Homicide

The word ‘homicide’ is used as a generic term for any unlawful killing. However, there is currently no such
offence as ‘homicide’ in English law. A defendant, if found guilty of killing someone unlawfully, is not
convicted of ‘homicide’ but of one of a number of offences, mainly:
1. Murder
2. Manslaughter

1. Murder is the “unlawful killing of a human being with malice aforethought”. There are usually three key
components to securing a conviction for murder (the legal test):
1. Actus reus (guilty conduct).
a. Was the victim a person?
b. Did the defendant cause the death?
i. Establish causation in fact.
The “but for test” i.e. but for the defendant’s conduct, would the victim’s death have occurred in the way
that it did?. Thus, the defendant’s act must be a substantial/significant cause of the victim’s death. In R v
White [1910] 2 KB 124, the defendant poisoned his mother’s drink intending to kill her. She suffered a
fatal heart attack after drinking a small amount of the liquid. Medical evidence confirmed that her death
occurred from heart failure unconnected to the poisoned drink. The defendant was not liable for causing
the death – his actions were not a substantial or significant cause of death – they did not contribute to her
death so he had not caused it.
ii. Establish causation in law.
The general rule of causation is that the defendant is liable for the foreseeable consequences of his
actions.Legal causation is a policy-driven notion which is based on culpability, responsibility and
foreseeability to ensure that the most blameworthy actor is the one who is criminally liable when there are
a range of different factors that contribute to the outcome.
- In R V Pagett (1983), the defendant used his pregnant girlfriend as a shield to escape from the
police. Shots were exchanged and the girl died. Although the defendant did not fire the shot that
killed the victim, he was held to be the legal cause of her injuries as he set in motion the chain of
events that led to her death. It was foreseeable that the police would return fire. He was the most
blameworthy.
- In R v Cheshire (1991) a man shot another. The victim was taken to hospital. The doctors inserted a
tracheostomy tube and the victim improved over the next four weeks but died soon after. It was
accepted that the original injuries were no longer life-threatening and the victim would not have
died had he received appropriate care following the tracheotomy. However, the need for the
tracheotomy flowed form the defendant’s original act, thus he remainde liable for murder.
- In R v Jordan (1956) Jordan stabbed a man. The victim died 8 days later. The defendant released
various defences including provocation, self-defence and accident. The evidence showed that the
medical treatment was inappropriate. The victim was intolerant to terramycin which was noticed and
initially stopped before being continued the following day by another doctor. D found not guilty.
iii. Is there a novus actus interveniens?
Extremely unexpected events may break the chain of causation which takes over as the cause of death.
The chain of causation will be broken only if the victim’s actions are “so daft” as to be unforeseeable (see
R v Jordan (1956).
- In R v Roberts (1972) the defendant interfered with the victim’s clothing whilst she was a passenger
in his car. She jumped from the moving vehicle. The defendant denied causing the injuries. It was
foreseeable that the victim would attempt to escape.
c. Was the death unlawful?
2. Mens rea (a guilty mind).
a. Did the defendant intend to kill or cause grievous bodily harm (GBH)?
i. Did the defendant have direct intent?
Direct intent is defined as situations where the defendant’s primary purpose was to
bring about a particular consequence, he intended that consequence (no matter how
unlikely to succeed).
ii. Did the Defendant have oblique or indirect intent?
It is clear, then, in cases involving indirect intent, that jurors will have to consider
what the defendant foresaw at the time of his act (or omission).
 In the absence of a clear confession, however, how can the jury know what the
defendant himself did actually foresee at the time of his act (or omission)? Section 8
of the Criminal Justice Act 1967 provides that where what the defendant foresaw has
to be proved:
1. the test is what he himself foresaw, not what a reasonable person would have
foreseen; but
2. what a reasonable person would have foreseen is a good indication (which a
jury can take into account) in deciding what the defendant did foresee.
Case law under R v Woollin [1999] has confirmed this test.

3. Absence of a valid defence (see manslaughter below).

a. Diminished responsibility
b. Provocation
c. Suicide pacts (not relevant for this task)

Manslaughter
Note that there are two big categories of manslaughter:
- Voluntary manslaughter, and
- Involuntary manslaughter.

2 Voluntary Manslaughter
Usually, if the actus reus and mens rea of murder are established, the defendant will be convicted; but the law
has recognised the offence of voluntary manslaughter under three special reasons:
a. diminished responsibility;
b. loss of control; and
c. suicide pact (not relevant for this task).
It is important to note that:
a. These three reasons are known as partial defences because, even if successful, the accused is still liable
for a criminal offence (voluntary manslaughter).
b. They only apply to murder.
c. They only give discretion to the court to decide a “lighter” sentence to life sentence.

2.1. Diminished responsibility:

The defendant was suffering from a recognised medical condition which, whilst it does not give him the legal
defence of insanity, does provide him with a partial excuse for doing what he did. The burden of proof on the
defence is only ‘on a balance of probabilities’. The defendant has to show it is more likely than not (51%) that
he was suffering from diminished responsibility. The defence as outlined in the Homicide Act 1957 is:
1. A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D
was suffering from an abnormality of mental functioning which —
a. arose from a recognised medical condition,
b. substantially impaired D’s ability to do one or more of the things mentioned in subsection
(1A), and
c. provides an explanation for D’s acts and omissions in doing or being a party to the killing.
(1A) Those things are —
a. to understand the nature of D’s conduct;
b. to form a rational judgement;
c. to exercise self-control.
(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an
explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out
that conduct. We will ask you to analyse the elements of the defence in the next activit
Regarding diminished responsibility, the courts have established that:
1. The judge is entitled to refuse to the jury to hear evidence of the current mental state of the defendant
as it would not materially assist them in taking a decision.
2. Substantial impairment to the defendant’s ability to take responsibility in the context of diminished
responsibility under s. 2(1)(b) Homicide Act 1957 cannot be established simply by virtue of
impairment being more than trivial or minimal. The judges have refused to provide a further
explanation of the term ‘substantial’ on the basis that its meaning is obvious. Following R v Simcox,
Times, February 25, 1964, if asked for further help, the judges have to direct the jury that it is possible
to find that an impairment had a modest impact that was more than minimal or trivial, but cannot be
described as substantial.

2.2. Loss of control:

The law is accepting, in effect, that sometimes people lose their self-control.
1. Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of
murder if —
a. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of
self-control,
b. the loss of self-control had a qualifying trigger (see below), and
c. a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the
circumstances of D, might have reacted in the same or in a similar way to D.
2. For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
3. In subsection (1)(c) the reference to ‘the circumstances of D’ is a reference to all of D’s circumstances
other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for
tolerance or self-restraint.
4. Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire
for revenge….

2.2.1 Meaning of ‘qualifying trigger’

1. This subsection applies if D’s loss of self-control was attributable to D’s fear of serious
violence from V against D or another identified person.
2. This subsection applies if D’s loss of self-control was attributable to a thing or things done or
said (or both) which —
a. constituted circumstances of an extremely grave character, and
b. caused D to have a justifiable sense of being seriously wronged.
3. This subsection applies if D’s loss of self-control was attributable to a combination of the
matters mentioned in subsections (1) and (2).
4. In determining whether a loss of self-control had a qualifying trigger —
a. D’s fear of serious violence is to be disregarded to the extent that it was caused by a
thing which D incited to be done or said for the purpose of providing an excuse to use
violence;
b. a sense of being seriously wronged by a thing done or said is not justifiable if D
incited the thing to be done or said for the purpose of providing an excuse to use
violence;
c. the fact that a thing done or said constituted sexual infi delity is to be disregarded.

2.2.2. Exceptions:
One of the aims of the defence was to ensure that it would not be available in certain situations in
which the defendant had lost control and killed:
1. D incited the things said or done that caused him to fear serious violence as an excuse to use
violence.
2. D incited the words/conduct that cause his sense of being seriously wrong as an excuse to use
violence.
 3. The thing sair or done that cause D to lose control was sexual infidelity.

3. Involuntary manslaughter
There are four main sorts of involuntary manslaughter. We will only deal with the first two, i.e. constructive
manslaughter (AKA unlawful and dangerous act manslaughter) and manslaughter by gross negligence.

3.1. Constructive Manslaughter

For constructive manslaughter the
defendant must:
a. do an unlawful act;
b. which is dangerous; and
c. which causes the victim’s
death.

The first two elements will be

considered below. The third element is
purely the issue of causation which we
studied at para 1.b above. If the
defendant did not cause the death, in
the legal sense, he is not liable for
murder or manslaughter (although he
may be liable for another criminal
offence, for example an assault.
3.1.1. The Unlawful Act
This means that the defendant must have committed a crime requiring proof of intention or
recklessness. Crimes of negligence will not suffice for constructive manslaughter (eg careless driving).
So it follows that if there is no unlawful act, the defendant cannot possibly be guilty of constructive
manslaughter (R v Lamb [1967] 2 QB 981). Commonly the unlawful act will be an assault, although
any offence requiring proof of intention or recklessness will do. In the case of DPP v Newbury and
Jones [1977] AC 500, the defendants pushed a paving stone over a bridge into the path of a train. It
smashed through a window of the train, killing the guard. The defendants were convicted of
manslaughter and appealed. The unlawful act here was never clearly established but could have been
criminal damage. The Court of Appeal said the issue was whether there was an unlawful act – the
defendant did not need to intend or foresee the risk of frightening or harming anyone. So the unlawful
act could be, for example, criminal damage, burglary or theft, and need not be an assault.

There must be an unlawful act, so it follows that a failure to act cannot give rise to a charge of
constructive manslaughter. Sometimes there is criminal liability for failing to act; this is not the case
for the offence of constructive manslaughter. The defendant must have committed a positive act for the
unlawful act element of the offence to be established. So in the case of R v Lowe [1973] QB 702, the
defendant was convicted of constructive manslaughter of a child based on the evidence that the
defendant had neglected the child causing death. The Court of Appeal quashed the defendant’s
conviction as no unlawful act had been committed.

3.1.2 The Unlawful Act Must be Dangerous

Note that you do not have to read these cases for this task. However, case law is fundamental to any
case. The relevant cases here include R v Church [1966] 1 QB 59, DPP v Newbury [1977] AC 500, R
v Dawson (1985) 81 Cr App R 150, and R v Watson [1989] 1 WLR 684.
1. ‘Dangerous’ means that the act carries the risk of some harm to some person, albeit not
serious harm.
 2. The test is entirely objective. It is whether all sober and reasonable people would think the
act was dangerous. Whether the defendant did or not is irrelevant.
3. The knowledge given to the sober reasonable person is that which he would have gained if
he had been present at the scene of the crime and watched the whole act being performed.

3.2. Manslaughter by gross negligence

We have seen earlier that a person can be charged with murder or constructive manslaughter only in
circumstances where he had a criminal state of mind: intention to cause death or grievous bodily harm is
needed for murder; and at least recklessness is needed for constructive manslaughter. We have also seen that an
act is required for constructive manslaughter: an omission to act will not suffice.

Following the cases of R v Bateman and Andrews v DPP as well as subsequent case law, it can be said that
manslaughter by gross negligence can be established if all of the following elements are present:
a. A duty of care owed by the defendant to the victim. In R v Willoughby [2004] EWCA Crim 3365, the
Court of Appeal stated that whether a duty of care exists is usually a matter for the jury once the judge
has decided that there is evidence capable of establishing a duty. However, in some circumstances where
there is a clear duty (eg doctor to patient, or a statutory duty), the judge could direct the jury that a duty
of care did exist.
b. A breach of that duty of care.
c. A risk that the defendant’s conduct could cause death. In R v Singh [1999] Crim LR 582, the trial judge
directed the jury that, in order to establish a charge of manslaughter by gross negligence, ‘the
circumstances must be such that a reasonably prudent person would have foreseen a serious and
obvious risk not merely of injury or even of serious injury but of death’, and this was not criticised on the
defendant’s appeal against conviction by the Court of Appeal.
d. Evidence that the breach of duty did cause the death of the victim.
e. A jury’s conclusion that the defendant fell so far below the standards of the reasonable person in that
situation that he can be labelled grossly negligent and deserving of criminal punishment.

It is clear from the judgement in the cases mentioned above that the defendant that satisfies these conditions is
to be punished for gross negligence: it need not be proved that he had any ‘criminal’ state of mind, ie intention
or recklessness. These decisions confirm that liability for a charge of homicide can be incurred through the
defendant’s omission to act (if there is a duty to act) as well as through positive steps taken by the defendant.

HOMICIDE – FLOWCHART
To see how Murder, Manslaughter etc. fit together