The Learning & Resource Section

The Law of Murder

The Law of Murder

Murder is the unlawful killing of a human being. The actus reus of murder consists of the unlawful killing of a human being in the Queen's peace while the mens rea of murder is malice aforethought which means the intention to kill or cause grievous bodily harm. Being convicted for murder holds a mandatory life sentence. There is no real way out of a mandatory life sentence, however, there are partial defences that may reduce the conviction to voluntary manslaughter. These partial defences are diminished responsibility, provocation or loss of control and suicide pact which are stated in the Homicide Act 1957.

Actus reus of Murder:

1. The unlawful killing by an act or an omission

2. The second element requires that the victim is a human being

3. Must be in the Queen's Peace which excludes the killing of enemies in a time of war

Mens rea of Murder:

The mens rea of murder is malice aforethought. Malice aforethought has been interpreted as the intention to kill and intention to cause grievous bodily harm. The mens rea of murder also covers both direct and oblique intent. ( R v Woollin)

R v Woollin [1999]
R v Woollin [1999]
The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. The trial judge directed the jury tha


Voluntary Manslaughter:

Voluntary manslaughter is the where the Defendant does have the intention to kill or cause grievous bodily harm. The Defendant has the necessary mens rea for murder but has a partial defence that enables them to get a reduced sentence. Criminal liability will thus be reduced from murder to manslaughter. The partial defences are diminished responsibility, loss of control and suicide pact.

à The Defence of Diminished Responsibility:

This is one of the three defences for the offence of murder. It is contained in section 2 of the Homicide Act of 1957 as amended by section 52 of the Coroners and Justice Act of 2009. When the defence of diminished responsibility is successful, its effect is reducing a murder to a manslaughter conviction instead. Rather than absolving the defendant from liability as a whole, reducing the conviction to manslaughter only reduces criminal liability but still holds the defendant responsible. In order to rely on this as a defence, the defendant must prove the following:

1. An abnormality of mental functioning caused by a recognised medical condition

2. That provides an explanation for the defendant's actions or omissions

3. Which substantially impaired their mental ability to

a. Understand the nature of their conduct

b. Form a rational judgment

c. Exercise self-control

à The Defence of Loss of Control:

The second defence to Murder was introduced through section 54 of the Coroners and Justice Act of 2009 which came into force in October of 2010. Like the defence of diminished responsibility, it is a partial defence that may reduce liability for murder to manslaughter. Again, it does not absolve liability completely but reduces criminal liability. Before this was introduced, provocation was the general defence. Provocation was not being interpreted and applied properly or fairly. It held that there was a gender bias in that it was too favourable for those that killed out of temper (generally a male defendant) and did not provide to those who killed out of fear of violence (generally a women who was going through domestic violence.) Now, the defence of loss of control, even though it is very similar in scope, it is more restrictive in its application.

Section 54 of the Coroners and Justice Act 2009 states,

"A person who kills or was party to a killing may be convicted of manslaughter rather than murder where there exists:

(a) a loss of self-control,

(b) the loss of self-control had a qualifying trigger, and

(c) a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of defendant, might have reacted in the same or in a similar way to the defendant."

Further, under s.54(5), if there is sufficient evidence, the jury must assume that the defence is satisfied unless the prosecution can prove otherwise beyond a reasonable doubt that it is not.

Involuntary Manslaughter:

In this case, a defendant does not have the necessary mens rea for murder because they killed someone, but did not intent to kill or cause grievous bodily harm. They intended to cause a lesser harm. When involuntary manslaughter is invoked, the defendant is liable under one of the following:

1. Constructive Manslaughter

2. Gross Negligence

3. Subjective Recklessness

à Constructive Manslaughter:

Constructive manslaughter is a form of involuntary manslaughter as the unlawful killing has taken place where the defendant lacks the mens rea of murder. Constructive manslaughter can be categorised into two different types; either when the defendant commits an unlawful dangerous act resulting in death or where the defendant commits a lawful act that results in death that can amount to gross negligence manslaughter.

There are three elements to the offence of constructive manslaughter:

1. There must be an unlawful act

2. The unlawful act must be dangerous

3. The unlawful dangerous act must have caused death

à Gross Negligence Manslaughter:

This is another form of involuntary manslaughter where the defendant is supposedly acting lawfully. Constructive manslaughter is where a defendant commits an unlawful act that results in death while gross negligence manslaughter applies where the defendant committed a lawful act that rendered the actions as criminal. In Adamako, the following test was laid down to determine if the crime can be rendered as gross negligence manslaughter:

1. The Defendant owed the victim a duty of care

2. The Defendant breached that duty

3. That breach of duty caused death

4. The negligence must be gross negligence

5. The jury must consider all the circumstances and the risk of death involved

à Subjective Reckless Manslaughter:

This type of involuntary manslaughter is where the defendant falls short of the test of oblique intent. A subjective test is applied because the defendant is guilty if at the time of the act, he intended to cause death or serious injury. This type of manslaughter offence is hardly ever invoked.

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