens rea of the act causing death is not required to prove constructive murder.
As Canadian criminal law aims to maintain proportionality between the stigma and punishment attached to a conviction and the moral blameworthiness of an offender, in R v Martineau the Supreme Court of Canada held that it is a principle of fundamental justice under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms that a conviction for murder requires proof beyond a reasonable doubt of a subjective foresight of death.
[19] S. 230 provided that a conviction for murder would lie for any killing that was "objectively foreseeable as a result of the abominable nature of the predicate crimes ... inter alia ... coupled with intentional infliction of bodily harm".
[21] Like other common law jurisdictions, Canada's Criminal Code specifically enumerates offences to account for instances where (a) person(s) is/are unintentionally killed during the commission of a crime (for example, criminal negligence causing death and impaired driving causing death).
The rule was abolished in the Republic of Ireland by section 4 of the Criminal Justice Act 1964 which codified the mens rea for murder as intention to kill or seriously injure another person.
[22] The rule was abolished in England and Wales by section 1 of the Homicide Act 1957, and in Northern Ireland by section 8 of the Criminal Justice Act (Northern Ireland) 1966; but its effect is preserved by the application of the common law principle of joint enterprise.
However, the death penalty may be imposed if the defendant is a major participant in the underlying felony and exhibits extreme indifference to human life.
Recognizing that an automatic application of the rule could result in conviction of murder without a culpable mindset, the Kentucky Legislature instead allowed the circumstances of a case, like the commission of a felony, to be considered separately.
[37] Others regard it as an example of strict liability, whereby a person who chooses to commit a crime is considered absolutely responsible for all possible consequences of that action.