1. Introduction to Homicide
Homicide is the unlawful killing of a human being. In England and Wales, it is not a single offence but a category of offences with varying levels of seriousness. The main offences are murder and manslaughter, but other specific homicide offences also exist. The distinction between these offences is crucial as it determines the level of culpability and the sentence imposed. Murder carries a mandatory life sentence, whereas manslaughter allows for judicial discretion in sentencing, ranging from a non-custodial sentence to life imprisonment. This distinction reflects the different levels of fault associated with each offence, from intentional killing to killing through gross carelessness.
2. Murder
Murder is a common law offence, and the classic definition was provided by Sir Edward Coke in the 17th century as the “unlawful kill[ing of] any reasonable creature in being and under the King’s peace, with malice aforethought” (Coke, 1797). This definition can be broken down into the *actus reus* (guilty act) and *mens rea* (guilty mind).
2.1 Actus Reus of Murder
The *actus reus* of murder has three components: the unlawful killing of a person in being under the Queen’s peace.
* **Unlawful Killing:** The killing must be unlawful. A killing may be lawful if it is done in reasonable self-defence, for example. The killing can be committed by an act or, in limited circumstances, by an omission where a duty of care exists, such as the duty of a parent to their child as seen in *R v Gibbins and Proctor* (1918). The killing must also be the cause of death. Causation has two aspects: factual and legal. Factual causation is established using the ‘but for’ test: but for the defendant’s actions, would the victim have died? (see *R v White* [1910]). Legal causation requires the defendant’s act to be a substantial and operating cause of death (*R v Smith* [1959]), and there must be no intervening act (*novus actus interveniens*) that breaks the chain of causation (*R v Cheshire* [1991]).
* **Person in Being:** The victim must be a ‘person in being’. This means the victim must have been born and be capable of independent existence, having been fully expelled from the mother’s body and possessing a separate circulation. A foetus in the womb is not considered a person in being for the purposes of murder (*Attorney-General’s Reference (No. 3 of 1994)* [1998]). Death is generally accepted to be the point of brain stem death (*R v Malcherek and Steel* [1981]).
* **Under the Queen’s Peace:** This historical element means that the killing of an enemy soldier in the course of war is not murder. It has little practical relevance in modern domestic criminal law.
2.2 Mens Rea of Murder
The *mens rea* for murder is ‘malice aforethought’. This is a somewhat misleading legal term as it requires neither ‘malice’ in the everyday sense of ill-will, nor ‘aforethought’ in the sense of pre-planning. The House of Lords in *R v Cunningham* [1982] confirmed that malice aforethought means an intention to kill (express malice) or an intention to cause grievous bodily harm (GBH) (implied malice), as was established in *R v Vickers* [1957]. ‘Grievous bodily harm’ means ‘really serious harm’ (*DPP v Smith* [1961]).
Intention can be either direct or oblique. Direct intention is where the defendant’s aim or purpose is to bring about the prohibited consequence. Oblique intention is where the consequence is not the defendant’s primary purpose but is a virtually certain result of their actions, and the defendant appreciates this virtual certainty. The current test for oblique intention was set out by the House of Lords in *R v Woollin* [1999].
3. Voluntary Manslaughter
Voluntary manslaughter occurs when the defendant has the *actus reus* and *mens rea* for murder, but their liability is reduced due to the existence of a partial defence. The two main partial defences are loss of self-control and diminished responsibility, both of which were reformed by the Coroners and Justice Act 2009 (CJA 2009).
3.1 Loss of Self-Control
This defence is found in sections 54 and 55 of the CJA 2009 and replaces the old common law defence of provocation. There are three components to the defence:
1. The defendant’s acts or omissions in doing or being a party to the killing resulted from a loss of self-control (s. 54(1)(a)). The loss of control does not need to be sudden, which is a change from the old law of provocation and may assist defendants in cases involving a ‘slow burn’ reaction, such as a victim of domestic abuse (*R v Ahluwalia* [1992]).
2. The loss of self-control had a qualifying trigger (s. 54(1)(b)). Section 55 specifies two triggers: fear of serious violence from the victim against the defendant or another identified person, or things said or done which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged. Sexual infidelity on its own is excluded as a qualifying trigger (s. 55(6)(c)), but its relevance in the wider context of events was considered in *R v Clinton, Parker & Evans* [2012].
3. A person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way (s. 54(1)(c)). This is an objective test, ensuring that the law does not excuse excessively violent or intolerant reactions.
3.2 Diminished Responsibility
This defence is contained in section 2 of the Homicide Act 1957, as amended by section 52 of the CJA 2009. The burden of proof is on the defendant to prove, on the balance of probabilities, that they are entitled to the defence. The four elements are:
1. The defendant was suffering from an abnormality of mental functioning.
2. The abnormality arose from a recognised medical condition. This could include conditions like schizophrenia, post-traumatic stress disorder, depression, or personality disorders.
3. The abnormality substantially impaired the defendant’s ability to do one of three things: (a) understand the nature of their conduct, (b) form a rational judgment, or (c) exercise self-control. The Supreme Court in *R v Golds* [2016] held that the impairment must be ‘weighty’ or ‘important’, something more than merely trivial.
4. The abnormality provides an explanation for the defendant’s acts and omissions in doing the killing. This requires a causal link between the mental abnormality and the act of killing.
4. Involuntary Manslaughter
Involuntary manslaughter covers unlawful killings where the defendant does not have the *mens rea* for murder. There are two main types: unlawful act manslaughter and gross negligence manslaughter.
4.1 Unlawful Act Manslaughter
Also known as constructive manslaughter, this offence is committed when the defendant kills someone in the course of committing an unlawful act. The test, confirmed in *Attorney-General’s Reference (No. 3 of 1994)* [1998], has four elements:
1. **An unlawful act:** The defendant must commit a criminal offence. An example would be an assault. A civil wrong is not sufficient (*R v Franklin* (1883)). An omission cannot form the basis of unlawful act manslaughter (*R v Lowe* [1973]). In *R v Lamb* [1967], there was no unlawful act as the victim did not fear any violence, so the D’s conviction was quashed.
2. **The act must be dangerous:** The test for dangerousness is objective. The unlawful act must be such that “all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm” (*R v Church* [1966]).
3. **The act must cause death:** The usual rules of factual and legal causation apply.
4. **Mens rea:** The defendant must have the *mens rea* for the unlawful act itself. They do not need to have intended or foreseen any harm, let alone death (*R v Newbury and Jones* [1977]).
4.2 Gross Negligence Manslaughter
This offence involves a killing caused by the defendant’s extreme carelessness or negligence. The leading authority is *R v Adomako* [1995], which established a four-part test for the jury:
1. **A duty of care:** The defendant must have owed the victim a duty of care. This duty can arise in various ways, such as from a contract, a professional relationship (e.g. doctor-patient), or by creating a dangerous situation and failing to remedy it (*R v Evans (Gemma)* [2009]).
2. **Breach of duty:** The defendant must have breached that duty of care by an act or omission.
3. **Causation:** The breach of duty must have caused (or significantly contributed to) the victim’s death.
4. **Gross negligence:** The breach must be considered ‘grossly’ negligent. This is the key element that makes the conduct criminal. The jury must consider whether, having regard to the risk of death involved, the defendant’s conduct was “so bad in all the circumstances as to amount in their judgment to a criminal act or omission” (*R v Adomako* [1995]).
5. Other Homicide Offences
While murder and manslaughter are the most common forms of homicide, other specific offences exist to address particular circumstances.
* **Infanticide:** The Infanticide Act 1938 creates a specific offence for a mother who kills her child under the age of 12 months, where at the time of the killing the balance of her mind was disturbed by reason of not having fully recovered from the effect of giving birth. It acts as a form of partial defence to murder (reducing it to manslaughter) and a standalone offence.
* **Causing or allowing the death of a child or vulnerable adult:** Section 5 of the Domestic Violence, Crime and Victims Act 2004 created this offence to tackle cases where a child or vulnerable adult dies from unlawful violence, but it is impossible to prove which member of the household was responsible for the fatal act.
6. Conclusion
The law of homicide in England and Wales is a complex, tiered system that seeks to categorise unlawful killings based on the defendant’s state of mind and the surrounding circumstances. Murder represents the most serious form of homicide, defined by an intention to kill or cause serious harm, and results in a mandatory life sentence. The partial defences of loss of self-control and diminished responsibility allow the law to show some leniency, reducing murder to voluntary manslaughter in circumstances of reduced culpability. Involuntary manslaughter, through its two forms—unlawful act and gross negligence—catches defendants who kill without the intention required for murder but whose conduct is still deemed criminally responsible. This layered approach demonstrates the law’s attempt to balance justice for victims with proportionate punishment for offenders, although areas such as the GBH rule for murder and the complexities of the partial defences remain subject to academic and judicial debate.
References
Cases
- Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245
- DPP v Smith [1961] AC 290
- R v Adomako [1995] 1 AC 171
- R v Ahluwalia [1992] 4 All ER 889
- R v Cheshire [1991] 1 WLR 844
- R v Church [1966] 1 QB 59
- R v Clinton, Parker & Evans [2012] EWCA Crim 2
- R v Cunningham [1982] AC 566
- R v Evans (Gemma) [2009] EWCA Crim 650
- R v Franklin (1883) 15 Cox CC 163
- R v Gibbins and Proctor (1918) 13 Cr App R 134
- R v Golds [2016] UKSC 61
- R v Lamb [1967] 2 QB 981
- R v Lowe [1973] QB 702
- R v Malcherek and Steel [1981] 1 WLR 690
- R v Newbury and Jones [1977] AC 500
- R v Smith [1959] 2 QB 35
- R v Vickers [1957] 2 QB 664
- R v White [1910] 2 KB 124
- R v Woollin [1999] 1 AC 82
Legislation
- Coroners and Justice Act 2009
- Domestic Violence, Crime and Victims Act 2004
- Homicide Act 1957
- Infanticide Act 1938
Books
- Coke, E. (1797) Institutes of the Laws of England, 3rd Part. E. and R. Brooke.
