Manslaughter

8 Key excerpts on "Manslaughter"

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  Criminal Law

  • (Author)
  • 2013(Publication Date)
  • Straightforward Publishing Digital

    (Publisher)

  3

  Unlawful killing

  Murder

  The distinction between murder and Manslaughter

  The most common definition of murder is ‘the killing of a human being with malice aforethought’. This basically means that a person intended to kill another; the killing was pre-meditated.

  Manslaughter can be either voluntary or involuntary. Voluntary Manslaughter arises where the definition of murder seems to have been satisfied but one of three defences can be pleaded. These are diminished responsibility, provocation and the survivor of a suicide pact. Involuntary Manslaughter occurs where there is no malice aforethought, no intention but a death occurs because of an involuntary act or an act of gross negligence. We will be discussing Manslaughter further on in the book.

  Murder and Manslaughter share the same actus reus which is the unlawful killing of a human being. The mens rea for murder and voluntary Manslaughter is killing with intent whilst the mens rea for involuntary Manslaughter will vary and will be explored later.

  Murder

  As we have seen, murder is a common law offence and not an offence laid down by statute. If convicted of murder the judge will impose a mandatory life sentence.

  The definition of murder

  The famous judge and former Lord Chief Justice of England, Coke, set out his early definition of murder. This is said to arise where:

  A man of sound memory and the age of discretion unlawfully killed within any county of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law, so that the party wounded or hurt etc die of the wound or hurt etc within a year and a day after the same.

  As with many areas of the law this early definition has changed over the years.

  Year and a day rule

  In 1996, the ‘year and a day’ rule was removed. This timescale had been set down in earlier times in order to determine whether death was caused by the act of murder or whether it was later illness or accident. As medical techniques have changed it has become easier to determine causes of death and there were calls for the abolition of the rule as no longer relevant.

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  Optimize Criminal Law

  • John Hendy, Odette Hutchinson(Authors)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  There are three special partial defences to a charge of murder. If these defences are successfully run they reduce the charge of murder to voluntary Manslaughter. This reduction in charge enables the judge to exercise discretion in sentencing. These special partial defences are: loss of self-control; diminished responsibility; and suicide pact. These defences are only applicable to a charge of murder. Manslaughter is another form of unlawful killing. Like homicide it is a general term. There are two species of Manslaughter: voluntary Manslaughter as described above; and involuntary Manslaughter. What distinguishes these offences is the presence of malice aforethought for voluntary Manslaughter and its absence for involuntary Manslaughter. In circumstances where an unlawful killing has taken place and the defendant does not have the requisite mens rea for murder an alternative charge would be involuntary Manslaughter. There are three forms of involuntary Manslaughter: constructive Manslaughter, also known as unlawful act Manslaughter; Manslaughter by gross negligence; and reckless Manslaughter. Unlawful act Manslaughter requires: an unlawful act (not an omission); the act must be a crime; the act must be the cause of the victim’s death; the elements of the base level offence must be made out; the mens rea for this offence is the mens rea for the base offence. Gross negligence Manslaughter: the defendant must owe the victim a duty of care; there must be a breach of the duty of care; the breach must cause the victim’s death; the negligence must be gross.

  Table of key cases referred to in this chapter

  Key case	Brief facts	Principle
  R v Jordan [1956] 40 Cr App R 152	V was stabbed, but died from the treatment and not from the stab wound	Causation and intervening acts
  A (Children) (Conjoined Twins) [2001] 2 WLR 480	Conjoined twins, one of whom would not survive separation, but was having a detrimental effect on the other twin	Human being and necessity

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  Beginning Criminal Law

  • Claudia Carr, Maureen Johnson(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Chapter 4 Murder and involuntary Manslaughter

  Learning Objectives

  By the end of the chapter you should be able to:

  • Understand the common law definition of murder
  • Be able to demonstrate a thorough understanding of the elements of the actus reus of murder
  • Understand the offence of unlawful act Manslaughter and be able to clearly explain the elements
  • Demonstrate an understanding of gross negligence Manslaughter and its component parts

  Introduction

  Text books often refer to the term ‘homicide’. This simply refers to the killing of another person but it is a term that covers killings that are both lawful (self defence can justify a killing where reasonable force is used) and unlawful. Unlawful killing can refer to a range of offences, from murder (the most serious) to less serious offences, such as Manslaughter. In turn, Manslaughter can be described as voluntary or involuntary as the diagram below shows.

  Figure 4.1 Diagram showing lawful and unlawful killing

  Involuntary Manslaughter includes unlawful act Manslaughter and gross negligence Manslaughter, whilst reckless and corporate Manslaughter are newer offences.

  Figure 4.2 Diagram showing breakdown of involuntary Manslaughter

  The Offence of Murder

  Murder is probably the most serious offence in the criminal justice system and, unusually, a common law offence. Its seriousness is reflected in sentencing as conviction will result in a mandatory life sentence. The sentencing judge will also set a ‘tariff’ – the minimum number of years the defendant will serve before he is eligible for parole. In contrast, with Manslaughter the life sentence is discretionary. Of course, the defendant may be sentenced to life, but the judge has a wider range of sentences at his disposal.

  Murder → common law offence → mandatory life sentence on conviction. Manslaughter → common law offence → discretionary sentencing on conviction.

  The mens rea of murder

  The mens rea of murder as defined by Coke is ‘malice aforethought’. This is misleading as neither ‘malice’ nor ‘aforethought’ is required. The case of Vickers [1957] 2 QB 664 confirms that the accepted modern day definition of mens rea is the intention to kill or cause grievous bodily harm. Intention is proved by the application of the test of ‘virtual certainty’ as established in the cases of Nedrick and Woollin (see Chapter 3

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  Fine Lines and Distinctions

  Murder, Manslaughter and the UnLawful Taking of Human Life

  • Morris, Terrence, Blom-Cooper, Louis(Authors)
  • 2011(Publication Date)
  • Waterside Press

    (Publisher)

  The mechanistically repetitive statement that murder, no matter the circumstances of the criminal event, is the most heinous of all crimes, and that it must be sharply distinguished from all other forms of unlawful homicide, is thoroughly discredited. Given the variables in homicidal events and the moral opprobrium attaching to any one individual killer, there is no need in contemporary society to label unlawful killings other than by the rubric of a single crime. This chapter seeks to demonstrate both the variable nature of homicides and the moral responsibility for each case.

  The traditional (or old) definition of the offence of murder was unlawful killing, with malice aforethought, resulting in the death of the victim within a year and a day (a time-limit that no longer applies). In modern times, the emphasis has invariably focused on the state of mind of the accused (the malice aforethought). It is a common misapprehension among non-lawyers that a person can be convicted of murder only if it is proved that the accused intended to kill; in fact only a minority of people convicted of murder possess that extreme intent. It is sufficient for the prosecution to prove an intention to cause really serious injury. If death ensues, however unexpected, unpremeditated, or lacking in intention to kill, the offence of murder is made out, and the mandatory sentence of life imprisonment must follow. It is thus possible to commit a murder not only without wishing the death of the victim but also without the least thought that this might be the result of the assault. Few people would think that this represents a notion of justice.

  By contrast, where the accused is charged only with an attempt to murder, it is necessary for the prosecution to prove a specific intent to kill; an intention to cause serious injury will not suffice. The case of Dr Nigel Cox points up the absurd illogicality of the law. Dr Cox was tried and found guilty of the attempted murder of a terminally-ill patient by giving her a an injection which had lethal consequences, for which offence he received a 12-month suspended sentence. Had the prosecution been for murder, it would have been necessary only to show that he intended to cause her serious harm.6

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  Course Notes: Criminal Law

  • Lisa Cherkassky(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  hapter 8

  Homicide

  The most serious criminal offence is murder. This chapter will examine the criminal offence of murder and the components that make up that crime. It will also explore the special defences to murder, including diminished responsibility, loss of control and involuntary Manslaughter.

  8.1 Murder Definition

  Murder: the unlawful killing of a human being with malice aforethought.

  • There are several different components to murder, all listed below:

  8.1.1 The Actus Reus of Murder

  • The victim of murder cannot be a foetus – there are other offences for that purpose under the Offences Against the Person Act 1861.
  • A baby must be fully expelled from the mother to be a human being in law – Poulton (1832).
  • A baby must also have a separate existence from its mother – Enoch (1833).
  • If a baby is stabbed during pregnancy and dies after birth, this is not murder but may be unlawful act Manslaughter – Attorney-General’s Reference (No. 3 of 1994) (1997).
  • A dead person cannot be the victim of murder, even if the defendant believes him to be alive.
  • Switching a life support machine off is not the actus reus of murder; the operating cause of death (e.g. the stab wound) will be – Malcherek and Steel

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  Criminal Law

  • Jacqueline Martin(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  10 Homicide

  Homicide is the unlawful killing of a human being. There are different offences depending on the mens rea of the defendant and whether there is a special defence available to the defendant.

    10.1  

  Actus reus of homicide

  1     This is the killing of a human being (reasonable creature in being).

  •   A homicide offence cannot be charged in respect of the killing of a foetus. However, if the foetus is injured and the child is born alive but dies afterwards as a result of the injuries this can be the actus reus for murder or Manslaughter (

  Attorney-General’s Reference (No 3 of 1994) (1997)

  ).

  •   A person who is ‘brain dead’ is not considered a ‘reasonable creature in being’. This is important as it allows doctors to switch off life-support machines without being liable for homicide (Malcherek and Steel (1981)).

  •   In Airedale NHS Trust v Bland (1993) there were obiter dicta statements that brain-stem death was the test. Doctors were allowed to withdraw all artificial means (including feeding by tubes) of keeping the victim alive.

  2     The death must be caused by the defendant’s act or omission (see 2.4 for the rules on causation).

  3     There used to be a rule that death must have occurred within a year and a day, but this was abolished by the Law Reform (Year and a Day Rule) Act 1996.

  4     There is now no time limit on when the death may occur after the unlawful act, but, where it is more than three years later, the consent of the Attorney-General is needed for the prosecution.

    10.2  Murder

  1     There is no statutory definition of murder.

  2     The accepted definition is based on that in Lord Coke’s Institutes. This is that murder is ‘unlawfully killing a reasonable person who is in being and under the King’s Peace with malice aforethought, express or implied’.

  3

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  Clinical Responsibility

  • Jane Lynch, Senthill Nachimuthu(Authors)
  • 2018(Publication Date)
  • CRC Press

    (Publisher)

  This is the absence of the guilty mind or guilty act. This could be, for example, the unintentional taking of the medication that had accidentally fallen into the health professional’s handbag. There would be no guilty mind, as the health professional did not deliberately intend to steal the medication.

  Insanity

  At the time the offence was committed the accused was insane. The definition of insanity as a defence is laid down by the McNaughten Rules 1843.3

  • That every man is sane and possesses a sufficient degree of reason to be responsible for his crimes, until the contrary can be proved.
  • To establish a defence on the grounds of insanity, it must be proved that at the time of committing the act, the person was labouring under such a defect of reason, from disease of the mind, as to not know the nature of the act he was doing, or if he did know, he did not know what he was doing was wrong.

  Diminished responsibility

  The Homicide Act 19574 introduced ‘diminished responsibility’ as a defence in cases of unlawful killing, which would normally invoke the mandatory life sentence for murder (at the time there was also the death penalty). It only applies to the offence of unlawful killing. It allows for a defendant to be convicted of Manslaughter instead of murder by virtue of his diminished responsibility.

  If he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or reduced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being the party to the killing.5

  Mistake

  There is a general rule that ignorance of the criminal law is no defence, even if the ignorance is reasonable in the circumstances. However, a mistake of fact may provide a defence to a criminal charge as the accused may not have the necessary mens rea

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  Loss of Control and Diminished Responsibility

  Domestic, Comparative and International Perspectives

  • Alan Reed, Michael Bohlander, Michael Bohlander(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  Not only did this cause real concern for the parties to individual cases, but it also raised fears of a ‘jury lottery’ – the inevitable inconsistency that must have occurred through different juries reaching different verdicts. It is perhaps worth noting at this point that the author’s own empirical research revealed occasions when it seems that the courts occasionally returned verdicts of Manslaughter based on provocation even though the evidence disclosed little or no sign of a loss of self-control. 24 24 See Barry Mitchell, ‘Distinguishing between Murder and Manslaughter in Practice’ (2007) 71 Journal of Criminal Law 318–41. Furthermore, as the Law Commission acknowledged in their 2006 report, cases sometimes reveal a mixture of motives, of which revenge is only one. In Baillie, 25 for example, the victim was a drug dealer who had supplied drugs to the defendant’s three sons. The defendant discovered that one son intended to get his drugs from a different dealer, that the victim had learned this, and that in consequence all three sons were ‘going to get a slap’. One son told the defendant, in tears, that the victim had threatened him. So the defendant armed himself with a sawn-off shotgun and a cut-throat razor, confronted the victim, cut him and shot at him. On the one hand, this could be construed as a case of revenge, but on the other hand, the defendant’s actions could be construed as preventing further crime by the victim drug-dealer. Making the considered-revenge-versus-bonafide-provocation distinction is not necessarily as straightforward as it initially seems. Predictably, therefore, commentators have criticised the law’s use of the loss of self-control requirement. ‘It is an imperfect tool for distinguishing between revenge killings of a premeditated or calculated nature from killings committed in the heat of the moment.’ 26 Similarly, the Law Commission described it as ‘a judicially invented concept, lacking sharpness or a clear foundation in psychology

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