The understanding and application of the laws relating to murder and manslaughter

Kathy cooper

The understanding and application of the Laws relating to murder Voluntary Manslaughter and Unlawful Act Manslaughter.

Having taken drugs prescribed by her doctor, Ann went to a bar with a crowd of her friends. Standing close by was another group, including Ben, who was behaving aggressively. Ann, who by this time had drunk half a bottle of wine, suddenly kicked Ben in the groin and then punched him in the face whilst she was holding a glass. The glass broke and cut Ben so badly that he lost the sight in one eye. Later, Ann insisted that she thought that Ben was about to attack her and that she had forgotten that she was holding the glass.

In the confusion that followed, Ben’s friend, Charles, became enraged and chased one of Ann’s friends, Derek, out of the bar and down to the river. Derek was very frightened and threw himself into the river to escape. Charles, still shouting and waving his arms about, walked away after seeing Derek struggling, but apparently failing, to keep his head above water. In fact, Derek could not swim and drowned shortly afterwards.

Murder is a common-law offence and according to the Homicide Act 1957 has the mandatory life sentence of 25 years; the classic definition of murder is that of coke:

‘Murder is when a man of sound memory, and of the age of discretion, unlawfully killed within any country of the the realm and reasonable creature in rerum natura under the kings peace, with malice aforethought, either expressed by the party or implied by law, {so as the party wounded, or hurt, etc die of the wound or hurt, etc within a year and a day after the same}’

‘A man of sound memory and of the age of discretion’ means simply a person who is responsible according to the general principles which have been discussed above. Such the person is over the age of nine. If the act was done before 30th September 1998 and he was then under 14, he had a ‘mischievous discretion’. He is not insane within the M’Naghten Rules. Since 1957, he does not suffer from diminished responsibility. A corporation cannot be tried for murder because it cannot suffer the only penalty allowed by law, life imprisonment.

The actus Reus of killing can be by an act or omission, but in must cause the death of the victim. Usually in murder cases, the actus reus is an act. But failure to act can make a person liable for an offence.

This applies to murder, as seen by the case of Gibbons and Proctor (1918) Where the father of a seven year old girl and his mistress kept the girl separate from the fathers other children and deliberately starved her to death. The father had a duty to feed her because he was her parent and the mistress was held to have undertaken to look after the children, including the girl, so she had a duty to feed her. The omission and failure to feed her was deliberate with the intention of killing or causing serious harm to her. In this ...

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Mens rea means a guilty mind and refers to the state of mind of the accused at the time the actus reas is committed. Mens rea and actus reas must exist at the same time for a person to be committed of murder.

Each offence has its own level of mens rea. To be guilty, the defendant must have at least the minimum level, the highest being Intention; this is also referred to as specific intention. Other main types are recklessness and negligence.

The mens rea for murder is stated as being ‘malice’ aforethought, express or implied’. This means that there are two different intentions, either of which can be used to prove the defendant guilty of murder;

. Express malice aforethought, which is the intention to kill any person or;

. Implied malice aforethought, which is the intention to cause grievous bodily harm. A defendant has the mens rea for murder if he has either of these intentions. This means that a person can be guilty of murder even through they did not intend to kill. This was decided in Vickers (1957)

In 1960 in the case of DPP v Smith the House of Lords laid down a largely objective test of liability in murder-the test was

‘Not what the defendant contemplated, but what the ordinary reasonable man or women would in all the circumstances of the case have contemplated as the natural and probable result’

Liability for most crimes is based on the performance of an act, but it may also be based on a failure to act — an omission. There is no general liability for omissions, for example watching a Derek drowning and doing nothing to save him. In reference to the Miller principle. Although there may be a strong moral duty to act in such circumstances, there is generally no legal obligation to do so. However, because of the presence of duty situations in English law, it is possible to be criminally liable for a failure to act in certain defined circumstances.

R v Gibbons and Proctor (1918), Voluntary assumption of a duty if someone voluntarily takes on responsibility for another person, he or she also assumes the positive duty to act for the general welfare of that person and may be liable for omissions that prove fatal.

Duty arising from dangerous prior conduct If Charles created a situation that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger. R v Miller (1983

Intervening acts

In deciding the thin skull rule, the defendant must also take the victim as he finds him. This is known as the thin skull rule, \it means that if the victim has something unusual about his physical or mental state which makes an injury ore serious, and then the defendant is liable for the more serious injury. An example of the case of Blaue (1975)

Within Intervening acts, there must be a direct link from Charles conduct to the consequence. This is known as the chain of causation. In some situations something else happens after the defendants act or omission and if this is sufficiently separate from the defendant conduct, it may break the chain of causation. However if the victims reaction is unreasonable, then this may break the chain of causation. Where the threats to Derek are serious, then it is more likely for it to be reasonable for him to jump into the river.

In deciding whether the Charles intended death or grievous bodily harm, the jury must consider evidence of provocation with all other relevant evidence. If they are not satisfied that he had the necessary mens rea, they must acquit. But even if they decided he did have mens rea, provocation may still be a defense to a charge of murder at common law, entitling Charles to be convicted of manslaughter. The common law was stated by Devlin J in what the court of criminal appeal described as a ‘classical direction’ as follows;

‘ Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in an reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.’

The defense of provocation is now set out in s 3 of the homicide Act 1957 which states;

‘Where, on a charge of murder, there is evidence on which the jury can find that the person charged was provoked (whether by things said or done or by both together) to lose his self control, the question whoever the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury”

This can impose a two stage test for the jury to apply;

A subjective test- did the defendant lose his self control?
An objective test-would a reasonable man have lost his self-control? Church(1966)

At common law, all unlawful homicides which are not murder are manslaughter. The two main groups which are designated ‘voluntary’ and ‘involuntary’ manslaughter. The distinction is that voluntary manslaughter Charles may have the malice aforethought of murder, but the presence of some defined mitigating circumstances reduces his crime to be less serious grade of criminal homicide. Where these circumstances are present, then

Charles may actually intend to kill and do so in pursuance of that intention and yet not be guilty of murder.

At common law, voluntary manslaughter occurred in one case only, where the killing was done under provocation. But now two further categories must be added. Under the homicide act 1957, killing is now manslaughter and not murder, not without the presence of malice aforethought.

Unlawful Act manslaughter

1. The defendant must do an unlawful act

2. The act must be dangerous on an objective test

3. The act must cause death

4. The d must have the required mens rea for the unlawful act.

The Defendant must have mens rea for the unlawful act but it is not necessary to prove that the D foresaw any harm from his act. Newbury and Jones (1976)

This is also know as constructive manslaughter because the liability for the death is built up or constructed from that facts that the defendant has done a dangerous unlawful act which caused the death, Lamb (1967), This makes Charles liable even through he did not realize that death or injury might accrue. Franklin (1883)

Malice aforethought can be proven, already when an intention to cause grievous bodily harm to Derek by chasing him out of the bar, which sets off a chain of advents leading him to cause the victim serious interference with his health and safety.

According to Lord Denning;

‘The criminal act must be identified and then proved, including of course the appropriate mens rea. The accused must do a dangerous act with the intention of frightening or harming someone, or with realization that it is likely to frighten or harm someone. With this the act which is intended to frighten Derek is not always necessarily a dangerous act and if it is, requires to be questioned by the objective test.’

Fright, shock and harm are now acknowledged to be actual bodily harm. But it would be hard to prove that the risk of such harm would inevitably be recognized by all sober and reasonable people, especially as the law requires expert evidence to prove it. If the opinion of the court finds that the act was likely to cause death or serious injury and therefore was certainly ‘dangerous.

The court may assume without deciding that in the context of manslaughter ‘harm’ includes injury to the person through the operation of shock emanating from fright. So it seems that it’s not enough that the act is likely to frighten. It must likely to cause such shock as to result in injury.

It must be also proved that Charles, by his own act or unlawful omission, caused death.

Under the rule of homicide act, where on a charge of murder there is evidence on which the jury can find that Charles was provoked due to the attack on his friend which made him enraged with anger to loose self-control. Although the question whether the provocation was enough to make a ‘reasonable’ man do as he did shall take into account everything both done and said according to the affect which, in their opinion, it would have on a reasonable man.

Bibliography

Jacqueline Martin, ‘Criminal Law for A2,’Hodder, London (2006).

Ashworth, A. (1995) Sentencing and Criminal Justice. 2ndedition. London: Butterworth’s

Dressler, J. (2001), Understanding Criminal Law (3rd ed.), New York: Lexis

Internet resources;